Kohlermotionsuppressehmersearch

Case 3:16-cr-00051-BR

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Filed 01/13/17

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MICHELE L. KOHLER MICHELE L. KOHLER, P.C. 205 SE Spokane Street, Suite 300 Portland, Oregon 97202 [503] 219-9300 [503] 345-9622 michele.kohler@comcast.net OSB #94359 Attorney for Defendant Duane Leo Ehmer

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

UNITED STATES OF AMERICA, Plaintiff,

v.

No. 3:16-CR-00051-BR-10 MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SUPPRESS STATEMENTS AND EVIDENCE

DUANE LEO EHMER, Defendant.

Defendant, Duane Leo Ehmer, through his attorney, Michele L. Kohler, submits this memorandum in support of his motion to suppress statements allegedly made by Duane Ehmer on January 27, 2016 and evidence seized from Mr. Ehmer’s vehicle and trailer.

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M ichele L. Kohler, P.C Attorney at Law .

205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300

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FACTS In January 2016, Mr. Ehmer heard on the radio of events occurring in Harney County and traveled there to find out who was protesting and what they were protesting about and to check on the well-being of the public buildings. Mr. Ehmer arrived at the Wildlife Refuge and was invited to tour. He was shocked to see that many of the public buildings were in disrepair and poorly managed. He returned home to gather his tools and his horse and returned to help with the repair and maintenance of the public buildings at the Malheur National Wildlife Refuge. He worked daily on the maintenance needs at the Refuge and slept in his truck or the barn with his horse at night.

On January 26, 2016, a number of the protest leadership was traveling northbound in two vehicles on a remote stretch of US Highway 395 to a public meeting to be held in Grant County when law enforcement took offensive measures to stop and detain them.

LaVoy Finicum was shot and killed at the road block that was set up in a known dead zone. Thereafter, law enforcement took affirmative steps to remove all persons who were at the Malheur National Wildlife Refuge. The hoards of news media personnel which had provided almost constant news coverage of the events were ordered to leave the area.

Law enforcement set up roadblocks which were manned by SWAT Teams on all roads leading to the Refuge. The remaining people at the Refuge thought they were facing certain death.

Mr. Ehmer left the Malheur Wildlife Refuge during the early afternoon of January 27, 2016, pulling his horse trailer with his horse. He approached a law enforcement

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M ichele L. Kohler, P.C Attorney at Law .

205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300

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erected roadblock miles to the east of the Refuge just before 2:00pm and was ordered to stop his vehicle through verbal commands over a speaker. There were weapons pointed at him as he was instructed on how to exit his vehicle with his hands extended out of the window. He was then required to undress in the frigid temperatures and a protective sweep was conducted of his vehicle and horse trailer. The interrogation began immediately. Mr. Ehmer received conflicting information: being told he was free to leave and return to his home, yet armored vehicles blocked the road; interrogated by agents as to the number of individuals left, their location and firearms present; and being convinced of the FBI’s need for his assistance to return to the Refuge to talk others into leaving. He was told if he agreed to return to the Refuge he had to return to the road block within the hour. Mr. Ehmer then re-entered his vehicle and turned around his truck and horse trailer and returned to the Refuge as instructed by law enforcement.

Forty-five minutes later at around 3:15pm Mr. Ehmer returned to the road block.

He had convinced a few others to leave the Refuge. He was again ordered to stop his vehicle before reaching the multiple armored law enforcement vehicles present at the road block and exit with his hands in the air while dozens of law enforcement SWAT personnel had their weapons pointed at him. He was instructed to walk backwards with his hands in the air toward the road block and at a certain point instructed to stop and then ordered again to remove his clothing piece by piece. This time instead of a protective sweep being conducted of the interior of his vehicle and horse trailer, law enforcement searched the vehicle and the trailer. Mr. Ehmer was handcuffed and interrogated about

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M ichele L. Kohler, P.C Attorney at Law .

205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300

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the contents of a maroon pouch found under the front passenger seat and a black powder revolver found inside the saddle bag that was still on the saddled horse in the horse trailer all without the advise of Miranda Rights.

At approximately 6:00pm Mr. Ehmer was transferred out of the custody of SWAT personnel from the road block to other law enforcement personnel that transported him to Burns, Oregon for further interrogation and then transportation to the Multnomah County Detention Center in Portland, Oregon. An agent allegedly advised him of the right to remain silent and the right to an attorney at some point during the five-hour drive from Burns to Portland. Mr. Ehmer signed a consent to search form for his vehicle and horse trailer at an undisclosed time on January 27, 2016, but subsequent to the warrantless search of his vehicle and horse trailer.

ARGUMENT I.

The Warrantless Search of Mr. Ehmer’s Vehicle and Horse Trailer was a violation of the Fourth Amendment There are three types of police stops under the Fourth Amendment. The first is a

consensual stop of a citizen for questioning which does not need to be supported by reasonable suspicion, so long as a reasonable person would feel free to leave. Florida v.

Bostick, 501 U.S. 429, 434 (1991). The second is a non-consensual stop or detention of a citizen for a brief investigation where the individual does not feel free to leave. A nonconsensual stop must be supported by “reasonable suspicion.” Terry v. Ohio, 392 U.S. 1, 20-22 (1968). The third is a non-consensual police seizure, or full-scale arrest which

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M ichele L. Kohler, P.C Attorney at Law .

205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300

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must be supported by probable cause. Whitely v. Warden, 401 U.S. 560, 564-66 (1971).

A Terry stop, or investigative stop is lawful under the Fourth Amendment. The “Terry stop involves no more than a brief stop, interrogation and under proper circumstances, a brief check for weapons. “ United States v. Robertson, 833 F.2d 777, 780 (9 th Cir. 1987). In United States v. Miles, 247 F.3d 1009 (9 th Cir 2001), the court held that when there are legitimate safety concerns, measures to restrain individuals are reasonable and not an arrest warranting a probable cause finding. In Miles, the officer drew his weapon, ordered the defendant to kneel and handcuffed him for officer safety prior to a safety pat down for weapons.

Mr. Ehmer concedes that the first search of his person and the protective sweep of his vehicle and horse trailer at the roadblock was lawful and for officer safety in accordance with a Terry stop. However, Mr. Ehmer submits that the second encounter at the road block when law enforcement conducted a warrantless search of his vehicle and horse trailer, opening closed containers was in violation of his Fourth Amendment rights as it went beyond what is “reasonable to meet the needs” of protecting officers or others from immediate harm. United States v. Snipe, 515 F.3d 947, 952-54 (9 th Cir 2008). The purpose of the sweep is to protect officers against surprise attack by unknown coconspirators and is narrowly confined to a cursory visual inspection of potential hiding places. United States V. Furrow, 229 F.3d 805, 811-12 (9 th Cir 2000); United States v.

Hassock, 631 F.3d 79, 87-88 (2 nd Cir. 2011).

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M ichele L. Kohler, P.C Attorney at Law .

205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300

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Mr. Ehmer was ordered out of his vehicle, strip searched a second time and handcuffed prior to the search of his vehicle. Mr. Ehmer posed no threat to law enforcement to warrant more than a protective sweep that there was no other occupant hiding in either the vehicle and/or trailer.

The government cannot justify the search of the vehicle and horse trailer as incident to arrest because Mr. Ehmer was secured, no longer within reaching distance of the vehicle and/or horse trailer’s contents and it is not reasonable to believe that it would contain evidence of the offense for which he was arrested, Conspiracy to Impede Officers of the United States from discharging their official duties. The offense of Conspiracy is committed when two are more individuals reach of an agreement to commit an criminal offense, in this case to impede an officer from discharging their official duties. Officers may not search a vehicle incident to arrest for a crime that would not yield evidence in the passenger compartment of the vehicle. United States v. Ruckes, 586 F.3d 713 (9 th Cir. 2009). The taint of the warrantless search of the vehicle and horse trailer cannot be purged by a subsequent consent form signed during custodial interrogation and prior to advise of Miranda rights.

II.

Mr. Ehmer was interrogated in violation of the Fifth and Fourteenth Amendments The United States Supreme Court established certain procedural safeguards that

require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments of the United States Constitution before commencing a custodial interrogation in Miranda v. Arizona, 384 U.S. 436 (1966). Florida v. Powell, 559 U.S. 50

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M ichele L. Kohler, P.C Attorney at Law .

205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300

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(2010)(citing Duckworth v. Eagan, 492 U.S. 195, 201 (1989). The Court has held that the Miranda warnings do not require rigid language, but they must convey four warnings prior to interrogation; 1) right to remain silent; 2) anything said can be used against him in a court of law; 3) the right to the presence of an attorney; and 4) if he cannot afford an attorney one will be appointed for him. Florida at 59. “[S]tatements made in a custodial interrogation may not be admitted as part of the prosecution’s case in chief ‘unless and until’ the prosecution demonstrates that an individual ‘knowingly and intelligently waive[d] [his] rights.” Miranda, at 479. “The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great . . .” North Carolina v. Butler, 441 U.S. 369, 373 (1979). The question of whether a suspect has validly waived his right is “entirely distinct” as a matter of law from whether he invoked that right. Smith v. Illinois, 469 U.S. 91, 98 (1984)(per curiam).

In the instant case, Mr. Ehmer was in a custodial setting when he first approached the road block and was removed from his vehicle at gun point and then interrogated despite the verbal assurance that he was free to leave. One who was surrounded by multiple armored vehicles which blocked his travel, more than a dozen SWAT officers that were armed and in riot gear would lead one to objectively believe under the totality of the circumstance that they were in custody for purposes of Miranda even though not officially under arrest. Additionally, when Mr. Ehmer returns to the road block as instructed by the SWAT officer approximately forty-five minutes later, he is then officially arrested and the need for Miranda warnings is required prior to any

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M ichele L. Kohler, P.C Attorney at Law .

205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300

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interrogation.

Mr. Ehmer was interrogated from his initial contact with the SWAT officer and then insufficiently informed of only a few of his Miranda rights hours later while being interrogated during a five-hour transport from Burns, Oregon to Portland, Oregon. The officer reports that he informed Mr. Ehmer of only two of the four Miranda rights; the right to remain silent and the right to an attorney is constitutionally deficient. The statements attributed to Mr. Ehmer must be suppressed as they were elicited in violation of his Fifth and Fourteenth Amendments rights against self-incrimination.

CONCLUSION The evidence seized from Mr. Ehmer’s vehicle was without a warrant and is otherwise involuntary in violation of his Fourth Amendment rights against unreasonable search and seizure and therefore must be suppressed. Mr. Ehmer’s statements allegedly made while under custodial interrogation and without the procedural safeguards that require law enforcement to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments and are therefore involuntary warrant their suppression for the government’s case-in-chief.

DATED this 13 th day of January, 2017.

Respectfully submitted,

/s/ Michele L. Kohler MICHELE L. KOHLER, OSB No. 94359 Attorney for Duane Leo Ehmer.

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M ichele L. Kohler, P.C Attorney at Law .

205 SE Spokane Street, Ste. 300 Portland O R 97202 (503) 219-9300