FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-10036

Plaintiff-Appellee, D.C. No.

v.  2:09-cr-00114-KJDGWF-1 JERMAINE SMITH,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Nevada

Kent J. Dawson, District Judge, Presiding

Argued and Submitted

November 2, 2010—San Francisco, California

Filed February 3, 2011

Before: Ronald M. Gould, Consuelo M. Callahan, Circuit

Judges, and Edward R. Korman, Senior District Judge.*

Opinion by Judge Gould

*The Honorable Edward R. Korman, Senior United States District

Judge for the Eastern District of New York, sitting by designation. 

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COUNSEL

Franny A. Forsman, Federal Public Defender, Jason F. Carr

(argued), Assistant Federal Public Defender, Las Vegas,

Nevada, for defendant-appellant Jermaine Smith.

Daniel G. Bogden, United States Attorney, Robert L. Ellman,

Appellate Chief, Drew Smith, Assistant United States Attorney (argued), District of Nevada, Las Vegas, Nevada, for

plaintiff-appellee United States of America.

OPINION

GOULD, Circuit Judge:

Appellant Jermaine Smith challenges the decision of the

district court to deny his motion to suppress a firearm that was

recovered from his person by a police officer. We must decide

whether Smith’s actions constituted submission to a police

officer’s show of authority, thereby triggering the Fourth

Amendment’s requirement that the officer have reasonable

suspicion before effectuating a seizure. If Smith was seized,

and if the seizure was not constitutional, then the recovered

firearm should be suppressed as the fruit of the poisonous

tree. See United States v. Crawford, 372 F.3d 1048, 1054 (9th

Cir. 2004) (en banc). We hold that Smith was not seized until

after he fled the presence of a police officer, and that Smith’s

flight under the circumstances gave the officer the reasonable

suspicion required to effectuate a seizure. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

In 2009, Smith crossed the street in front of a patrol car

driven by Officer Tyler Dominguez of the Las Vegas Metropolitan Police Department.1

 Officer Dominguez activated his

1Smith and the government present partially different accounts of the

facts. The district court did not make a factual finding about the truth of

2188 UNITED STATES v. SMITH
patrol car’s siren twice, pulled his car to the curb, exited the

vehicle, and called for Smith to stop and come stand in front

of the car. Smith turned toward the officer and asked either

“Who? Me?” or “What for?” Officer Dominguez confirmed

that he was addressing Smith, and repeated the command that

Smith come stand in front of the car. According to Smith’s

testimony, although Smith had at first stepped toward the

patrol car when he heard the siren, he then backed away after

the officer got out of the vehicle and told Smith to stand in

front of the car. Smith also said that, when he asked if he was

under arrest, Officer Dominguez replied that Smith was not

under arrest; however, the officer again ordered him to stand

in front of the car. Smith continued to back away, and then

turned and ran when he saw the officer reach for what Smith

believed was a gun. Officer Dominguez pursued Smith on

foot. The officer ordered Smith to stop, and threatened to use

his Taser if Smith did not stop. Smith stopped involuntarily

when he tripped and fell, allowing the officer to catch up with

him. With Smith prone on the ground, Officer Dominguez

approached him to place him in handcuffs and search him for

weapons. While Dominguez approached, Smith stated that he

had a gun in his pocket. Officer Dominguez recovered a Walther P99 nine-millimeter handgun from Smith’s person. 

Smith was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Smith pled not guilty, and filed a motion to suppress the firearm, which the district court denied. Smith then entered a conditional guilty plea pursuant to a written agreement, retaining

the right to appeal the court’s ruling on his unsuccessful

motion to suppress the firearm. The district court sentenced

Smith to seventy-one months in prison and three years of

Smith’s testimony, but rather held that, even under Smith’s version of the

facts, he was not seized before he fled from the officer. We also conclude

that, even under Smith’s account of the facts, there was no seizure before

Smith’s flight. 

UNITED STATES v. SMITH 2189
supervised release. Smith timely appealed the denial of his

motion to suppress the firearm. 

II

Smith contends that the district court erred when it denied

his motion to suppress the firearm. We review the district

court’s denial of the motion to suppress de novo. Crawford,

372 F.3d at 1053. “Whether an encounter between a defendant and an officer constitutes a seizure is a mixed question

of law and fact that we review de novo.” United States v.

Washington, 490 F.3d 765, 769 (9th Cir. 2007) (citing United

States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997).

Smith claims that his Fourth Amendment rights were violated because, when Officer Dominguez first attempted to

stop him, the officer did not have a reasonable suspicion that

Smith was engaged in wrongdoing. See Terry v. Ohio, 392

U.S. 1, 21-22 (1968) (holding that a police officer “must be

able to point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably

warrant” a limited search of a suspect); see also Washington,

490 F.3d at 774 (“A seizure of a person is justified under the

Fourth Amendment if law enforcement officers have reasonable suspicion that a person committed, or is about to commit,

a crime. Without reasonable suspicion, a person may not be

detained even momentarily.” (citations and internal quotation

marks omitted)). The district court agreed that Officer Dominguez did not have reasonable suspicion to seize Smith before

Smith fled from the officer. But the district court held that

Smith’s Fourth Amendment rights were not violated by the

attempted stop because Smith was not seized for Fourth

Amendment purposes until after he fled. The district court

also held in the alternative that, even if Smith was unlawfully

seized during his initial encounter with the officer, his subsequent headlong flight, given the circumstances, was an intervening event that gave rise to a new finding of reasonable

suspicion. The district court concluded that, because the flight

2190 UNITED STATES v. SMITH
created reasonable suspicion, Officer Dominguez’s pursuit,

detention, and pat-down search of Smith did not violate

Smith’s Fourth Amendment rights. 

We agree with the district court that Smith was not seized

during his initial encounter with Officer Dominguez. Because

Smith was not then seized, we need not decide whether the

officer had reasonable suspicion justifying a Terry stop before

Smith fled. Smith’s Fourth Amendment rights were not violated by the attempted stop, even if the officer did not have

reasonable suspicion, because the attempted stop was not a

seizure for Fourth Amendment purposes.2

[1] Smith claims that he was seized when he paused

momentarily, turned to and moved toward Officer Dominguez, and engaged in a short verbal exchange. However, a

person is not “seized” within the meaning of the Fourth

Amendment unless “by means of physical force or show of

authority, his freedom of movement is restrained.” United

States v. Mendenhall, 446 U.S. 544, 553 (1980). In the

absence of physical force, in order to constitute a seizure, an

officer’s show of authority must be accompanied by “submission to the assertion of authority.” United States v. Hodari D.,

499 U.S. 621, 626 (1991); see also Brendlin v. California,

551 U.S. 249, 254 (2007) (“[T]here is no seizure without

actual submission; otherwise, there is at most an attempted

seizure. . . .”). We have expressly “decline[d] to adopt a rule

whereby momentary hesitation and direct eye contact prior to

flight constitute submission to a show of authority.” United

States v. Hernandez, 27 F.3d 1403, 1407 (9th Cir. 1994). 

[2] In this case, where the officer did not use physical

force during the initial encounter, the question is whether

Smith’s actions constituted submission to Officer Domin2Because we decide that Smith was not seized prior to his flight, we

need not reach the district court’s alternative holding that Smith’s flight

was an intervening event that purged the taint of an illegal seizure. 

UNITED STATES v. SMITH 2191
guez’s show of authority. The Supreme Court has held that a

seizure does not occur where the subject does not yield.

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 seizure.” Id. By his own testimony, Smith did not

yield to the officer’s commands. Smith turned toward the officer, asked some questions, took a few steps towards the patrol

car, but then backed away. Smith asked if he was under arrest,

and Officer Dominguez told him “no.” When the officer continued to issue commands, Smith turned and ran. Like the suspect in Hodari D. who “was not seized until he was tackled,”

Smith was not seized when he initially hesitated and engaged

in a short verbal exchange with Officer Dominguez. Id. at

629.

[3] The Third Circuit reached a similar result in an analogous case, United States v. Valentine, 232 F.3d 350 (3d Cir.

2000). There, police officers approached the defendant in a

parking lot and told him to place his hands on their patrol car.

Id. at 353. The defendant asked the officers “Who, me?” and

then attempted to flee. Id. The Third Circuit held that even if

the defendant “paused for a few moments and gave his name,

he did not submit in any realistic sense to the officers’ show

of authority, and therefore there was no seizure. . . .” Id. at

359. Like the defendant in Valentine, Smith did not submit in

any realistic sense to Officer Dominguez’s command that

Smith stand in front of the patrol car. Because Smith did not

submit to the officer’s show of authority, and because he was

not otherwise coerced or physically forced to submit, Smith

was not seized within the meaning of the Fourth Amendment

during his initial encounter with the officer.

III

Although Smith was not seized initially, he was indisputably seized later, after he fled and was apprehended by Officer

Dominguez. The officer had reasonable suspicion to effectuate a seizure after Smith’s flight. 

2192 UNITED STATES v. SMITH
[4] The Supreme Court has held that a person’s “headlong,” “unprovoked” flight upon seeing a police officer, when

it occurs in a high-crime neighborhood, is sufficient to establish reasonable suspicion that the person is involved in criminal activity. Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000).

We recognize that “[a]n individual’s presence in an area of

expected criminal activity, standing alone, is not enough to

support a reasonable, particularized suspicion that the person

is committing a crime.” Id. at 124 (citing Brown v. Texas, 443

U.S. 47, 99 (1979)). But officers may take into account the

context in which suspicious activity occurs “in determining

whether the circumstances are sufficiently suspicious to warrant further investigation.” Wardlow, 528 U.S. at 124.

[5] Here, Smith’s initial reaction was not suspicious. Had

he simply continued to go about his business, or walked away,

Officer Dominguez would not have had reasonable suspicion

to seize him. See id. at 125 (“[W]hen an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go

about his business.” (citing Florida v. Royer, 460 U.S. 491,

498 (1983))). But, like the defendant in Wardlow, Smith did

not simply go about his business. Instead, he launched into

headlong flight. “Flight, by its very nature, is not ‘going about

one’s business’; in fact, it is just the opposite.” Wardlow, 528

U.S. at 125. “Headlong flight—wherever it occurs—is the

consummate act of evasion: It is not necessarily indicative of

wrongdoing, but it is certainly suggestive of such.” Id. at 124.

[6] There may be circumstances where a person’s flight

has a perfectly innocent and reasonable explanation. Nevertheless, the circumstances here indicate that Smith’s flight

was sufficient to engender reasonable suspicion. It is undisputed that Smith was in a high-crime neighborhood during the

events in question, that Officer Dominguez clearly identified

himself as a police officer, and that Smith burst into headlong

flight for no other reason than to evade Officer Dominguez.

The officer’s determination that Smith’s sudden flight was

UNITED STATES v. SMITH 2193
suggestive of wrongdoing was reasonable under these circumstances. 

[7] Because Smith was not seized before he fled, and

because Smith’s flight under these circumstances created a

reasonable suspicion that he was involved in criminal activity,

Officer Dominguez did not violate Smith’s Fourth Amendment rights, and the motion to suppress the firearm was correctly denied.

AFFIRMED.

2194 UNITED STATES v. SMITH