Martinez

MEMORANDUM **

Defendant Jose Martinez appeals the district court’s order denying his motion to suppress evidence obtained as a result of his encounter with Montana Highway Patrol Officer Jeremy Lee. The district court determined that the encounter was consensual and did not implicate the Fourth Amendment. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review the district court’s underlying factual findings for clear error. United States v. Lopez-Soto, 205 F.3d 1101, 1103 (9th Cir.2000). We review de novo its decision whether a stop or seizure occurred on those facts. United States v. Enslin, 327 F.3d 788, 792-93 (9th Cir.2003). We have jurisdiction, and we reverse.

*758 For purposes of the Fourth Amendment, a stop or seizure occurs when a law enforcement officer, by means of physical force or a show of authority, restrains a citizen’s freedom of movement. United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.1997). Freedom of movement is restrained if, taking into account all of the circumstances surrounding the encounter, a reasonable innocent person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 553-54 , 100 S.Ct.…