United States v. Anthony George

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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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