Overview: The Ninth Circuit Court of Appeals recently upheld a conviction for felony firearm possession in a case where the handgun owner discarded the weapon before being seized. The court found that, although an illegal search of the defendant’s backpack ultimately led to the discovery of the gun, the defendant’s failure to submit to arrest was an intervening act that removed any taint from the search and subsequent seizure. Because the defendant discarded the gun before being tackled by police officers, the recovered evidence was not the fruit of an illegal seizure. Finding that these acts distanced the gun from the time of the initial illegal search and the defendant’s legal seizure, the court concluded that the evidence did not require suppression.

Training Points: This case illustrates the importance of establishing sufficient cause for search and seizure throughout an encounter. Here, the suspect attempted to claim that an unlawful seizure occurred when police recovered the handgun that he had thrown away as he fled detention. Even though the initial search was improper—there was no probable cause and no consent—the court still found the seizure of the discarded handgun proper because of its place late in the chain of events and because it followed the lawful arrest. If the suspect had submitted to detention, then it is likely that the gun would have been suppressed. Because suppression or admission can turn on facts not in the mind of an officer under the stress of the event, it is sound practice to fall back to the basics of having sufficient cause for any search or seizure throughout the entire encounter.

Summary Analysis: In U.S. v. McClendon, police responded to a call reporting an unknown car in the caller’s driveway. A nervous woman emerged from the driver’s seat and said that Eddie Ray McClendon had gone to get gas. A search of the car revealed McClendon’s backpack behind the passenger’s seat. Without McClendon’s consent, an officer searched the backpack, finding a sawed-off shotgun, ammunition and drugs. Officers later found McClendon, told him he was under arrest and ordered him to show his hands. McClendon turned and made a flinging motion while walking away. Police tackled him and placed him under arrest. They found a loaded handgun a few feet away. McClendon argued that the gun should have been suppressed as the product of an illegal search and seizure. The court disagreed, finding no seizure until police had tackled McClendon. By failing to submit to arrest, McClendon had lost his right to challenge the gun’s admissibility as the fruit of an illegal seizure. Further, because officers would have looked for McClendon regardless of the backpack, the discovery of the handgun was too remote from the search to be the fruit of an illegal search. Even if the search were illegal, McClendon’s own act of walking away purged any taint from the prior improper search.

Follow-Up Contact: For questions regarding this case or its implications for your agency and public safety department, please contact Paul Cappitelli, BB&K’s law enforcement specialist, G. Ross Trindle, III, public safety attorney, or your BB&K attorney.