United States District Court, D. Oregon
Sax U.S. Attorney's Office, District of Oregon Attorney
F. Wilk Office of the Federal Public Defender District of
Oregon Attorney for Defendant
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
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.
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
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
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.”
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.
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.
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
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.
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.
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.
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.
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.
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).
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 ...