Unpublished Disposition, 936 F.2d 581 (9th Cir. 1991)

MEMORANDUM^* 

The government appeals from the district court's denial of its "Motion for Determination of Admissibility of Evidence." We reverse and remand.

* The first order, which found the encounter illegal and suppressed both the physical evidence and Sanderson's statements, is not before us on appeal. See 18 U.S.C. § 3731 (1988) (government's appeal from suppression or exclusion order "shall be taken within thirty days" after the order has been rendered). This failure appears to be jurisdictional. United States v. Martinez, 681 F.2d 1248, 1254 (10th Cir. 1982) (government's failure to appeal under Sec. 3731 within thirty days deprives court of jurisdiction).

Even if, under Ninth Circuit law, the government's failure to appeal is not jurisdictional,¹  we nevertheless are precluded from reviewing the first order because the government appealed only the second order. The notice of appeal gives no indication that the government intended to appeal from the first order. Cf. Litchfield v. Spielberg, 736 F.2d 1352, 1355 (9th Cir. 1984) (mistake in designating judgment appealed from is not fatal as long as intent to appeal from specific judgment can be fairly inferred from the notice of appeal), cert. denied, 470 U.S. 1052 (1985).

The government's reliance on United States v. Humphries, 636 F.2d 1172 (9th Cir. 1980), cert. denied, 451 U.S. 988 (1981) is misplaced. In Humphries, this court held that, because the first ruling was broadly worded and ambiguous, and because there was no showing of bad faith or prejudice, the government was free to appeal the second ruling. Id. at 1177. The same circumstances exist here. Thus, the only issue on appeal is whether the district court erred in suppressing Officer Mesa's testimony as "fruit of the poisonous tree."

II

The government argues that Sanderson's pulling out the firearm and shooting at Officer Mesa constituted acts of free will sufficient to purge the primary taint of any unlawful invasion. See Wong Sun v. United States, 371 U.S. 471, 486 (1963). We have made it clear that

[a] person detained illegally is not immunized from prosecution for crimes committed during his detention. A person does not have a license to kill a police officer merely because the officer arrested him without probable cause.

United States v. Mitchell, 812 F.2d 1250, 1253 (9th Cir. 1987).

In light of the three-factor analysis used in United States v. Perez-Esparza, 609 F.2d 1284 (9th Cir. 1980), we agree with the government that the defendant's acts attenuated any taint. See Brown v. Illinois, 422 U.S. 590, 599 (1975) (once the illegality is established, the question is whether the evidence objected to was discovered by exploitation of that illegality or by means sufficiently distinguishable to purge the taint).

In this case, the official misconduct was minimal, if it is to be considered misconduct at all.²  This factor clearly favors admission of the evidence. On the other hand, the temporal proximity of the conduct and the evidence is extremely close. This factor favors suppression of the evidence. The last factor, intervening circumstances, however, cuts against the defendant in this case. Assuming Mesa's conduct was illegal, he only came upon a firearm directly through that conduct. Sanderson's firing of a firearm at a later point in time, however, is an independent act sufficient in this case to attenuate any taint. Evidence of that firing is admissible.

III

Because the government failed to appeal from the district court's first order, it is not before us on this appeal. The district court, however, erred in holding that the first order requires suppression of the officer's statements about Sanderson's later conduct. We therefore REVERSE and REMAND for further proceedings consistent with the foregoing.