United States v. Mosley, 2014 U.S. App. LEXIS 3901

Defendant Jermaine Mosley pled guilty conditionally to felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and appeals the denial of his motion to suppress the gun found under a car seat.
Police responded to a 911 tip—anonymous to officers—about two black males handling a gun in a Denny’s parking lot; only vehicle in lot was a black Ford Focus.
Officers approached with weapons drawn, surrounding the car and shouting “Hands up,” prompting defendant to briefly hesitate and make furtive motions.
Defendant was pulled from the car and handcuffed; another officer later found a Ruger 9mm handgun under the passenger’s seat, despite no officer having observed the gun before the search.
District court held: (a) seizure occurred when officers surrounded the car and shouted commands (Terry stop), (b) reasonable suspicion supported the stop, and (c) suppression was denied; Mosley argues lack of standing, excessive force, and tip/totality of circumstances fail to justify seizure.

Issue	Plaintiff's Argument	Defendant's Argument	Held
When did the seizure occur for Fourth Amendment purposes?	Mosley	Gov't asserted seizure when hands were raised; Mosley says earlier or later	Seizure occurred when defendant submitted by putting hands up; prior show of authority did not seize him.
Does Mosley have standing to challenge the vehicle search?	Mosley	Mosley lacks vehicle possessory interest but may challenge detention’s fruits	Mosley lacks stand to challenge the vehicle search directly but may challenge seizure as fruit of detention.
Was the initial seizure valid under Terry, given the totality of circumstances?	Mosley	Anonymous tip and late-night high-crime area justify stop; furtive motions undermined submission	Yes; reasonable suspicion existed to justify a Terry stop given the circumstances.
Did the force used convert the stop into an unlawful de facto arrest?	Mosley	Initial force appropriate for officer safety	Force.Viewed objectively, did not convert into a de facto arrest; continued detention was permissible under Terry.

Brendlin v. California, 551 U.S. 249 (2007) (seizure occurs when citizen submits to authority; not merely show of authority)
Hodari D., 499 U.S. 621 (1991) (submission required to seize; no seizure without submission or touching)
Salazar, 609 F.3d 1059 (10th Cir. 2010) (submission-to-authority standard; totality of circumstances)
DeLuca, 269 F.3d 1128 (10th Cir. 2001) (standing to contest detention, fruit-of-the-detention nexus required)
Johnson, 212 F.3d 1313 (D.C. Cir. 2000) (furtive gestures can establish reasonable suspicion; seizure when submission occurs)
Perdue, 8 F.3d 1455 (10th Cir. 1993) (guns for officer safety can justify a Terry stop with weapons drawn)
Arvizu, 534 U.S. 266 (2002) (reasonable suspicion standard for investigatory stops)
Atwater, 532 U.S. 318 (2001) (arrest permissible with probable cause for minor offense; not Fourth Amendment violation)
Graham v. Connor, 490 U.S. 386 (1989) (reasonableness balancing of force used)
Salazar, 609 F.3d 1059 (10th Cir. 2010) (see above)