 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 17, 2014           Decided February 18, 2014

                        No. 11-3029

                UNITED STATES OF AMERICA,
                        APPELLEE

                             v.

                  ERIC MAURICE BRODIE,
                       APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:08-cr-00235-1)


    Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender.

    Margaret E. Barr, Assistant U.S. Attorney, argued the
cause for appellee. With her on the briefs were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman and David
B. Kent, Assistant U.S. Attorneys.

   Before: TATEL, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
                              2

   Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

     WILLIAMS, Senior Circuit Judge: While waiting to
execute a search warrant at the home of an arrested murder
suspect, police saw defendant Eric Brodie leave the house.
They pulled up to Brodie, who was by then on the sidewalk a
few houses away from the house to be searched; they ordered
him to put his hands on a nearby car. Brodie obeyed. A few
seconds later, he fled. Before being caught, he jettisoned
three weapons, and in a pat down the officers recovered crack
cocaine.

     The government advances three alternative arguments as
to why the weapons and crack need not be suppressed under
the Fourth Amendment: (1) Brodie’s putting his hands on the
car for a few seconds did not amount to submission to the
police, so no seizure occurred; (2) any seizure was reasonable
because it was conducted in the execution of a valid search
warrant; and (3) Brodie’s flight and abandonment of the
weapons purged the taint of any illegal seizure. Controlling
authorities compel us to reject all three and therefore to
reverse the judgment of conviction.


                           * * *

     We begin with a brief account of the facts before
exploring their relation to the government’s three arguments.
In anticipation of executing a search warrant at the townhouse
of Jerome Earles, a murder suspect in police custody, two
officers parked their car around the corner from the house,
waiting to be joined by homicide detectives. A few minutes
later, Deputy Marshal Clark saw Brodie leave the townhouse.
According to Clark, Brodie “looked . . . [h]inked up” when he
saw the officers but continued to walk down the sidewalk,
                              3

away from the townhouse and toward the corner where the
officers were parked. Because Brodie had left the house they
planned to search, the officers (presumably suspecting he
might be in cahoots with Earles) decided to stop and identify
him. They pulled their car parallel to Brodie (who was now
two townhouses away from Earles’s); Clark got out of the car
and told Brodie to put his hands on a nearby car. Brodie
complied. But when Clark turned a few seconds later to give
an instruction to his partner, Brodie took off. As the officers
chased him he discarded three guns and finally dropped to the
ground when an officer threatened to tase him. He proved to
be in possession of crack cocaine.

     The district court denied Brodie’s motion to suppress the
evidence of weapons and crack. In a plea agreement Brodie
acknowledged unlawful possession of a firearm in violation of
18 U.S.C. § 922(g)(1), but retained the right to appeal the
district court’s denial of the suppression motion. The district
court sentenced him to fifteen years in prison, the mandatory
minimum under the Armed Career Criminal Act, which the
government concedes does not apply to Brodie in light of
Descamps v. United States, 133 S. Ct. 2276 (2013). We now
consider whether the district court erred in denying the motion
to suppress.


                            * * *

     For purposes of the Fourth Amendment a seizure occurs
when physical force is used to restrain movement or when a
person submits to an officer’s “show of authority.” California
v. Hodari D., 499 U.S. 621, 626 (1991). The government
concedes that the police made a show of authority when they
ordered Brodie to put his hands on the car. But they claim
that he didn’t submit, arguing that the compliance was too
“momentary” to constitute submission. Brodie says that he
                               4

submitted by putting his hands on the car, and that therefore
he was seized for the brief period between compliance and
flight. We review de novo the question of when a seizure
occurs. United States v. Maragh, 894 F.2d 415, 417-18 (D.C.
Cir. 1990); see also Ornelas v. United States, 517 U.S. 690,
697-98 (1996) (holding that district court decisions on
ultimate questions of reasonable suspicion and probable cause
are to be reviewed de novo).

     We can see no basis for classifying Brodie’s action—
putting his hands on the car when told to do so by the police—
as anything other than full compliance with the officer’s
request. Nothing suggests, for example, that the compliance
was feigned. Cf. United States v. Garcia, 516 F.2d 318, 320
(9th Cir. 1975). In fact, the district court found that “Mr.
Brodie put his hands on the car and then decided that he was
going to run.” Motions Hearing Tr. 75, July 26, 2010
(emphasis added). Nor does anything in the record suggest
that Brodie had some ulterior purpose in putting his hands on
the car, such as a belief that doing so would facilitate escape.
Contrary to the government’s position, the short duration of
Brodie’s submission means only that the seizure was brief, not
that no seizure occurred. Later acts of noncompliance do not
negate a defendant’s initial submission, so long as it was
authentic. See United States v. Brown, 401 F.3d 588, 595 (4th
Cir. 2005); see also United States v. Brown, 448 F.3d 239, 246
(3d Cir. 2006).

     The government argues that our decision in United States
v. Washington, 12 F.3d 1128 (D.C. Cir. 1994), requires a
contrary outcome. There we found that a person’s briefly
pulling over in response to an officer’s flashing lights,
followed by the defendant’s driving off “before [the officer]
even reached the car,” did not amount to submission. Id. at
1132. But putting one’s hands on a car when ordered to do so
is quite different from stopping a car just until the moment
                              5

that an officer’s almost inevitable exit provides an improved
chance of escape. Brodie’s gesture had no such advantage,
and would almost surely have culminated in a search but for
Clark’s momentary diversion to speak with his colleague.
Similarly, in the two Brown cases cited above, where
defendants on foot complied with orders to put their hands on
the roof of a car, the courts found the requisite submission.


                            * * *

    Finding that a seizure occurred, we turn to whether that
seizure was reasonable within the meaning of the Fourth
Amendment. The government has not claimed either probable
cause or reasonable suspicion. Rather, it argues that the case
belongs in the set of seizures deemed reasonable only because
they are incident to the execution of a search warrant.
Michigan v. Summers, 452 U.S. 692, 704-05 (1981).

     After the district court decided Brodie’s suppression
motion, the Supreme Court issued its opinion in Bailey v.
United States, 133 S. Ct. 1031 (2013), clarifying the limits of
the Summers doctrine. While confirming the existence of an
exception for seizures made during the execution of search
warrants, the Court emphasized its limits, saying it applies
only “to those who are present when and where the search is
being conducted.” Id. at 1040 (emphases added); see also id.
at 1038 (“In Summers and later cases the occupants detained
were found within or immediately outside a residence at the
moment the police officers executed the search warrant.”
(emphases added)); id. at 1038 (“When law enforcement
officers execute a search warrant, safety considerations
require that they secure the premises, which may include
detaining current occupants.” (emphasis added)).
                                6

     We need not determine whether Brodie’s seizure meets
the “where” requirement because we find that it doesn’t
satisfy the “when.” While the record does not indicate how
long the officers expected to wait, it makes clear that they
observed Brodie merely in anticipation of the search. They
parked around the corner from the house to wait for the
homicide detectives’ arrival and pulled around near the target
residence only in order to talk to Brodie. The officers did not
encounter Brodie “when” a search was underway, even if we
imagine a search to be in progress from the minute officers
start to advance from car or sidewalk to front door. Cf.
Summers, 452 U.S. at 693.

     We note that because this conclusion hews closely to
Bailey, it doesn’t wholly address the issue of risk to officers in
the course of a search. Bailey expressly noted its limitations
on that point. It observed, for example, that the risk that
someone who left a dwelling about to be searched might
return, during the search execution proper, exists even if the
person left the place “five minutes or five hours earlier.” 133
S. Ct. at 1039. And it noted the chance that a departing
occupant might notice the surveillance and “alert others still
inside the residence,” but then discarded that risk as “an
insufficient safety rationale to justify expanding the existing
categorical authority to detain so that it extends beyond the
immediate vicinity of the premises to be searched.” Id. at
1039-40. In other words, the Court was emphatic that
Summers-Bailey was not to be subject to some sort of risk
creep. To the extent that the exception leaves risks beyond its
scope unaddressed, officers must depend either on other
doctrines (such as Terry) or on taking additional precautions
such as “erecting barricades” to fend off a departing occupant
who may return. Id. at 1039.

    Finding Summers-Bailey inapplicable, and noting that the
government does not attempt to justify this as a Terry stop, we
                               7

conclude that Brodie’s seizure was unreasonable, in violation
of the Fourth Amendment.


                             * * *

     An illegal search or seizure calls for suppression of
evidence only if the seizure is a but-for cause of the discovery
of the evidence (a necessary condition), and if the causal chain
has not become “too attenuated to justify exclusion,” Hudson
v. Michigan, 547 U.S. 586, 592 (2006), or, to put the same
point with another metaphor, if circumstances have not
“purged [the evidence] of the primary taint,” Wong Sun v.
United States, 371 U.S. 471, 488 (1963) (internal quotation
marks omitted).

    The presence of but-for causation is quite plain. The
government does not contend, and no evidence suggests, that
anything like the scene of flight and weapon-discarding would
have occurred if the officers had stayed in their car to wait for
back-up as originally intended. In fact, though Brodie looked
“hinked up” when he first saw the officers, he continued to
walk toward the police car, making no effort to flee or to shed
his concealed weapons. This is quite unlike cases such as
United States v. McClendon, 713 F.3d 1211, 1217-18 (9th Cir.
2013), where the court found ample evidence that the fruitful
search would have occurred even in the absence of the
antecedent illegal search.

     In resolving whether the causal chain has become “too
attenuated,” the Court has identified three factors of special
relevance: (1) the amount of time between the illegality and
the discovery of the evidence, (2) the presence of intervening
circumstances, and (3) the purpose and flagrancy of the illegal
conduct. Brown v. Illinois, 422 U.S. 590, 603-04 (1975). For
                               8

this inquiry, the government bears            the   burden   of
demonstrating admissibility. Id. at 604.

     The first and third factors cancel out, at most. The
evidence was discovered mere seconds after the illegal
seizure, so time obviously did not purge the taint. And while
the police conduct may not have been especially flagrant,
neither was it a case of an innocent mistake, such that
exclusion would not materially advance the deterrent purpose
of the rule, as in Herring v. United States, 555 U.S. 135, 144-
46 (2009), where officers reasonably but mistakenly believed
there was an outstanding arrest warrant. Thus, the outcome of
the attenuation analysis turns on assessment of the intervening
circumstances.

     The government contends that Brodie’s flight and
abandonment of evidence were intervening circumstances that
purged the taint. As those events flowed directly from the
seizure, however, it is hard to spot any attenuation. See
United States v. Wilson, 953 F.2d 116, 127 (4th Cir. 1991).
There are indeed a number of cases where courts have found
attenuation in a defendant’s response to illegal police conduct.
But in those decisions the court found that the defendant had
committed a new crime, e.g., United States v. Bailey, 691 F.2d
1009, 1015-18 (11th Cir. 1982), or had at least fled in a
manner posing serious risks to the public safety—typically a
vehicular flight leading to a high-speed car chase, e.g., United
States v. Boone, 62 F.3d 323, 324 (10th Cir. 1995).

     Bailey contains perhaps the most analysis. The defendant
engaged in forcible resistance to the seizing officers, which
the court regarded as a violation of 18 U.S.C. § 111, making it
a crime to forcibly resist officers of the United States going
about the execution of their duties. The conclusion depended
on the court’s reading § 111 as withholding any defense based
on the illegality of the officers’ prior conduct. Bailey, 691
                              9

F.2d at 1018. Plainly we need not get into the soundness of
these cases: Brodie fled on foot, and the manner of his flight
in itself posed no incremental threat to anyone.

     As to Brodie’s discard of his weapons, the Bailey court’s
treatment of a similar case is persuasive. The court noted that
a defendant’s tossing marijuana out a car window during an
illegal stop did not constitute a new, attenuating crime: the
tossing “only revealed [the] extant crime and did not itself
constitute a crime.” Id. at 1017. So here.

     In short, the government has not met its burden to show
attenuation between the illegal seizure and the discovery of
the guns and drugs.


                            * * *

    The judgment of conviction is reversed because of error
in denial of the motion to suppress. We remand the case to
the district court for further proceedings consistent with this
opinion.

                               So ordered.
