IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,
Plaintiff,
v.
KENNETH R. FREEMAN,
Defendant.
Kemp L. Strickland
UNm:D STATES ATTORNEY'S OFFICE
1000 S.W. Third Avenue, Suite 600
Portlard, OR 97204
Of A1tomeys for United States of America
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No. CR
FINDINGS OF FACT,
CONCLUSIONS OF LAW
AND ORDER TO SHOW CAUSE
Ellen C. Pitcher
OFFICE OF THE FEDERAL PUBLIC DEFENDER
1Ol S.'l1. Main Street, Suite 1700
Portlard, OR 97204
Attonley for Defendant
JONES,
Defendant Kenneth Ray Freeman has been charged in Count One with receipt of child
pornography in violation of 18 U.S.C. 2252(a)(2)(A) and (b)(I), and in Count Two with
possession of c:hild pornography in violation of 18 U.S.C. 2252(a)(5)(B). Currently before the
court are deferildant's Motion to Suppress Evidence and Statements (#14). For the reasons set
forth below, d<:fendant's motion is granted.
DISCUSSION
On June 16,2009, this court held an evidentiary hearing to resolve the issue of whether
Freeman to the warrantless search of his residence, a mobile home located at 1370 E.
Highway 730, Irrigon, Oregon, on November 29, 2006. During the search, three federal agents
from of Homeland Security, Immigration and Customs Enforcement ("ICE")
interviewed Freeman, obtained incriminating statements from him, and seized three computers
from the reside:nce that were later found to contain incriminating images. If the ICE agents'
warrantless emry into Freeman's residence and the ensuing search and seizure violated the Fourth
Amendment, then all evidence acquired as a result of that entry is inadmissible and must be
suppressed. Wong Sun v. United States, 371 U.S. 471,484-86 (1963); United States v.
Shaibu, 920 F.i2d 1423, 1428 (9th Cir. 1990).
The law regarding a warrantless search of a residence is well-established: Whether the
search or seizu:re involves persons or property, "the Fourth Amendment has drawn a firm line at
the entrance to' the house." Payton v. New York, 445 U.S. 573,589-90 (1980). "At the very core
[of the Fourth j:'\mendment] stands the right ofa man to retreat into his own home and be free
from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505,
2 - FINDINGS: OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOW CAUSE
511 (1961). "..\. warrantless search of a house is per se wueasonable." Payton, 445 U.S. at 586.
"Absent exigency or consent, warrantless entry into the home is impermissible under the Fourth
Amendment." Steagald v. United States, 451 U.S. 204, 211 (1981); Schaiby, 912 F.2d at 1425.
In this case, the government admits that the ICE agents did not have a search warrant, and
that there were- no exceptional circumstances that compelled the agents to enter Freeman's
residence. Ralher, the lead investigator, Senior Special Agent Findley, testified that based on
information he had received from a larger federal investigation into a child pornography
distribution operation in New Jersey, which implicated Freeman as a subscriber to one ofthree
child pornography websites, he and two other ICE agents came to Freeman's property in plain
clothes to conduct an informal "knock and talk" interview on the evening ofNovember 29, 2006.
The government relies entirely on Freeman's consent to establish the legality of the agents' entry
into Freeman's: mobile home, the subsequent search, and the seizure ofthree computers.
1
The
law is well-estiblished that 'Ithe government 'always bears the burden of proof to establish the
existence of effective consent.
ltt
Shaibu, 920 F.2d at 1426 (quoting United States v. hnpink, 728
F.2d 1228, 1222 (9th Cir. 1984 (additional citations omitted).
"Judicial concern to protect the sanctity ofthe home is so elevated that free and voluntary
consent cannot be found by a showing of mere acquiescence to a claim oflawful authority." rd.
10n June 26, 2008, it is undisputed that federal law enforcement agents returned to
Freeman's residence with an arrest warrant that was obtained based on a grand jury indictment
charging him with the receipt and possession of child pornography. After the agents entered the
residence and placed Freeman under arrest, he agreed to speak with the agents, was read Miranda
warnings, s i g n i ~ d a written waiver ofthose rights, and signed a written consent form to permit
agents to searc:l his residence. As a result ofthis search, a computer and other electronic media
used to store inages were seized, and Freeman made inculpatory statements to the arresting
agents.
3 - FINDINGS: OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOW CAUSE
(citing Bumper v. North CaroliM, 391 U.S. 543, 548-49 (1968. Therefore, in a case such as
this one, Freeman disputes the consensual nature of the entry and claims that he did not
invite the ICE agents into his mobile home, while all three ICE agents claim that Freeman
"allowed" thera to enter his mobile home after they spoke with him outside for a few minutes, the
government must establish the following:
It must show that there was no duress or coercion, express or implied. The
consent must be "unequivocal and specific" and "freely and intelligently given."
There must be convincing evidence that defendant has waived his rights. There
must clear and positive testimony. '''Courts indulge every reasonable
presum.ption against waiver' of fundamental constitutional rights." Coercion is
implicit in situations where consent is obtained under color ofthe badge, and the
government must show that there was no coercion in fact.
United States v. Page, 302 F.2d 81,83-84 (9th Cir. 1962) (citations and footnotes omitted). "The
government may not show consent to enter from the defendant's failure to object to the entry. To
do so would bt: to justify entry by consent and consent by entry." Shaiby, 920 F.2d at 1427.
Whether a def(mdant's consent is voluntary is determined from the totality of the circumstances,
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973), and in this case, the government must
demonstrate that the ICE agents' "knock and talk" practice reflects the defendant's voluntary
consent to the search. See id. at 222.
CREDmILITY ASSESSMENT
In the absence of any contemporaneously written reports by federal law enforcement
agents documenting the events that occurred at the front door of Freeman's mobile home on
November 29,2006, or detailing the means by which the agents obtained Freeman's consent to
enter the residence, conduct a search, and seize Freeman's computers, the court must necessarily
weigh the credi.bility ofthe testimony provided by the three ICE agents who were present for the
4 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOW CAUSE
"knock and talk," against Freeman's conflicting testimony on the issue of whether Freeman gave
sufficient consent to permit agents to lawfully advance from the front porch of the mobile home,
through the doorway behind Freeman, and into the residence where the search and seizure
ensued. As of the date ofthe suppression hearing, each witness is relying on a recollection of
events that occurred more than two and a half years ago, with very little corroborating evidence
in the record.
For the reasons set forth below, I find Freeman's account of the events that transpired on
November 29, 2006, to be the most credible, and therefore rely on his testimony to resolve any
disputes of fact and to make my fmdings in this case. For Freeman, what occurred that night was
one traumatic event, which he described with detail, clarity, and consistency. In contrast, the
three ICE agents-who each testified that in the course ofhis law enforcement career had
conducted between fifty and one hundred "knock and talk" investigations-lacked detail and
suffered from a number of inconsistencies in several important respects. I fmd that the three
agents' conflicting portrayals of what occurred that night at Freeman's home lack credibility, and
that the methods used to obtain information from Freeman are highly suspect.
First, the ICE agents chose a dark, freezing cold night in an isolated Eastern Oregon
location to conduct their mission. Why didn't they go across the street from their offices to the
United States Courthouse in Portland to obtain a search warrant from a designated U.S.
Magistrate Judge who is on duty twenty-four hours a day? The lead investigator, Agent Findley,
admitted that their mission was not urgent. The agents testified that they had enough basic facts
to link Freeman to a larger federal child pornography investigation, and should have applied for a
5 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOW CAUSE
search warrant; yet, they chose this dubious "knock and talk" method to gain access to Freeman's
home and seize his computers.
Second, why choose 9:00 p.m. in the dark of night to knock loudly and repeatedly at
Freeman's door to "talk" to him? Absolutely no reason was given to explain why they could not
have visited Freeman's property during daylight hours.
Third, when Freeman admittedly told the agents from inside his residence that he did not
want to talk to them because he was just awakened, was tired, didn't feel well, and offered to talk
to them the next day, why didn't they depart without further discussion? Freeman testified,
unequivocally: "Once before the door opened and twice out there [on the porch], I asked them to
leave; [told them] that I wasn't feeling well; that I needed my sleep and would they please come
back and talk to me when I was in a better condition to talk to them." (Tr. at 119-20.) The
agents should have left and returned at a more reasonable time. No explanation was provided to
justify the agents' continued presence at Freeman's front door.
Fourth, once inside, the agents asked Freeman many incriminating questions, without any
Miranda warnings; although they told Freeman that they were not there to arrest himthat
evening, and portrayed the conversation as a casual, infonnal, question-and-answer session,
Freeman was not actually in a position to freely disengage from the interrogation or to leave the
premises. These agents told Freeman that he was not under arrest even after informing himthat
they had all of his internet "screen names" and had corroborating financial information to use
against him; yet, as he was soon to find out, Freeman certainly was not free to leave or even to
move about in his own home. Freeman testified: "l felt at that point that I was ... going to be
6 - FINDINGS OF FACT, CONCLUSIONS OF LAWAND ORDER TO SHOW CAUSE
arrested; that I had no choice in whatever happened after that point. I was scared. I was cold. I
was tired." (Tr. at 121.) When Freeman got up from his recliner chair in the living room, left to
use the restroom for a few minutes, and then went into the mobile home's back bedroom to rest
and put on a shirt and shoes, the agents began yelling at him to come out from behind the closed
door with his hands up. Each agent admitted to pulling out his weapon at this time. When
Freeman opened the door, he sawall three agents out in the hallway, in defensive positions, with
their hands on their weapons. None of three agents' testimony was consistent regarding
Freeman's exit from the living room, or regarding how the events unfolded that led them to
Freeman's back bedroom, where two additional computers were seized. At this point, the "knock
and talk
tl
was clearly a sham.
Fifth, the three ICE agents each gave inconsistent versions ofhow the two computers
from Freeman's back bedroom were obtained. One agent said that Freeman voluntarily retrieved
the computers himself, and just re-appeared in the hallway carrying both computers. Given that
one of the computers was a bulky "tower" style, and the other was a laptop, and given that
Freeman was an overweight fifty-seven year old in poor physical condition, who was suffering
from lower back problems, I find this account to be completely implausible. Another agent
testified that Freeman carried one computer, and an agent carried the other. One agent testified
that he looked into the bedroom and saw Freeman unhooking the tower computer, and another
testified that an agent unhooked that computer. Finally, after changing his story three times, the
agent in charge eventually admitted that he had no personal knowledge about exactly how the
computers were obtained and was just relying on what the other agents had told him. Freeman
testified truthfully that he did not intend to permit the agents to enter his bedroom; they just
7 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOW CAUSE
walked through the door, saw the tower computer and unhooked it, saw the laptop under the bed
and took it, and at no point did they ever pennit him to touch either computer. Finally, Freeman
testified that the agents escorted him back down the hallway, with the computers in their
possession. I find Freeman's account ofthe incidents that occurred in his back bedroom to be
fully credible.
Sixth, the ICE agents' actions on November 29, 2006, were not then, and never have been
properly reported. There was no report made at or near the time of the event; more than a month
later, the lead agent simply concocted a vague and cursory notation. There was never a notation
in any agent's report recounting the details of any consent Freeman gave at any point-from the
entry into the mobile home, to the seizure of the first computer in Freeman's living room, to the
entry and seizure ofthe two additional computers from Freeman's back bedroom. Further, as
mentioned above, although each agent agreed during the motion to suppress hearing that
weapons were drawn while inside Freeman's home, there was no record made of this significant
event.
Finally, nearly a year and seven months passed before any legal action was taken against
Freeman, when law enforcement agents-including the ICE agents who participated in the "knock
and talk"-arrived to execute an arrest warrant.
From all of the above, I conclude that the three ICE agents' actions were the very anthesis
ofproper law enforcement practices and should not be condoned.
11/
/II
1/1
8 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOW CAUSE
FINDINGS OF FACT
Based on the record in this case, considering the totality of the circumstances, and having
concluded that defendant Freeman's version of the events is credible, I make the following
findings of fact:
1. On November 29, 2006, when ICE agents Josh Findley, Jim Cole, and Sam Clawer arrived
in an unmarked sport utility vehicle at Kenneth Freeman's mobile home in Irrigon, Oregon,
it was approximately 9:00 p.m., and the temperature outside was roughly 20 degrees
Fahrenheit. The agents were dressed in plain clothing, which included jackets and
sweatshirts appropriate for the weather, when they knocked on Freeman's door.
2. Freeman had returned from a vacation in Mexico the day before, and was asleep in the
bedroom at the rear ofthe mobile home when he was awakened by the agents' insistent
knocking at his door. Freeman was suffering from a number of health conditions, most
notably disc problems in his lower back, for which he had been taking pain medication.
Freeman, who was wearing only his underwear when he was awakened, quickly put on his
pants and socks and came to the front door. Upon learning the ICE agents' identity,
Freeman refused to open the door, telling the agents to go away and come back the next
day because he was tired, didn't feel well, and was not in a condition to talk to them that
night.
9 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOW CAUSE
3. The ICE agents did not leave the premises, and continued to speak to Freeman through the
closed door. Hoping to convince the agents to leave by speaking with them face-to-face,
Freeman stepped out onto his front porch, closed the door behind him, and spoke with the
agents outside on the porch for approximately five minutes. During the conversation,
Freeman emphatically told the agents that they could not come into his home, that he
wanted them to go away, and that he would talk: to them the next day. He told the agents
he had already gone to bed, he was fatigued, he needed to sleep, and he did not want to
talk to them at that time. While all four men were standing outside on the small front
porch, the agents showed Freeman their law enforcement credentials, explained that
Freeman's name had come up in an investigation of internet websites known to contain
child pornography, and infonned Freeman that they were not there to arrest him but only
to discuss his involvement in the website investigation.
2
Freeman was skeptical and told
them that he did not want to talk about it, but he also did not want to do anything that
would lead to further problems.
4. Agent Findley commented that it was cold and asked Freeman ifhe would rather talk
inside. The agents, who were fully clothed, would not leave Freeman's front porch despite
Freeman's repeated requests for them to go away. Meanwhile, Freeman was standing
outside in the 20-degree weather, clothed only in an underwear T-shirt, a pair of pants, and
2Freeman testified that while he was outside on the front porch there was some general
discussion about a child pornography investigation; however, there was no specific discussion
about the actual evidence the ICE agents had against him. nAil ofthe questions and them telling
me what they had as far as a case against me and everything happened once we got inside the
trailer.
n
(Tr. at 120.)
10 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOW CAUSE
still in his socks without any shoes. After enduring more than five minutes of persuasion
by the agents, Freeman said, "I'm too cold to stand out here and argue with you. I'm going
inside." (Tr. at 120.) Freeman turned around and opened the door far enough to pennit
him to retreat into the warmth of his residence. His testimony about how the agents
gained entry speaks for itself: "One of the officers reached over my shoulder, opened the
door fully, and basically three men escorted me into my home." Id. I find that none ofthe
ICE agents were expressly or impliedly invited to come into the residence to continue their
mission. I further fmd that Freeman never gave consent, either express or implied, to
pennit the agents to enter his residence.
5. Once inside, Freeman did not ask the ICE agents to leave again, having already asked them
to leave at least three times before, to no avail. Freeman was scared, cold, and tired.
Despite the agents' assurances, Freeman still thought that he would be arrested, and the
agents kept questioning him persistently. Freeman was not at liberty to freely move about
his home. Rather than resist further, Freeman began answering the agents' questions,
made incriminating statements, and eventually acquiesced to the agents' seizure of one
computer from his living room, and two computers from his bedroom.
6. While inside the residence, Agent Findley filled out a "Consent to Search" form dated
11129/06, which Freeman signed, authorizing law enforcement agents to search Freeman's
computers (see Government Exh. 2); Findley also filled out a "Custody Receipt for Seized
Property and Evidence" form dated 11129/06, which Freeman also signed (see Government
11 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOW CAUSE
Exh. 3). Agent Cole wrote down a few infonnal notes while Freeman was being
interviewed inside the residence, but these notes do not discuss the events that led up to
the agents' entry into the mobile home, or otherwise document the details of Freeman's
discussion with agents outside on the front porch.
7. None of the ICE agents wrote a report or made any entry by dictation or otherwise to
document the events that occurred at the Freeman residence until more than a month later;
the cursory report did not contain a single word as to how the agents obtained consent to
enter and search Freeman's residence. To this day, no ICE agent has written anything in
any report about receiving Freeman's consent to enter; in a report dated March 12,2009,
prepared in anticipation ofthe evidentiary hearing, the author notes only that "Freeman
allowed agents into his residence."
CONCLUSIONS OF LAW
The government has not met its burden to show that Freeman gave "unequivocal and
specific" consent to permit ICE agents to enter his residence on November 29,2006. The
circumstances of this case closely resemble the scenario in Shaibu, where the defendant walked
out of his apartment, left the door open, and during questioning by law enforcement officers, the
defendant turned around and walked back through the door; the officers simply followed without
any clear exchange ofwords seeking and granting permission to enter and search. Shaiby, 920
F.2d at 1424. The Ninth Circuit held as a matter oflawthat such conduct, standing alone, is
insufficient to constitute consent to an entry by law enforcement officers. Id. at 1425.
12 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOW CAUSE
Not only did Freeman take additional steps to prevent the ICE agents from entering his
mobile home by unequivocally telling them to leave even before he opened the door, but also he
took care to close the door when he stepped outside to respond to the agents' inquiry, where he
again told the agents to leave. After the ICE agents showed their badges, and continued to discuss
Freeman's involvement with a child pornography website while Freeman remained on his front
porch, at night, in sub-freezing weather, clad in barely more than his underwear, the agents
crossed the line from a casual "knock and talk" to set up a situation where Freeman was
compelled to retreat into his residence because they would not leave him alone; he simply opened
his front door, and all three agents-without his permission-followed him inside. Following that
unlawful entry, Freeman submitted to their authority and was coerced into allowing the agents to
remain inside, where they continued to question him, conducted a further search of his residence,
and ultimately seized three computers. "[The] standard in this Circuit [is] that '[c]oercion is
implicit in situations where consent is obtained under color of the badge.'" Id. at 1427 (quoting
Page, 302 F.2d at 84.) The law is unequivocal on this point: "Where there is coercion there
cannot be consent." Bumper v. North Carolini!, 391 U.S. 543, 550 (1968).
Here, as discussed above in the fmdings of fact, there simply was no consent to pennit the
agents to enter Freeman's residence, and thereafter any consent Freeman gave to permit the agents
to search further was certainly coerced. In sum, there was no "clear and positive testimony" that
any of the three ICE agents obtained permission to follow Freeman into his residence, let alone
"convincing evidence" that defendant waived his right to be free from unreasonable searches and
seizures under the Fourth Amendment and thereby "freely and intelligently" consented to the ICE
agents' entry into his residence. See Page, 302 F.2d at 83-84; Shaibu, 920 F.2d at 1426.
13 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOW CAUSE
I conclude as a matter of law that the ICE agents' initial entry into Freeman's residence
violated the Fourth Amendment. Thus, the remainder of the search and seizure that occurred on
November 29, 2006, was unlawful. The "Consent to Search" form and "Custody Receipt for
Seized Property and Evidence" Freeman signed that night are of no legal effect; "[a]ll evidence
acquired after the entry must ... be suppressed." Shaiby, 920 F.2d at 1428 (citing Wong Sun, 371
U.S. at 484-86; Weeks v. United States, 232 U.S. 383 (1914. Furthermore, all statements
Freeman made to agents while inside his residence on November 29, 2006, and all information
obtained from the computers seized on that date are "fruit of the poisonous tree" and cannot be
used by the government. See Wong Sun, 371 U.S. at 484-86. Finally, because the evidence that
was unlawfully acquired from the November 29, 2006, search and seizure was later used to obtain
the arrest warrant served on Freeman on June 26,2008, all of the evidence acquired subsequent to
the service of that warrant is tainted and must also be suppressed. See id.
DISPOSITION
Defendant's Motion to Suppress Evidence and Statements (#14) is GRANTED IN FULL.
The government conceded at the start of the evidentiary hearing that it would not have sufficient
evidence to proceed to trial ifthe court suppressed the evidence obtained from Freeman both
during the November 29, 2006, encounter and any encounters thereafter. I initially was inclined
to dismiss the indictment in this case based on defendant's motion to summarily dismiss the
indictment on these grounds. (See Motion to Dismiss (#30).) As Justice Cardozo famously said
in reference to the exclusionary doctrine, '''[t]he criminal is to go free because the constable has
blundered.III Maw v. Ohio, 367 U.S. 643, 659 (1961), quoting People v. Defore, 150 N.E. 585,
587 (N.Y. 1926. If so, "it is the lawthat sets him free.... [n]othing can destroy a government
14 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOW CAUSE
more quickly than its failure to observe its own laws, or worse, its disregard ofthe charter of its
own existence." Maw, 367 U.S. at 659.
The government objects to a summary dismissal ofthe indictment in this case, and
requests further review. Accordingly, the government shall have until July 1, 2009, to advise the
court ifany evidence remains to be used in its proceeding against the defendant in light of this
ruling, and to show cause as to why the indictment should not be dismissed. Until the fInal order
of dismissal is entered by this court, Freeman's conditions of pretrial release must remain intact.
IT IS SO ORDERED.
DATED this ,24{~ day ofJune, 2009.
15 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOW CAUSE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA, )
)
Plaintiff, ) No. CR 08-289-1-J O
)
v. ) AMENDED ORDER
)
KENNETH R. FREEMAN, )
)
Defendant. )
Kemp L. Strickland
Kelly Zusman
UNITED STATES ATTORNEY'S OFFICE
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204
Of Attorneys for United States of America
Ellen C. Pitcher
OFFICE OF THE FEDERAL PUBLIC DEFENDER
101 S.W. Main Street, Suite 1700
Portland, OR 97204
Attorney for Defendant
1
I granted the government's request for an extension of time to respond to J uly 17,
2009, but the government filed its response by the original date. The defense requested an additional
100 days to respond after the government, but that request is now moot as a result of this disposition.
2
On J une 24, 2008, Freeman was charged with two Counts, receipt of child
pornography in violation of 18 U.S.C. 2252(a)(2)(A) and (b)(1), and possession of child
pornography in violation of 18 U.S.C. 2252(a)(5)(B).
2 - ORDER
J ONES, J udge:
On J une 24, 2009, this court issued Findings of Fact and Conclusions of Law ("Findings
and Conclusions") (#35) on defendant Kenneth Ray Freeman's motion to suppress and ordered
the government to show cause by J uly 1, 2009,
1
as to why the indictment against defendant
should not be dismissed.
2

In response to the order to show cause, the government represents that after the
suppression hearing on J une 16, 2009, it found child pornography images on the computer seized
in J une 2008, and raises new legal arguments to challenge my ruling that all of the evidence
acquired as a result of the November 29, 2006, unlawful search and seizure, including the
evidence seized during defendant's arrest on J une 26, 2008, was tainted and therefore suppressed.
Specifically, the government now contends, for the first time in this proceeding, that the
19-month interval between the 2006 unlawful search and seizure and the 2008 arrest and seizure
was so attenuated as to dissipate the "taint" of the original unlawful conduct. For the reasons
explained below, I reject the government's theory, and grant defendant's motion to dismiss the
indictment (#30).
DI SCUSSI ON
As an initial matter, at the outset of the suppression hearing defense counsel
unequivocally stated that the motion to suppress was directed to the evidence acquired both on
3 - ORDER
November 29, 2006, and on J une 26, 2008. She explained to the court that "[a]t that time [J une
26, 2008] there was an arrest warrant, but it was based entirely on the information that was
seized and the evidence that they obtained on November 29, 2006. And if the court suppresses
that evidence, our argument is that everything on J une 26th would also go." (Tr. at 7-8.) The
government then conceded that "[i]f the court suppresses the evidence, the physical evidence that
we have on November 29, 2006, we won't have a case . . . ." (Tr. at 8.) Because I determined at
the hearing that the November 29, 2006, search and seizure was unlawful, I suppressed all of the
evidence and, therefore, initially dismissed the case on the record immediately following the
hearing.
Before I issued my formal Findings and Conclusions, the government objected to
defendant's motion to dismiss the indictment, arguing that dismissal was not an appropriate
remedy. In an attempt to ascertain what was left of the government's case, as part of my
Findings and Conclusions I issued an order for the government to show cause as to why the
indictment should not be dismissed. As mentioned above, despite the prosecutor's concession, in
open court, that a ruling suppressing the 2006 evidence would mean that "[the government]
won't have a case," the government now proposes a theory of attenuation to redeem (or purge the
taint from) the otherwise poisonous fruit, a theory I have considered and find to be untenable
under the circumstances of this case.
According to the government, "[t]o suppress a computer seized during the course of an
otherwise lawful arrest, and pursuant to a valid consent to seize and search form that defendant
readily admits he read and understood, would sweep too broadly." Government's Response, p. 4
(footnote omitted). The government's reasoning apparently rests on the assertion, at page 5 of its
3
"ICE" means Department of Homeland Security, Immigration and Customs
Enforcement.
4 - ORDER
Response, that "this case is somewhat unique in that this defendant was not arrested in
connection with the seizure that this Court has determined was unlawful." If that were so, then
the analysis might be different, but in fact, the arrest warrant executed in J une 2008 was based
entirely on the evidence unlawfully seized in November 2006. Senior Special Agent Findley's
testimony during the suppression hearing underscored this point:
THE COURT: Why did it take you [so many] months [to return to
arrest defendant]?
THE WITNESS: They had problems imaging his
* * *
BY MR. STRICKLAND:
Q Do you know why it took that long?
A Yeah. It was -- there was an issue with the computer forensics on
one of his computers and getting the information off of it. And then there were
other delays, you know. Present the case to the U.S. attorney's office, and, you
know, there's conflicts and stuff like that, so . . .
(Tr. 47-48.) Thus, the government did not develop any independent basis to arrest defendant; the
only reason for the extensive delay between the unlawful search and seizure and the much later
arrest was delay by the government's agents and attorneys themselves.
This court does not accept the government's own delay as a valid underpinning for a
finding of attenuation. Indeed, the Eleventh Circuit recently held that a 21-day delay between
when ICE
3
agents seized a computer hard drive believed to contain child pornography and when
the agents obtained a search warrant to examine the hard drive was so unreasonable as to require
4
In this case, the government delayed approximately one year after the J une 28, 2008,
seizure of the fourth computer before completing the forensic examination of that computer, as
revealed by the government's response. See Government's Response, p. 2 ("When the parties
appeared before this Court for an evidentiary hearing [on J une 16, 2009] on defendant's motion to
suppress, the laptop computer ICE agents seized in J une 2008 . . . had not yet been forensically
analyzed.").
5 - ORDER
suppression of the evidence, particularly because the excuse offered for the delay -- that the
agent "didn't see any urgency of the fact that there needed to be a search warrant during the two
weeks that [he was at a training program]" -- was insufficient. See U.S. v. Mitchell, 565 F.3d
1347, 1351-52 (11th Cir. 2009).
4
In this case, the 19-month delay on which the government
relies for its attenuation argument is attributable solely to the government itself, and the
government has offered little in the way of justification for that delay. Under this circumstance,
to find that the taint from the initial unlawful search and seizure was somehow ameliorated
would lead to an untenable conclusion -- that the taint resulting from an unlawful search and
seizure may be purged merely through the government's own delay in using that tainted evidence
for some period of time. This court cannot and does not accept that theory.
The government relies on U.S. v. Ceccolini, 435 U.S. 268, 279-80 (1978), for the
proposition that "a time lapse of four months is 'substantial,' and favors a finding of attenuation,
particularly for evidence that involves a live witness." Government's Response, p. 4. The
government admits, as it should, that Ceccolini involved evidence in the form of a live witness; a
fair reading of Ceccolini demonstrates that in its reasoning, the Court very carefully
distinguished between physical and testimonial evidence, in significant part because live
witnesses presumably have free will. As the Court explained:
Witnesses are not like guns or documents which remain hidden from view until
one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come
6 - ORDER
forward and offer evidence entirely of their own volition. And evaluated
properly, the degree of free will necessary to dissipate the taint will very likely be
found more often in the case of live-witness testimony than other kinds of
evidence.
* * *
[O]bviously [the factors we have discussed] all point to the conclusion that the
exclusionary rule should be invoked with much greater reluctance where the
claim is based on a causal relationship between a constitutional violation and the
discovery of a live witness than when a similar claim is advanced to support
suppression of an inanimate object.
Ceccolini, 435 U.S. at 276-77, 280. Thus, Ceccolini, while instructive, does not advance the
government's argument here.
In sum, I find the government's attenuation theory, under the circumstances in this case
and for reasons explained above, to be without merit. Consequently, I only briefly address the
three factors the government promotes as the correct analysis. See Government's Response, p. 3
(citing U.S. v. Washington, 387 F.3d 1060 (9th Cir. 2004)). Under that three-part test, the court
examines the temporal proximity between the illegality and consent; any intervening
circumstances; and the "purpose and flagrancy of the official misconduct." Washington, 387
F.3d at 1073.
With respect to temporal proximity and intervening circumstances, as discussed above, I
find that the government is solely responsible for the delay and that the only "intervening
5
The government contends that an intervening circumstance here is that "this
defendant was not arrested in connection with the seizure that this Court has determined was
unlawful." Government Response, p. 5. As stated earlier in this Order, I reject that proposition and
find, as I did in my Findings and Conclusions (at page 14), that defendant's arrest was based entirely
on the search and seizure that I determined to be unlawful.
7 - ORDER
circumstance"
5
is the government's delay in performing the forensic analysis of the computers
and obtaining the arrest warrant.
With respect to the "purpose and flagrancy of the official misconduct," the government
characterizes the agents' conduct as "at best, negligent conduct." Government's Response, p. 6.
The government takes issue with my description of their conduct, particularly my comment that
"knock and talk" was a "dubious . . . method to gain access to [defendant's] home and seize his
computers." Findings and Conclusions, p. 6. According to the government, "the law in this
Circuit and in this district has been well-settled on the legality and validity of knock and talks for
over 40 years." Government's Response, p. 7. That statement, while accurate in some cases,
disregards that not all "knock and talks" are the same, and not all "knock and talks" have been
upheld in the Ninth Circuit as legal or valid.
In U.S. v. Crapser, 472 F.3d 1141 (9th Cir. 2007), the Ninth Circuit, quoting at length
from U.S. v. Cormier, 220 F.3d 1103 (9th Cir. 2000), indeed observed that:
This Court stated the general rule regarding "knock and talk" encounters almost
forty years ago in the following passage:
"Absent express orders from the person in possession against any
possible trespass, there is no rule of private or public conduct
which makes it illegal per se, or a condemned invasion of the
person's right of privacy, for anyone openly and peaceably, at high
noon, to walk up the steps and knock on the front door of any
man's 'castle' with the honest intent of asking questions of the
occupant thereof - whether the questioner be a pollster, a salesman,
or an officer of the law."
8 - ORDER
That view has now become a firmly-rooted notion in Fourth Amendment
jurisprudence.
Crapser, 472 F.3d at 1146 (quoting Cormier, 220 F.3d at 1109, which in turn quotes Davis v.
United States, 327 F.2d 301, 303 (9th Cir. 1964)).
"Knock and talk" may be a firmly-rooted notion, but the Ninth Circuit has not hesitated
to find that a knock and talk amounts to a seizure instead of a consensual encounter when the
circumstances support such a finding. See Crapser, 472 F.3d at 1146-47, in which the court
explained:
It also is instructive to contrast this case with Orhorhaghe v. INS, 38 F.3d 488
(9th Cir. 1994), in which we found a seizure instead of a consensual encounter.
There, the officers positioned themselves so as to be certain the defendant could
not escape or leave, the officers made a deliberate effort to reveal their concealed
firearms; the encounter occurred in a non-public setting, and the officers acted in
an aggressive manner suggesting that compliance would be compelled. The ratio
of officers to defendants was 4 to 1. Id. at 491; see also United States v.
Washington, 387 F.3d 1060, 1068-69 (9th Cir. 2004)(holding that an encounter
was not consensual where it occurred in a private place, the officers refused to
honor the defendant's request to shut the door, and the officers advised the
defendant several times that he could be arrested and told him he could not
terminate the encounter).
In this case, Agent Findley testified that ICE learned through "various investigations
conducted by our cyber center" that "[defendant] had paid for access to child pornography
websites . . . on 46 different occasions, spanning three years." (Tr. 23.) Through credit card
information and defendant's IP address, ICE tracked defendant's address to Irrigon, Oregon. Id.
According to Agent Findley, the information ICE obtained concerning defendant's payment was
over a year old; Agent Findley did not explain why ICE did not act on the information sooner or
why ICE did not attempt to update its information. Agent Findley did, however, tell the court
9 - ORDER
that he did not apply for a warrant because in this district, the information would be considered
stale. (Tr. 25.)
Despite the lack of recent information sufficient to apply for a warrant, the agents made
an operation plan to go to Irrigon in October 2006. (Tr. 23.) The agents did not conduct the
"knock and talk" at "high noon" in a public place; instead, they conducted it on a cold, dark night
in November 2006 at a private residence in remote Eastern Oregon. The ratio of agents to
defendants was three to one. Further, as I found from the evidence adduced at the suppression
hearing, the agents ignored defendant's multiple requests that they leave; they persisted in their
efforts to get defendant out of his residence; they refused to leave defendant's front porch; and in
essence, pushed their way into defendant's home when he retreated inside. See Findings and
Conclusions, pp. 10-11, 2-4. In view of that evidence, I described the "knock and talk" that
occurred in this case as a "dubious method" to gain access to defendant's home and seize his
computers, a description to which I continue to adhere.
In summary, the government has failed to show cause why the indictment should not be
dismissed. Consequently, I GRANT defendant's motion (#30) and DISMISS the indictment.
IT IS SO ORDERED.
DATED this 13th day of J uly, 2009.
/s/ Robert E. J ones
ROBERT E. J ONES
U.S. District J udge