Sunday, April 21, 2013

Case o' The Week: Third & Sixth Muddle Ninth's Fourth - McClendon and Fourth Amendment Seizures

  Sawed-off shotgun in the backpack, pistol in the waistband, ski mask and no snow to be seen.
  Bad facts make new law in the Ninth on Fourth Amendment seizure. United States v. McClendon, 2013 WL 1693958 (9th Cir. Apr. 19, 2013), decision available here.

Hon. Ronald Gould
Players: Decision by Judge Gould, joined by Judges Fisher and Paez.

Facts: At 2:20 a.m. police responded to a 911 call from an elderly disabled homeowner. Id. at *1. [Ed. note – extraneous bad facts pepper this opinion]. Cops found a car in the caller’s driveway, and a meth-addled woman inside. Id. The cops searched the car and found a machete, discovered drugs and paraphernalia in the woman’s purse, and recovered a backpack that the woman attributed to the absent Eddie McClendon. Id. In the backpack was a sawed-off shotgun, a wig, ammo, walkie-talkies, pills, and a receipt in McClendon’s name. Id. A records check on McClendon revealed a felony weapons prior. Id. at *2. The cops found a man matching McClendon’s description 50 yards away; when asked if he was “Eddie” the man answered “Yes, that’s me.” Id. at *2. The officers drew their guns, told McClendon he was under arrest, and ordered him to show his hands. Id. He didn’t. Instead, he continued to walk away. When the officers got close McClendon reached to his waistband, turned away, and made a flinging motion. Id. at *2. They tackled McClendon and found a gun a few feet away. Id. McClendon entered a conditional plea after the district court denied a suppression motion. Id.

Issue(s): 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.” Id. at *3.  

Held: Precedent instructs that where an individual flees from police, no submission occurs until the defendant is physically subdued. . . But we have not addressed a situation where, as here, a defendant walks away from and refuses to comply with the commands of officers who are attempting to arrest him, instead reaching into his waistband.” Id. at *3 (emphasis added). “[W]e hold that McClendon's initial response of answering ‘Yes, that's me’ was not sufficient to show that he had submitted to the officers' authority.” Id. at *4. “McClendon . . . contends that he was seized when the officers drew their guns and told him that he was under arrest . . . . But McClendon misses the point of Hodari D. [A] reasonable person in McClendon's shoes would not have felt free to leave. The critical difference is that, faced with such authority, McClendon did not submit. Instead, although he was ordered at gunpoint to stop and put up his hands, McClendon turned and walked away, not raising his hands.” Id. . . . “McClendon was not physically touched during his initial encounter with the police and, because he did not submit to the officers' show of authority, he was not seized until he was brought to the ground.” Id. at *5. . . . Assuming, without deciding, that the officers initially had no authority to stop or arrest McClendon, we still conclude McClendon was not seized until he was physically apprehended.” Id. “Because McClendon did not submit to the authority of the police, he was not seized before he was tackled and thus lost his ability to challenge the admissibility of the handgun as a fruit of an illegal seizure.Id.   

Of Note: “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.” Id. at *2. This decision goes out of its way to describe McClendon as a man bent on mischief. Unfortunately, these facts are irrelevant to the seizure inquiry: bad facts buttress some disappointing new Fourth law.  

How to Use: This Ninth decision of first impression relies heavily on out-of-circuit authority. See id. at *3 n.3, *4 n.4. It is, fortunately, fairly fact-bound: read the chronicle McClendon’s responses carefully before surrendering your own seizure argument.
For Further Reading: Thankfully Mass. Fed. Defender Miriam Conrad is seeking appointment on the surviving alleged Boston bomber. Tragically, her office will be defending the case on a budget slashed by sequestration. “Public defenders offices shouldn’t suffer under sequestration” – so argue federal judges in a recent and compelling Washington Post editorial. See editorial here

Image of the Honorable Ronald Gould from Image of ski mask from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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