United States_v._McClendon

A defendant who walks away, refuses to comply with police officers’ commands, and reaches into his waistband is not considered “seized” under the Fourth Amendment until he submits to the authority of the police.

Police spotted a man matching the description of Eddie Ray McClendon walking down the street. Upon verbal confirmation that the man was McClendon, the police officers told him he was under arrest and ordered him to show his hands. McClendon did not comply with these orders, continued to walk away, moved his hands toward his waistband, and made a flinging motion. Police then tackled McClendon to the ground and placed him in handcuffs. A loaded silver handgun was in the grass a few feet away. McClendon appealed his conviction of felon in possession of a firearm pursuant to his conditional plea agreement. McClendon contended the district court erred when it denied suppression of the handgun because it was a product of an illegal search and seizure. The issue on appeal was whether McClendon was unconstitutionally seized by the police before he tossed the gun away. The Ninth Circuit determined that McClendon’s response saying, “Yes, that’s me” was not sufficient to show that he submitted to the officer’s authority and was therefore not seized by the officers. McClendon’s act of walking away coupled with his refusal to raise his hands showed a failure to submit to police authority. McClendon was only seized once he was tackled by the police officers because he had not submitted to the authority of the police until that point. The panel concluded that the illegal search of the backpack was not the but-for cause of the discovery of the handgun. Therefore, the handgun should not have been excluded as fruit of the illegal backpack search. Also, the panel held that McClendon was an intervening cause and removed any taint from the backpack search when he walked away from the police officers. The panel affirmed McClendon’s conviction because he was not seized before discarding the handgun. AFFIRMED.