                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0062n.06

                                          No. 10-6159                                     FILED
                                                                                      Jan 17, 2012
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                             LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )       ON APPEAL FROM THE
                                                    )       UNITED STATES DISTRICT
v.                                                  )       COURT FOR THE EASTERN
                                                    )       DISTRICT OF TENNESSEE
ANTHONY GEORGE,                                     )
                                                    )
       Defendant-Appellant.                         )
                                                    )




       BEFORE: McKEAGUE and WHITE, Circuit Judges; and BARRETT, District Judge.*


       PER CURIAM. Anthony George entered a conditional guilty plea to being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal, he challenges the denial

of his motion to suppress. For the reasons set forth below, we affirm.

       On the night of May 7, 2009, Chattanooga police officer William Salyers was on patrol in

the East Lake area of Chattanooga, Tennessee, which he described as a “high crime area.” Salyers

observed two men, later identified as George and Demetrius Pointer, standing next to a car that was

stopped in the middle of the street. The car drove away as Salyers approached, and George and

Pointer began walking in his direction. Salyers stopped his patrol car, exited, and ordered George

and Pointer to “put their hands on the car.” Pointer complied, George did not.

       *
        The Honorable Michael R. Barrett, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 10-6159
United States v. George

       Instead, George walked from the front of the car to the passenger’s side. Salyers again

ordered George to put his hands on the car. George did not comply, but returned to the front of the

car where Pointer was standing. After issuing the order for a third time, Salyers drew his weapon,

and George dropped something onto the pavement that sounded like “hard metal.” George then ran

toward the passenger side of the car, at which point Salyers began chasing him. George continued

to run around the car until Salyers grabbed him, pulled him down to the ground, and held him at

gunpoint until other officers arrived. After George was handcuffed, officers found a .22 caliber

handgun on the ground.

       Following his indictment on the felon-in-possession charge, George filed a motion to

suppress. Upon the recommendation of a magistrate judge, the district court denied the motion,

concluding that George was not seized until after he dropped the gun and that, as a result, the gun

was abandoned and not subject to Fourth Amendment protection. George entered a conditional

guilty plea, reserving the right to appeal the denial of his suppression motion. The district court

sentenced him to thirty-seven months in prison, to be followed by three years of supervised release.

George then filed this timely appeal.

       In an appeal of the denial of a motion to suppress, we review the district court’s factual

findings for clear error and its legal conclusions de novo. United States v. Smith, 594 F.3d 530, 535

(6th Cir. 2010). The dispute in this case centers on when George was “seized” for purposes of the

Fourth Amendment. The parties agree that if George dropped the gun before he was seized, the gun

was abandoned and lawfully recovered by the police. See California v. Hodari D., 499 U.S. 621,

623-24 (1991); United States v. Martin, 399 F.3d 750, 752-53 (6th Cir. 2005).

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No. 10-6159
United States v. George

        A person is seized “when, by means of physical force or a show of authority, his freedom of

movement is restrained.” United States v. Mendenhall, 446 U.S. 544, 553 (1980). When a seizure

is effected by a show of authority rather than physical force, “an individual must actually yield to the

show of authority to be seized within the meaning of the Fourth Amendment.” United States v.

Johnson, 620 F.3d 685, 690 (6th Cir. 2010); see Hodari D., 499 U.S. at 626-27. Thus, while Salyers

undisputedly exercised a show of authority such that a reasonable person would not have felt free

to leave, George was “seized” only if he actually submitted to that authority. See Smith, 594 F.3d

at 536. “Without actual submission, ‘there is at most an attempted seizure.’” United States v. Jones,

562 F.3d 768, 774 (6th Cir. 2009) (quoting Brendlin v. California, 551 U.S. 249, 254 (2007)).

        George argues that he submitted to Salyers’s show of authority when he changed direction

and walked from the passenger side of the car to the front of the car. But the case on which George

relies, Johnson, is distinguishable. In that case, police officers yelled at the defendant, who was

walking toward a car with a waiting driver, to “stop” and “stay right where he was.” Johnson, 620

F.3d at 691. The defendant stood still after reaching the car and placing his bag inside, but he did

not comply with the officers’ subsequent commands to raise his hands until they drew their weapons.

Id. at 689. The court concluded that Johnson was seized when he stopped moving because that was

the point at which he yielded to the officers’ authority, regardless of his subsequent failure to raise

his hands. Id. at 691.

        Unlike in Johnson, there was no initial compliance in this case. Salyers repeatedly instructed

George to do one thing – place his hands on the car – and George refused. Cf. United States v.

Martin, 613 F.3d 1295, 1301 (10th Cir. 2010) (concluding that defendant was not seized because he

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No. 10-6159
United States v. George

did not comply with order to place his hands on the wall). Rather than acknowledging Salyers’s

order or demonstrating any willingness to comply with it, George continued to move around the car

and began running after Salyers pulled his weapon. These actions cannot be construed as a

submission to authority. See Smith, 594 F.3d at 538-39; Jones, 562 F.3d at 775. Accordingly, the

district court properly concluded that George was not seized until Salyers subdued him with physical

force, and because George discarded the handgun before he was seized, it was not the fruit of a

seizure. See Hodari D., 499 U.S. at 629; Martin, 399 F.3d at 753.

       For these reasons, we affirm the denial of George’s motion to suppress.`




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