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United States v. Roberson

United States Court of Appeals, Tenth Circuit

July 25, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
LOUIS ROBERSON, Defendant-Appellant.

         APPEAL 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.

          Before HARTZ, MATHESON, and MORITZ, Circuit Judges.

          MATHESON, CIRCUIT JUDGE.

         Appellant-Defendant 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.

         Mr. 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.

         I would 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.

         Based on the foregoing, and exercising jurisdiction under 28 U.S.C. § 1291, the court affirms.

         I. BACKGROUND

         The 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).

          A. Factual Background

         Around 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.

         At 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 lot.

         Upon 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 car.[1] 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.[2]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.[3]

         "As 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 motions.

         The 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.[4] 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.

         In the 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 50.[5]

         B. Procedural Background

         On 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 only witnesses.

         On 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.

         After 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.

         II. DISCUSSION

         On 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.

         A. Standard of Review

         "When 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).

         B. Legal Standards

         1. The Fourth Amendment and Seizure

         The 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.

         Fourth 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).

         A 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.

         2. Submission to Authority

         A show 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).

         In 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.

         Interpreting 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.

         The 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.[6] 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. Id.[7]

         Mosley 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. Id.

         On 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.[8]

         Mosley 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.

         The 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. Id.

         C. Analysis

         Mr. 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.

         The critical question for resolution of this appeal is when Mr. Roberson was seized.[9] 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.

         To 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.[10] 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 happened.

         1. Analytical Considerations

         The 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.

         First, this episode included three key parts (as discussed below, parts #1 and #2 ...


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