FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. No. 5:15-CR-00160-F-1)
Jeffrey M. Byers, Assistant Federal Public Defender, Office
of the Federal Public Defender, Oklahoma City, Oklahoma,
appearing for Appellant.
Nicholas J. Patterson, Assistant United States Attorney (Mark
A. Yancey, United States Attorney, with him on the brief),
Office of the United States Attorney, Oklahoma City,
Oklahoma, appearing for Appellee.
HARTZ, MATHESON, and MORITZ, Circuit Judges.
MATHESON, CIRCUIT JUDGE.
Louis Roberson pled guilty to being a felon in possession in
violation of 18 U.S.C. § 922(g)(1). His plea was
conditioned on his ability to pursue this appeal of the
district court's denial of his motion to suppress
evidence of his firearm under the Fourth Amendment.
Roberson argued in district court and now on appeal that he
submitted to police officers' show of authority when they
shined bright lights on him and approached his car in a
parking lot. He contends that because he had immediately
submitted and was therefore seized at this point without
reasonable suspicion, the ensuing search of his car violated
the Fourth Amendment.
affirm the district court because, assuming the bright lights
and officers' approach amounted to a show of authority,
Mr. Roberson did not submit until later when the officers had
reasonable suspicion to seize him. Judge Hartz would affirm
because the police did not exercise a show of authority when
they shined the lights and approached the car. Judge Moritz
would reverse because the officers' actions amounted to a
show of authority and Mr. Roberson submitted before the
officers had reasonable suspicion to detain him.
on the foregoing, and exercising jurisdiction under 28 U.S.C.
§ 1291, the court affirms.
following facts are taken from evidence presented at the
suppression hearing. They are presented in the light most
favorable to the Government because the district court denied
Mr. Roberson's motion to suppress. United States v.
Moran, 503 F.3d 1135, 1139 (10th Cir. 2007).
10:15 p.m. on December 31, 2014, Mr. Roberson met a blind
date, Annette Byers, at Slick Willie's Pool Hall in
Oklahoma City. They met in Mr. Roberson's car, which he
had backed into a parking spot near the entrance of Slick
Willie's. Mr. Roberson and Ms. Byers talked for about
fifteen minutes and smoked a marijuana cigarette-Ms.
Byers's first. Due to the winter chill, Mr. Roberson left
the car running.
10:30 p.m., four marked Oklahoma City patrol cars drove into
the parking lot in "wolf-pack" technique by
entering from different corners of the lot. The officers were
not responding to a specific incident. They came instead
because Slick Willie's had asked for more frequent police
patrol due to problems with criminal activity. Among the
police were Sergeants Monte Stephens and Michael Anderson,
who entered through the southwest entrance of the parking
entering, Sergeants Stephens and Anderson stopped their
patrol car about 15 feet from the first occupied car they
saw-Mr. Roberson's car. The officers tried to make what
they called "voluntary contact" with Mr. Roberson
and Ms. Byers. Because the parking lot was dimly lit, they
shined spotlights and bright takedown lights on the
Sergeants Stephens and Anderson then exited their patrol car
and "resolutely" walked toward Mr. Roberson's
car from the front. ROA, Vol. I at 54.The officers'
patrol car did not block Mr. Roberson's car, but their
line of approach meant that Mr. Roberson would have hit the
officers had he tried to drive away.
soon as" the officers got out of their car or
"pretty simultaneously, " the officers saw Mr.
Roberson making "stuffing motions" underneath the
driver's seat. ROA, Vol. III at 17, 40. After seeing the
stuffing motions, the officers ordered Mr. Roberson and Ms.
Byers to show their hands. Ms. Byers complied, but Mr.
Roberson did not, and instead continued to make the stuffing
officers then drew their guns and once again commanded Mr.
Roberson to show his hands. Mr. Roberson still did not
comply. Only when Sergeant Stephens reached the driver's
side window-and after about three or four commands to show
his hands-did Mr. Roberson stop the stuffing motions, roll
down the window, and put his hands on the steering
wheel. The officers opened the door and smelled
marijuana. They later found a gun under the driver's
seat, where Mr. Roberson had been making his stuffing
motions, and a bag of marijuana in the center console.
district court's words, "[t]his all unfolded in a
big hurry." ROA, Vol. III at 104. According to Sergeant
Stephens, the time between the officers' exiting their
car and reaching the car's window was "a matter of
seconds. Probably ten, 15 seconds. Maybe a little bit more,
maybe 30 seconds tops." Id. at
August 4, 2015, a federal grand jury indicted Mr. Roberson in
the United States District Court for the Western District of
Oklahoma for possessing a firearm as a felon, in violation of
18 U.S.C. § 922(g)(1). Mr. Roberson moved to suppress
evidence of his firearm, arguing his seizure and arrest
violated the Fourth Amendment, thereby invalidating the
search for and recovery of the firearm. On September 24,
2015, the district court held an evidentiary hearing on the
suppression motion. Sergeant Stephens and Ms. Byers were the
December 3, 2015, the court issued a written order denying
the motion to suppress. The court held the officers did not
"seize" Mr. Roberson within the meaning of the
Fourth Amendment until after they had developed reasonable
suspicion based on Mr. Roberson's furtive stuffing
motions. The arrest and search were therefore valid.
the court's order, Mr. Roberson pled guilty conditioned
on his ability to appeal the denial of the suppression
motion. On May 16, 2016, the court sentenced Mr. Roberson to
80 months in prison and three years of supervised release.
appeal, Mr. Roberson challenges the district court's
order holding the officers did not violate his Fourth
Amendment rights. This court should affirm the district
court's denial of Mr. Roberson's motion to suppress
because Mr. Roberson did not submit to the officers'
initial show of authority and therefore was not seized at
that time. When the officers later seized Mr. Roberson, they
had reasonable suspicion to do so.
Standard of Review
reviewing the denial of a motion to suppress, we accept the
district court's factual findings and determinations of
witness credibility unless they are clearly erroneous."
Moran, 503 F.3d at 1139 (quotations omitted). But
"the ultimate issue of whether a seizure occurred is a
question of law, which we review de novo."
United States v. Guerrero, 472 F.3d 784, 786 (10th
Cir. 2007). We also review de novo the question of when a
seizure occurred. United States v. Salazar, 609 F.3d
1059, 1064 (10th Cir. 2010).
Fourth Amendment and Seizure
Fourth Amendment guarantees "[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." U.S. Const.
amend. IV. A seizure must be "justified at its
inception" to comply with the Fourth Amendment.
United States v. Mosley, 743 F.3d 1317, 1326 (10th
Cir. 2014) (quoting Terry v. Ohio, 392 U.S. 1, 20
(1968)). Mr. Roberson argues he was seized before the
officers had reasonable suspicion to do so in violation of
the Fourth Amendment.
Amendment law recognizes three types of police-citizen
encounters: (1) consensual encounters; (2) investigative
detentions; and (3) arrests. Both detentions and arrests are
seizures. Police must have reasonable suspicion of criminal
activity for a detention and probable cause that a crime has
been committed for an arrest. See United States v.
Hernandez, 846 F.3d 1247, 1271-72 (10th Cir. 2017).
police officer may seize someone either by physical force or
a show of authority. Salazar, 609 F.3d at 1064
(quoting Terry, 392 U.S. at 19 n.16). As in this
case, "[w]hen an officer does not apply physical force
to restrain a subject, a Fourth Amendment seizure occurs only
if (a) the officer shows his authority; and (b) the citizen
'submits to the assertion of authority.'"
Id. (brackets omitted) (quoting California v.
Hodari D., 499 U.S. 621, 626 (1991)). Because the
ensuing analysis relies on whether Mr. Roberson submitted to
an assertion of authority, additional legal background on
that element follows.
Submission to Authority
of authority alone is not a seizure "without actual
submission." Brendlin v. California, 551 U.S.
249, 254 (2007). Actual submission depends on "the view
of a reasonable law enforcement officer" under "the
totality of the circumstances." Salazar, 609
F.3d at 1064-65 (quotations omitted). Submission
"requires, at minimum, that a suspect manifest
compliance with police orders." Mosley, 743
F.3d at 1326 (quotations omitted).
Brendlin, the Supreme Court considered whether a
car's passenger, and not just the driver, was seized
during a traffic stop. 551 U.S. at 251. The Court determined
the passenger submitted to the officers' show of
authority (flashing lights directing the car to pull over) by
staying inside the car. Id. at 260, 262. The Court
reasoned that the passenger "had no effective way to
signal submission while the car was still moving on the
roadway, but once it came to a stop he could, and apparently
did, submit by staying inside." Id. at 262.
and applying Brendlin, among other Supreme Court and
Tenth Circuit cases, we considered in Mosley
whether, from a reasonable officer's perspective, an
individual's momentary hesitation before making furtive
motions constituted submission to a show of authority. 743
F.3d at 1324, 1327. We held that it did not. Id. at
1327. The police in Mosley received an anonymous tip
that two people were handling a gun in a car in a Denny's
parking lot. Id. at 1321. Two officers responded and
approached the car from the side with weapons drawn.
Id. Catching the car's occupants off guard, the
officers-with weapons raised-shouted for the occupants to put
their hands up. Id. The driver complied, but the
passenger- the defendant-did not. Id. The defendant
"hesitated briefly" and then "quickly began
making furtive motions [that] . . . were consistent with
trying to either hide or retrieve a weapon."
Id. The defendant ignored repeated commands to put
his hands up but eventually complied. Id. When the
defendant disobeyed commands to exit the car, an officer
pulled him out, handcuffed him, and took him into custody.
Id. at 1321-22.
district court denied the defendant's motion to suppress,
and we affirmed. Id. at 1321. Although the
officers' actions amounted to a show of authority, we
held the defendant was not seized until he complied with
their commands to put his hands up. Id. at 1327. The
defendant did not "immediately manifest compliance with
[the officers'] orders" when he "froze
momentarily" before making his stuffing motions.
Id. We acknowledged "a reasonable officer
shouting 'hands up' likely would have viewed [the
defendant] as 'seized' had [he] simply sat still in
the car without making furtive motions."
Id. But the defendant's furtive motions,
consistent with hiding or retrieving a gun, did not manifest
submission, and instead were "directly contrary to the
officers' commands." Id. Under the totality
of the circumstances, a reasonable law enforcement officer
would not view the defendant as submitting until he complied
with the officers' orders to put his hands up.
relied in part on our decision in Salazar, which
addressed whether a brief hesitation amounted to submission.
Id. at 1326 (discussing Salazar, 609 F.3d
at 1067). In Salazar, a police officer saw a pickup
truck entering a parking lot and drove his patrol car toward
the pickup. 609 F.3d at 1061-62. The pickup driver turned on
the truck's headlights and drove toward the patrol car.
Id. at 1062. The officer turned on his emergency
lights. Id. The pickup driver continued to drive
toward the patrol car, stopped, shifted to reverse, and then
backed up for 20 seconds. Id. The pickup truck
"momentarily stopped" and then drove forward around
the driver's side of the patrol car. Id. When
the truck moved past the patrol car, the officer got out of
the car, drew his firearm, and ordered the defendant to stop
and get out. Id. The defendant complied.
appeal, relying on our precedent and Supreme Court cases,
including Brendlin, we held there was no submission
to the officer's show of authority until the defendant
complied with the officer's command to exit his truck.
Id. at 1064, 1067. We said a reasonable officer
would not have viewed the defendant's "momentary
stop" (or "fleeting pause") after his 20
seconds of backing up as a submission to authority.
Id. at 1068.
also relied on United States v. Johnson, 212 F.3d
1313 (D.C. Cir. 2000), which we stated was "virtually
indistinguishable." Mosley, 743 F.3d at 1327.
In Johnson, officers patrolling in a "high
narcotics area" saw two people in a parked car in a
parking lot. 212 F.3d at 1314. One officer saw the defendant
make a "'shoving down' motion, leading him to
believe that [the defendant] might be armed."
Id. at 1315. The officer drew his gun and shouted,
"Let me see your hands." Id. The defendant
"did not immediately comply but rather made 'a
couple of more shoving motions down' before raising his
hands." Id. The officer then searched the
defendant and found cocaine on him. Id.
D.C. Circuit held that a seizure did not take place
"immediately after [the defendant's] first
'shoving down' motion, " as the defendant had
not yet submitted to the officer's show of authority.
Id. at 1316. "On the contrary, [the defendant]
continued to make 'shoving down' motions, gestures
that were the very opposite of complying with [the
officer's] order, and which a reasonable officer could
have thought were actually suggestive of hiding (or
retrieving) a gun." Id. at 1316-17. The court
held that those "continued furtive gestures in response
to being confronted by a police officer" created
reasonable suspicion to stop the defendant. Id. at
1317. Because reasonable suspicion supported the stop, the
following frisk and discovery of the cocaine was proper.
Roberson ultimately was seized. Sergeants Stephens and
Anderson first detained him based on reasonable suspicion and
then arrested him based on probable cause. They next searched
his car and found the firearm under the driver's seat.
critical question for resolution of this appeal is when Mr.
Roberson was seized. The timing of the seizure matters because
the firearm evidence must be suppressed if he were seized
before the officers developed reasonable suspicion.
Mosley, 743 F.3d at 1326. As noted above, the
seizure question here turns on a show of authority/submission
to authority analysis.
resolve this appeal, I assume the officers' initial
conduct-shining bright lights on Mr. Roberson's car and
walking toward the car-was a show of authority, which
escalated when the officers commanded Mr. Roberson to put his
hands on the steering wheel. The question is whether, based
on the nature of the show of authority, Mr. Roberson
submitted to that initial show of authority. He did not.
Instead, he submitted and was seized only later when he put
his hands on the steering wheel in compliance with the
officers' commands. This was the first moment a
reasonable officer would think Mr. Roberson had submitted.
The officers already had reasonable suspicion before this
following discussion focuses on (1) three key parts of what
happened, (2) three aspects of Mosley, and (3) two
main points that structure the analysis.
this episode included three key parts (as discussed below,
parts #1 and #2 ...