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United States v. Schaefer

United States District Court, D. Oregon, Portland Division

January 17, 2019

UNITED STATES OF AMERICA,
v.
JASON PAUL SCHAEFER, Defendant.

          Benjamin Tolkoff Natalie K. Wight U.S. Attorney's Office, Attorneys for Plaintiff.

          Lisa Ludwig Ludwig Runstein LLC, Attorney for Defendant.

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.

         Defendant 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 [70]; a motion to suppress defendant's statements [71]; a motion to dismiss first superseding indictment count 7 for vagueness [72]; a motion to dismiss the superseding indictment for vindictive prosecution [73]; a motion for a Franks hearing [77]; and a motion to dismiss counts 1 and 2 [79]. 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 other motions.

         BACKGROUND[1]

         Mr. 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.

         On 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.

         While law enforcement executed the warrant, Mr. Schaefer's Washington County probation officer[2] 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 probation.

         Mr. 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 severely injured.

         Mr. 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 incriminating evidence.

         On 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) and 844(a).

         On 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).

         DISCUSSION

         I. Defendant's Motion to Suppress Search Related Evidence.

         Mr. 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.

         1. Traffic Stop

         The 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[3] 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 Amendment].”).

         Plaintiff argues that officers conducted an unlawful traffic stop without probable cause.[4]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.

         Even if 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.

         2. The warrantless search of defendant's vehicle and cigarette package

         The 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)).

         Here, 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.

         3. The warrant to search defendant's apartment

         Defendant argues the October 10, 2017 search warrant is invalid because it relied on stale information obtained without a warrant.

         A. Staleness

         A court 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).

         Here, 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 not stale.

         B. Informa ...


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