FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EDDIE RAY MCCLENDON,

Defendant-Appellant.

No. 12-30015

D.C. No.

3:11-cr-05238-RJB-1

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

 This summary constitutes no part of the opinion of the court. It has

*

been prepared by court staff for the convenience of the reader.

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.
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

 The pills were identified as the narcotics Clonazepam and Lorazepam 1

and the antidepressant Trazodone. The residue in the pipe and baggies

field tested positive for methamphetamine.

smoking pipe coated with the same residue. The woman

1

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 walkietalkies, 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 byMs. 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
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

 The Government does not contend that the search of McClendon’s 2

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.

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
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

 The Third Circuit, however, has concluded that there was no 3

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). We

find these cases persuasive.

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. We look to the 3

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
10 UNITED STATES V. MCCLENDON

 This position is reinforced by several cases from the Third Circuit. 4

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 “Who, me?” before charging toward an officer in an

attempt to flee).

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.
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

 Because it is irrelevant to the admissibility of the handgun, which was 5

discarded before the police tackled McClendon, McClendon does not

question, and we do not address, whether there was probable cause for his

eventual seizure.

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. Assuming, without 5

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
UNITED STATES V. MCCLENDON 13

 Because there was no seizure until after McClendon had discarded the 6

handgun, we do not examine whether police had reasonable suspicion or

probable cause before then.

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
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.