                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA ,                 No. 12-30015
            Plaintiff-Appellee,
                                           D.C. No.
               v.                    3:11-cr-05238-RJB-1

EDDIE RAY MCCLENDON ,
          Defendant-Appellant.              OPINION


     Appeal from the United States District Court
        for the Western District of Washington
    Robert J. Bryan, Senior District Judge, Presiding

                Argued and Submitted
        February 8, 2013—Seattle, Washington

                    Filed April 19, 2013

     Before: Raymond C. Fisher, Ronald M. Gould,
         and Richard A. Paez, Circuit Judges.

                Opinion by Judge Gould
2               UNITED STATES V . MCCLENDON

                           SUMMARY*


                           Criminal Law

    The panel affirmed a conviction for being a felon in
possession of a firearm in a case in which the defendant
argued that the discovery of a handgun was the product of an
illegal search and an illegal seizure.

    The panel held that because the defendant did not submit
to the authority of the police who drew their guns and told
him that he was under arrest, he was not seized before he
tossed the gun away and was tackled by officers, and thus lost
his ability to challenge the admissibility of the gun as fruit of
an illegal seizure.

    The panel held that the discovery of the gun was too
attenuated from a concededly-illegal search of the
defendant’s backpack to warrant suppression, where the
backpack search was not the but-for cause of the discovery of
the handgun, and the defendant’s act of walking away from
the police after the police made it clear that they were trying
to arrest him was an intervening event that purged any taint
from the backpack search.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              UNITED STATES V . MCCLENDON                     3

                         COUNSEL

William R. Michelman (argued), Lakewood, Washington, for
Defendant-Appellant.

Helen J. Brunner (argued), Appellate Chief, Office of the
United States Attorney for the Western District of
Washington, Seattle, Washington; Jenny A. Durkan, United
States Attorney, and Jesse Williams, Special Assistant United
States Attorney, Office of the United States Attorney for the
Western District of Washington, Tacoma, Washington, for
Plaintiff-Appellee.


                          OPINION

GOULD, Circuit Judge:

    Eddie Ray McClendon appeals his conviction pursuant to
a conditional plea agreement for one count of felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). He contends that the district court erroneously
denied his motion to suppress the handgun that formed the
basis for his conviction because the discovery of that handgun
was the product of an illegal search and an illegal seizure.
We must first decide whether McClendon was seized in
violation of the Constitution by the police before he tossed
the gun away. If McClendon was seized unconstitutionally,
then the recovered handgun should be suppressed as a fruit of
the poisonous tree. See United States v. Smith, 633 F.3d 889,
891 (9th Cir. 2011). If we conclude that there was no illegal
seizure before McClendon threw the gun, we next must
decide whether discovery of the handgun could fairly be
considered a fruit of the illegal backpack search, requiring its
4             UNITED STATES V . MCCLENDON

suppression. See Wong Sun v. United States, 371 U.S. 471,
484–87 (1963). Because we hold that McClendon was not
seized before discarding the handgun and that the handgun
was not a fruit of the illegal backpack search, we reject
McClendon’s claim and affirm.

                              I

    At around 2:20 a.m. on a spring night, two police officers
responded to a 911 call placed by an elderly disabled
homeowner who feared a possible invader. The homeowner
reported that an unknown vehicle was parked in his driveway
with its engine and lights off and that someone had knocked
on his door. The homeowner was so frightened that he had
armed himself with a crowbar. When police arrived at the
scene, a nervous woman, who police thought was under the
influence of methamphetamine, emerged from the driver’s
seat of the car. The woman, later identified as Rosemary
Johnson, said that the car ran out of gas and that McClendon,
who she said had been in a lot of trouble before, had left to
get more gas. The story about running out of gas quickly was
shown by events to be incredible: The car’s ignition was
turned on. The car started.

    The woman consented to a search of the car. Before the
search commenced, the woman warned the officers that there
was a machete in the car that belonged to McClendon. The
officers at once found the machete on the floor under the
front passenger’s seat. They also found several types of
drugs and drug paraphernalia in the woman’s purse, including
a cigarette box containing pills, several one-inch-by-one-inch
baggies coated with a white crystalline residue, and a
                UNITED STATES V . MCCLENDON                          5

smoking pipe coated with the same residue.1 The woman
claimed ownership of some, but not all, of the drugs and
drug-related items, and she was arrested.

    The officers then found a backpack behind the front
passenger’s seat of the car. The woman said that it belonged
to McClendon. Without consent from the non-present
McClendon, one of the officers searched the backpack. This
search revealed a sawed-off shotgun with a filed-off serial
number, ammunition for the gun, a black wig, two walkie-
talkies, binoculars, a zippered case containing two
prescription pills, and a Safeway receipt with McClendon’s
name on it.

    Police then ran a records check on the name “Eddie
McClendon” and found one person matching the physical
description given by Ms. Johnson; that person had previously
been convicted of the felony of riot with a deadly weapon.
While the records check was being performed, back-up
officers, including a K-9 unit, arrived at the scene, and the
police went to look for McClendon with the aim of arresting
him.

    Spotting a man matching McClendon’s description
walking down the street about 50 or 60 yards away, a group
of officers approached him. When the suspect was within
earshot, one deputy asked the man if he was Eddie. The man
replied, “Yes, that’s me,” and turned and began to walk away.
The officers then drew their guns, told McClendon he was
under arrest, and ordered him to show his hands. But


 1
    The pills were identified as the narcotics Clonazepam and Lorazepam
and the antidepressant T razodone. The residue in the pipe and baggies
field tested positive for methamphetamine.
6             UNITED STATES V . MCCLENDON

McClendon did not comply. He did not stop. He did not
show his hands. He continued to walk away. When the
officers got still closer to McClendon, McClendon took his
hands and “pushed them down towards his waistband and
[again] turned away from [the officers],” making a flinging
motion. The officers then closed the distance and forcibly
arrested McClendon, tackling him and placing him in
handcuffs. They found a loaded silver handgun, still warm to
the touch, on the grass a few feet away. McClendon denied
tossing the gun and said that the backpack was not his. At the
time of McClendon’s arrest, he was wearing a black knit cap,
which police found to be a rolled-up ski mask, one with eye
holes and a mouth hole. But McClendon had no skis. And
there was no snow.

    McClendon was indicted on two counts of felon in
possession of a firearm and ammunition (for the shotgun and
for the handgun) in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) and on one count of possession of an unregistered
firearm (for the shotgun) in violation of 26 U.S.C. §§ 5861(d)
and 5871. He filed a pretrial motion to suppress “all evidence
obtained directly and/or derived from the unlawful search and
seizure of . . . [the] backpack,” including the handgun. After
several hearings and initial rulings, the district court found
that the search of the backpack was unlawful, and granted the
motion to suppress the evidence in the backpack. But the
court denied the motion to suppress the handgun, reasoning
that the police likely had probable cause to arrest McClendon
and did not effectuate the arrest until after McClendon
discarded the gun. Alternatively, the district court reasoned
that police had ample grounds to stop McClendon under
Terry v. Ohio, 392 U.S. 1, 22 (1968) (holding that an officer
may, consistent with the Fourth Amendment, conduct a brief,
investigatory stop when he or she has reasonable suspicion
                UNITED STATES V . MCCLENDON                             7

that criminal activity is afoot). McClendon pleaded guilty
pursuant to a conditional plea agreement to one count of felon
in possession of a firearm, retaining the right to appeal the
court’s ruling on his unsuccessful motion to suppress the
handgun. The other two counts were dismissed. McClendon
was sentenced to seventy-two months in prison and three
years of supervised release. McClendon timely appealed his
conviction, challenging the district court’s denial of his
motion to suppress the handgun.2

                                   II

    McClendon contends that the district court erred when it
denied his motion to suppress the handgun because discovery
of the gun was the product of his seizure, which in turn was
prompted by the illegal search of his backpack. See United
States v. McCarty, 648 F.3d 820, 839 (9th Cir. 2011) (stating
that “fruits of an unlawful search cannot provide probable
cause for an arrest”). The Government concedes that the
officers “clearly sought to arrest Eddie Ray McClendon based
on the fruits of . . . the unlawful search of [the] backpack.”
But the Government contends, among other things, that
McClendon was not yet seized when he discarded the
handgun, making the abandoned gun admissible under
California v. Hodari D., 499 U.S. 621, 625–29 (1991)
(holding that a person is not seized for purposes of the Fourth
Amendment when he or she fails to submit to a law
enforcement officer’s show of authority and is not physically


  2
    The Government does not contend that the search of McClendon’s
backpack was lawful. That is not surprising because, as the district judge
noted, no exigency impelled police to search the backpack without a
warrant or the owner’s consent and Ms. Johnson had no authority to
consent on McClendon’s behalf.
8             UNITED STATES V . MCCLENDON

touched by the officers). We ordered supplemental briefing
on this issue. We have jurisdiction under 28 U.S.C. § 1291,
and we review de novo the district court’s denial of a motion
to suppress evidence. United States v. Caseres, 533 F.3d
1064, 1067 (9th Cir. 2008).

    The Fourth Amendment protects “against unreasonable
searches and seizures.” U.S. Const. amend. IV. Searches and
seizures that offend the Fourth Amendment are unlawful and
evidence obtained as a direct or indirect result of such
invasions is considered “fruit of the poisonous tree” and is
inadmissible under the exclusionary rule. See Wong Sun,
371 U.S. at 484–87. In deciding whether evidence is the
product of an unlawful seizure, we first determine whether
the defendant was seized at the time the handgun was
discarded. See United States v. Hernandez, 27 F.3d 1403,
1406–07 (9th Cir. 1994); see also Smith, 633 F.3d at 892. If
so, we then consider whether the seizure was unlawful. See
Hernandez, 27 F.3d at 1406–07; see also Smith, 633 F.3d at
892.

    The general rule is that “a person has been ‘seized’ within
the meaning of the Fourth Amendment 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.”
United States v. Mendenhall, 446 U.S. 544, 554 (1980). This
determination is “a necessary, but not a sufficient, condition
for seizure.” Hodari D., 499 U.S. at 628. In addition, some
form of “touching or submission” is also required. Id. at
626–27; see also Brendlin v. California, 551 U.S. 249, 254
(2007) (“A police officer may make a seizure by a show of
authority and without the use of physical force, but there is no
seizure without actual submission; otherwise, there is at most
an attempted seizure, so far as the Fourth Amendment is
                 UNITED STATES V . MCCLENDON                               9

concerned.”); Cnty. 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.”).

     Precedent instructs that where an individual flees from
police, no submission occurs until the defendant is physically
subdued. See Hodari D., 499 U.S. at 629 (concluding that a
young man running from police was not seized until he was
tackled); see also Brendlin, 551 U.S. at 262 (“[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.”). But we have not addressed a situation where, as
here, a defendant walks away from and refuses to comply
with the commands of officers who are attempting to arrest
him, instead reaching into his waistband.3 We look to the
totality of the circumstances to determine whether
McClendon submitted to authority such that he was seized
before discarding the gun. See United States v. Washington,
490 F.3d 765, 773–74 (9th Cir. 2007).

    McClendon contends that his case is distinguishable from
Hodari D. because he submitted to authority when he
identified himself in response to the officer’s inquiry. But we


    3
      The Third Circuit, however, has concluded that there was no
submission to a show of authority where a defendant failed to raise his
hands in compliance with a police directive, “moved his hands toward his
waistband, and ultimately retreated into the house.” United States v.
Waterman, 569 F.3d 144, 146 (3d Cir. 2009) (also holding that being held
at gunpoint falls short of the touching required to establish a seizure under
Hodari D. where the defendant does not submit to a show of authority).
The Sixth Circuit likewise held that efforts to walk or “push” through a
doorway past police officers “do not constitute submission to a show of
authority.” United States v. Smith, 594 F.3d 530, 539 (6th Cir. 2010). W e
find these cases persuasive.
10              UNITED STATES V . MCCLENDON

have previously “decline[d] to adopt a rule whereby
momentary hesitation and direct eye contact prior to flight
constitute submission to a show of authority.” Smith,
633 F.3d at 893 (quoting Hernandez, 27 F.3d at 1407); see
also United States v. Baldwin, 496 F.3d 215, 218 (2d Cir.
2007) (“[T]o comply with an order to stop . . . a suspect must
do more than halt temporarily . . . .”). And in United States
v. Smith, we held that there was no submission or seizure
when a defendant momentarily hesitated before fleeing from
police. 633 F.3d at 891, 893. In that case, the defendant
initially stepped toward a patrol car and responded to an
officer’s request to stop by saying either “Who? Me?” or
“What for?” before bolting. Id. at 891. Applying our rule
from Hernandez and Smith, we hold that McClendon’s initial
response of answering “Yes, that’s me” was not sufficient to
show that he had submitted to the officers’ authority.4

    McClendon next contends that he was seized when the
officers drew their guns and told him that he was under arrest.
McClendon stresses the nature of the force used against him
and cites to United States v. Stephens, where we held that a
man who remained seated after police officers boarded and
positioned themselves in the front, middle, and back of a bus
was seized even though the officers informed the passengers
that no one was under arrest and that anyone who wished to
leave was free to do so. 206 F.3d 914, 916–18 (9th Cir.

  4
    This position is reinforced by several cases from the Third Circuit.
See, e.g., United States v. Smith, 575 F.3d 308, 316 (3d Cir. 2009) (“Two
steps towards the hood of a car does not manifest submission to the police
officers’ show of authority.”); United States v. Valentine, 232 F.3d 350,
353, 359 (3d Cir. 2000) (holding that momentary compliance was not
enough to trigger a seizure where three men walked away from police and
one then responded “W ho, me?” before charging toward an officer in an
attempt to flee).
              UNITED STATES V . MCCLENDON                   11

2000). In that case, we reasoned that the defendant, who did
submit, was placed in a Hobson’s choice because he had only
two options: (1) get off the bus and potentially give the
officers reasonable suspicion to stop him or (2) stay on the
bus and answer the officers’ questions. Id. at 917. But
McClendon misses the point of Hodari D. Like the defendant
in Stephens, a reasonable person in McClendon’s shoes
would not have felt free to leave. The critical difference is
that, faced with such authority, McClendon did not submit.
Instead, although he was ordered at gunpoint to stop and put
up his hands, McClendon turned and walked away, not
raising his hands. See 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[t] [a] seizure.”); cf.
United States v. Wood, 981 F.2d 536, 540–41 (D.C. Cir.
1992) (holding that defendant submitted to authority when,
upon hearing the command to “halt right there,” he froze in
his tracks, dropped a pistol on the ground, and did not
otherwise ignore orders). McClendon did not display any
intention of submitting to the officers’ authority.

    McClendon also did not face a Hobson’s choice because
the officers had already determined that they had probable
cause to arrest him and had communicated their intent in no
uncertain terms to McClendon by telling him he was under
arrest and to raise his hands. McClendon knew that he would
have been arrested regardless of his actions. Yet he refused
to submit to police authority.

    McClendon argues that because he walked away from the
police, instead of running, he sufficiently submitted to their
authority, distinguishing himself from the suspect in
Hodari D. But McClendon’s act of walking away still
showed a failure to submit to the authority of the police,
12              UNITED STATES V . MCCLENDON

particularly when coupled with McClendon’s refusal to raise
his hands. See Hernandez, 27 F.3d at 1405, 1407 (holding
that a man who reached into his pants to discard a gun while
fleeing “never submitted to authority”).          Moreover,
McClendon’s act of reaching into his pants posed a threat to
the officers. McClendon never submitted to police authority
before he was tackled. Like the suspects in both Smith and
Hodari D., McClendon was not physically touched during his
initial encounter with the police and, because he did not
submit to the officers’ show of authority, he was not seized
until he was brought to the ground. See Smith, 633 F.3d at
893; see also Hodari D., 499 U.S. at 629.

    McClendon also argues that the police officers were
acting illegally when they raised their guns and declared that
he was under arrest and therefore he had no obligation to
submit to their illegal authority.5 Assuming, without
deciding, that the officers initially had no authority to stop or
arrest McClendon, we still conclude McClendon was not
seized until he was physically apprehended. See Smith,
633 F.3d at 892 (declining to reach the question of whether
police had reasonable suspicion to stop the defendant because
defendant did not submit to a show of police authority); see
also United States v. Garcia, 516 F.2d 318, 319–20 (9th Cir.
1975) (holding that “where the illegal conduct of the police
is only a necessary condition leading up to the suspect’s act
[of voluntarily fleeing], no taint attaches to his conduct”).
Regardless of how unreasonable the officers’ actions were,
and regardless of how reasonable it was for McClendon to


 5
   Because it is irrelevant to the admissibility of the handgun, which was
discarded before the police tackled McClendon, McClendon does not
question, and we do not address, whether there was probable cause for his
eventual seizure.
                UNITED STATES V . MCCLENDON                         13

feel restrained, he did not submit to authority and therefore
was not seized until he was tackled. See Hodari D., 499 U.S.
at 626. The rule of Hodari D. creates incentives for future
defendants to submit to asserted police authority, thereby
avoiding an escalation of conflict that could have lethal
consequences. See Tennessee v. Garner, 471 U.S. 1, 11
(1985) (holding that deadly force may be used if necessary
where an officer has probable cause to believe the suspect
poses a significant threat of death or serious physical injury).
This was one of the aims of Hodari D. See 499 U.S. at 627
(“Unlawful orders will not be deterred, moreover, by
sanctioning through the exclusionary rule those of them that
are not obeyed.”).

    Because McClendon did not submit to the authority of the
police, he was not seized before he was tackled and thus lost
his ability to challenge the admissibility of the handgun as a
fruit of an illegal seizure.6

                                 III

    Although we have concluded that McClendon was not
seized until after he tossed his gun, we must also consider if
the handgun should have been suppressed as a fruit of the
illegal search of McClendon’s backpack. See Wong Sun,
371 U.S. at 484–87. We reject this argument for two reasons.

    First, the search of McClendon’s backpack was not the
but-for cause of the discovery of the handgun. One of the
officers testified that he “[a]bsolutely” would have gone


 6
   Because there was no seizure until after McClendon had discarded the
handgun, we do not examine whether police had reasonable suspicion or
probable cause before then.
14             UNITED STATES V . MCCLENDON

looking for McClendon to talk to him regardless of the search
of the backpack. He would have looked for McClendon
“[b]ecause McClendon would be a person of interest in this
incident . . . . [and] [a]t the very least, [the officer] would
have wanted to find . . . Mr. McClendon while [the officer]
furthered [his] investigation.” The circumstances supported
this testimony: police had been called to the scene by a
frightened homeowner, a car was parked in a resident’s
driveway late at night, the car was not out of gas as its
occupant stated, a machete belonging to McClendon was
found in the car, and illegal drugs and drug paraphernalia
were found in the occupant’s purse. The judge accepted the
officer’s testimony as credible. Because the testimony shows
that the illegal search of the backpack was not the but-for
cause of the discovery of the handgun, we reject
McClendon’s argument that the handgun should be excluded
as a fruit of the illegal backpack search. See Segura v. United
States, 468 U.S. 796, 815 (1984) (“[O]ur cases make clear
that evidence will not be excluded as ‘fruit’ unless the
illegality is at least the ‘but for’ cause of the discovery of the
evidence. Suppression is not justified unless the challenged
evidence is in some sense the product of illegal governmental
activity.” (internal quotation marks omitted)).

    Second, even if the police were motivated to search for
McClendon because of what they found in the backpack, we
would still conclude that the handgun was not a fruit of the
illegal backpack search under the principle established in
United States v. Garcia. 516 F.2d at 319–20. In Garcia, a
border patrol officer directed a motorist to a secondary border
checkpoint based on the motorist’s unusual demeanor and
characteristics of the motorist’s vehicle. Id. at 319. The
motorist drove to the secondary checkpoint, parked
momentarily, and then sped off. Id. A car chase ensued and
              UNITED STATES V . MCCLENDON                   15

the agents ultimately stopped the motorist and found
marijuana in the car. Id. We assumed that the stop at the
secondary checkpoint was an illegal seizure, but concluded
that the motorist’s decision to flee was an intervening
circumstance that purged the primary taint of the illegal
seizure. Id. at 319–20. Here, McClendon’s act of walking
away from the police after the police made it clear that they
were trying to arrest him also was an intervening event that
purged any taint from the prior backpack search.

   For these reasons, we conclude that the discovery of the
handgun was too attenuated from the backpack search to have
been the fruit of that illegal act.

                              IV

    Because we hold that the handgun was not a fruit of a
seizure or a fruit of the illegal backpack search, the district
court did not err in denying McClendon’s motion to suppress
the handgun. Our reasoning is different from that of the
district court, but we may affirm on any basis supported by
the record and do so here. See United States v. Pope,
686 F.3d 1078, 1083 (9th Cir. 2012).

   AFFIRMED.
