IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNITED STATES OF AMERICA, 3:16-cr-00051-BR-10 

Plaintiff, 

v. 

DUANE LEO EHMER, 

Defendant. 

BROWN, Judge. 

ORDER DENYING DEFENDANT 

DUANE LEO EHMER'S MOTION 

(#1708) TO SUPPRESS 

This matter comes before the Court on Defendant Duane Leo 

Ehmer's Motion (#1708) to Suppress Statements and Evidence. 

On January 13, 2017, Ehmer filed his Motion in which he 

moves to suppress the alleged custodial statements that he made 

without warnings consistent with Miranda v. Arizona, 384 U.S. 436 

(1966), and to suppress evidence obtained during a search of his 

truck and trailer that Ehmer contends was conducted in violation 

of the Fourth Amendment to the United States Constitution. 

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On January 20, 2017, the government filed a Response (#1754) 

to Ehmer's Motion in which it agrees it will not introduce 

Ehmer's statements in its case-in-chief, but in which the 

government also contends the Court should not suppress the 

evidence obtained as a result of the consent search of Ehmer's 

truck and trailer. 

On February 6, 2017, the Court conducted an evidentiary 

hearing on Ehmer's Motion. At the beginning of the Pretrial 

Conference on February 7, 2017, the Court also heard oral 

argument on Ehmer's Motion, after which the Court directed the 

parties to submit supplemental memoranda. 

The government filed its Supplemental Memorandum (#1865) in 

Opposition to Ehmer's Motion on February 9, 2017, together with 

the Affidavits of Todd T. Scott (#1866) and Katherine Armstrong 

(#1867). Ehmer filed his Supplemental Reply Memorandum (#1885) 

on February 13, 2017. 

The Court finds the record is now complete and, for the 

reasons that follow, DENIES Ehmer's Motion. 

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FACTUAL BACKGROUND 

Based on the record as a whole 1 the Court finds the 

following facts by a preponderance of the evidence for purposes 

of resolving this Motion: 

Ehmer arrived at the Malheur National Wildlife Refuge (MNWR) 

to participate in the occupation of the MNWR no later than 

January 8, 2016. After several leaders of the occupation were 

arrested and Lavoy Finicum was fatally shot by law enforcement on 

January 26, 2016, Ehmer left the MNWR on the afternoon of January 

27, 2016, driving his truck and towing a horse trailer that 

contained, among other things, his horse, Hellboy. At the time 

of his departure, Ehmer was emotional and fearful of being shot 

by law-enforcement officers. 

Before Ehmer left the Refuge, law enforcement had set up two 

roadblocks a few miles in both directions from the entrance to 

1 In addition to the evidence adduced at the February 6, 

2017, evidentiary hearing, the Court considers the Complaint (#1) 

together with the Affidavit of Katherine Armstrong attached 

thereto as part of the record on this Motion. Although Ehmer 

objects to the Court considering the government's February 9, 

2017, filing of Affidavits of Todd T. Scott (#1866) and Katherine 

Armstrong (#1867), the Court notes the only significant addition 

to the record from those Affidavits is Armstrong's statement that 

many of the facts related to Ehmer as set out in Armstrong's 

Affidavit attached to the Complaint were known to law enforcement 

before the Complaint was finalized on January 28, 2016. That 

conclusion, however, is already obvious from the face of the 

Complaint, which relied extensively on public social-media 

postings that were made long before January 28, 2016. 

Accordingly, in its analysis the Court does not rely on the 

Affidavits filed by the government on February 9, 2017. 

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the MNWR. As he drove away from the MNWR, Ehmer encountered the 

roadblock to the east of the MNWR at approximately 2:00 p.m. At 

that roadblock law enforcement blocked the road with barricades 

and Bearcats (armored vehicles) to prohibit drivers on the road 

from passing unless law enforcement permitted them to do so. 

When he encountered the roadblock, Ehmer stopped his truck 

and stepped out of his vehicle pursuant to commands of lawenforcement officers who pointed their firearms at Ehmer and his 

truck. After Ehmer left his truck, officers searched him for 

weapons. At that time officers also conducted a sweep (referred 

to hereinafter as the "first protective sweep") of Ehmer's truck 

and the horse trailer to determine whether anyone else was in 

them, but the officers only found Hellboy in the horse trailer. 

While outside of his truck at the roadblock, Ehmer and FBI 

Special Agent Todd Scott, who was assigned as an FBI crisis 

negotiator during the occupation of the MNWR, spoke. Their 

conversation was relaxed and cordial in tone. Ehmer told Agent 

Scott that nine people still remained at the MNWR and that some 

(though not all) wanted to leave. Agent Scott proposed that 

Ehmer return to the MNWR and inform those who remained that 

anybody who did not have a pending arrest warrant would be 

permitted to pass through the roadblock peacefully and to leave. 

Agent Scott also told Ehmer that there was not any pending 

warrant for Ehmer's arrest and that Ehmer would be permitted to 

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pass through on his return to the roadblock within an hour. 

After Ehmer agreed, he returned to the MNWR with his truck and 

trailer. 

At approximately 3:15 p.m. Ehmer approached the east 

roadblock again. As before, Ehmer was given commands to leave 

the truck, and he complied. Officers searched him again for 

weapons and conducted a second sweep of his truck and the horse 

trailer (hereinafter referred to as "second protective sweep"), 

which included the "tack room" of the trailer. Again, officers 

did not locate any other individuals in either the truck or the 

tack room of the trailer, and they did not search those 

compartments any further, except that during the second 

protective sweep of the horse trailer FBI Special Agent 

Christopher Hilgers unbuckled a closed saddlebag and observed a 

black-powder revolver.' Agent Hilgers seized the handgun and did 

not search any further. 

Meanwhile, Agent Scott spoke with Ehmer again. Agent Scott 

informed Ehmer that, contrary to Agent Scott's previous assurance 

2 At a hearing on February 15, 2017, the government 

clarified that although it does not intend to introduce the 

black-powder revolver as evidence at trial, it contends, 

nonetheless, that the black-powder revolver was not seized 

unlawfully and, therefore, should not be suppressed as Ehmer 

argues in his Motion. 

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to Ehmer, there was a pending warrant 3 for Ehmer's arrest, and, 

therefore, Ehmer would not be allowed to pass through the 

roadblock and to leave. Agent Scott apologized to Ehmer for 

previously telling him that there was not a warrant for his 

arrest. Ehmer was placed in handcuffs and searched more 

thoroughly than when he initially approached the checkpoint. 

While Ehmer remained in handcuffs, Ehmer and Agent Scott 

continued to speak, and, again, they conversed in a relaxed tone. 

At one point another officer brought the black-powder revolver to 

Ehmer to inquire how to render the firearm safe. Ehmer stated 

the only way he knew how to do so was to fire the weapon, but the 

officers did not fire the weapon and later found another way to 

render it safe. 

At the evidentiary hearing Ehmer testified that after his 

second approach to the roadblock, officers also questioned him 

about a maroon pouch that was in his truck and as to whether he 

knew the contents of that pouch. Ehmer testified his response 

was that he had never opened the pouch. Agent Scott, however, 

testified he did not recall any questioning of Ehmer about a 

maroon pouch at the roadblock, was not aware of anything related 

to a maroon pouch at that time, and did not note anything about a 

3 In fact, however, this statement was not accurate because 

the only warrant for Ehmer's arrest was the Arrest Warrant (#3) 

issued the next day on January 28, 2016. 

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maroon pouch in his report.' 

Ehmer continued to be cooperative and to express a desire to 

find a peaceful resolution to the occupation of the MNWR. 

Eventually Ehmer was placed in a van and driven to the Tactical 

Operations Center in Burns, Oregon. 5 

After Ehmer was transported to Burns, FBI Special Agent 

Elden Esperas (who had not been at the roadblock) was asked by a 

superior officer to attempt to obtain Ehmer's consent to search 

his truck and trailer. Agent Esperas located Ehmer in the back 

of a Bearcat where Ehmer remained in handcuffs with two armed 

officers in the front seat. Agent Esperas got into the back of 

the Bearcat with Ehmer and introduced himself. Agent Esperas did 

not have a firearm with him when he entered the Bearcat, and the 

two other officers in the front seat did not display the firearms 

they were carrying. 

Agent Esperas requested Ehmer's consent to search his truck 

and trailer as part of the FBI's investigation. Ehmer testified 

Esperas told him that Agent Esperas would search the truck and 

trailer regardless whether Ehmer gave his consent, but Agent 

' As explained fully below, the Court finds this factual 

dispute is not material to the resolution of Ehmer's Motion, and, 

therefore, the Court need not resolve it. 

5 Law-enforcement officers delivered Hellboy to a 

veterinarian in Burns. 

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Esperas testified he did not make any such statement. 6 

Agent Esperas read to Ehmer Form FD26, which was a printed 

"consent" to permit law-enforcement officers to search his truck 

and trailer. That Form indicates, among other things, that the 

individual who signs the Form has "been advised of [his] right to 

refuse consent," gives permission to officers to search the 

locations identified therein voluntarily, and authorizes agents 

to "take any items which they determine may be related to their 

investigation." See Gov't Resp. (#1754-1), Ex. A. Because Ehmer 

agreed to the "consent search," his handcuffs were undone so that 

he could write on Form FD26 and confirm that consent. Ehmer 

wrote "97 Red Chevy Taho[e]" and "white horse trailer old" in the 

space provided to identify the locations where Ehmer consented to 

be searched, and Ehmer signed and dated the Form. Agent Esperas 

also signed the Form as a witness. This discussion between Ehmer 

and Agent Esperas was conversational, and Ehmer was cooperative 

throughout this interaction. 

The following day, on January 28, 2016, FBI Special Agent 

Brian Kelley and other officers searched Ehmer's truck and horse 

trailer pursuant to the consent that Ehmer had provided the day 

before. In the truck Agent Kelley located 16 shotgun shells that 

6 As explained fully below, the Court also finds this 

factual dispute is not material to the resolution of Ehmer's 

Motion and, therefore, the Court need not resolve it. 

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were spread throughout the truck, a cellular telephone, a rifle, 

a bag of lead shot, a Samsung tablet, and a maroon pouch that was 

underneath the passenger seat of the truck. Agent Kelley was not 

previously aware that there might be a maroon pouch in the truck. 

The maroon pouch contained cash, checks, receipts, 

identification cards, and credit cards that all reflected names 

associated with the Friends of the MNWR (a nonprofit organization 

that supports the MNWR and maintains an office at the MNWR 

headquarters) or employees who worked at the MNWR. 

In the tack room of the horse trailer, Agent Kelley located 

a rifle that was hidden behind some hay and a welding machine as 

well as a belt containing ammunition. 

DISCUSSION 

In his Motion Ehmer contends (1) the second protective sweep 

of the truck and trailer (including the discovery of the blackpowder revolver) was improper; (2) Ehmer's consent to search the 

truck and trailer was tainted by the allegedly improper second 

protective sweep and was otherwise involuntary, and, therefore, 

that search violated the Fourth Amendment; and (3) Ehmer's 

statements made at the roadblock should be suppressed because he 

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was not given Miranda warnings. 7 

In addition, at oral argument on February 7, 2017, Ehmer's 

counsel argued the second stop of Ehmer's truck at the roadblock 

was itself improper. The Court notes, however, that Ehmer did 

not previously raise this issue in his Motion. 

I. Justification for Second Stop at the Roadblock 

For the first time at oral argument Ehmer contended the 

officers at the roadblock did not have justification to stop him 

when he returned from his trip back to the MNWR for the purpose 

of attempting to convince others to leave. Ehmer contends 

because law enforcement had stopped Ehmer previously, they no 

longer had sufficient justification (i.e., reasonable suspicion 

or probable cause) to seize Ehmer at the roadblock. The Court 

disagrees. 

Law enforcement may conduct an investigatory stop based on 

reasonable suspicion to support that stop. United States v. 

Edwards, 761 F.3d 977, 982 (9th Cir. 2014). An officer has 

reasonable suspicion when he or she has "'a particularized and 

objective basis for suspecting the particular person stopped of 

criminal activity.'" Id. (quoting Navarette v. California, 134 

7 Because the government now agrees it will not introduce 

any of Ehmer's statements at the roadblock in its case-in-chief 

at trial, the Court denies this part of Ehmer's Motion as moot 

with leave to renew in the event the government reconsiders its 

decision not to introduce Ehmer's statements in its case-in-chief 

or on rebuttal. 

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S. Ct. 1683, 1687 (2014)). To arrest an individual, however, 

officers must have probable cause that the individual has engaged 

in criminal activity. See United States v. Nora, 765 F.3d 1049, 

1052-53 (9th Cir. 2014). 

Although the officers' interaction with Ehmer the second 

time he approached the roadblock on January 27, 2016, easily 

could have been justified initially as an investigatory stop, it 

unquestionably blossomed into a full arrest by the time Ehmer was 

placed in handcuffs and taken into custody. The Court, 

therefore, assesses whether that arrest violated the Fourth 

Amendment and, therefore, the Court need not examine or apply a 

reasonable-suspicion standard to these facts. 

For the reasons that follow, the Court concludes the 

officers clearly had probable cause to arrest Ehmer when he 

approached the roadblock the second time. 

At that point the officers collectively knew Ehmer was 

coming from the MNWR, the scene of the alleged criminal activity 

that was already the subject of several probable-cause arrests 

the previous day. The record reflects it was well-known by 

January 27, 2016, that Ehmer had participated in the occupation 

of the MNWR since at least January 8, 2016. For example, in the 

Complaint (#1) officers included a photograph posted on Ehmer's 

public Facebook page on January 8, 2016, from the entrance to the 

MNWR under which Ehmer wrote: "(M]y post I will guard everything 

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in my post and quit my post only when properly relieved." Compl. 

(#1) at 'll 59. Similarly, on January 9, 2016, Ehmer posted on 

Facebook another photograph from the main entrance to the MNWR 

headquarters complex that he captioned "guard duty." Id. at 'll 

60. Also on January 9, 2016, Ehmer posted on Facebook a link to 

an article on Yahoo.com with a picture of Ehmer and Hellboy, 

below which Ehmer wrote: "[Y]ep[,] its [sic] me . and my 

horse [,] Hellboy," and "it was a beautiful day." Id. at 'll 61. 

That same article contained a picture of Ehmer riding Hellboy 

while Ehmer was wearing a sidearm on his left hip. Id. at 'll 62. 

On January 10, 2016, Ehmer posted on Facebook a photograph that, 

according to a Federal Wildlife Officer with the U.S. Fish and 

Wildlife Service, appears to be taken from the MNWR headquarters 

tower with the caption "up in the tower." Id. at 'll 63. Finally, 

on January 13, 2016, Ehmer updated his Facebook status to read: 

"And people wonder why Iam [sic] in a guard tower in burns [sic] 

standoff protecting our American neighbors." Id. at 'll 64. 

From these facts it is clear that by January 27, 2016, 

officers had probable cause to believe Ehmer was among those 

involved in the alleged conspiracy to impede officers of the 

United States (including the employees of the MNWR) as charged in 

Count One. Neither the fact that Ehmer had previously been to 

the roadblock and law-enforcement agents had encouraged him to 

return temporarily to the MNWR nor the fact that law-enforcement 

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agents at the roadblock misrepresented the existence of a warrant 

for Ehmer's arrest undermines the existence of probable cause to 

arrest Ehmer. 

Accordingly, on this record the Court concludes the second 

stop of Ehmer at the roadblock was justified by probable cause to 

arrest him in connection with his occupation of the MNWR as 

ultimately charged in the Superseding Indictment (#282). 

II. Second Protective Sweep 

As noted, Ehmer next contends the second protective sweep of 

his truck and trailer violated his rights under the Fourth 

Amendment, and, in any event, even if the second protective sweep 

was justified, searching the saddlebag for the black-powder 

revolver went beyond the scope of a protective sweep. The Court 

notes the only two pieces of evidence implicated in the second 

protective sweep are the black-powder revolver found in Ehmer's 

saddlebag and the contested testimony that law-enforcement 

officers located the maroon pouch during that sweep (and not 

during the later consent search) . 

"The protective sweep doctrine authorizes 'quick and 

limited' warrantless inspections 'of those spaces where a person 

may be found' when 'there are articulable facts which, taken 

together with the rational inferences from those facts, would 

warrant a reasonably prudent officer in believing that the area 

to be swept harbor[ed] an individual posing a danger to those on 

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the arrest scene.'" United States v. Lundin, 817 F.3d 1151, 1161 

(9th Cir. 2016) (quoting United States v. Lemus, 582 F.3d 958, 962 

(9th Cir. 2009)). 

As a general matter the Court readily concludes the second 

protective sweep of the truck and trailer was appropriate. The 

second protective sweep took place after Ehmer returned from the 

MNWR where, according to Ehmer, nine other occupiers of the MNWR 

remained. Especially in light of the tense situation following 

the arrest of several occupation leaders and the fatal shooting 

of Lavoy Finicum the day before, it was eminently reasonable for 

officers to perform a second protective sweep of the truck and 

trailer in order to confirm that none of the other nine occupiers 

who remained at the MNWR when Ehmer first encountered the 

roadblock were not then hiding in the truck or horse trailer for 

the purpose of harming the law-enforcement officers at the 

roadblock. 

This second protective sweep, however, cannot justify the 

search of the saddlebag because it was not a location that could 

harbor "an individual posing a danger to those on the arrest 

scene." See Lundin, 817 F.3d at 1161. The government belatedly 

contends this search of the saddlebag can, nevertheless, be 

justified under the automobile exception to the warrant 

requirement. Under the automobile exception "officers may search 

a vehicle and any containers found therein without a warrant, so 

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long as they have probable cause." United States v. Camou, 773 

F.3d 932, 941 (9th Cir. 2014). "An officer will have probable 

cause to search if 'there is a fair probability that contraband 

or evidence of a crime will be found in a particular place, based 

on the totality of circumstances.'" United States v. Cervantes, 

703 F.3d 1135, 1139 (9th Cir. 2012) (quoting Dawson v. City of 

Seattle, 435 F.3d 1054, 1062 (9th Cir. 2006)). 

Here law-enforcement officers collectively had probable 

cause to believe evidence of a crime would be found in Ehmer's 

truck and trailer in light of the fact that Ehmer was traveling 

directly from the alleged crime scene after spending multiple 

days occupying the MNWR. Moreover, law-enforcement officers 

collectively had probable cause to believe the saddlebag, in 

particular, might contain evidence of a crime. In light of the 

fact that Ehmer had been photographed riding Bellboy during the 

occupation of the MNWR and the fact that the saddlebag was 

located in Ehmer's horse trailer along with Bellboy, officers 

could reasonably infer that the saddlebag belonged to Ehmer and 

that he had brought it with him to the MNWR. In addition to the 

saddlebag being in Ehmer's possession during the extended period 

that he occupied the MNWR (a fact that by itself gives rise to a 

fair probability that evidence of the alleged crime could be 

found therein because the totality of the effects that Ehmer took 

with him to the MNWR are relevant to prove his intent in 

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occupying the MNWR and the extent of his participation in that 

occupation), Ehmer had been photographed at the MNWR riding 

Bellboy while carrying a firearm. See Compl. (#1) at 'll'll 34-37. 

It follows that the firearms that he possessed and carried at the 

MNWR, in particular, are potentially compelling evidence of 

Ehmer's alleged intent to impede officers of the United States by 

force, intimidation, or threat. Moreover, given the preexisting 

connection between Bellboy and firearms that Ehmer carried, there 

was probable cause to believe that a firearm might be found 

within the saddlebag. Accordingly, the Court concludes the 

officers' search of the saddlebag was authorized under the 

automobile exception, and, therefore, its search and the seizure 

of the black-powder revolver did not unlawfully "taintn the 

interactions with Ehmer. 

As noted, Ehmer also testified law-enforcement agents asked 

him about the maroon pouch during his arrest at the roadblock. 8 

The Court concludes it need not determine whether Ehmer's 

testimony in this respect is credible because even if officers 

located the maroon pouch during the second stop at the roadblock, 

the search of the truck, as noted, was justified under the 

automobile exception. Accordingly, any seizure of the maroon 

pouch would have been permissible. 

8 The Court notes Ehmer did not testify the officers opened 

the maroon pouch at that time. 

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In addition, even if officers had opened the maroon pouch at 

the roadblock, Ehmer has failed to establish that he had any 

reasonable expectation of privacy in the pouch. The Ninth 

Circuit has held the defendant carries the burden of proof to 

demonstrate that he had a reasonable expectation of privacy in an 

item that was searched. United States v. Caymen, 404 F.3d 1196, 

1199 (9th Cir. 2005). As the Ninth Circuit summarized in Caymen: 

The "capacity to claim the protection of the Fourth 

Amendment depends not upon a property right in the 

invaded place,n but rather "whether the individual by 

his conduct has exhibited an actual (subjective) 

expectation of privacy,n and further, "whether the 

individual's subjective expectation of privacy is one 

that society is prepared to accept as reasonable.n 

Id. at 1199-1200 (quoting Rakas v. United States, 429 U.S. 128, 

143 (1978), and Smith v. Maryland, 442 U.S. 735, 740 (1979)). 

The record relating to the maroon pouch is sparse at best 

and can be summarized as follows: (1) it was located under the 

passenger seat in Ehmer's truck regardless whether its discovery 

occurred at the time that Ehmer was arrested (as he testified) or 

during the consent search on January 28, 2016 (as Agents Scott 

and Kelley testified); (2) Ehmer testified at the evidentiary 

hearing that he told law-enforcement officers at the roadblock 

that he did not open the maroon pouch when allegedly asked what 

was inside of the pouch; and (3) the pouch, in fact, contained 

cash, checks, credit cards, and identification cards that were 

associated with the Friends of the MNWR and/or MNWR employees. 

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On this record, therefore, the Court concludes Ehmer has 

failed to carry his burden to show that he had any reasonable 

expectation of privacy in the maroon pouch because he has not 

provided any evidence from which the Court could conclude he had 

a subjective expectation of privacy in the pouch. Although the 

fact that the pouch was located in Ehmer's truck may provide some 

support for an inference that the pouch belonged to Ehmer, that 

inference is overcome by Ehmer's own testimony that he did not 

open the maroon pouch, and, therefore, that he did not know what 

was inside the pouch. Moreover, in light of the fact that the 

property found inside of the maroon pouch was the property of the 

Friends of the MNWR, MNWR employees, or the United States 

government (and not Ehmer's property), the Court can only 

conclude, in the absence of any evidence to the contrary, that 

the maroon pouch itself also belonged to the Friends of the MNWR 

or to the government and not to Ehmer. Because an individual 

does not possess a reasonable expectation of privacy in property 

that was stolen or that he was not otherwise authorized to 

possess (see Caymen, 404 F.3d at 1200-01), Ehmer did not have any 

reasonable expectation of privacy in the maroon pouch. 

Accordingly, even if the maroon pouch was first discovered at the 

roadblock, Ehmer, nevertheless, does not have standing under the 

Fourth Amendment to challenge its search and seizure. 

For these reasons, therefore, the Court concludes the second 

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protective sweep, including the search of the saddlebag and the 

alleged discovery of the maroon pouch, were proper under the 

automobile exception. 

III. January 28, 2016, Search 

Ehmer next contends the written consent to search that he 

gave on January 27, 2016, for the full search of the truck and 

trailer that Agent Kelley conducted on January 28, 2016, was 

tainted by the earlier alleged unlawful activity and, in any 

event, involuntary. 

Again, the Court notes the January 28, 2016, search was not 

tainted because it was justified under the automobile exception, 

and, therefore, Ehmer's consent was not necessary to search the 

truck and trailer. Under the automobile exception to the warrant 

requirement, law enforcement can search a vehicle and any 

containers found therein if the officers have probable cause to 

believe evidence of a crime can be found in the automobile and 

the containers. That exception applies even when the vehicle has 

been impounded and the driver has been arrested. See United 

States v. Johns, 469 U.S. 478, 486-87 (1985) (holding the 

automobile exception justified a warrantless search of boxes that 

took place three days after the boxes were seized from an 

automobile) . See also Camou, 773 F.3d at 941-42 (discussing 

Johns and noting the automobile exception permits reasonable 

delays between the seizure of an automobile and containers and a 

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search thereof) . 

As also noted, law enforcement collectively had probable 

cause to believe that evidence of the Count One conspiracy could 

be found in both Ehmer's truck and his horse trailer when they 

arrived at the roadblock on January 27. There is not any 

evidence in the record from which the Court could conclude 

probable cause ceased to exist at some point between the seizure 

of the vehicle and trailer at the roadblock and the time that the 

search ultimately took place the following day. The one-day 

delay between the seizure and the search was, in any event, 

reasonable in light of the ongoing occupation of the MNWR and the 

resulting demands placed on law enforcement. Accordingly, even 

if Ehmer's consent was somehow involuntary, the January 28, 2016, 

search was lawful under the automobile exception to the warrant 

requirement. 

Moreover, the Court also concludes the government 

established by a preponderance of the evidence that Ehmer's 

consent to search the truck and trailer was voluntary. "Whether 

consent to search was voluntarily given is 'to be determined from 

the totality of all the circumstances.'" United States v. 

Patayan Soriano, 361 F.3d 494, 501 (9th Cir. 2003) (quoting 

Schneckloth v. Bustamante, 412 U.S. 218, 222 (1973)). The 

government bears the burden of proving consent was freely and 

voluntarily given. Patayan Soriano, 361 F.3d at 501. 

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The Court considers five factors when determining whether 

consent to a search was voluntary: 

(1) whether defendant was in custody; (2) whether the 

arresting officers had their guns drawn; (3) whether 

Miranda warnings were given; (4) whether the defendant 

was notified that [he] had a right not to consent; and 

(5) whether the defendant had been told a search 

warrant could be obtained. 

Id. at 502 (9th Cir. 2004). See also Liberal v. Estrada, 632 

F.3d 1064, 1082 (9th Cir. 2011). "No one factor is determinative 

to the equation," but the court is more likely to find the 

consent was voluntary if "'at least several of the factors'" 

support such a finding. Patayan Soriano, 361 F.3d at 502 

(quoting United States v. Chan-Jimenez, 125 F.3d 1324, 1327 n.3 

(9th Cir. 1997)). The factors, however, are "only guideposts, 

not a mechanized formula to resolve the voluntariness inquiry." 

Id. 

It is undisputed that at the time he gave consent to search 

the truck and trailer, Ehmer was in custody and he was not given 

Miranda warnings. Those factors, therefore, weigh against a 

finding that his consent was voluntary. 

It is also undisputed, however, that Ehmer was told (both 

orally and in plain English on the consent form) that he had a 

right to decline to give consent. A defendant's knowledge that 

he is free to decline to consent to the search is "especially 

significant" when determining whether his consent was voluntary. 

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United States v. Mendenhall, 446 U.S. 544, 558 (1980). See also 

Feaster v. Las Vegas Metro. Police Dep't, 451 F. App'x 663, 664 

(9th Cir. 2011). Accordingly, the Court concludes Ehmer clearly 

understood he had a right to refuse consent to the search. 

Moreover, it is also undisputed that officers did not have 

their weapons drawn and that the conversation between Ehmer and 

Agent Esperas was relaxed. Thus, although Ehmer was in custody 

at the time that he provided consent and had not been advised of 

his Miranda rights, the environment in which he ultimately gave 

his consent was not unduly coercive. These factors readily 

outweigh the above factors that might suggest his consent may 

have been involuntary. 

Finally, the Court notes the primary factual dispute between 

the parties relates to whether Agent Esperas told Ehmer that 

officers would search the truck and trailer regardless whether 

Ehmer consented. Although this dispute is relevant to the fifth 

factor, "when probable cause to justify a warrant exists, the 

weight of the fifth factor is significantly diminished." Patayan 

Soriano, 361 F.3d at 504-05. As noted, probable cause to justify 

a search warrant or a warrantless search of the truck and trailer 

under the automobile exception existed at the time that Ehmer 

gave his consent. The Court, therefore, need not resolve this 

factual dispute because even if Agent Esperas told Ehmer that the 

government would search the truck and trailer regardless of 

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Ehmer's consent, that statement would not overcome the strength 

of the factors that support a finding that the consent was freely 

and voluntarily given. 9 

Applying these factors to the totality of the circumstances, 

the Court concludes the government has carried its burden and 

proved by a preponderance of the evidence that Ehmer freely and 

voluntarily gave consent to search the truck and the trailer. 

CONCLUSION 

For these reasons, the Court DENIES Defendant Duane Leo 

Ehmer's Motion (#1708) to Suppress Statements and Evidence. 

IT IS SO ORDERED. 

DATED this 16th day of February, 2017. 

ANNA J. BROWN 

United States District Judge 

9 In any event, as to this factual dispute the Court finds 

implausible the notion that the officer's alleged statement 

persuaded Ehmer to consent. To the contrary, the officer's 

alleged statement, if made, would be more likely to persuade an 

individual not to consent because the waiver of a known right was 

not necessary. 

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