### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIFTH CIRCUIT

No. 10-30902 Summary Calendar

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, purs u ant to a plea agreement, of being

a felon in possession of a firearm. He appeals the denial of his motio n t o s u ppress a gun and marihuana that he argues were seized pursuant to his illegal U n i te d S ta te s C o u rt o f Ap p ea l s

F i ft h C i rc u i t 

### F I L E D June28 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion sho uld not * be publish ed and is not pr ece dent excep t unde r the lim ite d circum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 10-30902 Document: 00511522667 Page: 1 Date Filed: 06/28/2011No. 10-30902

arrest outside his truck. The parties dispute whether Blackmore was arrested outside his truck, or
was merely s ubj e c t ed 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 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 (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.3d 201, 206 (5th Cir. 198 6). 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 hi s c o nviction, and some marihuana were seized in conju n c tio n 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 evid e nc e s e i zed 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.
2 Case: 10-30902 Document: 00511522667 Page: 2 Date Filed: 06/28/2011