United States v. Laroy Blackmore , 431 F. App'x 322 ( 2011 )

Case: 10-30902 Document: 00511522667 Page: 1 Date Filed: 06/28/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 28, 2011
No. 10-30902
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAROY BLACKMORE,
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.
PER CURIAM:*
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 sup-
press a gun and marihuana that he argues were seized pursuant to his illegal
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 10-30902 Document: 00511522667 Page: 2 Date Filed: 06/28/2011
No. 10-30902
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(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 pol-
ice sufficient probable cause to arrest him.
Even where a defendant is subject to an illegal arrest, suppression of evi-
dence is proper only where the evidence was “obtained ‘by exploitation of [the al-
leged] 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 (1963)). Independent probable cause that develops after an illegal ar-
rest is “a critical factor attenuating the taint of the initial illegal arrest.” United
States v. Cherry, 794 F.3d 201, 206 (5th Cir. 1986).
After he got out of the truck and while the officer was attempting to hand-
cuff 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 convic-
tion, and some marihuana were seized in conjunction with the arrest. Black-
more’s actions after he got out of the truck provided probable cause for his for-
mal 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. Shep-
pard, 901 F.2d 1230, 1235-36 & n.11 (5th Cir. 1990) (holding that flight after as-
saulting 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 ille-
gal arrest and the search subsequent to apprehension).
The judgment of conviction is AFFIRMED.
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