Case Information
*2 GOULD, Circuit Judge:
Eddiе Ray McClendon appeals his conviction pursuant to
a conditional plea agreement for one count of felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). He contends that the district court erroneously
denied his motion to suppress the handgun that formed the
basis for his conviction because the discovery of that handgun
was the product of an illegal search and an illegal seizure.
We must first decide whether McClendon was seized in
violation of the Constitution by the police before he tossed
the gun away. If McClendon was seized unconstitutionally,
then the recovered handgun should be suppressed as a fruit of
the poisonous tree.
See United States v. Smith
,
I
At around 2:20 a.m. on a spring night, two police officers responded to a 911 call placed by an elderly disabled homeowner who feared a possible invader. The homeowner reported that an unknown vehicle was parked in his driveway with its engine and lights off and that someone had knocked on his door. The homeowner was so frightened that he had armed himself with a crowbar. When police arrived at the scene, a nervous woman, who police thought was under the influence of mеthamphetamine, emerged from the driver’s seat of the car. The woman, later identified as Rosemary Johnson, said that the car ran out of gas and that McClendon, who she said had been in a lot of trouble before, had left to get more gas. The story about running out of gas quickly was shown by events to be incredible: The car’s ignition was turned on. The car started.
The woman consented to a searсh of the car. Before the search commenced, the woman warned the officers that there was a machete in the car that belonged to McClendon. The officers at once found the machete on the floor under the front passenger’s seat. They also found several types of drugs and drug paraphernalia in the woman’s purse, including *4 a cigarette box containing рills, several one-inch-by-one-inch baggies coated with a white crystalline residue, and a smoking pipe coated with the same residue. The woman claimed ownership of some, but not all, of the drugs and drug-related items, and she was arrested.
The officers then found a backpack behind the front passenger’s seat of the car. The woman said that it belonged to McClendon. Without consent from the non-present McClendon, one of the officers searched the backpack. This search revealed a sawed-off shotgun with a filed-off serial number, ammunition for the gun, a black wig, two walkie- talkies, binoculars, a zippered case containing two prescription pills, and a Safeway receipt with McClendon’s name on it.
Police then ran a records check on the name “Eddie McClendon” and found one person matching the physical description given by Ms. Johnson; that person had previously been convicted of the felony of riot with a deadly weapon. While the records check was being performed, back-up officers, including a K-9 unit, arrived at the scene, and the police went to look for McClendon with the aim of arresting him.
Spotting a man matсhing McClendon’s description walking down the street about 50 or 60 yards away, a group of officers approached him. When the suspect was within earshot, one deputy asked the man if he was Eddie. The man replied, “Yes, that’s me,” and turned and began to walk away. The officers then drew their guns, told McClendon he was under arrest, and ordered him to show his hands. But The pills were identified as the narcotics Clonazepam and Lorazepam and the antidepressant T razodone. The residue in the pipe and baggies field tested positive for methamphetamine. U NITED S TATES V . M C C LENDON
McClendon did not comply. He did not stop. He did not show his hands. He continued to walk away. When the officers got still closer to McClendon, McClendon took his hands and “pushed them down towards his waistband and [again] turned away from [the officers],” mаking a flinging motion. The officers then closed the distance and forcibly arrested McClendon, tackling him and placing him in handcuffs. They found a loaded silver handgun, still warm to the touch, on the grass a few feet away. McClendon denied tossing the gun and said that the backpack was not his. At the time of McClendon’s arrest, he was wearing a black knit cap, which police found to be a rolled-up ski mask, one with еye holes and a mouth hole. But McClendon had no skis. And there was no snow.
McClendon was indicted on two counts of felon in
possession of a firearm and ammunition (for the shotgun and
for the handgun) in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) and on one count of possession of an unregistered
firearm (for the shotgun) in violation of 26 U.S.C. §§ 5861(d)
and 5871. He filed a pretrial motion to suppress “all evidence
obtained directly and/or derived from the unlawful search and
seizure of . . . [the] backpack,” including the handgun. After
several hearings and initial rulings, the district court found
that the search of the backpack was unlawful, and granted the
motion to suppress the evidence in the backpack. But the
court denied the motion to suppress the handgun, reasoning
that the police likely had probable cause to arrest McClendon
and did not effectuate the arrest until after McClendon
discarded the gun. Alternatively, the district court reasoned
that police had ample grounds to stop McClendon under
Terry v. Ohio
,
II
McClendon contends that the district court erred when it
denied his motion to suppress the handgun because discovery
of the gun was the product of his seizure, which in turn was
prompted by the illegal search of his backpack.
See United
States v. McCarty
,
touched by the officers). We ordered supplemental briefing on this issuе. We have jurisdiction under 28 U.S.C. § 1291, and we review de novo the district court’s denial of a motion to suppress evidence. United States v. Caseres , 533 F.3d 1064, 1067 (9th Cir. 2008).
The Fourth Amendment protects “against unreasonable
searches and seizures.” U.S. Const. amend. IV. Searches and
seizures that offend the Fourth Amendment are unlawful and
evidence obtained as a direct or indirect result of such
invasions is considered “fruit of the poisonous tree” and is
inadmissible undеr the exclusionary rule.
See Wong Sun
371 U.S. at 484–87. In deciding whether evidence is the
product of an unlawful seizure, we first determine whether
the defendant was seized at the time the handgun was
discarded.
See United States v. Hernandez
,
The general rule is that “a person has been ‘seized’ within
the meaning of the Fourth Amendment only if, in view of all
of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.”
United States v. Mendenhall
,
Precedent instructs that where an individual flees from
police, no submission occurs until the defendant is physically
subdued.
See Hodari D.
,
McClendon contends that his case is distinguishable from
Hodari D.
because he submitted to authority when he
identified himself in response to the officer’s inquiry. But we
The Third Circuit, however, has concluded that there was no
submission to a show of authority where a defendant failed to raise his
hands in compliance with a police directive, “moved his hands toward his
waistband, and ultimately retreated into the house.”
United States v.
Waterman
,
10
U NITED S TATES V . M C C LENDON
have previously “decline[d] to adopt a rule whereby
momentary hesitation and direct eye contact prior to flight
constitute submission to a show of authority.”
Smith
McClendon next contends that he was seized when the
officers drew their guns and told him that he was under arrest.
McClendon stresses the nature of the force used against him
and cites to
United States v. Stephens
, where we held that a
man who remained seated after police officers boarded and
positioned themselves in the front, middle, and back of a bus
was seized even though the officers informed the passengers
that no one was under arrest and that anyone who wished to
leave was free to do so. 206 F.3d 914, 916–18 (9th Cir.
This position is reinforced by several cases from the Third Circuit.
See, e.g.
,
United States v. Smith
,
*9 2000). In that case, we reasoned that the defendant, who did submit, was placed in a Hobson’s choice because he had only two options: (1) get off the bus and potentially give the officers reasonable suspicion to stop him or (2) stay on the bus and answer thе officers’ questions. Id. at 917. But McClendon misses the point of Hodari D . Like the defendant in Stephens , a reasonable person in McClendon’s shoes would not have felt free to leave. The critical difference is that, faced with such authority, McClendon did not submit. Instead, although he was ordered at gunpoint to stop and put up his hands, McClendon turned and walked away, not raising his hands. See Hodari D. , 499 U.S. at 626 (“[A] policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee. . . . is no[t] [a] seizure.”); cf. United States v. Wood , 981 F.2d 536, 540–41 (D.C. Cir. 1992) (holding that defendant submitted to authority when, upon hearing the command to “halt right there,” he froze in his tracks, dropped a pistol on the ground, and did not otherwise ignore orders). McClendon did not display any intention of submitting to the officers’ authority.
McClendon also did not face a Hobson’s choice because the officers had already determined that they had probable cause to arrest him and had communicated their intent in no uncertain terms to McClendon by telling him he was under arrest and to raise his hands. McClendon knew that he would have been arrested regardless of his actions. Yet he refused to submit to police authority.
McClendon argues that because he walked away from the
police, instead of running, he sufficiently submitted to their
authority, distinguishing himself from the suspect in
Hodari D
. But McClendon’s act of walking away still
showed a failure to submit to the authority of the police,
particularly when coupled with McClendon’s refusal to raise
his hands.
See Hernandez
,
McClendon also argues that the police officers were
acting illegally when they raised their guns and declared that
he was under arrest and therefore he had no obligation to
submit to their illegal authority. Assuming, without
[5]
deciding, that the officers initially had no authority to stop or
arrest McClendon, we still conclude McClendon was not
seized until he was physically apprehended.
See Smith
,
feel restrained, he did not submit to authority and therefore
was not seized until he was tackled.
See Hodari D.
, 499 U.S.
at 626. The rule of
Hodari D.
creates incentives for future
defendants to submit to asserted police authority, thereby
avoiding an escalation of сonflict that could have lethal
consequences.
See Tennessee v. Garner
, 471 U.S. 1, 11
(1985) (holding that deadly force may be used if necessary
where an officer has probable cause to believe the suspect
poses a significant threat of death or serious physical injury)
.
This was one of the aims of
Hodari D
.
See
Because McClendon did not submit to the authority of the police, he was not seized before he was tackled and thus lost his ability to challenge the admissibility of the handgun as a fruit of an illegal seizure.
III
Although we have concluded that McClendon was not
seized until after he tossed his gun, we must also consider if
the handgun should have been suppressed as a fruit of the
illegal search of McClendon’s backpack.
See Wong Sun
*11
First, the search of McClеndon’s backpack was not the but-for cause of the discovery of the handgun. One of the officers testified that he “[a]bsolutely” would have gone Because there was no seizure until after McClendon had discarded the handgun, we do not examine whether police had reasonable suspicion or probable cause before then.
looking for McClendon to talk to him regardless оf the search
of the backpack. He would have looked for McClendon
“[b]ecause McClendon would be a person of interest in this
incident . . . . [and] [a]t the very least, [the officer] would
have wanted to find . . . Mr. McClendon while [the officer]
furthered [his] investigation.” The circumstances supported
this testimony: police had been called to the scene by a
frightened homeowner, a cаr was parked in a resident’s
driveway late at night, the car was not out of gas as its
occupant stated, a machete belonging to McClendon was
found in the car, and illegal drugs and drug paraphernalia
were found in the occupant’s purse. The judge accepted the
officer’s testimony as credible. Because the testimony shows
that the illegal search of the backpack was not the but-for
cause of the discovery of the handgun, we reject
McClendon’s argument that the handgun should be excluded
as a fruit of the illegal backpack search.
See Segura v. United
States
,
Second, even if the police were motivated to search for
McClendon because of what they found in the backpack, we
would still conclude that the handgun was not a fruit of the
illegal backpack search under the principle established in
United States v. Garcia.
For these reasons, we conclude that the discovery of the handgun was too attenuated from the backpack search to have been the fruit of that illegal act.
IV
Because we hold that the handgun was not a fruit of a
seizure or a fruit of the illegal backpack search, the district
court did not err in denying McClendon’s motion to suppress
the handgun. Our reasoning is different from that of the
district court, but we may affirm on any basis supported by
the record and do so here.
See United States v. Pope
AFFIRMED.