D.Idaho: Def’s flight from an unreasonable stop, after initial detention, wasn’t attenuated

Defendant’s flight and dropping gun from an illegal arrest here wasn’t an intervening circumstance. There was nothing in the 911 call that justified defendant’s stop in the first place. Defendant complied at first, and then fled. United States v. Gallinger, 2017 U.S. Dist. LEXIS 1134 (D.Idaho Jan. 4, 2017):

Turning to the second factor, the presence of intervening circumstances, the Government argues that Gallinger’s attempted flight and the new information obtained from the 911 caller were two intervening circumstances of significance. Neither suffices to purge the taint of the illegal seizure, however. It is true that a defendant’s voluntary flight and abandonment of evidence can remove the taint of an illegal seizure. See, e.g., United States v. Dawdy, 46 F.3d 1427, 1430-31 (8th Cir. 1995) (collecting cases and holding that “a defendant’s response to even an invalid arrest or Terry stop may constitute independent grounds for arrest,” and that “the evidence discovered in the subsequent searches of [the defendant’s] person” is admissible).

However, the abandonment must be truly voluntary and not merely the product of illegal police conduct. For that reason, a number of Circuits have declined to find attenuation due to a defendant’s flight from an illegal police seizure. See, e.g., United States v. Brodie, 742 F.3d 1058, 1060, 408 U.S. App. D.C. 326 (D.C. Cir. 2014) (detainee’s flight and abandonment of evidence were not intervening circumstances because they flowed directly from seizure and the flight in itself did not pose any threat or constitute a new crime); United States v. Bailey, 691 F.2d 1009, 1015 (11th Cir. 1982) (finding no attenuation where the suspect “fled moments after the illegal arrest and nothing intervened between his arrest and flight.”). Cf. United States v. Beck, 602 F.2d 726 (5th Cir. 1979) (suppressing property tossed out of the window during an illegal stop because the “acts of abandonment do not reflect the mere coincidental decision of Beck and his passenger to discard their narcotics; it would be sheer fiction to presume they [*20] were caused by anything other than the illegal stop.”).²

2. The Government argues that under Hodari D., the “Defendant’s flight after being told he was under arrest ended any seizure.” Gov’t br. at 7. The Court disagrees. Gallinger clearly submitted to Officer Terry’s command here, by sitting on the curb when instructed to do so. Whether or not he later fled does not alter the fact that an illegal seizure occurred. Indeed, Hodari D. does not stand for the proposition that a defendant who has already been unlawfully seized, but later flees, breaks any causal chain between the initial illegal seizure and events occurring after the flight. 499 U.S. at 626 (1991). That is a separate question altogether. Accord United States v. Brodie, 742 F.3d 1058, 1061, 408 U.S. App. D.C. 326 (D.C.Cir. 2014) (holding that “the short duration of [the defendant’s] submission means only that the seizure was brief, not that no seizure occurred.”); United States v. Coggins, 986 F.2d 651, 653, 28 V.I. 241 (3d Cir. 1993) (same); United States v. Wilson, 953 F.2d 116 (4th Cir. 1991) (same).

Where Courts have found attenuation in a defendant’s flight, it has been premised on a determination that the flight was a truly independent and voluntary act by the defendant; constituted a new, distinct crime; or posed a serious risk to public safety. See, e.g., United States v. Allen, 619 F.3d 518, 526 (6th Cir. 2010) (declining to suppress where defendant “attempt[ed] to escape from police by leading the officers on a high-speed chase,” which “constituted a new, distinct crime”); United States v. Boone, 62 F.3d 323, 324 (10th Cir. 1995) (declining to suppress where vehicular flight posed serious risks to the public safety; United States v. Bailey, 691 F.2d 1009, 1016-18 (11th Cir. 1982) (concluding that attenuation exists “if the defendant’s response is itself a new, distinct crime”).

None of these conditions is present here. Gallinger’s flight was not a coincidental act of his free will but rather a direct result of his illegal detention. Nor did his flight on foot constitute a new distinct crime or threat to public safety.