United States District Court, D. Oregon, Portland Division
Benjamin Tolkoff Natalie K. Wight U.S. Attorney's Office,
Attorneys for Plaintiff.
Ludwig Ludwig Runstein LLC, Attorney for Defendant.
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
Jason Paul Schaefer is charged with two counts of assault on
a federal officer in violation of 18 U.S.C. § 111(a) and
(b); one count of carrying and using a destructive device
during and in relation to a crime of violence in violation of
18 U.S.C. § 924(c)(1)(B)(ii); one count of using an
explosive to commit a federal felony in violation of 18
U.S.C. § 844(h)(1); and one count of carrying an
explosive during the commission of a federal felony in
violation of 18 U.S.C. § 844(h)(2). Mr. Schaefer has
seven pretrial motions pending. These include a motion to
suppress search related evidence ; a motion to suppress
defendant's statements ; a motion to dismiss first
superseding indictment count 7 for vagueness ; a motion
to dismiss the superseding indictment for vindictive
prosecution ; a motion for a Franks hearing
; and a motion to dismiss counts 1 and 2 . The Court
heard oral argument on November 20, 2018. After reviewing the
parties' briefs and accompanying exhibits, the Court
defers ruling on Mr. Schaefer's motion to suppress
statements until further argument is heard, and denies all
Schaefer made a series of online purchases from eBay between
March and September of 2017. On September 21, 2017, FBI
agents in Portland learned of these purchases. Included among
these purchases were a number of chemicals that agents
determined could be used to make explosives.
October 10, 2017, agents obtained a search warrant for Mr.
Schaefer's apartment. In the request for this warrant,
agents relied in part on information provided by eBay. This
information was originally volunteered and subsequently
produced in response to a grand jury subpoena. On October 11,
2017, law enforcement officers-from the FBI, Washington
County Sheriff's Office, Portland Police Bureau, Oregon
State Police, and other agencies-executed this warrant.
law enforcement executed the warrant, Mr. Schaefer's
Washington County probation officer met with Mr. Schaefer at her
office in Hillsboro. After Mr. Schaefer left the probation
office, officers-working in coordination with those executing
the warrant-attempted to follow him. After they lost contact,
Mr. Schaefer's probation officer told officers she would
issue a detainer on defendant for violating the terms of his
Schaefer eventually returned to his apartment complex. When
officers recognized his car, they attempted to stop him.
Despite being told he was under arrest, he drove away. After
a short pursuit, Mr. Schaefer's car came to a stop in
traffic. Two officers used their cars to box him in, drew
their guns, and ordered him out of the car. Instead of
complying with these commands, Mr. Schaefer stated something
to the effect of “we're all going to die” and
ignited a cigarette package he was holding. The cigarette
package detonated, and Mr. Schaefer's left hand was
Schaefer was arrested and transported to a hospital for
medical treatment. Meanwhile, Mr. Schaefer's car and its
contents-including a second cigarette package-were searched
without a warrant. The cigarette package allegedly contained
TATP, an explosive material. Additional incriminating
evidence, which included igniters and chemicals, was
discovered in Mr. Schaefer's apartment pursuant to the
original warrant. Officers also seized electronic storage
devices, and a business card for a storage facility, with a
unit listed on back. Officers immediately opened and secured
the storage unit without a warrant. They did not observe any
obvious threats to public safety but did observe a container
that looked like a cooler. After later obtaining and
executing a warrant for the unit, officers found additional
October 25, 2017, Mr. Schaefer was indicted for two counts of
assault on a federal officer, in violation of 18 U.S.C.
§ 111(a) and (b), and one count of using an explosive to
commit a federal felony in violation of 18 U.S.C. §
844(h). On January 3, 2018, the government filed a
superseding indictment, charging defendant with four
additional counts: one count of carrying an explosive during
the commission of a federal felony in violation of 18 U.S.C.
§ 844(h)(2), two counts of unlawfully transporting
explosive materials in violation 18 U.S.C. §§
842(a)(3)(A) and 844(a), and one count of felon in possession
of explosives in violation of 18 U.S.C §§ 842(i)(1)
November 15, 2018, the government filed a second superseding
indictment. Mr. Schaefer is now charged with two counts of
assault on a federal officer in violation of 18 U.S.C. §
111(a) and (b); one count of carrying and using a destructive
device during and in relation to a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(B)(ii); one count of
using an explosive to commit a federal felony in violation of
18 U.S.C. § 844(h)(1); and one count of carrying an
explosive during the commission of a federal felony in
violation of 18 U.S.C. § 844(h)(2).
Defendant's Motion to Suppress Search Related
Schaefer makes six arguments in support of his motion to
suppress evidence: (1) officers conducted an unlawful traffic
stop; (2) officers conducted a warrantless search of Mr.
Schaefer's vehicle and a camel cigarette package without
a valid exception to the warrant requirement; (3) the search
warrant for his apartment was invalid because it was based on
stale information, obtained without a warrant; (4) officers
exceeded the scope of the warrant when, while searching Mr.
Schaefer's apartment, they seized a storage facility
business card with a unit listed on the back; (5) affidavits
submitted in support of the search warrant did not provide
probable cause to search the storage unit; and (6) any
information obtained from seized electronic devices is fruit
of the poisonous tree.
Fourth Amendment of the United States Constitution protects
against unreasonable searches and seizures by the government.
U.S. Const. Amend. IV; Elkins v. United States, 364
U.S. 206, 213 (1960). A person is seized when, “by
means of physical force or a show of authority, his freedom of
movement is restrained.” United States v.
Mendenhall, 446 U.S. 544, 553 (198). In California
v. Hodari, the Supreme Court clarified that a seizure
“requires either physical force . . .
or, where that is absent, submission to the
assertion of authority. 499 U.S. 621, 626 (1991). In reaching
this conclusion, the Court relied on Brower v. Inyo
County, 489 U.S. 593, (1989):
In that case, police cars with flashing lights had chased the
decedent for 20 miles- surely an adequate “show of
authority”-but he did not stop until his fatal crash
into a police-erected blockade. The issue was whether his
death could be held to be the consequence of an unreasonable
seizure in violation of the Fourth Amendment. We did not even
consider the possibility that a seizure could have occurred
during the course of the chase because, as we explained, that
“show of authority” did not produce his stop.
Id. at 628. A traffic stop is therefore a
seizure-subject to the reasonableness requirement of the
Fourth Amendment-as it is generally produced by submission to
the assertion of authority. See Whren v. United
States, 517 U.S. 806, 809-10 (1996) (“Temporary
detention of individuals during the stop of an automobile by
the police, even if only for a brief period and for a limited
purpose, constitutes a 'seizure' of
‘persons' within the meaning of [the Fourth
argues that officers conducted an unlawful traffic stop
without probable cause.However, there is no allegation that
officers engaged in physical force and no evidence that Mr.
Schaefer submitted to a show of authority. When Mr. Schaefer
arrived at his apartment building, he was confronted by an
officer. Upon confrontation, Mr. Schaefer fled the scene in
his car. Officers followed and boxed in Mr. Schaefer's
car while he was stopped in traffic. Mr. Schaefer does not
appear to argue that he stopped driving in response to an
order, sirens, or flashing lights. Even when police
approached his vehicle with guns drawn and ordered him out of
the car, Mr. Schaefer still did not submit. Instead, he said
something to the extent of “we're all going to die
today” and detonated a hand-held explosive. Because
officers did not use physical force and Mr. Schaefer did not
submit to any assertion of authority, the officers did not
seize Mr. Schaefer before the explosive was detonated.
officers did seize Mr. Schaefer when he stopped his car, or
when they boxed him in with their cars, they did not obtain
any evidence against him until after he detonated explosives
in their presence. Because no evidence was seized as a result
of Mr. Schaefer stopping his car, there is no evidence to
suppress. After Mr. Schaefer detonated the explosive,
officers had probable cause to believe a crime had occurred
and therefore had reasonable suspicion to stop Mr. Schaefer.
The warrantless search of defendant's vehicle and
government has the burden to show that a warrantless search
or seizure falls within an exception to the warrant
requirement. United States v. Scott, 705 F.3d 410,
417 (9th Cir. 2012) (citing United States v.
Hawkins, 249 F.3d 867, 872 (9th Cir. 2001). “Under
the automobile exception to the warrant requirement, police
may conduct a warrantless search of a vehicle if there is
probable cause to believe that the vehicle contains evidence
of a crime.” Id. (citing United States v.
Brooks, 610 F.3d 1186, 1193 (9th Cir. 2010)).
Mr. Schaefer fled from officers in his vehicle. After coming
to a stop in traffic, while seated in his car, Mr. Schaefer
detonated an explosive device in the presence of two
officers. Thereafter, these officers had probable cause to
believe the vehicle contained evidence of a crime related to
the explosive device. Therefore the automobile exception
justified the warrantless search of the car.
The warrant to search defendant's apartment
argues the October 10, 2017 search warrant is invalid because
it relied on stale information obtained without a warrant.
may suppress evidence if the information possessed by the
police at the time they sought a search warrant was too old
to support a finding of probable cause. Sgro v. United
States, 287 U.S. 206 (1932). “The proof must be of
facts so closely related to the time of the issue of the
warrant as to justify a finding of probable cause at that
time. Whether the proof meets this test must be determined by
the circumstances of each case.” Id. at
210-211. Information underlying a warrant is not stale
“if there is sufficient basis to believe, based on a
continuing pattern or other good reasons, that the items to
be seized are still on the premises.” United States
v. Schesso, 730 F.3d 1040 (9th Cir. 2013).
Staleness must be evaluated in light of the particular facts
of the case and the nature of the criminal activity and
property sought. One may properly infer that equipment
acquired to accomplish the crime and records of the criminal
activity will be kept for some period of time. When the
evidence sought is of an ongoing criminal business of a
necessarily long-term nature, such as marijuana growing,
rather than that of a completed act, greater lapses of time
are permitted if the evidence in the affidavit shows the
probable existence of the activity at an earlier time.
United States v. Greany, 929 F.2d 523 (9th Cir.
1991) (citations omitted).
agents received information about Mr. Schaefer's eBay
purchases on September 21, 2017 and requested a warrant
nineteen days later. On the record before the Court, it
appears that Mr. Schaefer made a string of purchases over a
period of approximately seven months. These purchases
included electric matches-which the FBI determined to be
regulated explosives-and chemicals that could be combined to
create explosive materials. These materials are not
consumable (like drugs or alcohol) and there is no
evidence-or argument-for why they were unlikely to have
remained in Mr. Schaefer's possession. Thus, in light of
the particular facts of the case and the nature of the
criminal activity and property sought, the information was