                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                     No. 10-10036
                 Plaintiff-Appellee,             D.C. No.
                v.                         2:09-cr-00114-KJD-
JERMAINE SMITH,                                   GWF-1
             Defendant-Appellant.
                                                OPINION

        Appeal from the United States District Court
                 for the District of Nevada
         Kent J. Dawson, District Judge, Presiding

                 Argued and Submitted
       November 2, 2010—San Francisco, California

                    Filed February 3, 2011

 Before: Ronald M. Gould, Consuelo M. Callahan, Circuit
 Judges, and Edward R. Korman, Senior District Judge.*

                   Opinion by Judge Gould




  *The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.

                               2185
2188                    UNITED STATES v. SMITH
                              COUNSEL

Franny A. Forsman, Federal Public Defender, Jason F. Carr
(argued), Assistant Federal Public Defender, Las Vegas,
Nevada, for defendant-appellant Jermaine Smith.

Daniel G. Bogden, United States Attorney, Robert L. Ellman,
Appellate Chief, Drew Smith, Assistant United States Attor-
ney (argued), District of Nevada, Las Vegas, Nevada, for
plaintiff-appellee United States of America.


                              OPINION

GOULD, Circuit Judge:

   Appellant Jermaine Smith challenges the decision of the
district court to deny his motion to suppress a firearm that was
recovered from his person by a police officer. We must decide
whether Smith’s actions constituted submission to a police
officer’s show of authority, thereby triggering the Fourth
Amendment’s requirement that the officer have reasonable
suspicion before effectuating a seizure. If Smith was seized,
and if the seizure was not constitutional, then the recovered
firearm should be suppressed as the fruit of the poisonous
tree. See United States v. Crawford, 372 F.3d 1048, 1054 (9th
Cir. 2004) (en banc). We hold that Smith was not seized until
after he fled the presence of a police officer, and that Smith’s
flight under the circumstances gave the officer the reasonable
suspicion required to effectuate a seizure. We have jurisdic-
tion under 28 U.S.C. § 1291, and we affirm.

                                    I

   In 2009, Smith crossed the street in front of a patrol car
driven by Officer Tyler Dominguez of the Las Vegas Metro-
politan Police Department.1 Officer Dominguez activated his
  1
   Smith and the government present partially different accounts of the
facts. The district court did not make a factual finding about the truth of
                       UNITED STATES v. SMITH                       2189
patrol car’s siren twice, pulled his car to the curb, exited the
vehicle, and called for Smith to stop and come stand in front
of the car. Smith turned toward the officer and asked either
“Who? Me?” or “What for?” Officer Dominguez confirmed
that he was addressing Smith, and repeated the command that
Smith come stand in front of the car. According to Smith’s
testimony, although Smith had at first stepped toward the
patrol car when he heard the siren, he then backed away after
the officer got out of the vehicle and told Smith to stand in
front of the car. Smith also said that, when he asked if he was
under arrest, Officer Dominguez replied that Smith was not
under arrest; however, the officer again ordered him to stand
in front of the car. Smith continued to back away, and then
turned and ran when he saw the officer reach for what Smith
believed was a gun. Officer Dominguez pursued Smith on
foot. The officer ordered Smith to stop, and threatened to use
his Taser if Smith did not stop. Smith stopped involuntarily
when he tripped and fell, allowing the officer to catch up with
him. With Smith prone on the ground, Officer Dominguez
approached him to place him in handcuffs and search him for
weapons. While Dominguez approached, Smith stated that he
had a gun in his pocket. Officer Dominguez recovered a Wal-
ther P99 nine-millimeter handgun from Smith’s person.

   Smith was indicted for being a felon in possession of a fire-
arm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Smith pled not guilty, and filed a motion to suppress the fire-
arm, which the district court denied. Smith then entered a con-
ditional guilty plea pursuant to a written agreement, retaining
the right to appeal the court’s ruling on his unsuccessful
motion to suppress the firearm. The district court sentenced
Smith to seventy-one months in prison and three years of

Smith’s testimony, but rather held that, even under Smith’s version of the
facts, he was not seized before he fled from the officer. We also conclude
that, even under Smith’s account of the facts, there was no seizure before
Smith’s flight.
2190                UNITED STATES v. SMITH
supervised release. Smith timely appealed the denial of his
motion to suppress the firearm.

                               II

   Smith contends that the district court erred when it denied
his motion to suppress the firearm. We review the district
court’s denial of the motion to suppress de novo. Crawford,
372 F.3d at 1053. “Whether an encounter between a defen-
dant and an officer constitutes a seizure is a mixed question
of law and fact that we review de novo.” United States v.
Washington, 490 F.3d 765, 769 (9th Cir. 2007) (citing United
States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997).

   Smith claims that his Fourth Amendment rights were vio-
lated because, when Officer Dominguez first attempted to
stop him, the officer did not have a reasonable suspicion that
Smith was engaged in wrongdoing. See Terry v. Ohio, 392
U.S. 1, 21-22 (1968) (holding that a police officer “must be
able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably
warrant” a limited search of a suspect); see also Washington,
490 F.3d at 774 (“A seizure of a person is justified under the
Fourth Amendment if law enforcement officers have reason-
able suspicion that a person committed, or is about to commit,
a crime. Without reasonable suspicion, a person may not be
detained even momentarily.” (citations and internal quotation
marks omitted)). The district court agreed that Officer Domin-
guez did not have reasonable suspicion to seize Smith before
Smith fled from the officer. But the district court held that
Smith’s Fourth Amendment rights were not violated by the
attempted stop because Smith was not seized for Fourth
Amendment purposes until after he fled. The district court
also held in the alternative that, even if Smith was unlawfully
seized during his initial encounter with the officer, his subse-
quent headlong flight, given the circumstances, was an inter-
vening event that gave rise to a new finding of reasonable
suspicion. The district court concluded that, because the flight
                        UNITED STATES v. SMITH                       2191
created reasonable suspicion, Officer Dominguez’s pursuit,
detention, and pat-down search of Smith did not violate
Smith’s Fourth Amendment rights.

   We agree with the district court that Smith was not seized
during his initial encounter with Officer Dominguez. Because
Smith was not then seized, we need not decide whether the
officer had reasonable suspicion justifying a Terry stop before
Smith fled. Smith’s Fourth Amendment rights were not vio-
lated by the attempted stop, even if the officer did not have
reasonable suspicion, because the attempted stop was not a
seizure for Fourth Amendment purposes.2

   [1] Smith claims that he was seized when he paused
momentarily, turned to and moved toward Officer Domin-
guez, and engaged in a short verbal exchange. However, a
person is not “seized” within the meaning of the Fourth
Amendment unless “by means of physical force or show of
authority, his freedom of movement is restrained.” United
States v. Mendenhall, 446 U.S. 544, 553 (1980). In the
absence of physical force, in order to constitute a seizure, an
officer’s show of authority must be accompanied by “submis-
sion to the assertion of authority.” California v. Hodari D.,
499 U.S. 621, 626 (1991); see also Brendlin v. California,
551 U.S. 249, 254 (2007) (“[T]here is no seizure without
actual submission; otherwise, there is at most an attempted
seizure. . . .”). We have expressly “decline[d] to adopt a rule
whereby momentary hesitation and direct eye contact prior to
flight constitute submission to a show of authority.” United
States v. Hernandez, 27 F.3d 1403, 1407 (9th Cir. 1994).

   [2] In this case, where the officer did not use physical
force during the initial encounter, the question is whether
Smith’s actions constituted submission to Officer Domin-
  2
   Because we decide that Smith was not seized prior to his flight, we
need not reach the district court’s alternative holding that Smith’s flight
was an intervening event that purged the taint of an illegal seizure.
2192                UNITED STATES v. SMITH
guez’s show of authority. The Supreme Court has held that a
seizure does not occur where the subject does not yield.
Hodari D., 499 U.S. at 626. “[A] policeman yelling ‘Stop, in
the name of the law!’ at a fleeing form that continues to flee
. . . is no seizure.” Id. By his own testimony, Smith did not
yield to the officer’s commands. Smith turned toward the offi-
cer, asked some questions, took a few steps towards the patrol
car, but then backed away. Smith asked if he was under arrest,
and Officer Dominguez told him “no.” When the officer con-
tinued to issue commands, Smith turned and ran. Like the sus-
pect in Hodari D. who “was not seized until he was tackled,”
Smith was not seized when he initially hesitated and engaged
in a short verbal exchange with Officer Dominguez. Id. at
629.

   [3] The Third Circuit reached a similar result in an analo-
gous case, United States v. Valentine, 232 F.3d 350 (3d Cir.
2000). There, police officers approached the defendant in a
parking lot and told him to place his hands on their patrol car.
Id. at 353. The defendant asked the officers “Who, me?” and
then attempted to flee. Id. The Third Circuit held that even if
the defendant “paused for a few moments and gave his name,
he did not submit in any realistic sense to the officers’ show
of authority, and therefore there was no seizure. . . .” Id. at
359. Like the defendant in Valentine, Smith did not submit in
any realistic sense to Officer Dominguez’s command that
Smith stand in front of the patrol car. Because Smith did not
submit to the officer’s show of authority, and because he was
not otherwise coerced or physically forced to submit, Smith
was not seized within the meaning of the Fourth Amendment
during his initial encounter with the officer.

                              III

   Although Smith was not seized initially, he was indisputa-
bly seized later, after he fled and was apprehended by Officer
Dominguez. The officer had reasonable suspicion to effectu-
ate a seizure after Smith’s flight.
                    UNITED STATES v. SMITH                  2193
   [4] The Supreme Court has held that a person’s “head-
long,” “unprovoked” flight upon seeing a police officer, when
it occurs in a high-crime neighborhood, is sufficient to estab-
lish reasonable suspicion that the person is involved in crimi-
nal activity. Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000).
We recognize that “[a]n individual’s presence in an area of
expected criminal activity, standing alone, is not enough to
support a reasonable, particularized suspicion that the person
is committing a crime.” Id. at 124 (citing Brown v. Texas, 443
U.S. 47, 99 (1979)). But officers may take into account the
context in which suspicious activity occurs “in determining
whether the circumstances are sufficiently suspicious to war-
rant further investigation.” Wardlow, 528 U.S. at 124.

   [5] Here, Smith’s initial reaction was not suspicious. Had
he simply continued to go about his business, or walked away,
Officer Dominguez would not have had reasonable suspicion
to seize him. See id. at 125 (“[W]hen an officer, without rea-
sonable suspicion or probable cause, approaches an individ-
ual, the individual has a right to ignore the police and go
about his business.” (citing Florida v. Royer, 460 U.S. 491,
498 (1983))). But, like the defendant in Wardlow, Smith did
not simply go about his business. Instead, he launched into
headlong flight. “Flight, by its very nature, is not ‘going about
one’s business’; in fact, it is just the opposite.” Wardlow, 528
U.S. at 125. “Headlong flight—wherever it occurs—is the
consummate act of evasion: It is not necessarily indicative of
wrongdoing, but it is certainly suggestive of such.” Id. at 124.

   [6] There may be circumstances where a person’s flight
has a perfectly innocent and reasonable explanation. Never-
theless, the circumstances here indicate that Smith’s flight
was sufficient to engender reasonable suspicion. It is undis-
puted that Smith was in a high-crime neighborhood during the
events in question, that Officer Dominguez clearly identified
himself as a police officer, and that Smith burst into headlong
flight for no other reason than to evade Officer Dominguez.
The officer’s determination that Smith’s sudden flight was
2194                UNITED STATES v. SMITH
suggestive of wrongdoing was reasonable under these circum-
stances.

   [7] Because Smith was not seized before he fled, and
because Smith’s flight under these circumstances created a
reasonable suspicion that he was involved in criminal activity,
Officer Dominguez did not violate Smith’s Fourth Amend-
ment rights, and the motion to suppress the firearm was cor-
rectly denied.

  AFFIRMED.
