Opinion
No. 10-30902 Summary Calendar.
June 28, 2011.
Catherine M. Maraist, Assistant U.S. Attorney, U.S. Attorney's Office, Baton Rouge, LA, for Plaintiff-Appellee.
Marilyn Michele Fournet, Esq., Baton Rouge, LA, for Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Louisiana, No. 3:08-CR-27-1.
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
Laroy Blackmore pleaded guilty, pursuant to a plea agreement, of being a felon in possession of a firearm. He appeals the denial of his motion to suppress a gun and marihuana that he argues were seized pursuant to his illegal arrest outside his truck.
The parties dispute whether Blackmore was arrested outside his truck, or was merely subjected to an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), when a police officer instructed him to get out of the truck and attempted to handcuff him after smelling marihuana and noticing a marihuana cigar in the car. It is irrelevant, however, whether Blackmore was illegally arrested at that point, because, as the district court determined, subsequent events gave the police sufficient probable cause to arrest him.
Even where a defendant is subject to an illegal arrest, suppression of evidence is proper only where the evidence was "obtained `by exploitation of [the alleged] illegality' rather than `by means sufficiently distinguishable to be purged of the primary taint.'" United States v. Ibarra-Sanchez, 199 F.3d 753, 761 (5th Cir. 1999) (alteration in original) (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). Independent probable cause that develops after an illegal arrest is "a critical factor attenuating the taint of the initial illegal arrest." United States v. Cherry, 794 F.2d 201, 206 (5th Cir. 1986).
After he got out of the truck and while the officer was attempting to handcuff him, Blackmore broke free, Blackmore pulled out a weapon, and fled and was arrested by other officers. The gun, which formed the basis of his conviction, and some marihuana were seized in conjunction with the arrest. Blackmore's actions after he got out of the truck provided probable cause for his formal arrest and broke the causal link between any illegal arrest outside the truck and the seizure of the evidence following his capture. See United States v. Sheppard, 901 F.2d 1230, 1235-36 n. 11 (5th Cir. 1990) (holding that flight after assaulting officers broke the nexus between the challenged police conduct and the evidence seized following the arrest); United States v. Nooks, 446 F.2d 1283, 1288 (5th Cir. 1971) (stating that illegal flight broke the nexus between the illegal arrest and the search subsequent to apprehension).
The judgment of conviction is AFFIRMED.