FBI agents admit in court papers that they had no arrest warrant at the time they took Duane Ehmer into custody at a checkpoint outside the Malheur National Wildlife Refuge on Jan. 27, 2016, contrary to an agent's testimony earlier this week.
It wasn't until the day after Ehmer's arrest that a federal magistrate judge signed a criminal complaint against Ehmer based on an FBI agent's probable cause affidavit.
Ehmer's lawyer Michele Kohler has urged the court to suppress evidence found in what she contends was an unlawful search of Ehmer's car and horse trailer following his arrest without a warrant.
Prosecutors and the FBI counter that they had probable cause to arrest Ehmer, even if a criminal complaint or arrest warrant had not yet been signed by a judge. They also point out that Ehmer voluntarily signed an FBI consent form to search his vehicles.
The court's ruling, anticipated early next week, could impact the FBI's discovery of a maroon pouch stuffed under a passenger seat in Ehmer's Chevrolet Tahoe. It held cash and checks belonging to the Friends of the Malheur National Wildlife Refuge, a refuge employee's ID card and gas cards. An agent found the pouch while searching Ehmer's SUV a day after his arrest. Ehmer is charged with removal of government property, a misdemeanor, in connection with the pouch.
In a declaration filed in court Thursday, FBI Special Agent Katherine Anderson said her probable cause affidavit filed the day after Ehmer's arrest details his Facebook posts earlier in the month of January 2016, displaying photos and admissions that he was performing guard duty at the refuge during the occupation.
"While this Affidavit was filed on January 28, 2016, all of the facts in paragraphs 59-64 were known to me several days before January 28, 2016, and certainly before Ehmer's arrest on January 27, 2016,'' Anderson wrote. "Prior to January 27, 2016, I had communicated with several other members of the investigative team, including the case agents and supervisor, regarding the probable cause I had gathered on Ehmer. I therefore believe that the FBI had probable cause to arrest EHMER on January 27, 2016.''
FBI Special Agent Todd Scott, who is assigned to the agency's Denver division, had testified by phone earlier this week during a hearing on Ehmer's motion to suppress, that he arrested Ehmer on a federal arrest warrant last winter.
In a written memo filed in court Thursday, Scott said he didn't realize the warrant hadn't been issued until the day after Ehmer's arrest until a prosecutor informed him after court this week.
"Prior to arresting Mr. Ehmer, I received information from the FBI Command Post that an active federal arrest warrant existed for Mr. Ehmer,'' Scott wrote. " I did not question the validity of the information provided nor did I review a copy of the arrest warrant, as is my normal practice. Due to the remoteness of my location I did not have the ability to review the alleged arrest warrant.''
Assistant U.S. Attorney Craig Gabriel argues that Scott testified and acted in good faith.
"Given the fluid situation surrounding the occupiers leaving,'' the refuge in late January 2016, Gabriel wrote, "it is understandable that an agent at a remote road block received mistaken information that a warrant had been issued for Ehmer's arrest, when, instead, the FBI in Portland was in the process of preparing an affidavit for such a warrant and therefore authorized a probable cause arrest of Ehmer on January 27, 2016.''
Gabriel asks the court to rely on the consent to search form that Ehmer signed about an hour after his arrest, when he was driven in an armored vehicle from the refuge checkpoint to Burns.
"Ehmer acknowledged in writing: 'I have been advised of my right to refuse consent' and 'I give this consent voluntarily' and 'I authorized these agents to take any items which they determine may be related to their investigation,''' Gabriel wrote.
Ehmer's lawyer has until the end of the week to file a response. U.S. District Judge Anna J. Brown is expected to issue a ruling before jury selection starts next Tuesday.
-- Maxine Bernstein
mbernstein@oregonian.com
503-221-8212
@maxoregonian
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