CA10: Defendant’s briefly backing up during stop was not a submission to authority

Under Hodari D., defendant did not submit to the officer’s show of authority at first by backing up. By the time he did submit, the officer had reasonable suspicion. United States v. Salazar, 609 F.3d 1059 (10th Cir. 2010):

Trooper Berner explained that, as Mr. Salazar’s truck began to back away, he was concerned that “this vehicle [was] trying to allude [sic] me,” Aplt’s App. at 24, and that, at that point, “I’m not quite sure what he’s doing or why he’s doing what he’s doing.” Id. at 31. We find that assessment entirely reasonable. From the point of view of a “prudent, cautious, and trained officer[],” see Anderson, 154 F.3d at 1233, Mr. Salazar’s backing up could have suggested a nascent attempt to flee, an effort to buy time so that he could dispose of contraband or formulate an explanation to provide to the officer, or simply a period of indecision before he determined what to do. In light of these reasonable interpretations of Mr. Salazar’s backing up his pickup truck, we agree with the government that he did not submit to Trooper Berner’s authority until he complied with the command to get out of the truck. Cf. United States v. Letsinger, 93 F.3d 140, 145 (4th Cir. 1996) (holding that, in order to constitute submission, “the suspect must clearly acquiesce to the officer’s show of authority”) (emphasis added).

In conducting a search for evidence of a shooting, officers did not exceed the scope of search by going into the kitchen. Evidence of the shooting could have been found there. Drugs were instead. State v. Munroe, 2010 Tenn. Crim. App. LEXIS 507 (June 18, 2010).*