                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-4283


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

LAVELLE DEWAYNE STOVER,

                Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:13-
cr-00347-PWG-1)


Argued:   September 17, 2015                Decided:   December 18, 2015


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed by published opinion. Judge Motz wrote the majority
opinion, in which Judge King joined.   Judge Gregory wrote a
dissenting opinion.


ARGUED: Maggie Teresa Grace, VENABLE, LLP, Baltimore, Maryland,
for Appellant. Aaron Simcha Jon Zelinsky, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.    ON BRIEF:
James Wyda, Federal Public Defender, Baltimore, Maryland, Paresh
S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland, for Appellant.      Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland, Kelly O. Hayes, Assistant United
States   Attorney,  OFFICE   OF  THE  UNITED   STATES  ATTORNEY,
Greenbelt, Maryland, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

       A   jury      found   Lavelle       Stover    guilty       of     possession        of   a

firearm     as    a     felon,    in   violation      of    18     U.S.C.        §   922(g)(1)

(2012).         On    appeal,     Stover     challenges       the      district        court’s

denial of his motion to suppress the firearm as the fruit of an

illegal seizure.          For the reasons that follow, we affirm.



                                             I.

       In the early morning hours of March 13, 2013, uniformed

Prince George’s County Police Officers Justice Halsey and Jesus

Yambot patrolled the “King Sector” of Temple Hills, Maryland, an

area   where      several        violent    robberies       had    recently          occurred.

Around 1:00 a.m., the officers noticed a Chevy Silverado double-

parked     in     the    small     private        parking    lot       of    an      apartment

building.        The officers could see a man in the driver’s seat and

a woman in the front passenger seat.

       Although         Officer     Halsey        conceded        that      it       was   “not

suspicious for someone to be sitting in a parking lot,” the

officers nonetheless decided to return a few minutes later to

check on the car.            When they did, they again saw the Silverado

parked and occupied as before.                According to Officer Halsey, the

car’s Virginia license plates indicated that “the car d[idn]’t

belong.”        Because of the out-of-state plates, the area’s “high-

crime” reputation, the late hour, and the double-parking, the

                                             2
officers concluded that they had “the right to stop the occupant

of the car and see what’s going on.”                  Officer Yambot pulled the

marked police vehicle into the lot and parked at a 45-degree

angle about three feet behind the Silverado, blocking it in.

The    officers     activated      their     vehicle’s       emergency    lights      “to

notify [the driver] that [they were] behind him because [they

didn’t]     want    to    get    ran   [sic]    over.”        Then   Officer     Yambot

illuminated the driver’s side of the Silverado with a spotlight.

       As   the    district      court   observed,     the     suppression      hearing

testimony was “far from crystal clear” as to the exact sequence

and timing of the ensuing encounter.                   Officer Halsey testified

as follows.         After Officer Yambot parked the police vehicle,

Stover,     the    individual      sitting      in   the    driver’s     seat   of    the

Silverado, opened his door, emerged from the car, and opened the

driver’s side backseat door to the Silverado.                        Officer Halsey

left the police car and gave Stover “a verbal command to get

back   inside      of    the    vehicle.”       Officer     Halsey   could      not   see

exactly what Stover was doing or if Stover had anything in his

hands because Stover was “standing in between both doors” of the

Silverado.        Stover made no response to Officer Halsey; indeed,

he never “acknowledged” the officer.                       Instead, Stover quickly

walked about five or six feet to the Silverado’s front hood.                           To

Officer Halsey, this movement away from the police car looked

like “flight.”          Officer Halsey then ran along the passenger side

                                            3
of the Silverado to its hood, where he saw Stover “toss a gun in

front of the vehicle.”               At that point, Officer Halsey pointed

his own gun at Stover and ordered him to get back inside the

Silverado,       which     Stover    did    without    a     word.     The    officers

retrieved a loaded nine-millimeter Glock from the grass in front

of the hood of the Silverado.

        Stover did not testify at the suppression hearing.                           His

passenger testified that after the police officers parked and

exited their vehicle, Stover very briefly got out of his car but

was immediately met by Officer Yambot, who “made both [Stover

and his passenger] lay on the ground” before arresting them.

The entire incident happened in a very short period of time.

According       to   Officer    Halsey,     between     two    and    five    minutes;

according to the passenger, five seconds.

        Upon    consideration        of    these   conflicting        accounts,      the

district court found the following facts by a preponderance of

the evidence.           After the police vehicle pulled up, Stover “did,

at   some      point,    get   out   of    the   car   and    did    open    [two]   car

door[s],” and “did, at some point, beg[i]n to walk to the front

of the car.”         “At some point,” Officer Halsey “said, get back in

the car and tried to stop the defendant from getting out of the

car.”     When Officer Halsey saw Stover move to the front of the

Silverado, the officer “ran to the front of the car with his gun

out, and put the gun in the face of the defendant, meeting him

                                            4
in the front of the car.”               “[I]t was the presence of [Officer

Halsey’s] gun in the face of the defendant that caused him to

acquiesce” and “[t]hat was after [Stover] had dropped the gun.”

Only after Stover dropped his loaded gun did he comply with

police orders and get back in the Silverado.

      A federal grand jury indicted Stover on a single count of

possessing     a    firearm   as    a   felon,        in   violation    of    18    U.S.C.

§ 922(g)(1) (2012).           Stover moved to suppress the gun as the

fruit of an illegal seizure.                In response, the Government did

not maintain that the officers had reasonable suspicion to stop

Stover.     Instead, the Government argued that, under California

v. Hodari D., 499 U.S. 621 (1991), Stover did not submit to the

police -- and thus was not seized -- until after he dropped his

loaded gun, and so abandoned it, at the hood of his car.                                 The

district court agreed, finding that Stover did not acquiesce to

the   “show    of     authority    that     had       attempted    to   put   him       in   a

seizure”      until    Officer     Halsey       met    him   at   the   front      of    the

Silverado, gun drawn, and “actually exercised [] control over

the   defendant.”          Because      Stover         tossed     his   gun   prior          to

complying with the police orders, the district court found the

gun had been abandoned before the seizure and so was admissible

at trial.

      A jury found Stover guilty and the district court sentenced

him to 57 months in prison.                 Stover timely filed this appeal

                                            5
challenging           the     district     court’s      denial         of    his     suppression

motion.      When considering a district court’s denial of a motion

to suppress, we review the court’s factual findings for clear

error      and   all        legal   conclusions        de   novo.           United       States    v.

Weaver, 282 F.3d 302, 309 (4th Cir. 2002).                                  “When, as here, a

motion      to    suppress          has   been    denied,         we     view      the    evidence

presented        in     the     light     most    favorable         to      the    government.”

United States v. Watson, 703 F.3d 684, 689 (4th Cir. 2013).



                                                 II.

       The parties do not dispute that Stover was at some point

seized during his interaction with the officers in the parking

lot.       They do dispute when this seizure occurred.                               On appeal,

Stover      no   longer        contends     that       he   did    not       get    out    of     his

Silverado, walk to the front of the vehicle, and drop his gun

there. 1     Rather, he argues that the officers seized him, without

reasonable suspicion, at the moment the police vehicle pulled up


       1
       At the suppression hearing, defense counsel introduced a
report of police radio traffic indicating that Officer Yambot
reported a suspicious vehicle on his radio only nine seconds
before he reported that he had two people in custody.       The
defense argued that this report showed that “this whole event
occurred within nine seconds,” which was too short a time for
Officer Halsey’s version of events to play out.     However, at
trial, Officer Yambot testified that he did not make the first
radio call until after the officers had secured both Stover and
the passenger.    On appeal, Stover does not challenge that
testimony.


                                                 6
behind his Silverado, rendering his gun the fruit of an illegal

seizure.       The Government maintains that the officers did not

seize Stover until after he abandoned his firearm in front of

his car, prior to submitting to police authority.

     The Fourth Amendment protects “[t]he right of the people to

be secure in their persons . . . against unreasonable . . .

seizures.”       U.S. Const. amend. IV.                   This guarantee, however,

“does   not    extend     to    all       police-citizen         encounters.”            United

States v. Jones, 678 F.3d 293, 298-99 (4th Cir. 2012).                                     As a

general    matter,        law        enforcement         officers        do        not     seize

individuals “merely by approaching [them] on the street or in

other   public       places    and    putting       questions      to    them.”          United

States v. Drayton, 536 U.S. 194, 200 (2002).                                 Rather, as the

Supreme Court has explained, “[o]nly when the officer, by means

of   physical    force        or     show      of   authority,         has    in    some    way

restrained     the     liberty       of    a   citizen     may    we    conclude         that    a

‘seizure’ has occurred.”                  Terry v. Ohio, 392 U.S. 1, 19 n.16

(1968).       Where, as here, physical force is absent, a seizure

requires      both    a   “show       of       authority”       from    law     enforcement

officers and “submission to the assertion of authority” by the

defendant.           California       v.       Hodari     D.,    499     U.S.       621,    626

(1991)(emphasis omitted).

     To    determine      whether          police       have    displayed       a    show       of

authority sufficient to implicate the Fourth Amendment, a court

                                                7
applies       the    objective       test        set    forth    in    United       States   v.

Mendenhall, 446 U.S. 544 (1980) (plurality opinion).                                The police

have done so “only if, in view of all of the circumstances

surrounding          the     incident,       a        reasonable      person    would      have

believed that he was not free to leave.”                             Mendenhall, 446 U.S.

at 554; United States v. Gray, 883 F.2d 320, 322 (4th Cir.

1989).         A    court    considers      a     number    of     factors     in    resolving

whether an officer’s conduct would convey to a reasonable person

that     he    is     not    free    to     leave.          See,      e.g.,     Michigan     v.

Chesternut,         486     U.S.   567,     575-6       (1988)     (listing     examples     of

police behavior that “communicate[] to the reasonable person an

attempt to capture or otherwise intrude upon [his] freedom of

movement,”          including       “activat[ing]           a    siren     or       flashers,”

“command[ing a person] to halt,” or “operat[ing] the [police]

car    in     an   aggressive       manner       to    block    [a    person]’s      course”);

Jones, 678 F.3d at 299-300 (listing various relevant factors).

Only if a reasonable person would feel free to terminate the

encounter does a court consider the interaction a consensual one

to which the Fourth Amendment protection against unreasonable

seizures does not apply.               See Florida v. Bostick, 501 U.S. 429,

434 (1991).

       If an interaction is not consensual, i.e., if a reasonable

person would not have felt free to terminate it, then the Fourth

Amendment guards against unreasonable seizures.                            In such cases,

                                                  8
however, the seizure inquiry does not end.                          The Mendenhall test

“states a necessary, but not a sufficient, condition for . . .

seizure effected through a ‘show of authority.’”                          Hodari D., 499

U.S. at 628 (emphasis in original).                          When submission to police

authority is disputed, a court must also ascertain whether and

when   the    subject        of    the   seizure       actually     acquiesced     to    that

authority.       Hodari D., 499 U.S. at 628-29; Brendlin, 551 U.S. at

254.

       “[W]hen        an     individual’s             submission     to    a     show     of

governmental authority takes the form of passive acquiescence,”

the relevant test “for telling when a seizure occurs in response

to authority” is that enunciated in Mendenhall.                            Brendlin, 551

U.S.   at     255.         But,    in    cases       where   the   individual    does     not

clearly and immediately submit to police authority, courts must

determine      when    and        how   the    submission      occurred.        See,    e.g.,

United States v. Lender, 985 F.2d 151, 153-55 (4th Cir. 1993).

“[W]ithout actual submission” to the police, “there is at most

an attempted seizure,” which is not subject to Fourth Amendment

protection.         Brendlin, 551 U.S. at 254; see also Hodari D., 499

U.S. at 626-27 & n.2.

       Brendlin does not create a new analysis for determining

when    and    if     submission          to     police      authority    has    occurred.

Rather,      Brendlin        simply      applies       the    analysis    set    forth    in

Hodari D.       Brendlin, 551 U.S. at 254, 257-58, 261-62. See also

                                                 9
Wayne R. LaFave, 4 Search & Seizure § 9.4(d) (5th ed. 2015)

(describing how Brendlin uneventfully applies Hodari D.).                        Thus,

Hodari D. established the broad principle that an individual

must       submit    to   authority    for    a   seizure   to     occur;   Brendlin

teaches       that    “passive     acquiescence”       is   one     form    of    that

submission. 2

       As with the “show of authority” analysis, determining what

constitutes         “submission”      can    be   a   difficult,    fact-intensive

inquiry.        “[W]hat may amount to submission depends on what a

person was doing before the show of authority:                    a fleeing man is

not seized until he is physically overpowered, but one sitting

in a chair may submit to authority by not getting up to run

away.”       Brendlin, 551 U.S. at 262; see also LaFave, 4 Search &

Seizure § 9.4(d) (observing that “lower courts will frequently

be confronted with difficult questions concerning precisely when

       2
       Hence, our friend in dissent errs in repeatedly stating
that Brendlin and Hodari D. set forth different “tests.”
Moreover, the dissent’s even more repeated suggestion that we
demand too much in looking to a “signal” of “submission” from
Stover seems very odd given the Supreme Court’s use of these
very terms in assessing submission in Brendlin.    See Brendlin,
551 U.S. at 262 (explaining that Brendlin, who had “no effective
way to signal submission while the car was still moving . . .
once it came to a stop [] could, and apparently did, submit by
staying inside”)(emphasis added).   Although the dissent places
great emphasis on the fact that Stover’s car was not moving when
the police arrived, Stover certainly was not “deprived of the
ability to signal submission,” as the dissent contends. Rather,
Stover could easily have signaled submission in the very way
Brendlin did -- or, as discussed below, any number of other
ways.


                                            10
the requisite physical seizure or submission to authority . . .

occurs”).       If an individual does submit to a show of police

authority, and police then discover evidence, the court must

assess   whether     either      reasonable        suspicion        or    probable     cause

supported the seizure.           See Terry, 392 U.S. at 20-21.



                                            III.

       With these principles in mind, we first consider whether,

under the totality of the circumstances in the instant case, a

reasonable      person    would       have    felt     free    to    leave        after    the

officers pulled up behind Stover’s car.                         See Mendenhall, 446

U.S.    at   554.       This    is    necessary        because,      although         in   the

district court the Government did not contend that the encounter

was consensual, on appeal it argues that “a reasonable person

would    have    felt    free     to    leave”         when    the       police    arrived.

Appellee’s Br. at 18.           We disagree.           Indeed, this is not a close

question     here,    for      this    is    not   a    case    involving         a   police

officer’s “polite request for an interview.”                         Gray, 883 F.2d at

322; see also United States v. Brown, 401 F.3d 588, 593 (4th

Cir. 2005).         Rather, as the district court noted, the police

officers’ aggressive conduct from the start of their interaction

with Stover was “absolutely an effort [] to try to effect . . .

a seizure.”



                                             11
      In Jones, we recently considered whether similar officer

conduct would have left a reasonable person believing he was

free to leave.        There, officers followed defendant Jones’ car

into an apartment driveway and parked so that the car could not

exit.    678 F.3d at 296-97.          When Jones emerged from his car and

stood    by   the     car     door,     the     police   officers         “proceeded

immediately to speak to Jones” and pat him down for weapons.

Id. at 297-98.         We reasoned that “when an officer blocks a

defendant’s    car    from    leaving     the    scene   .   .   .    the    officer

demonstrates a greater show of authority than does an officer

who just happens to be on the scene and engages a citizen in

conversation.”       Id. at 302.       In combination with this fact, the

officers were armed and in uniform; they proceeded immediately

to the driver’s side door; and they did not ask if they could

speak with Jones.           Id. at 300, 303.         Instead, they requested

that he lift his shirt and allow an officer to pat him down.

Id.     Under the totality of the circumstances, we held that a

reasonable    person     would    not    have     felt   “free       to   leave   or

terminate the encounter.”        Id. at 304.

      Jones squarely compels the conclusion that Stover too was

not free to leave.           Although here the officers did not follow

Stover’s car into the parking lot, the rest of the Jones factors

are present:        the officers, who blocked Stover’s vehicle, were

armed and uniformed and approached Stover immediately, without

                                         12
asking if they could speak with him.   Indeed, in this case, the

officers activated their vehicle’s emergency lights, trained a

spotlight on Stover, and drew their weapons, making this an even

clearer case of a police show of authority than Jones. 3     See,

e.g., Chesternut, 486 U.S. at 575-76 (including police use of

“flashers” and “display[] [of] weapons” as indications of a show

of authority).   No reasonable person in Stover’s position would

have felt free to terminate the encounter.




     3 Our dissenting colleague maintains that “the relevant show
of authority made by police consisted solely of turning on the
police vehicle’s overhead lights and blocking in Mr. Stover’s
truck.” He can do so only by making new findings of fact. In
his effort to place the moment of seizure earlier, the dissent
disaggregates what the district court found to be a continuous
series of events that happened rapidly prior to Stover’s
submission.   In accord with the testimony at the suppression
hearing, the court found that in quick succession the officers
not only blocked Stover’s car, activated their emergency lights,
and turned a spotlight on Stover, but also immediately ordered
Stover to remain in his car and when Stover disobeyed, ordered
him to return to the car.    The court further found that Stover
again disobeyed police orders, walked away from his car and the
officers with a loaded gun in his hand, which he discarded in
brush in front of the car, and then and only then when
confronted by an armed officer did Stover submit to police
authority. The dissent invokes Mendenhall to argue that we can
consider only the officers’ initial actions, but Mendenhall
instructs us to “view [] all of the circumstances surrounding
the incident.”    446 U.S. at 554.   Thus, all of the officers’
conduct prior to Stover’s submission constitutes the “relevant
show of authority.”


                               13
                                             IV.

      Having concluded that the district court committed no error

in finding that the officers demonstrated a show of authority

sufficient to implicate the Fourth Amendment, we turn to the

question of whether the court erred in finding that Stover did

not submit to police authority prior to abandoning his gun.

      Up   and    until      Stover       submitted,       “there     [was]      at    most   an

attempted seizure, so far as the Fourth Amendment is concerned,”

and the Supreme Court has held that the Fourth Amendment does

not protect attempted seizures.                      Brendlin, 551 U.S. at 254; see

also Cty. of Sacramento v. Lewis, 523 U.S. 833, 845 n.7 (1998)

(“Attempted seizures of a person are beyond the scope of the

Fourth Amendment.”).               For example, in the seminal Supreme Court

decision    on       submission,       Hodari        D.,   the    defendant           ran   from

approaching      police        officers,        tossing     away      a    rock       of    crack

cocaine just before an officer tackled him.                           499 U.S. at 623.

The Court held that, because the defendant had not submitted to

police prior to being tackled, he was not seized when he tossed

the contraband.           Id. at 629.            In contrast, the Supreme Court

more recently described a car passenger who remained inside the

car   during     a    traffic      stop    as    submitting      to       police      authority

through    “passive          acquiescence,”          and   so    held      the     contraband

subsequently         found    in    the    passenger’s       possession          should      have

been suppressed.         Brendlin, 551 U.S. at 255, 262-63.

                                                14
       To be sure, a range of conduct exists between the “passive

acquiescence” in Brendlin and the headlong flight in Hodari D.

A defendant does not have to remain frozen in order to submit.

Nor    does    he    need       to   bolt     from        the    scene     to    signal     non-

submission.          Stover      argues     that          he    passively       acquiesced    to

police     authority       by   “remaining           at   the    scene.”         The    district

court,     however,        found     that   a    preponderance           of      the    evidence

established         that    Stover      did      not       acquiesce        to    the     police

officer’s show of authority until after he discarded his loaded

gun.

       We must view the district court’s finding in the best light

for the Government, because it prevailed below.                               Viewed in that

light, the evidence shows that instead of remaining seated in

his car when the police vehicle approached, Stover exited his

car with a loaded gun in his hand.                             The district court found

that Officer Halsey “tried to keep [Stover] from getting out of

the car.”      But Stover walked away from the officers to the hood

of his car, despite their orders to “get back in the car.”                                  Only

after Stover dropped his firearm did he comply with the police

orders.       For only then, upon seeing Officer Halsey in front of

him with a police weapon drawn, 4 did Stover get back in his car


       4
       In contending that “no reasonable assessment of the facts
can support the conclusion that Stover attempted to leave,” the
dissent refuses to consider the facts in the light most
(Continued)
                                                15
and    follow   subsequent   police   orders.    On   the   basis   of   this

evidence, the district court did not clearly err in finding that

Stover had not submitted until after he had discarded his loaded

gun.

       On appeal, Stover relies heavily on three cases in which we

reversed the district court’s denial of a suppression motion.

Jones, 678 F.3d 293; United States v. Black, 707 F.3d 531 (4th

Cir. 2013); and United States v. Wilson, 953 F.2d 116 (4th Cir.

1991).    Like the case at hand, these cases involve interactions

initiated by police without reasonable suspicion.              But, unlike

the case at hand, in each of these cases the defendant did

submit    to    police   authority    before    the   discovery     of   any

contraband.     Moreover, none of these cases involve the issue at

the crux of this case -- an individual’s ambiguous reaction at

the outset of a police show of authority.



favorable to the Government -- as we must. On one hand, Stover
never testified as to his intent or anything else. On the other
hand, Officer Halsey testified at the suppression hearing that
he believed Stover might have fled the scene had the officer not
confronted him at the hood of the car.          Defense counsel
specifically asked Officer Halsey:    “[D]id you do anything to
make [Stover] stop or did he stop on his own?” Officer Halsey
responded, “Yes, I did. . . . I ran up in front of him with the
gun in his face.”   Thus the undisputed record evidence is that
Stover walked away from the officers with no indication that he
would stop of his own volition; indeed, he gave the officers no
information whatsoever about what he was doing.    The dissent’s
generous inference clarifying Stover’s intentions views the
record, at the very least, in the light most favorable to
Stover.


                                      16
       In Jones, the defendant’s submission was undisputed.                              The

Government did not even suggest that the gun it ultimately found

on Jones should be admitted because Jones had not submitted to

police       authority.         Rather,      Jones’    passive       acquiescence        and

submission         to   police      authority     were      so       clear     that      the

Government’s only argument was that Jones’ submission evidenced

a   “consensual”        encounter,     in    which     Jones    “consented”         to   the

search.       Brief of the United States at 10-29, Jones, 678 F.3d

293 (No. 11-4268).              Thus, whether in fact the encounter was

consensual was the only contested issue in Jones. 5                         Jones argued

that he was not free to go; the Government maintained that he

was.       As explained above, we agreed with Jones and so held that

the weapon the police found on him should have been suppressed.

Jones, 678 F.3d at 305.

       Nor    do    Black     or    Wilson    assist    Stover.         In    both,      the

defendants, unlike Stover, submitted to police authority.                             After

police       officers        surrounded      Black,    he      responded       by     being

“extremely      cooperative,”         even    volunteering       his    ID,    which      an

officer      pinned     to    his   uniform.      Black,       707   F.3d     at    536-38.


       5
       In its appellate brief in Jones, the Government cited
Hodari D. just once and then for the single proposition that an
encounter is consensual only if a reasonable person would feel
free “to disregard the police and go about his business.” Brief
of the United States at 12, Jones, 678 F.3d 293 (No. 11-4268)
(internal quotation marks omitted).      Hence, Stover’s heavy
reliance on Jones is misplaced.


                                             17
When, after this cooperation, Black attempted to walk away from

the suspicionless stop, police tackled him and then uncovered

his gun.       Id. at 536.        Because Black had submitted to police

authority by his “passive acquiescence” prior to the discovery

of   his   weapon,    we     held     that     the     weapon    should     have    been

suppressed.       Id. at 537 n.3, 542. 6             Similarly, in Wilson, when

police identified themselves and asked to question Wilson in an

airport terminal, Wilson provided them with information as to

his flight, his identification, and his educational plans, and

submitted to a patdown search.                 953 F.2d at 118.        The officers

insisted on asking more questions, attempting to prolong the

encounter.      Id.   Wilson refused and walked away.                 Id.     When the

officers nonetheless persisted, ultimately finding illegal drugs

in   Wilson’s     coat,    we   held    that     the    drugs    should     have    been

suppressed.       Id. at 119-20, 127.

      Stover      maintains     that     his    walk     to     the   front    of    his

Silverado    is    akin    to   the    defendants’      movements     in    Black    and

Wilson.     The problem for Stover is that, unlike the defendants

in Black and Wilson, he did not submit to police authority at

any point before he began that walk.                     Stover’s initial action

      6Attempting to find some support for its preferred holding,
the dissent ignores the “extreme[] cooperat[ion] with,” and thus
submission to, police authority by the defendant in Black. That
cooperation stands in striking contrast to Stover’s repeated
active disobedience of police orders from the outset of the
encounter.


                                          18
was not to cooperate with police and answer their questions, as

in Black and Wilson.      Rather, as soon as the police blocked his

Silverado, he left the car, disobeyed a police order to return

to the car, and instead walked away from the police with a

loaded gun in his hand.        Only after he discarded that gun and

was confronted by an armed police officer did Stover submit to

police authority.

      Jones, Black, and Wilson simply do not involve the critical

inquiry here:      where to draw the line between submission and

non-submission in the face of an individual’s equivocal reaction

to police acts initiating a show of authority.          In cases dealing

with this issue, we have found dispositive the same indicia of

noncompliance present here.       For example, in Lender, we found

non-submission where the defendant walked away from approaching

officers, ignoring their orders, “fumbling with something” at

his waist, and halting just before his gun fell out of his

pants.     985 F.2d at 153-55.   There, as here, the defendant asked

“us   to   characterize   as   capitulation   conduct    that   is   fully

consistent with preparation to whirl and shoot the officers.”

Id. at 155.     Similarly, in United States v. Smith, 396 F.3d 579,

581-82 (4th Cir. 2005), we rejected the defendant’s argument

that he was seized when police activated their emergency lights

and blocked his car’s exit, because although his car had been

stationary, he “proceeded slowly” away when police approached.

                                   19
We concluded that the defendant “was not seized until he finally

submitted to [the officer]’s show of authority by stopping at

the end of the driveway.”            Id. at 586 n.5.

       Other courts have reached similar conclusions.                         See United

States   v.    Salazar,      609    F.3d    1059,       1066-68      (10th   Cir.     2010)

(holding   driver      not    seized       when    he    backed      away    slowly    from

police vehicle before obeying trooper’s command to get out of

his truck); United States v. Jones, 562 F.3d 768, 772-75 (6th

Cir. 2009) (holding that, although seizure of seated passengers

occurred      when   police        cars    “block[ed]       in”      defendant’s       car,

defendant himself was not seized because he immediately “‘jumped

out’ as though he wanted to run”); United States v. Johnson, 212

F.3d   1313,    1316-17      (D.C.    Cir.       2000)    (holding     that    defendant

sitting in parked car did not submit to police when he made

“continued     furtive      gestures”      including       “shoving     down”    motions

“suggestive of hiding (or retrieving) a gun”).                         Although we do

not    necessarily       adopt       the    lower        standards      of    submission

recognized     in    some    of    these    cases,       they   do   demonstrate       that

Stover’s contentions would not fare better in other circuits.

Indeed, Stover has not cited, and we have not found, a single

case where an individual who exits his car holding a loaded gun,




                                            20
ignores police orders, and walks away from police officers was

found to have submitted to police authority. 7

     Our    holding      might    well    be     different   if    Stover      had,   for

example, remained in his car or dropped his gun and complied

with police orders immediately upon exiting his car.                        See, e.g.,

Brendlin, 551 U.S. at 262 (holding that passenger in car pulled

over during traffic stop submitted “by staying inside” the car);

Brown,     401   F.3d    at   594     (finding      submission      when       defendant

complied    with   police     request      to     place   his   hands     on    a   car);

United   States     v.    Wood,     981   F.2d     536,   540     (D.C.    Cir.     1992)

(finding     submission       when,       upon     officer’s      order     to      stop,

defendant stopped and “immediately dropped the weapon between

his feet”).        These are just a few of the ways an individual

might be able to signal compliance.                 But, under the totality of

the facts as found by the district court in this case, we cannot

hold that walking away from police with a loaded gun in hand, in

     7 Nor does the dissent cite such a case. Instead, it relies
on two inapposite cases -- United States v. Lowe, 791 F.3d 424,
433 (3d Cir. 2015); Kansas v. Smith, 184 P.3d 890, 896 (Kan.
2008) -- for the proposition that “[t]o passively acquiesce,
Stover merely had to remain at the focal point of the police
investigation rather than attempting to flee, evade the seizure,
or jeopardize the safety of police.”      We need not determine
whether the conduct described by the dissent constitutes passive
acquiescence, because Stover’s conduct -- ignoring police orders
and walking away with a loaded gun -- hardly establishes that he
did not attempt flight, seek to evade or place police safety in
jeopardy.    Indeed, the Lowe court found that the defendant
submitted in part because he did not “reach[] for a weapon” or
“turn[] around in an attempt to walk.” 791 F.3d at 433-34.


                                           21
contravention of police orders, constitutes submission to police

authority.         Since       Stover    did    not     accede   to    police    authority

until confronted by an armed officer in front of the Silverado,

the gun he discarded prior to that time was not the fruit of the

seizure,     but    rather,        like    the        cocaine    in    Hodari       D.,   was

abandoned.

      With our holding today, we do not disturb our observation

in Wilson that “[p]hysical movement alone does not negate the

possibility       that     a    seizure    may      nevertheless       have     occurred.”

953 F.2d at 123.               Nor do we hold that an effort to conceal

evidence or contraband, by itself, constitutes non-submission.

Most importantly, we do not suggest that individuals must comply

with unfounded and illegal seizures or face arrest.                             We simply

recognize that, under controlling Supreme Court precedent, when

an individual attempts to evade a seizure and reveals evidence

or   contraband      prior       to     submission       to   police       authority,     the

Fourth Amendment’s exclusionary rule does not apply.



                                               V.

      For   the     reasons       stated       above,    we   find    no    error    in   the

admission of the firearm.                 We therefore affirm the judgment of

the district court.

                                                                                    AFFIRMED



                                               22
GREGORY, Circuit Judge, dissenting:

       The majority has forthrightly stated the test that applies

to this case:              “[U]nder controlling Supreme Court precedent,

when   an     individual      attempts        to    evade    a     seizure    and    reveals

evidence or contraband prior to submission to police authority,

the Fourth Amendment’s exclusionary rule does not apply.”                              Maj.

Op. 22 (emphasis added).                Its application to the facts presented

by this case, however, should guide this Court to a different

conclusion than that reached by my colleagues in the majority.

       Although I do not disagree with the majority’s recitation

of    the   facts     as    such,       several     significant       factual       elements

should particularly inform the analysis and therefore deserve

greater emphasis.           These facts are:            (1) that the relevant show

of authority made by police consisted only of turning on the

police vehicle’s overhead lights and blocking in Stover’s truck;

(2)    that    this    was    not       a    normal    traffic      stop     case    because

Stover’s vehicle was already parked when police made this show

of authority; (3) that Stover was, at all times, within one to

two    feet    of     his     vehicle;        and     (4)    that     Stover’s       actions

demonstrated a clear intent to abandon his weapon and disarm

himself in response to police authority.                         Similarly, while I do

not    disagree        with       the       majority’s       conclusion       that     under

California v. Hodari D., 499 U.S. 621, 623 (1991), a suspect

must    submit        to     an    officer’s          show    of     authority       for   a

                                               23
constitutional seizure to exist, it is important to note that

such submission can take either of two forms:                       an affirmative

signal       of    compliance       or   passive   acquiescence.        Brendlin   v.

California,         551     U.S.     249,   255    (2007).      A   more   thorough

application of this bifurcated legal test, * especially in light

of the particular facts I have highlighted, produces a different

result and I therefore respectfully dissent.



                                             I.

                                             A.

       This case turns on whether the appellant, Stover, failed to

submit to the officers’ show of authority.                   The first point of

departure between my view and the majority’s with respect to

this inquiry is, as noted above, that the majority treats this

case   as     it    would    a     run-of-the-mill    traffic   stop.      Doing   so

results in the application of the submission test from Hodari

D., and accordingly the majority places great significance on

the fact that Stover did not “signal compliance.”                       Maj. Op. 10


       *To
         keep the analysis clear, I will refer to these as
different “tests” under the submission inquiry.      But I agree
with my colleagues in the majority that passive acquiescence is
a form of submission and that Brendlin therefore applies Hodari
D. rather than articulating a new rule.     Maj. Op. 9-10 & n.2.
However, passive acquiescence and signaling compliance are
sufficiently different forms of submission, requiring us to
answer sufficiently different questions, that I do not think
calling them different “tests” is inappropriate.


                                             24
n.2, 15, 21.       This, of course, would have been easy had Stover

been driving:       Just as the suspect in Hodari D. would have been

seized if he had stopped running when police gave chase, Stover

would have been seized if he had pulled his car over when police

pulled    behind    him    with    their      overhead     lights    flashing.          But

Stover    was   already     parked       and    thus     unable     to    “signal”      his

submission.      Accordingly, the test from Brendlin, not that from

Hodari D., must govern.

       In Brendlin, police stopped a moving vehicle occupied by a

driver and a passenger.            While the driver clearly submitted by

pulling the car over, the passenger, Brendlin, did nothing to

signal submission.          Brendlin, 551 U.S. at 252, 255-56.                          Just

like Stover, Brendlin was merely in a car already stopped by the

police    and      therefore       “had       no    effective       way      to    signal

submission.”       Id. at 262.         Brendlin was seized just as surely as

the    driver    was,     id.     at    256-58,      but    since        there    was    no

opportunity for him to signal submission (or any expectation for

him to do so), the Court could not use Hodari D. to determine

when   the    seizure     began.        Id.    at   255.     The     Court       therefore

recognized that different tests had to be applied to the driver

who could signal submission and the passenger who could not.

The correct test for the passenger, the Court said, was whether

his “submission . . . [took] the form of passive acquiescence,”

thereby      unanimously    reversing         the   California      Supreme       Court’s

                                           25
holding that submission could not occur without an affirmative

signal of compliance.              Id.; see People v. Brendlin, 136 P.3d

845,   852    (Cal.      2006)    (finding      that   submission          did    not   occur

because      the   “defendant,      as    the    passenger,         had    no    ability   to

submit to the deputy’s show of authority”), vacated sub nom.

Brendlin, 551 U.S. 249.              The passive acquiescence test clearly

applies to Stover under the facts of this case because, although

he owned and most likely drove the truck, the vehicle was parked

and    turned      off    when     the    stop     began,      making       his    position

analytically        indistinguishable           from   that    of    the    passenger      in

Brendlin.

       I must also disagree with my colleagues’ conclusion that

the    verbal      commands      issued    by    the   police       officers,      ordering

Stover    back     into    the    truck,    constitute        the    relevant       show   of

authority for our analysis.                The majority repeatedly emphasizes

that Stover did not comply with police commands to return to his

vehicle.      Maj. Op. 13 n.3, 15, 18, 20.                    However, “[t]he verbal

directive from the officers not to leave was not the initiation

of the seizure, but rather an affirmation that [Stover] was not

free to leave.”           United States v. Black, 707 F.3d 531, 538 (4th

Cir. 2013).         The initial show of authority occurred when police

pulled their vehicle in behind Stover’s with the overhead lights

flashing and blocked his vehicle in—and submission to this show

of authority would complete the seizure.                        See Hodari D., 499

                                            26
U.S.   at    629     (“Pertoso’s     pursuit . . . constituted              a    ‘show    of

authority’ enjoining Hodari to halt, [and] since Hodari did not

comply   with      that    injunction      he   was    not      seized    until    he    was

tackled.”      (emphasis added)).           Although it might be tempting to

view   the    police      commands    as   relevant,       see     Maj.    Op.     13   n.3,

controlling Supreme Court precedent does not allow us to do so.

Brendlin     states       unequivocally     that      in   a    passive    acquiescence

case, the “test for telling when a seizure occurs in response to

authority” comes from United States v. Mendenhall, 446 U.S. 544,

554 (1980), which states that a seizure occurs when, “in view of

all of the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.”                               551

U.S. at 255.          Common sense says that occurred when the police

pulled      behind     Stover’s      vehicle     with      their       overhead     lights

flashing.       United States v. Duty, 204 F. App’x 236, 239 (4th

Cir. 2006) (unpublished) (“Winston seized Duty for purposes of

the Fourth Amendment when she activated the emergency lights on

top of her car and pulled behind the parked car in which Duty

was sitting.”).           Thus, when the police gave their commands that

Stover      should    return   to    his    vehicle,       he    was     already    seized

(provided Stover acquiesced, which, I will demonstrate, he did

according to the majority’s own test).

       The district court made the same error, and this alone is

sufficient to reverse its decision.                   It incorporated irrelevant

                                           27
facts into its analysis of the submission question by relying on

Stover’s failure to return to his vehicle as ordered.                           Moreover,

where an individual submits to the initial show of authority,

imperfect     compliance      (or    even    noncompliance)         with      subsequent

police     orders   “does   not      nullify       the   fact    that    he   initially

submitted” and was therefore seized.                     United States v. Brown,

401 F.3d 588, 595 (4th Cir. 2005) (holding that the suspect

remained seized despite repeatedly disobeying orders to place

and keep his hands on the car).                  It is therefore irrelevant that

Stover’s response to the police orders “may have suggested that

he might stop submitting to the officers’ assertion of authority

and   possibly      attempt     to    flee        the    scene    or    confront     the

officers.”     Id.      If the record shows that Stover submitted to

the initial vehicular show of authority, it will be established

“that when Officer [Halsey] expressly told [Stover] he could not

leave, [Stover] was already seized for purposes of the Fourth

Amendment.”     Black, 707 F.3d at 538.

                                                 B.

      Therefore, the relevant question in this case becomes:                            Did

Stover passively acquiesce to the vehicular show of authority?

Supreme Court precedent makes it clear that he did.

      In    Brendlin,    the    Court       said      that   when      police    make    a

vehicular stop “a sensible person would not expect [the] police

officer to allow people to come and go freely from the physical

                                            28
focal point of [the] investigation.”            551 U.S. at 257.         In other

words, controlling precedent says that what the police did in

this case—pulling behind a stopped vehicle with overhead lights

flashing—amounted to a command not to leave the scene.                    And no

reasonable assessment of the facts can support the conclusion

that Stover attempted to leave.                To be sure, he exited his

vehicle.   But the majority acknowledges, as did counsel for the

government at oral argument, that a person exiting a vehicle

after   police   have   made   this    show    of    authority    does   not,   by

itself, break or nullify the seizure.                To passively acquiesce,

Stover merely had to remain at the focal point of the police

investigation rather than attempting to flee, evade the seizure,

or jeopardize the safety of police.             See United States v. Lowe,

791 F.3d 424, 433 (3d Cir. 2015); Kansas v. Smith, 184 P.3d 890,

896 (Kan. 2008).

     The majority concludes that Stover was attempting to evade

the police seizure.      But the factual record makes the purpose of

Stover’s    actions        quite      clear:    He     wanted      to     abandon

incriminating evidence.        Stover knew he was not supposed to be

in possession of a handgun, and he clearly sought to hide that

evidence before it was discovered by the police.                 But abandoning

contraband is not inconsistent with passive acquiescence, as the

majority   itself   ably    demonstrates.           Maj.   Op.   21.     Stover’s

conduct may be accurately described as “evasive,” but only with

                                       29
respect to the search Stover no doubt anticipated would follow

the seizure, and not with respect to the seizure itself.

      Evasion with respect to a seizure must necessarily involve

an   attempt   not   to   be     seized,       that    is,   to    get    away.      See

Brendlin, 551 U.S. at 262 (“[O]ne sitting in a chair may submit

to authority by not getting up to run away.”                      (emphasis added));

see also Wayne R. LaFave, 4 Search & Seizure § 9.4(d) (5th ed.

2015) (“Thus it would appear that if a passenger were to exit

the vehicle as soon as it stopped and then fled the scene, the

seizure would not ‘take’ as to him.”                   (emphasis added)).         Even

if the government’s success below prevents us from finding that

abandoning contraband was Stover’s only motivation for leaving

his vehicle, see Maj. Op. 15 n.4, we still lack any evidence

that his motivation was to get away.                  Although I agree with the

majority that outright flight is not always required to show

non-submission,      we   must    still    find       that   Stover      attempted    to

evade the seizure.         According to the majority, we must infer

that Stover thought taking a few quick steps towards the front

of his vehicle and abandoning his gun would prevent the police

from seizing him.         That conclusion defies logic.                   As such, I

depart from my colleagues and would find there is no record

support for the contention that Stover attempted or intended to

flee, evade the seizure, or jeopardize the safety of police.



                                          30
      The government’s assertion at oral argument that attempting

to hide evidence is “another crime” and that committing such a

crime precludes our finding submission, Oral Argument 20:20, is

also incorrect.         The argument depends on conflating evasion of a

search with evasion of a seizure, an analytical step that is

clearly      flawed.       After    all,    if    a     person       is    constitutionally

seized and then balks at a police request to search his or her

person     the     Fourth     Amendment      seizure            is       not    automatically

terminated.        Cf. Black, 707 F.3d at 538 (holding the suspect

still     seized      after    he    realized         he    would         be    searched    and

attempted to leave).               My colleagues in the majority appeared

rightly skeptical of the government’s argument, and the Supreme

Court    has     clearly    demonstrated         that      it   is       submission    to   the

attempted seizure that matters.                       Hodari D., 499 U.S. at 629

(“Pertoso’s        pursuit . . . constituted                a     ‘show        of   authority’

enjoining Hodari to halt, [and] since Hodari did not comply with

that injunction he was not seized until he was tackled.”).

      Furthermore, I contend that when the contraband at issue is

a   loaded     gun,    abandonment     should         support        a    finding    that   the

suspect      was   acquiescing       more    often         than      it    impedes     such   a

finding, because the suspect has disarmed himself in response to

police authority.             It would be odd if disarming oneself was

taken as evidence of resistance, while remaining armed was taken

as evidence of submission.              But the majority, like counsel for

                                            31
the government, focuses on the fact that Stover walked away from

police with his weapon either in hand or on his person.                              Would

they find it more submissive if Stover had walked toward police

armed with a loaded gun?              Cf. United States v. Jones, 678 F.3d

293, 298 (4th Cir. 2012) (finding a seizure where the suspect

was armed throughout his encounter with police).                        The direction

in   which    he    moved    is   a    technical        detail    that    is    clearly

irrelevant so long as he remained at the focal point of the

investigation without attempting to avoid or resist the seizure

itself.      The factual record demonstrates that Stover was never

more than a couple of feet from the stopped vehicle, that he had

no intention of leaving the scene, that he was submitting to

being (illegally) seized, and that his evasive conduct was an

attempt to thwart the looming police search by hiding evidence

that could turn the seizure into an arrest.

     Rather than allowing these facts to tell the story of what

happened     that    evening,     the    majority        relies    on     a    strained

comparison to our opinion in United States v. Lender, 985 F.2d

151 (4th Cir. 1993), to suggest that a shootout with police was

narrowly     avoided—a      proposition       in   no    way     supported      by    the

record.      In Lender, the initial (and therefore relevant) show of

authority was a police command that the suspect, Lender, stop

walking.      He did not, instead continuing to walk while reaching

for a gun held in his pants.                  Lender apparently fumbled the

                                         32
weapon, dropping it to the ground, and he then lunged for it as

did the officers who were quickly approaching.                        Id. at 153-55.

We correctly found Lender’s “conduct . . . fully consistent with

preparation to whirl and shoot the officers,” id. at 155, but

that is not the case here.

      First of all, Lender was a Hodari D. case (it is hard to

imagine a case closer to the heartland of that precedent), and

this case falls under Brendlin.                    Second, the record here is

clear:      Stover moved out of view of the police and then tossed

his weapon on the ground.               Officer Halsey testified that when he

ran   up    to    meet   Stover    in    front    of   the   truck    he   saw    Stover

already tossing the gun.              Stover was not raising it to fire, and

Officer      Halsey      specifically        testified       that      Stover      never

brandished the weapon at the officers.                   Whereas Lender went for

the   gun    he     unintentionally        dropped     on    the    ground,      clearly

demonstrating a violent intent, Stover intentionally tossed his

gun   to    the    ground   before       Officer   Halsey     rounded      the   truck,

clearly      demonstrating        a     pacific    intent.           The   cases    are

practically opposites.

      If this were not enough, it is worth noting that for this

Court to decide that Stover was preparing for a shootout, we

would need to find that he was a particularly heartless and

cowardly individual.              Stover’s movements placed Ms. Chinn, a

woman with whom he was on a first date, between himself and the

                                           33
police.         Perhaps     the     majority     believes    the        government   has

demonstrated that Stover was ready to use his date as a human

shield, but to me that seems to go beyond our duty to make all

reasonable inferences in favor of the government.                            I believe

looking at the evidence objectively forecloses the possibility

that Stover was “prepar[ing] to whirl and shoot the officers”

and that Lender neither assists the majority nor supports the

district court’s decision.

       Without evidence of flight, evasion, or resistance, on what

basis     can       we   conclude    that    Stover    did    not       submit?      The

majority’s statement that “we do not disturb our observation in

Wilson       that    ‘[p]hysical     movement     alone     does    not     negate   the

possibility that a seizure may nevertheless have occurred’” runs

contrary to its analysis.             Maj. Op. 22 (quoting United States v.

Wilson, 953 F.2d 116, 123 (4th Cir. 1991)).                        The officers used

their vehicle and overhead lights to command Stover to stay in

or near the car and await the further intrusions accompanying an

illegal investigatory stop.             He did so.        Officers then demanded

he get back in his car, and he did so after walking a short

distance around his truck (remaining at the scene and within a

foot or two of the vehicle at all times) to abandon a weapon

that    he    anticipated     would    get     him   arrested      or    killed.     The

majority believes the Fourth Amendment ceased to operate because

of these several steps.              I cannot agree, and I believe our own

                                            34
precedent and that of the Supreme Court requires a different

outcome.



                                                II.

       Once it is established that the case falls under Brendlin,

the    remainder        of    the    analysis         becomes      quite    easy.      Stover

passively acquiesced by doing exactly what the Supreme Court

said    he     must    do:      He     remained        at   the     focal    point    of    the

investigation without attempting to avoid being seized.                                    As a

result, Brendlin tells us, the correct test for determining when

he was seized comes not from Hodari D. but from Mendenhall.                                 551

U.S. at 255.           The seizure occurred at the point when, “in view

of     all     of     the    circumstances            surrounding      the    incident,       a

reasonable person would have believed that he was not free to

leave.”         Mendenhall,         446    U.S.       at    554.      I     agree    with    my

colleagues that that line was crossed when the police pulled in

behind Stover with their overhead lights flashing.                                   Maj. Op.

Part     III        (“[O]n    appeal       [the       government]         argues     that    ‘a

reasonable person would have felt free to leave’ when the police

arrived.       We disagree.”           (internal citation omitted)).                  Because

the weapon was both abandoned and discovered after the seizure

was    complete,       I     believe      the   district        court’s     denial    of    the

motion to suppress was in error and that we should reverse.



                                                35
                                       III.

     To reiterate, the majority has stated the proper rule for

this case, it simply has not applied it in light of all of the

relevant facts.         Having stated my reasons for dissenting, I now

address the position the majority’s decision places our Circuit

in with respect to other courts.                We are not the first circuit

to adopt the rule—or perhaps I should say, to articulate the

rule—that in light of Brendlin a seizure is accomplished when

police make a show of authority that goes unresisted.                     The Third

Circuit has said that “failure to submit has been found where a

suspect takes action that clearly indicates that he ‘does not

yield’    to     the    officers’     show      of   authority.           Action—not

passivity—has been the touchstone of our analysis.”                       Lowe, 791

F.3d at 433 (citing Hodari D., 499 U.S. at 626).                    The court went

on to note that flight is not the only action that would show

resistance and that evasion or threatening behavior would also

demonstrate a lack of submission.             Id.    We would also not be the

first    court   to    apply    Brendlin’s      focal    point    test—the    Kansas

Supreme Court did so just one year after Brendlin was decided.

Smith, 184 P.3d at 896.

     Instead      of    following     these     well-reasoned       opinions,      the

majority appears to be tacitly influenced by a more troubling

precedent      from    the   Tenth   Circuit,    which    in     United   States    v.

Salazar, 609 F.3d 1059 (10th Cir. 2010), adopted a “reasonable

                                        36
officer” standard for analyzing submission.                   609 F.3d at 1065

(“[W]e consider whether a citizen has submitted to authority by

examining the view of a reasonable law enforcement officer under

the circumstances.”).           The majority notes that “[t]o Officer

Halsey, [Stover’s] movement away from the police car looked like

‘flight.’”     Maj. Op. 3 (emphasis added); see also Maj. Op. 15

n.4 (“Officer Halsey testified at the suppression hearing that

he believed Stover might have fled the scene had the officer not

confronted him at the hood of the car.”).               The majority goes on

to cite several inapposite cases from our sister circuits, each

of which employs the perspective of the officers or conflates

evasion of a search with evasion of a seizure.                     Maj. Op. 19-20.

Salazar is among these.           I take only limited comfort from the

majority’s statement that “we do not necessarily adopt the lower

standards    of   submission     recognized     in    some    of    these    cases.”

Maj. Op. 20 (emphasis added).           The Tenth Circuit has offered no

analytical basis for its “reasonable officer” rule (aside from

an   assertion    that    objective    rules    are    preferred       for   Fourth

Amendment questions, Salazar, 609 F.3d at 1064), and I can find

no   other   circuit     that   has   adopted   the    test    explicitly.       We

should not be the first.          Indeed, we must not be, as the Tenth

Circuit’s test flies in the face of our own precedent in Brown

which, as discussed above, found it irrelevant that a suspect’s



                                        37
behavior “may have suggested that he might stop submitting to

the officers’ assertion of authority.”   401 F.3d at 595.

     Fortunately the majority’s opinion does not, and cannot,

adopt the “reasonable officer” test.     The test does not deserve

the slightest credence.   I hope my words of caution will keep us

tightly moored to our precedent in Brown, and that no en banc

panel ever drifts to such a standard in the future.




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