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Name: United States v. McClendon
Case #: 12-30015
Court: US Court of Appeals
District 9 Cir
Opinion Date: 04/19/2013

Recovered gun may be used as evidence against defendant because he did not submit to officer’s commands to stop and was therefore not “seized” prior to discarding the weapon. Defendant was convicted under federal law of being a felon in possession of a weapon. On appeal he challenged the denial of his motion to suppress evidence that formed the basis of his conviction. Held: Affirmed. Police were called by a homeowner regarding the presence an unknown car outside his house. They encountered defendant’s girlfriend seated in a car in the homeowner’s driveway and appellant walking down the street. After acknowledging to police that he was “Eddie,” defendant walked away. Officers drew their guns and told him to stop but he failed to comply; as he walked he made a flinging motion. After officers forcibly arrested defendant, they found a gun a few feet away. A person has been seized within the meaning of the Fourth Amendment when, under all of the circumstances, a reasonable person would not feel free to leave, and some form of touching or submission occurs. Defendant’s initial response to police regarding his identity, as well as police drawing their guns and stating he was under arrest, did not constitute a seizure because defendant continued to walk away. He was not seized until he was tackled by police; thus, he lost his ability to challenge the gun as fruit of an illegal seizure.

The gun was not the fruit of the illegal search of appellant’s backpack. When police initially approached the unknown car in the homeowner’s driveway, they obtained consent to search it from the female who exited the vehicle. They also searched a backpack they found in the car, after being informed it belonged to defendant. The evidence found in the backpack was suppressed as the fruit of an illegal search. However, the backpack search was not the but-for cause of the discovery of the gun found near defendant, so the gun was not the fruit of the illegal search. Further, defendant’s act of walking away from officers was an intervening event that purged any taint from the illegal search.