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United States v. Washington

United States District Court, D. Oregon

April 1, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DESMOND BORIS WASHINGTON, Defendant.

          Peter Sax U.S. Attorney's Office, District of Oregon Attorney for Plaintiff

          Susan F. Wilk Office of the Federal Public Defender District of Oregon Attorney for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.

         Defendant Desmond Washington moves to suppress the results of a buccal swab and statements he made to law enforcement following his detention and arrest on October 10, 2018. The Court denies Defendant's motion because law enforcement officers reasonably detained Defendant pursuant to the execution of a search warrant of a residence and subsequently had probable cause to arrest Defendant, which led to the lawful collection of his buccal swab and statements.

         BACKGROUND [1]

         On October 1, 2018, Homeland Security Investigations (“HSI”) obtained a search warrant for the residence of Alexandria Carter. In the course of investigating Ms. Carter, HSI Special Agent Chad Lindsly identified Defendant as a “possible live-in boyfriend” residing at Ms. Carter's residence. Gov't Resp. Ex. 1 at 1, ECF 61-1. Agent Lindsly opined that it was “highly likely” Defendant would be at Ms. Carter's residence during the execution of the search warrant. Id.

         Agent Lindsly testified that, leading up to the search, he conducted a “risk assessment” of the property and anyone who might be associated with the property. His assessment included a criminal history check, a review of prior contact with law enforcement, and a review of Defendant's social media accounts. Agent Lindsly also spoke with Defendant's probation officer, who said that Defendant was part of the Inglewood Bloods gang. Agent Lindsly found photographs on Defendant's Facebook and Instagram accounts that showed Defendant holding firearms and wearing a red bandana, which Agent Lindsly associated with gang membership. Id. Defendant included captions on one of his Instagram photographs that suggested membership in the Inglewood Bloods gang and violent behavior, such as “#bloods, ” “#inglewoodbloods, ” “#gangshit, ” and “#shooter.” Gov't Ex. 104. Agent Lindsly also testified that he watched several of Defendant's rap music videos on YouTube, including one in which Defendant held a handgun with a silver slide and wore a gold Rolex watch and red bandana. The Government presented still photos of these videos at the hearing; the gun, watch, and red bandana are visible in the photos. Gov't Exs. 102-03. Agent Lindsly also testified that Defendant's Instagram profile name was “HuntingSeasonI5daP”, and that “I5daP” was Defendant's street moniker or rap moniker.

         Agent Lindsly testified that he ran a search of Defendant's prior convictions and was aware that Defendant had several prior felony convictions, including felony assault, attempt to elude a police officer, and unauthorized use of a firearm. See also Def.'s Opp. Mot. Suppress Ex. 1, ECF 61-1. Agent Lindsly testified that, based on his review of Defendant's social media, his criminal history, his felony convictions, and the information from Defendant's probation officer, Agent Lindsly classified the operation to execute the search warrant as “high risk.”

         At the hearing, Defendant introduced exhibits including a satellite image of Ms. Carter's house and video footage taken by a neighbor, Eli Duke, who testified as to the authenticity of the videos. The photo and Mr. Duke's videos show that Ms. Carter's residence is on NE 50th Place-a narrow dead-end side street off NE Killingsworth Ave., a wide and busy street. There is one house, Mr. Duke's house, between Ms. Carter's residence and NE Killingsworth Ave.

         At approximately 9:00 a.m. on October 10, 2018, a task force made up of federal agents from several agencies and local law enforcement executed the search warrant on Ms. Carter's residence. The Portland Police Special Emergency Reaction Team (SERT) was responsible for clearing the residence. The SERT team drove onto NE 50th Place in a large, wide police van. There was a sniper on the top of the vehicle and over a dozen officers who were fully armed and wore body armor and helmets. The SERT team used a loudspeaker to announce their presence and order the occupants of Ms. Carter's residence to come out. Agent Lindsly testified this is called a “call-out warrant” because the police call the residents out and they can exit voluntarily.

         Defendant, Ms. Carter, and a minor child all exited the residence voluntarily and unarmed. Defendant was barefoot and in his underwear. The police handcuffed Defendant and walked him to an unmarked police vehicle on NE Killingsworth Ave., where they placed him in the back of the vehicle. Defendant's witness, Federal Public Defender paralegal Kip Manley, testified that the distance from the residence to the police vehicle on NE Killingsworth Ave. was approximately 230 feet. After the SERT team ensured that the residence was clear of people, they turned the search over to Agent Lindsly and HSI. Agent Lindsly testified that he was told by Portland Police officers that they had seen several firearms in the residence, including a handgun in the master bedroom dresser drawer.

         Agent Lindsly testified that, at approximately 9:30 a.m., Defendant was led back into the residence in handcuffs. He was allowed to use the bathroom and put clothes on. Then, he was taken outside again and placed into another unmarked police vehicle in front of the residence, approximately 20 feet from the front door of the residence.

         While Defendant was being detained, HSI agents searched Ms. Carter's residence. During the search, agents found in a bedroom dresser drawer a black Taurus handgun with a silver slide, a gold watch, a gold dental grill, necklaces, and a pendant with the name “I5daP” (Defendant's rap name moniker). Gov't Resp. Ex. 2 at 2. Agent Lindsly testified that he believed the handgun looked like one the Defendant held in a Facebook photo and that the gold watch looked like the gold Rolex watch Defendant wore in his YouTube video. Agent Lindsly testified that agents took a photo of the drawer. Gov't Ex. 108.

         Agent Lindsly testified that, at approximately 10:00 a.m., he interviewed Ms. Carter, who was also being detained. When shown a photo of the dresser drawer, Ms. Carter claimed that the gun in the photo was hers.

         Agent Lindsly testified that, at approximately 11:15 a.m., he interviewed Defendant while Defendant was in the police vehicle. According to Agent Lindsly, he believed he had probable cause to arrest Defendant before he interviewed him, due to the presence of the gun in the drawer with Defendant's personal belongings. However, to gain information from Defendant, Agent Lindsly told Defendant he was being detained, and he was not under arrest. Agent Lindsly advised Defendant of his Miranda rights and Defendant signed a pre-printed Miranda rights form at approximately 11:12 a.m., acknowledging that he understood his rights. Gov't Opp. Mot. Suppress Ex. 5, ECF 61-5.

         Agent Lindsly showed Defendant a photo of the dresser drawer and asked him about the items in the drawer. Defendant admitted that the clothing, money, and jewelry were his, but he denied that the gun was his and denied knowledge that the gun was in the drawer. Then, Agent Lindsly told Defendant he was under arrest. Another agent took a buccal swab to collect his DNA. Gov't Opp. Mot. Suppress Ex. 4 at 3, ECF 61-4. The interrogation ended at approximately 11:41 a.m. Gov't Opp. Mot. Suppress Ex. 3 at 4, ECF 61-3. Defendant was taken to Multnomah County Jail. Id. Agent Lindsly testified that the search ended between approximately 12:30 p.m. to 1:00 p.m.

         On November 6, 2018, a federal grand jury indicted Defendant on one charge of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

         STANDARDS

         The Fourth Amendment protects against unreasonable searches and seizures by the government. U.S. Const. Amend. IV; Elkins v. United States, 364 U.S. 206, 213 (1960) (applying Fourth Amendment protections to states and state actors through Fourteenth Amendment). A person is seized if “taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” United States v. Washington, 387 F.3d 1060, 1068 (9th Cir. 2004) (“Washington I”) (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991) (internal quotation marks omitted)). A warrantless arrest by a ...


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