                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 15 2011

                                                                         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. 11-30047

              Plaintiff - Appellee,               D.C. No. 1:10-cr-00041-RFC-1

  v.
                                                  MEMORANDUM *
GEOFREDO JAMES LITTLEBIRD, Jr.,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Montana
                 Richard F. Cebull, Chief District Judge, Presiding

                      Argued and Submitted December 8, 2011
                               Seattle, Washington

Before: GUY,** McKEOWN, and TALLMAN, Circuit Judges.

       Geofredo James Littlebird, Jr., appeals the denial of his motion to suppress

statements he made to investigators after an illegal traffic stop. Littlebird argues

that his inculpatory statements should be suppressed because those statements were


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Ralph B. Guy, Jr., Senior Circuit Judge for the United
States Court of Appeals for the Sixth Circuit, sitting by designation.
the product of a violation of the Fourth Amendment. Notwithstanding the

government’s concession that the traffic stop violated the Fourth Amendment, we

conclude that intervening events sufficiently attenuated Littlebird’s subsequent

statements from the taint of that illegality and we affirm.

      “We review de novo the mixed question of fact and law whether evidence

deriving from an illegal search is sufficiently tainted to require suppression,

because legal concepts must be applied and judgment exercised about the values

that animate the Fourth Amendment.” United States v. Ortiz-Hernandez, 427 F.3d

567, 575–76 (9th Cir. 2005) (citing United States v. Johns, 891 F.2d 243, 244 (9th

Cir. 1989)) (internal quotation marks omitted).

      The admissibility of Littlebird’s statements depends upon whether those

statements were “come at by exploitation of . . . illegality or instead by means

sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United

States, 371 U.S. 471, 488 (1963) (citation and quotation marks omitted). Brown v.

Illinois, 422 U.S. 590, 603–04 (1975) directs us to consider, as a threshold

requirement, the voluntariness of the confession and whether Miranda warnings

were given. Then, to decide if suppression is necessary, we must balance the three

Brown factors: (1) the temporal proximity of the violation and the confession; (2)




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the presence of intervening circumstances; and (3) the purpose and flagrancy of the

official misconduct. Id.

      Here the threshold requirement of voluntariness is easily met because

Littlebird concedes he voluntarily made the inculpatory statements after receiving

Miranda warnings.

      Turning to the first of the Brown factors, Littlebird remained in custody for

two days between the stop and the interview. This alone is neither so long nor so

short as to weigh either against or in favor of suppression. See Dunaway v. New

York, 442 U.S. 200, 220 (1979) (Stevens, J. concurring).

      More importantly, significant intervening circumstances exist to sufficiently

purge the taint of the illegal stop. First, prior to the interview, Littlebird was

arraigned in the Crow Tribal Court and received appointed counsel. Second, the

record reflects that Littlebird himself likely initiated the interview with the

investigating officers. Third, before the interview he spoke with his Tribal

counsel—a crucial factor in attenuation. United States v. Wellins, 654 F.2d 550,

555 (9th Cir. 1981). And finally, his counsel was present during the entire

interview.

      The traffic stop was plainly illegal as the government concedes that the

officer did not have the requisite level of suspicion to stop the car in which


                                            3
Littlebird was a passenger. There is no evidence, however, to suggest that the stop

was exploited to gain the confession from Littlebird, especially in light of the

district court’s finding that Littlebird more likely than not initiated the interview.

      On balance, the district court properly concluded that the factors above

weigh in favor of denying Littlebird’s motion to suppress his statements.

      AFFIRMED.




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