United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE BRUCE G. MACDONALD, UNITED STATES MAGISTRATE JUDGE
pending before the Court is Defendant Emmanuel James Philip
Eaton's Motion to Suppress Evidence (Doc. 14). The
Government has filed its response, and there was no reply.
Govt.'s Response to Def.'s Mot. to Suppress (Doc.
17). Defendant is charged with one (1) count of possession of
an unregistered firearm in violation of Title 26, United
States Code, Sections 5845(a), 5861(d), and 5871. Indictment
(Doc. 1) at 1.
to LRCrim. 5.1, this matter came before Magistrate Judge
Macdonald for an evidentiary hearing and a report and
recommendation. On March 7, 2019, an evidentiary hearing was
held before Magistrate Judge Macdonald regarding the motion.
Minute Entry 2/27/2019 (Doc. 88). Subsequently, Defendant
filed his Supplemental Authorities in Support of Motion to
Suppress Involuntary Statement (Doc. 96) and the Government
filed its Response (Doc. 97). This matter is now ripe for
adjudication. The Magistrate Judge recommends that the
District Court, after its independent review, deny
26, 2018, United States Forest Service (“USFS”)
Office of Law Enforcement and Investigations Law Enforcement
Officer Mark Sanburn was assigned to the Coronado National
Forest Santa Catalina Ranger District. Hr'g Tr. 3/7/2019
(Doc. 31) at 5:6-6:20. Officer Sanburn has been employed with
the USFS Office of Law Enforcement and Investigations since
2010-approximately nine (9) years, and a commissioned law
enforcement officer since 2001. Id. at 5:17-18,
16:6-14, 63:1-5. Officer Sanburn testified that his job
entails protecting the public and resources on the forest
through the enforcement of the Code of Federal Regulations
and other laws that govern the National Forest System lands.
Id. at 5:19-6:8, 64:16-65:1, 108:24-110:3. Officer
Sanburn further testified that as part of his
responsibilities he works in connection with fire prevention
personnel. Id. at 6:21-24.
James Philip Eaton was twenty-one (21) years old at all
relevant times. Id. at 124:3-6, 18-22. Prior to this
encounter, Mr. Eaton had not been in any legal trouble.
Hr'g Tr. 3/7/2019 (Doc. 31) at 127:8-13. Mr. Eaton
testified that he and his girlfriend's cousin, Jose
Castro, arrived on Mount Lemmon between 5:00 and 5:30 p.m. on
May 26, 2018. Id. at 129:7-9. Mr. Eaton further
testified that he and Mr. Castro set up a tent, and Jose lit
a fire because it was cold. Id. at 129:10-22.
USFS Initial Contact
26, 2018, the Coronado National Forest was under fire
restrictions. Hr'g Tr. 3/7/2019 (Doc. 31) at 7:3-15.
Officer Sanburn testified that there was a specific fire
closure order in place. Id. Officer Sanburn
explained that these orders are a temporary regulation or law
that prohibits certain activities due to the assessment made
by the fire division within the USFS. Id. Officer
Sanburn noted ban examples including no campfires, no smoking
out in the open, and a ban on certain combustible engines.
Id. Officer Sanburn further testified that during
the relevant fire closure order one of the main focuses was
campfires on the forest. Id. Officer Sanburn
explained that when such closure orders are in effect, signs
are posted all over the forest. Hr'g Tr. 3/7/2019 (Doc.
31) at 8:13-9:9.
Sanburn testified that he was notified via service radio that
USFS Forest Protection Officers made contact with the party
at the camp in this case because they had an illegal
campfire. Id. at 7:16-8:7. Officer Sanburn explained
that USFS Forest Protection Officers are Forest Service
employees that have a collateral duty to enforce certain
regulations, can give written warnings and tickets, and
patrol for illegal campfires. Id. at 7:16-8:7,
108:5-23. Officer Sanburn testified that the Forest
Protection Officers talked to the individuals at the camp and
notified them that they were there to put the fire out.
Id. Mr. Eaton confirmed that a park ranger
instructed them to put the fire out because of the fire
restrictions. Id. at 129:23-130:3. Officer Sanburn
further testified that he was notified via service radio
again that other USFS or Mount Lemmon Fire District personnel
observed another campfire at the same camp, and asked Officer
Sanburn for assistance at the site. Hr'g Tr. 3/7/2019
(Doc. 31) at 7:16-8:7, 108:5-23. Mr. Eaton also confirmed
that Jose lit a second fire despite the initial warning.
Id. at 130:4-14, 144:17-22. Officer Sanburn
confirmed that signs were posted regarding the ban leading
into the Mount Bigelow area where the incident occurred.
Id. at 8:13-9:9, 72:25-73:2. Officer Sanburn
testified that in the instant case, the individuals did not
seem understand the information that the non-law enforcement
personnel had given them regarding the closure order, and
this led the personnel to seek intervention from someone with
more authority. Id. at 8:13-9:9. Accordingly,
Officer Sanburn responded to the campsite. Id. at
Law Enforcement Contact
Sanburn testified that he arrived at the campsite at
approximately 9:15 p.m., and the Mount Lemmon Fire Department
volunteers told him that they had extinguished the fire
shortly before his arrival. Hr'g Tr. 3/7/2019 (Doc. 31)
at 9:12-16, 12:2-5, 67:21-68:1, 72:23-24. Officer Sanburn
further testified that he talked to the volunteers and
received additional information from the Forest Protection
Officers, including confirmation that the two individuals
that were at the campsite were the ones who were tending the
fires. Id. at 9:17-10:6. Officer Sanburn explained
that because there had been two violations already, he felt
it necessary to go and talk to the individuals to educate
them on the closure order and insure that there was not a
third fire. Id. at 9:17-10:6, 69:2-22. Officer
Sanburn also noted the importance of understanding that
campfires at that time of the year are often the cause of
wildfires. Id. at 9:17-10:6, 110:20-24. Officer
Sanburn further explained that fires must be completely
extinguished to prevent embers from starting a forest fire.
Id. at 10:7-11:9, 68:4-17, 110:14-19.
Sanburn testified that once he arrived on scene, he spoke
with the Mount Lemmon Fire Department volunteers that were
there. Hr'g Tr. 3/7/2019 (Doc. 31) at 11:10-20. Officer
Sanburn further testified that he positioned his vehicle
toward the campsite, with his high beam headlights on so that
he could see. Id. at 11:10-20. Officer Sanburn
testified that he got out of his vehicle, and the two
individuals at the campsite began walking toward him, one
individual entered and then exited an SUV that was parked
somewhat blocking the campsite, and Officer Sanburn made
contact with the individuals near the SUV. Id.
Officer Sanburn further testified that he was wearing his
uniform and was in a marked law enforcement vehicle.
Id. at 11:10-12:1. Mr. Eaton confirmed that it was
Officer Sanburn arrived in a marked police vehicle and spoke
to him about the campfire. Id. at 131:3-15. Officer
Sanburn also testified that the two individuals' last
names were Eaton and Castro, and he identified Mr. Eaton as
the Defendant present in the courtroom. Hr'g Tr. 3/7/2019
(Doc. 31) at 12:9-13:5.
Sanburn testified that it was dark at the time of the
incident, and he used a flashlight to better see the
individuals. Id. at 12:6-8, 13:7-22, 74:20-22.
Officer Sanburn further testified that once he was able to
observe Mr. Eaton, Officer Sanburn saw to large Bowie knives
in sheaths on Mr. Eaton's side, as well as the clip of a
pocketknife in his right pants pocket. Id. at
13:16-22, 14:11-14, 71:14-17, 73:20-25, 111:9-13. Mr. Eaton
confirmed that he had the knives that Officer Sanburn
described. Id. at 131:16-21. Officer Sanburn
testified that in light of this safety concern, he called out
and said that he saw Mr. Eaton's knives and that Mr.
Eaton should not reach for them and to keep his hands out of
his pockets. Id. at 13:23-14:5. Officer Sanburn
further testified that despite this instruction, Mr. Eaton
twice placed his hands inside his pockets. Hr'g Tr.
3/7/2019 (Doc. 31) at 14:6-8. Mr. Eaton confirmed that
Officer Sanburn instructed him to keep his hands out of his
pockets, but did so despite this instruction because he was
cold. Id. at 132:8-21. Officer Sanburn testified
that he identified himself as law enforcement with the USFS
and that he was there about some illegal fires. Id.
at 14:15-15:2. Officer Sanburn further testified that while
he was attempting to educate the two individuals on the
closure order and discern whether they were responsible for
the earlier campfires, Mr. Eaton began advancing on him.
Id. at 15:7-15. Mr. Eaton testified that he did not
really step toward Officer Sanburn, but may have stumbled
toward him. Id. at 132:24-133:4. Officer Sanburn
testified that Mr. Eaton's failure to follow instructions
including putting his hands in his pockets and advancing,
made Officer Sanburn feel threatened. Hr'g Tr. 3/7/2019
(Doc. 31) at 15:7-15, 74:23- 75:3, 112:6-113:1. Officer
Sanburn further testified that he ordered Mr. Eaton to stop
and turn around. Id. Officer Sanburn also testified
that he proceeded to handcuff Mr. Eaton, removed the knives
from his sides, and went to remove the pocketknife.
Id. at 15:7-16:5, 75:7-12, 76:9-13. Mr. Eaton
confirmed Officer Sanburn's actions. Id. at
Sanburn testified that when he went to remove Mr. Eaton's
pocketknife, he felt a small marijuana pipe in the small coin
pocket of the same pocket. Id. at 15:19- 16:5,
76:14-16. Officer Sanburn further testified that when he
removed the pipe, the smell of marijuana became more pungent
and noticed what he believed to be burned marijuana residue
inside the bowl of the pipe. Hr'g Tr. 3/7/2019 (Doc. 31)
at 16:15-22. Officer Sanburn testified that at this point he
asked Mr. Eaton to have a seat on the ground; however, Mr.
Eaton declined and Officer Sanburn escorted him back to
Officer Sanburn's patrol vehicle and requested that he
sit in the back. Id. at 16:23-17:2. Mr. Eaton
testified that he did not want to sit on the ground because
it was cold and full of bugs. Id. at 133:16-23.
Officer Sanburn further testified that he explained to Mr.
Eaton that he was not under arrest and that he was simply
being detained. Id. at 17:3-6.
Sanburn testified that he then obtained Mr. Castro's
identification, determined that he was the owner of the SUV,
and asked permission to look inside. Id. at
17:7-18:11, 80:1-11. Officer Sanburn further testified that
he looked inside the SUV where Mr. Castro had entered upon
Officer Sanburn's arrival, but did not see anything
illegal. Hr'g Tr. 3/7/2019 (Doc. 31) at 17:7-18:11,
80:1-11. Officer Sanburn spoke with Mr. Castro about what
they were doing and Mr. Castro said that he had left the
remnant of a marijuana cigarette in the bark of a tree near
the campsite. Id. at 17:16-18:11, 78:25-79:3,
80:12-15, 81:22-82:2. Mr. Castro showed Officer Sanburn where
the remnant was, and Officer Sanburn took possession of it.
Id. at 17:16-18:11, 18:19-21. Officer Sanburn
testified that as he was walking to the tree, he walked past
the tent and smelled a very strong odor of marijuana coming
from inside the tent. Id. at 18:12-18, 81:5-21.
Sanburn testified that he then asked Mr. Eaton for his
identification, which he indicated was inside his wallet in a
pocket inside the tent, next to a pistol-style BB gun.
Id. at 17:7-19:7, 83:12-17. Officer Sanburn further
testified that he asked Mr. Eaton for permission to go into
the tent to get his identification, and Mr. Eaton said it was
okay. Hr'g Tr. 3/7/2019 (Doc. 31) at 19:8-15, 84:25-85:3.
Officer Sanburn testified that he walked to the tent, went
inside with his flashlight illuminated, and began to look in
the tent pockets for Mr. Eaton's wallet. Id. at
20:12-24. Officer Sanburn further testified that as he was
looking for Mr. Eaton's wallet, he found a glass mason
jar, partially covered by a sleeping bag or blanket,
containing what he believed to be bud marijuana. Id.
at 21:6-16, 87:1-88:10. Mr. Eaton confirmed that the jar of
marijuana was in the corner of the tent, partially covered by
blankets. Id. at 136:19-137:4. Officer Sanburn also
testified that he found Mr. Eaton's wallet, took out Mr.
Eaton's state identification, and returned the wallet to
the tent pocket. Id. at 21:19-22:6. Officer Sanburn
testified that upon obtaining Mr. Eaton's identification,
he exited the tent, returned to his vehicle, and initiated
wants and warrants checks on both Mr. Eaton and Mr. Castro.
Hr'g Tr. 3/7/2019 (Doc. 31) at 22:11-23:8, 41:12-22,
89:20-22. At this point, Officer Sanburn turned on his
dashboard camera, which he explained activates automatically
when the forward-facing emergency lights are on; however,
because Officer Sanburn believed this call to be a mundane
illegal campfire call, his emergency lights were never
activated and the dash ...