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IN THE UNITED STATES DISTRICT COURTFORTHE DISTRICT OF OREGON

UNITED STA TES OF AMERICA,Plaintiff,

v.KENNETH R. FREEMAN,

Defendant.Kemp L. StricklandUNm:D STATESATTORNEY'S OFFICE1000 S.W. Third Avenue, Suite 600Portlard, OR 97204OfA1tomeys for United States ofAmerica

)))))))))

No. CR 0 8 - 2 8 9 - 1 ~ J OFINDINGS OF FACT,CONCLUSIONS OF LAWAND ORDER TO SHOW CAUSE

Ellen C. PitcherOFFICE OF THE FEDERAL PUBLIC DEFENDER1Ol S.'l1. Main Street, Suite 1700Portlard, OR 97204Attonley for Defendant

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JONES, J u d g ~ :Defendant Kenneth Ray Freeman has been charged in Count One with receipt o f child

pornography in violation of 18 U.S.C. 2252(a)(2)(A) and (b)(I), and in Count Two withpossession o f c:hild pornography in violation o f 18 U.S.C. 2252(a)(5)(B). Currently before thecourt are deferildant's Motion to Suppress Evidence and Statements (#14). For the reasons setforth below, d

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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 FourthAmendment." 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, andthat there were- no exceptional circumstances that compelled the agents to enter Freeman'sresidence. Ralher, the lead investigator, Senior Special Agent Findley, testified that based oninformation he had received from a larger federal investigation into a child pornographydistribution operation inNew Jersey, which implicated Freeman as a subscriber to one of threechild pornography websites, he and two other ICE agents came to Freeman's property in plainclothes 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' entryinto Freeman's:mobile home, the subsequent search, and the seizure of three computers.1 Thelaw is well-estiblished that 'Ithe government 'always bears the burden of proof to establish the

existence of effective consent. lt t Shaibu, 920 F.2d at 1426 (quoting United States v. hnpink, 728F.2d 1228, 1222 (9th Cir. 1984 (additional citations omitted).

"Judicial concern to protect the sanctity of the home is so elevated that free and voluntaryconsent cannot be found by a showing ofmere acquiescence to a claim oflawful authority." rd.

10n June 26, 2008, it is undisputed that federal law enforcement agents returned toFreeman's residence with an arrest warrant that was obtained based on a grand jury indictmentcharging him with the receipt and possession of child pornography. After the agents entered theresidence and placed Freeman under arrest, he agreed to speak with the agents, was read Mirandawarnings, s i g n i ~ d a written waiver of those rights, and signed a written consent form to permitagents to searc:l his residence. As a result of this search, a computer and other electronic mediaused to store inages were seized, and Freeman made inculpatory statements to the arrestingagents.3 - FINDINGS: OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOWCAUSE

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(citing Bumper v. North CaroliM, 391 U.S. 543, 548-49 (1968. Therefore, in a case such asthis one, w h e r l ~ Freeman disputes the consensual nature of the entry and claims that he did notinvite the t h r e t ~ 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, thegovernment must establish the following:

It must show that there was no duress or coercion, express or implied. Theconsent must be "unequivocal and specific" and "freely and intelligently given."There must be convincing evidence that defendant has waived his rights. Theremust ' b 4 ~ clear and positive testimony. '''Courts indulge every reasonablepresum.ption against waiver' of fundamental constitutional rights." Coercion isimplicit in situations where consent is obtained under color of the badge, and thegovernment 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). "Thegovernment may not show consent to enter from the defendant's failure to objectto the entry. Todo 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 mustdemonstrate that the ICE agents' "knock and talk" practice reflects the defendant's voluntaryconsent to the search. See id. at 222.

CREDmILITYASSESSMENTIn the absence of any contemporaneously written reports by federal law enforcement

agents documenting the events that occurred at the front door ofFreeman's mobile home onNovember 29,2006, or detailing the means by which the agents obtained Freeman's consent toenter the residence, conduct a search, and seize Freeman's computers, the court must necessarilyweigh the credi.bility of the testimony provided by the three ICE agents who were present for the

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"knock and talk," against Freeman's conflicting testimony on the issue ofwhether Freeman gavesufficient 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 seizureensued. As of the date of the suppression hearing, each witness is relying on a recollection ofevents that occurred more than two and a halfyears ago, with very little corroborating evidencein the record.

For the reasons set forth below, I find Freeman's account of the events that transpired onNovember 29, 2006, to be the most credible, and therefore rely on his testimony to resolve anydisputes of fact and to make my fmdings in this case. For Freeman, what occurred that night wasone traumatic event, which he described with detail, clarity, and consistency. In contrast, thethree ICE agents-who each testified that in the course ofhis law enforcement career hadconducted between fifty and one hundred "knock and talk" investigations-lacked detail andsuffered from a number of inconsistencies in several important respects. I fmd that the three

agents' conflicting portrayals ofwhat occurred that night at Freeman's home lack credibility, andthat the methods used to obtain information from Freeman are highly suspect.

First, the ICE agents chose a dark, freezing cold night inan isolated Eastern Oregonlocation to conduct their mission. Why didn't they go across the street from their offices to theUnited 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 factsto link Freeman to a larger federal child pornography investigation, and should have applied for a

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search warrant; yet, they chose this dubious "knock and talk" method to gain access to Freeman'shome and seize his computers.

Second, why choose 9:00 p.m. in the dark of night to knock loudly and repeatedly atFreeman's door to "talk" to him? Absolutely no reasonwas given to explain why they could nothave visited Freeman's property during daylight hours.

Third, when Freeman admittedly told the agents from inside his residence that he did notwant to talk to them because he was just awakened, was tired, didn't feel well, and offered to talkto 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 toleave; [told them] that I wasn't feeling well; that I neededmy sleep and would they please comeback and talk to me when I was in a better condition to talk to them." (Tr. at 119-20.) Theagents should have left and returned at a more reasonable time. No explanation was provided tojustify the agents' continued presence at Freeman's front door.

Fourth, once inside, the agents asked Freeman many incriminating questions, without anyMiranda warnings; although they told Freeman that they were not there to arresthim thatevening, 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 thepremises. These agents told Freeman that he was not under arrest even after informing him thatthey had all ofhis internet "screen names" and had corroborating financial information to useagainst him; yet, as he was soon to find out, Freeman certainly was not free to leave or even tomove 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 ORDERTO SHOW CAUSE

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arrested; that I had no choice in whatever happened after that point. I was scared. I was cold. Iwas tired." (Tr. at 121.) When Freeman got up from his recliner chair in the living room, left touse the restroom for a few minutes, and then went into the mobile home's back bedroom to restand put on a shirt and shoes, the agents began yelling at him to come out from behind the closeddoorwith his hands up. Each agent admitted to pulling out his weapon at this time. WhenFreeman opened the door, he sawall three agents out in the hallway, in defensive positions, withtheir hands on their weapons. None of three agents' testimony was consistent regardingFreeman's exit from the living room, or regarding how the events unfolded that led them toFreeman's back bedroom, where two additional computers were seized. At this point, the "knockand talktl was clearly a sham.

Fifth, the three ICE agents each gave inconsistent versions ofhow the two computersfrom Freeman's back bedroom were obtained. One agent said that Freeman voluntarily retrievedthe 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 thatFreeman was an overweight fifty-seven year old in poor physical condition, who was sufferingfrom lower back problems, I find this account to be completely implausible. Another agenttestified that Freeman carried one computer, and an agent carried the other. One agent testifiedthat he looked into the bedroom and saw Freeman unhooking the tower computer, and anothertestified that an agent unhooked that computer. Finally, after changing his story three times, theagent in charge eventually admitted that he had no personal knowledge about exactly how thecomputers were obtained and was just relying on what the other agents had told him. Freemantestified truthfully that he did not intend to permit the agents to enter his bedroom; they just

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walked through the door, saw the tower computer and unhooked it, saw the laptop under the bedand took it, and at no point did they everpennit him to touch either computer. Finally, Freemantestified that the agents escorted him back down the hallway, with the computers in theirpossession. I find Freeman's account of the incidents that occurred in his back bedroom to befully credible.

Sixth, the ICE agents' actions on November 29, 2006, were not then, and never have beenproperly reported. There was no report made at or near the time of the event; more than a monthlater, the lead agent simply concocted a vague and cursory notation. There was never a notationin any agent's report recounting the details of any consent Freeman gave at any point-from theentry into the mobile home, to the seizure of the first computer in Freeman's living room, to theentry and seizure of the two additional computers from Freeman's back bedroom. Further, asmentioned above, although each agent agreed during the motion to suppress hearing thatweapons 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 "knockand talk"-arrived to execute an arrest warrant.

From all of the above, I conclude that the three ICE agents' actions were the very anthesisofproper law enforcement practices and should not be condoned.11// I I

1/1

8 - FINDINGS OF FACT, CONCLUSIONS OF LAWAND ORDER TO SHOWCAUSE

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FINDINGS OF FACTBased 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 followingfindings of fact:

1. OnNovember 29, 2006, when ICE agents Josh Findley, Jim Cole, and SamClawer arrivedin 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 degreesFahrenheit. The agents were dressed in plain clothing, which included jackets andsweatshirts 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 thebedroom at the rear of the mobile home when he was awakened by the agents' insistent

knocking at his door. Freeman was suffering from a number ofhealth conditions, mostnotably 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 hispants 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 nextday because he was tired, didn't feel well, and was not in a condition to talk to them thatnight.

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3. The ICE agents did not leave the premises, and continued to speak to Freeman through theclosed 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 theagents 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 hewanted them to go away, and that he would talk: to them the next day. He told the agentshe had already gone to bed, he was fatigued, he needed to sleep, and he did not want totalk to them at that time. While all fourmen were standing outside on the small frontporch, the agents showed Freeman their law enforcement credentials, explained thatFreeman's name had come up in an investigation of internet websites known to containchild pornography, and infonned Freeman that they were not there to arrest him but onlyto discuss his involvement in the website investigation.2 Freemanwas skeptical and toldthem 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 talkinside. The agents, who were fully clothed, would not leave Freeman's front porch despiteFreeman's repeated requests for them to go away. Meanwhile, Freeman was standingoutside in the 20-degree weather, clothed only in an underwear T-shirt, a pair ofpants, and

2Freeman testified that while he was outside on the front porchthere was some generaldiscussion about a child pornography investigation; however, there was no specific discussionabout the actual evidence the ICE agents had against him. nAil of the questions and them tellingme what they had as far as a case against me and everything happened once we got inside thetrailer.n (Tr. at 120.)10 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOW CAUSE

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still in his socks without any shoes. After enduring more than five minutes of persuasionby the agents, Freeman said, "I'm too cold to stand out here and argue with you. I'm goinginside." (Tr. at 120.) Freeman turned around and opened the door far enough to pennithim to retreat into the warmth of his residence. His testimony about how the agentsgained entry speaks for itself: "One of the officers reached over my shoulder, opened thedoor fully, and basically three men escorted me into my home." Id. I find that none of theICE agents were expressly or impliedly invited to come into the residence to continue theirmission. I further fmd that Freeman never gave consent, either express or implied, topennit the agents to enter his residence.

5. Once inside, Freeman did not ask the ICE agents to leave again, having already asked themto 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 abouthis home. Rather than resist further, Freeman began answering the agents' questions,made incriminating statements, and eventually acquiesced to the agents' seizure of onecomputer from his living room, and two computers from his bedroom.

6. While inside the residence, Agent Findley filled out a "Consent to Search" form dated11129/06, which Freeman signed, authorizing law enforcement agents to search Freeman'scomputers (see Government Exh. 2); Findley also filled out a "CustodyReceipt for SeizedProperty and Evidence" form dated 11129/06, which Freeman also signed (see Government

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Exh. 3). Agent Cole wrote down a few infonnal notes while Freeman was beinginterviewed inside the residence, but these notes do not discuss the events that led up tothe agents' entry into the mobile home, or otherwise document the details ofFreeman'sdiscussion with agents outside on the front porch.

7. None of the ICE agents wrote a report or made any entry by dictation or otherwise todocument 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 toenter and search Freeman's residence. To this day, no ICE agent has written anything inany report about receiving Freeman's consent to enter; in a report dated March 12,2009,prepared in anticipation of the evidentiary hearing, the author notes only that "Freemanallowed agents into his residence."

CONCLUSIONS OF LAWThe 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. Thecircumstances of this case closely resemble the scenario in Shaibu, where the defendant walkedout ofhis apartment, left the door open, and during questioning by law enforcement officers, thedefendant turned around and walked back through the door; the officers simply followed withoutany clear exchange ofwords seeking and granting permission to enter and search. Shaiby, 920F.2d at 1424. The Ninth Circuit held as a matter oflaw that such conduct, standing alone, isinsufficient to constitute consent to an entry by law enforcement officers. Id. at 1425.

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Not only did Freeman take additional steps to prevent the ICE agents from entering hismobile home by unequivocally telling them to leave even before he opened the door, but also hetook care to close the door when he stepped outside to respond to the agents' inquiry, where heagain told the agents to leave. After the ICE agents showed their badges, and continued to discussFreeman's involvement with a child pornographywebsite while Freeman remained on his frontporch, at night, in sub-freezing weather, clad in barely more than his underwear, the agentscrossed the line from a casual "knock and talk" to set up a situation where Freeman wascompelled to retreat into his residence because they would not leave him alone; he simply openedhis front door, and all three agents-without his permission-followed him inside. Following thatunlawful entry, Freeman submitted to their authority and was coerced into allowing the agents toremain 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 isimplicit 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 therecannot be consent." Bumper v. North Carolini!, 391 U.S. 543, 550 (1968).

Here, as discussed above in the fmdings of fact, there simplywas no consent to pennit theagents to enter Freeman's residence, and thereafter any consent Freeman gave to permit the agentsto search further was certainly coerced. In sum, there was no "clear and positive testimony" thatany 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 andseizures under the FourthAmendment and thereby "freely and intelligently" consented to the ICEagents' entry into his residence. See Page, 302 F.2d at 83-84; Shaibu, 920 F.2d at 1426.

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I conclude as a matter of law that the ICE agents' initial entry into Freeman's residenceviolated the Fourth Amendment. Thus, the remainder of the search and seizure that occurred onNovember 29, 2006, was unlawful. The "Consent to Search" form and "Custody Receipt forSeized Property and Evidence" Freeman signed that night are of no legal effect; "[a]ll evidenceacquired after the entry must . . . be suppressed." Shaiby, 920 F.2d at 1428 (citing Wong Sun, 371U.S. at 484-86; Weeks v. United States, 232 U.S. 383 (1914. Furthermore, all statementsFreeman made to agents while inside his residence on November 29, 2006, and all informationobtained from the computers seized on that date are "fruit of the poisonous tree" and cannot beused by the government. See Wong Sun, 371 U.S. at 484-86. Finally, because the evidence thatwas unlawfully acquired from theNovember 29, 2006, search and seizure was later used to obtainthe arrest warrant served on Freeman on June 26,2008, all of the evidence acquired subsequent tothe 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 sufficientevidence to proceed to trial if the court suppressed the evidence obtained from Freeman bothduring the November 29, 2006, encounter and any encounters thereafter. I initially was inclinedto dismiss the indictment in this case based on defendant's motion to summarily dismiss theindictment on these grounds. (See Motion to Dismiss (#30).) As Justice Cardozo famously saidin reference to the exclusionary doctrine, '''[t]he criminal is to go free because the constable hasblundered.II I 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 law that sets him free . . . . [n]othing can destroy a government14 - FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOWCAUSE

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more quickly than its failure to observe its own laws, or worse, its disregard of the charter of itsown existence." Maw, 367 U.S. at 659.

The government objects to a summary dismissal of the indictment in this case, andrequests further review. Accordingly, the government shall have until July 1, 2009, to advise thecourt i f any evidence remains to be used in its proceeding against the defendant in light of thisruling, and to show cause as to why the indictment should not be dismissed. Until the fInal orderof dismissal is entered by this court, Freeman's conditions ofpretrial release must remain intact.

IT IS SO ORDERED.DATED this ,24{ ~ day of June, 2009.

15 - FINDINGS OF FACT, CONCLUSIONS OF LAW ANDORDERTO SHOW CAUSE

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA, ))

Plaintiff, ) No. CR 08-289-1-JO)

v. ) AMENDED ORDER)

KENNETH R. FREEMAN, ))

Defendant. )

Kemp L. StricklandKelly ZusmanUNITED STATES ATTORNEY'S OFFICE1000 S.W. Third Avenue, Suite 600Portland, OR 97204

Of Attorneys for United States of America

Ellen C. PitcherOFFICE OF THE FEDERAL PUBLIC DEFENDER

101 S.W. Main Street, Suite 1700Portland, OR 97204

Attorney for Defendant

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1

I granted the government's request for an extension of time to respond to July 17,2009, but the government filed its response by the original date. The defense requested an additional100 days to respond after the government, but that request is now moot as a result of this disposition.

2 On June 24, 2008, Freeman was charged with two Counts, receipt of childpornography in violation of 18 U.S.C. 2252(a)(2)(A) and (b)(1), and possession of childpornography in violation of 18 U.S.C. 2252(a)(5)(B).

2 - ORDER

JONES, Judge:

On June 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 July 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 June 16, 2009, it found child pornography images on the computer seized

in June 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 June 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).

DISCUSSION

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

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3 - ORDER

November 29, 2006, and on June 26, 2008. She explained to the court that "[a]t that time [June

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 June 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

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3 "ICE" means Department of Homeland Security, Immigration and CustomsEnforcement.

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 June 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 toarrest 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 onone of his computers and getting the information off of it. And then there wereother delays, you know. Present the case to the U.S. attorney's office, and, youknow, 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 ICE3 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

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4 In this case, the government delayed approximately one year after the June 28, 2008,seizure of the fourth computer before completing the forensic examination of that computer, asrevealed by the government's response. See Government's Response, p. 2 ("When the partiesappeared before this Court for an evidentiary hearing [on June 16, 2009] on defendant's motion tosuppress, the laptop computer ICE agents seized in June 2008 . . . had not yet been forensicallyanalyzed.").

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 untilone turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come

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6 - ORDER

forward and offer evidence entirely of their own volition. And evaluatedproperly, the degree of free will necessary to dissipate the taint will very likely befound more often in the case of live-witness testimony than other kinds ofevidence.

* * *

[O]bviously [the factors we have discussed] all point to the conclusion that theexclusionary rule should be invoked with much greater reluctance where theclaim is based on a causal relationship between a constitutional violation and thediscovery of a live witness than when a similar claim is advanced to supportsuppression 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

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5 The government contends that an intervening circumstance here is that "thisdefendant was not arrested in connection with the seizure that this Court has determined wasunlawful." Government Response, p. 5. As stated earlier in this Order, I reject that proposition andfind, as I did in my Findings and Conclusions (at page 14), that defendant's arrest was based entirelyon 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 anypossible trespass, there is no rule of private or public conductwhich makes it illegal per se, or a condemned invasion of theperson's right of privacy, for anyone openly and peaceably, at highnoon, to walk up the steps and knock on the front door of anyman's 'castle' with the honest intent of asking questions of theoccupant thereof - whether the questioner be a pollster, a salesman,or an officer of the law."

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8 - ORDER

That view has now become a firmly-rooted notion in Fourth Amendmentjurisprudence.

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 couldnot escape or leave, the officers made a deliberate effort to reveal their concealedfirearms; the encounter occurred in a non-public setting, and the officers acted inan aggressive manner suggesting that compliance would be compelled. The ratioof 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 encounterwas not consensual where it occurred in a private place, the officers refused tohonor the defendant's request to shut the door, and the officers advised thedefendant several times that he could be arrested and told him he could notterminate 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

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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 July, 2009.

/s/ Robert E. J onesROBERT E. JONES

U.S. District Judge