713 F.3d 1211 (9th Cir. 2013), 12-30015, United States v. McClendon

Docket Nº:12-30015
Citation:713 F.3d 1211
Opinion Judge:GOULD, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Eddie Ray McCLENDON, Defendant-Appellant.
Attorney:William R. Michelman (argued), Lakewood, WA, for Defendant-Appellant. Helen J. Brunner (argued), Appellate Chief, Office of the United States Attorney for the Western District of Washington, Seattle, WA; Jenny A. Durkan, United States Attorney, and Jesse Williams, Special Assistant United States ...
Judge Panel:Before: RAYMOND C. FISHER, RONALD M. GOULD, and RICHARD A. PAEZ, Circuit Judges.
Case Date:April 19, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1211

713 F.3d 1211 (9th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,

v.

Eddie Ray McCLENDON, Defendant-Appellant.

No. 12-30015

United States Court of Appeals, Ninth Circuit.

April 19, 2013

Argued and Submitted Feb. 8, 2013.

Page 1212

William R. Michelman (argued), Lakewood, WA, for Defendant-Appellant.

Helen J. Brunner (argued), Appellate Chief, Office of the United States Attorney for the Western District of Washington, Seattle, WA; Jenny A. Durkan, United States Attorney, and Jesse Williams, Special Assistant United States Attorney, Office of the United States Attorney for the Western District of Washington, Tacoma, WA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Western District of Washington, Robert J. Bryan, Senior District Judge, Presiding. D.C. No. 3:11-cr-05238-RJB-1.

Before: RAYMOND C. FISHER, RONALD M. GOULD, and RICHARD A. PAEZ, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Eddie 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, 633 F.3d 889, 891 (9th Cir.2011). If we conclude that there was no illegal seizure before McClendon threw the gun, we next must decide whether discovery of the handgun could fairly be considered a fruit

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of the illegal backpack search, requiring its suppression. See Wong Sun v. United States, 371 U.S. 471, 484-87, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Because we hold that McClendon was not seized before discarding the handgun and that the handgun was not a fruit of the illegal backpack search, we reject McClendon's claim and affirm.

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 methamphetamine, 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 search 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 a cigarette box containing pills, several one-inch-by-one-inch baggies coated with a white crystalline residue, and a smoking pipe coated with the same residue.1 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 matching 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 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]

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turned away from [the officers]," making 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 eye 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...

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