The opinion
John MAUZY PlTTMAN, Judge, concurring. I concur in the decision to reverse appellant’s conviction and remand the case. I agree with the majority’s conclusions that appellant was illegally seized before dropping the pill bottle and that the evidence was discovered as a result of that seizure, but I do not agree that appellant was seized at the point at which the majority states.
The majority states that appellant was seized when Officer Johnson turned on the headlights and Officer Allen ordered appellant to approach the police car. Hammons v. State, 327 Ark. 520 , 940 S.W.2d 424 (1997), is cited for this proposition. However, subsequent to its decision in Hammons, our supreme court decided Smith v. State, 343 Ark. 552 , 39 S.W.3d 739 (2001). There, the court very clearly stated:
Police pursuit of a suspect or their ordering the suspect to stop is generally not a seizure. United States v. Thompkins, 998 F.2d 629 (8th Cir. 1993). For a seizure to occur, there must be a physical application of force by the officer or submission to the officer’s show of force. Id. A show of authority, without any application of physical force, to which the subject does not yield, is not a seizure. California v. Hodari D., 499 U.S. 621 (1991). Based upon this record of an armed standoff between Mr. Smith and the police officers, we hold that Mr. Smith’s freedom of action was not curtailed to a degree associated with formal arrest until he was shot in the arm by an officer and physically taken into police custody.
343 Ark. at 571 , 39 S.W.3d at 751 .
Based on California v. Hodari D., supra, and Smith v. State, supra, I cannot agree that appellant was seized upon the car’s headlights being turned on, upon his being ordered to stop, or even upon the police officer’s weapon being drawn. After these events, he continued to walk away. Rather, he clearly was not seized within the meaning of the Fourth Amendment until he submitted to the officers’ show of authority. Nevertheless, the record of the suppression hearing makes it clear that appellant did not drop the evidence until after he had ceased to walk away from the officers, after he had displayed his hands, and after he had begun moving, without further deviation, toward the officers. These facts clearly demonstrate that appellant had submitted to the officers’ show of force before he discarded the pill bottle, and I concur.