dissenting.
The majority granted review of a memorandum decision of the court of appeals without a response from the state. It then decides the merits of the case without briefs and without oral argument. This practice, which has led us to error in the past, see, e.g., State v. Korzuch, 920 P.2d 312 (1996), leads us into error today.1 There was no Fourth Amendment violation. I would dismiss the petition as having been improvidently granted.
1. The Fourth Amendment does not require that police encounters with citizens be consensual. “No seizure occurs when police ask questions of an individual, ask to examine the individual’s identification, and request consent to search.” Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991). A seizure occurs only when the police “convey a message that compliance with their request is required,” id., “by means of physical force or show of authority.” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (citation omitted). Just asking someone for proof of who they are does not amount to a seizure under the Fourth Amendment. See Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984). Indeed, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the seminal case in the stop and frisk area, the police first asked the defendants their names. When they mumbled unintelligibly back, the police physically restrained Terry. The Supreme Court held that Terry had not been seized until the police had taken hold of him and patted down his clothing. Id. at 19, 88 S.Ct. at 1879.
In this case, the police did not even get to ask Rogers if he would talk to them because he fled immediately after they identified themselves as police. The majority concludes that there was a seizure because a reasonable person would not have felt free to ignore the police officer’s statement that “we need to talk to you.” But that is not the relevant inquiry. A seizure occurs, as the majority notes, ante, at 510, 924 P.2d at 1029, only when a suspect reasonably believes that his or her freedom is being restricted. But there is no evidence in this case to suggest that the defendant’s freedom was being restricted. If the defendant did not want to talk to the police, he could have told them so and walked away. As the court of appeals noted, even if a person does not feel free to walk away, that subjective belief cannot be sufficient to constitute a seizure or else “given the air of authority which naturally accompanies the presence of police, virtually every encounter between police and citizens, no matter how innocent, would constitute a seizure requiring suspicion of criminal activity.” State v. Rogers, 2 CA-CR 94-0584, mem. dec. at 4 (App. Aug. 15, 1995).
2. Additionally, Rogers was not seized because he never submitted to the police. The majority acknowledges that California v. Ho-dari D., 499 U.S. 621, 111 S.Ct. 1547, 113 *514L.Ed.2d 690 (1991), requires that “absent physical force, an individual must yield to a show of authority for a seizure to occur.” Ante, at 511, 924 P.2d at 1030. But there was no yielding here. Instead, Rogers criticized the police for hassling him, and then ran. There was thus no seizure. Compare what Rogers did to what his companion did. He did not run, answered the police’s questions, and as far as the record indicates, was not arrested. In short, Rogers was his own worst enemy.
3. But even had there been a seizure, there was abandonment here. The majority states that the court of appeals should not have reached the abandonment question. I disagree. This record contains all the evidence that could have been presented on this issue. Property is abandoned when the defendant has “voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question.” State v. Walker, 119 Ariz. 121, 126, 579 P.2d 1091, 1096 (1978) (citation omitted). Rogers put his hand in his pocket when the police approached him. As he ran, the police told him not to dump whatever was in his pocket. The police lost sight of the lower half of his body. They searched Rogers and the house and found nothing. But they found a baggy containing cocaine in the area where they lost sight of him. This evidence is sufficient to support a finding that Rogers abandoned the cocaine and, of course, one who has abandoned property cannot complain of a search or seizure. State v. Walker, 119 Ariz. at 126, 579 P.2d at 1096.
4. The police were making a traffic stop at 10:20 in the evening, when two men came out from some bushes and walked down the middle of the street. This conduct would have aroused anybody’s reasonable suspicion. The police could have stopped and cited them for violating AR.S. § 28-796 (pedestrians on roadways), but did not. Instead, they just said “we need to talk to you.” That is not a seizure. I respectfully dissent.
. Deciding the merits of a case at the same time one decides whether to grant review is a risky practice. This is especially true where all you have is the petition for review and briefs filed in the court of appeals. Those briefs address all issues raised on direct appeal. In most cases, the issue upon which review is granted may be just one of many raised in those briefs. There is thus no intense focus on the issue presented. To avoid this problem, counsel should seek leave to file a brief in this court and request oral argument within 15 days after the clerk mails notice of the court’s order granting review. See Rule 31.19(f), Ariz. R.Crim. P., and Rule 23(f), Ariz. R. Civ.App. P.