                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 17 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-30135

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00247-JCC-1

       v.
                                                 MEMORANDUM *
CURTIS LEE COLEMAN,

              Defendant - Appellant.

                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                      Argued and Submitted February 8, 2013
                     Submission Withdrawn February 12, 2013
                           Resubmitted May 15, 2013
                               Seattle, Washington

Before: FISHER, GOULD and PAEZ, Circuit Judges.

      Curtis Lee Coleman appeals his conviction for possessing a firearm as a

convicted felon, arguing that the district court should have suppressed his gun and

his statements about the gun because they were obtained as the result of an

unlawful search and seizure. We affirm.


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. The investigatory stop was lawful under Terry v. Ohio, 392 U.S. 1, 30

(1968). Based on the totality of the circumstances, the officers had reasonable

suspicion to believe Coleman was trespassing or about to trespass on private

property.

      2. Even assuming the officers’ attempt to frisk Coleman was unlawful, they

did not discover the gun as part of the attempted frisk. When one of the officers

began the frisk, Coleman immediately flailed his arms, tried to break away and ran

a few feet. Two of the officers brought him to the ground, managed to get him

under control and then handcuffed him. Only then did Coleman admit that he had

a gun in his pocket, which the officers then recovered.

      To assess whether the gun and Coleman’s statements are tainted by the

alleged illegality of the attempted frisk, see Wong Sun v. United States, 371 U.S.

471, 488 (1963), we consider the factors listed in Brown v. Illinois, 422 U.S. 590,

603–04 (1975). There is close temporal proximity between the frisk, Coleman’s

statements and the discovery of the gun. The officers, however, did not engage in

flagrant misconduct, and the lawfulness of the attempted frisk is a close question.

Most significant is Coleman’s effort to break away and attempt to flee, which

constitutes a sufficient intervening circumstance to purge the taint of any initial

illegality that may have existed. See United States v. McClendon, --- F.3d ----,


                                           2
2013 WL 1693958, at *6 (9th Cir. Apr. 19, 2013) (holding that the suspect’s “act

of walking away from the police after the police made it clear that they were trying

to arrest him . . . was an intervening event that purged any taint” from a previous

unlawful search of the suspect’s backpack); United States v. Garcia, 516 F.2d 318,

319–20 (9th Cir. 1975) (holding that the suspect’s decision to flee from an

arguably unlawful vehicular checkpoint was a sufficient intervening event to purge

the taint of any initial illegality). Weighing the Brown factors, and in particular the

intervening event of Coleman’s decision to flee, we conclude that the gun and

Coleman’s statements were not fruit of the poisonous tree warranting suppression.

      AFFIRMED.




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