NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0062n.06 No. 10-6159 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. ANTHO NY GEO RGE, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF TEN

NESSEE

BEF ORE: McKEAGU E and WHI TE, Circuit J udg es; and B ARRETT, District J udg e. *

PER CURI AM. Anthony Geor g e entered a co n d i t i onal g uilty plea to being a felon in possession of a firea

rm, in violation of 18 U.S.C. § 922(g )(1)

. On appea l, he challeng es the denial of his motion to s uppress. F or the re asons set for th below, we a ffirm. On t he nig ht of May 7, 2009, Chattanoog a poli ce office r W illiam Saly ers was on patrol i n the East L ake are a of Chattanoog a, Tenne ssee, which he descr ibed as a “hig h crime are a.” Saly ers observe d two men, later identified as Geor g e and Demetr ius Pointer, standing next to a car that was stopped in the middle o f t h e street. The car drove awa y as Saly ers approa ched, and Geor g e and Pointer beg an walking in his direc tion. Saly ers stopped his patr ol car , exit ed, and or dere d Geor g e and Pointer to “put their ha nds on the ca

r.” Pointer c omplied, Georg e did not.

The Honora

ble Michae l R. Ba

rre tt, United States District J udg e for the Southern District of * Ohio, sitti ng by

desig nation.No. 10-6159

United States v. Ge orge I nstead, Geor g e walked from the front of the car t o t he passeng er’ s side. Saly ers ag ain order ed Geor g e to put his hands on the car . Geor g e did not comply , but returne d to the front of the

car wher e Pointer was standing

. After issuing the order for a third time, Saly ers drew his w eapon, and Geor g e dropped something onto the paveme nt that sounded like “har d metal.” Geor g e then ran toward the passeng er side of the car , at which point Saly ers beg an chasing him. Geor g e continued
to run around the car until Saly ers g rabbe d him, pulled h i m d o wn to the g round, and held him at g unpoint until other office rs arr ived. Af t er Geor g e was handcuf

fed, office rs found a .22 caliber handg un on the g round. Following his indictment on the felon-in- possession char g e, Geor g e filed a m o tion to suppress. Upon the rec ommendation of a mag istrate j u d ge, the district court denied the motion, concluding that Geor g e was not seized until afte r he dr opped the g un and that, as a result, t he gun

was abandone d and not subject to Four th Am en d m en t protec tion. Geor g e enter ed a conditional g uilty plea, rese rving the rig ht to appea l the denial of his su p p re s s i o n m otion. The district court sentenc ed him to thirty -seve n months in prison, to be followed by three y ear s of supervised rele ase. Geor g e then f

iled this ti mely

appea l. I n an appea l of the denial of a motion to s u p p re s s , we revie w the district court’s fac tual finding s for clea

r err or and its leg al conclusions de novo. United States v. Smith , 594 F.3d 530, 535 (6th Cir. 2010)

. The dispute in this case cente rs on when Geor g e was “seized” for purposes of the Four th Amendment. The parties ag ree that if Geor g e dropped the g un befor e he was seized, the g un was abandoned and lawfully rec overed b y the pol ice. See Cali fornia v. Hodari D. , 499 U.S. 621, 623-24 (1991) ; United States v. Martin , 399 F.3d 750, 752- 53 (6th Cir. 2005). -2-No. 10-6159

United States v. Ge orge A person is seized “whe n, by means of phy sical forc e or a show of authority , his fre edom of
movement is restra ined.” United States v. Mende nhall , 446 U.S. 544, 553 (1980). When a seizure is eff ecte d by a show of authority rathe r than phy sical forc e, “an individual must actua lly y ield to the show of authori t y t o b e seized within the meaning of the Four th Amendment.” United States v. Johnson , 620 F.3d 685, 690 (6th Cir. 2010); see Hodari D. , 499 U.S. at 626-27. Thus, while Saly ers undisputedly exercised a show of authority such t hat a rea sonable person would not have felt free to leave, G eorg e wa s “seized” only if he actually submitt ed to t hat authority

. See Sm ith , 594 F.3d
at 536. “Without actua l submissi on, ‘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))

. Geor g e argues that he submitted to Saly ers’ s show of authority when he chang ed direc tion and walked from the passeng er side of the car to the front of the car . But the case on which Geor g e relies, Johnson , is distingu i s h ab l e. I n that case , police office rs y elled at the defe ndant, who was walking toward a car with a waiting driver, to “stop” and “stay rig ht wher e he was.” Johnson , 620 F.3d at 691. The def

endant stood still afte r reachingthe ca r and pla cinghis bag inside, but he did
not comply with the office rs’ subse q u e nt commands to raise his hands until they drew their wea pons. Id. at 689. The court conclude d that J ohnson was seized when he stopped moving beca use that was the point at which he y ielded to the office rs’ authority , reg ardle ss of his subse quent failure to raise his hands. Id. at 691. Unlike in Johnson , there was no initial compliance in this case . Saly ers repe atedly instructed Geor g e to do one thing – place his h an ds on the car – and Geor g e ref used. Cf. United States v. Martin , 613 F.3d 1295, 1301 (10th Cir. 2010) (conc luding that defe ndant was not seized beca use he -3-No. 10-6159

United States v. Ge orge did not comply wi t h o rd er t o place his hands on the wall). Rather than acknow ledg ing Saly ers’ s order or demonstrating any willingness to comply with it, Geor g e continued to move around the car and beg an running afte r Saly ers p u l l ed h is wea pon. These actions cannot be construed as a submissi on to a

uthority

. See Sm ith , 594 F.3d at 538-39; Jones , 562 F.3d at 775. Acc ording ly , the district court proper ly conclude d that Geor g e was not seized until Saly ers subdued him with phy sical forc e, and beca

use Geor g e discarde d the handg un befor e h e wa s s eized, it was not the fruit of a seizure. See H

odari D. , 499 U.S. at 629; Martin , 399 F.3d a t 753. For these re asons, we a ffirm the de nial of Ge org e’s motion to suppress.`

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