Lead Opinion
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,
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.
“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.
In the district court’s words, “ftjhis 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,
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
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,
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,
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,
A police officer may seize someone either by physical force or a show of authority. Salazar,
2. Submission to Authority
A show of authority alone is not a seizure “without actual submission.” Brend
In Brendlin, the Supreme Court considered whether a car’s passenger, and not just the driver, was seized during a traffic stop.
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.
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.
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.
Mosley also relied on United States v. Johnson,
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)
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.
To resolve this appeal, I assume the officers’ initial conduct—shining bright lights on Mr. Roberson’s car and walking toward the ear—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.
I. 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 happened “pretty simultaneously”):
#1: The officers’ shining the lights, exiting their car, and approaching Mr. Roberson’s ear.
#2: Mr. Roberson’s furtive stuffing motions.
#3: Mr. Roberson’s compliance with the officers’ orders to show his hands.
The Government does not contest the district court’s determination that the officers lacked reasonable suspicion at #1. Mr. Roberson, in turn, does not dispute the court’s conclusion that the officers had reasonable suspicion to seize Mr. Roberson at #2 when he made his furtive stuffing motions.
Second, three aspects of Mosley are especially relevant. First, both here and in Mosley, in .response to law enforcement’s show of authority, the defendants made furtive motions that were directly contrary to submission. Second, in Mosley, the defendant briefly hesitated before making furtive motions, whereas Mr. Roberson did not hesitate. Third, in both cases, the defendants' did not manifest submission until they complied with the officers’ orders to show their hands.
Third, two main points frame the following application of law to the facts. First, when viewed in the light most favorable to the Government, the evidence here is at least as strong to affirm as in Mosley. Second, whether and when an individual submits to a. show of authority turns on the perception of a reasonable officer, not that of the individual. Salazar,
2. Application
First, viewed in the light most favorable to- the Government, Moran,
Mr. Roberson’s argument that he submitted and was seized “immediately” at #1 by not attempting to run or drive away, Aplt. Br. at 23, is contrary to the record, which shows there was no timé gap between the show of authority at #1 and his furtive motions at #2 to signal his submission to the officers. Mr, Roberson therefore was not seized “immediately” as he contends.
Second, although Mr, Roberson or a reasonable person in his position may have believed he was submitting to the police “immediately” at #1, our precedent makes clear that it is the reasonable officer’s perspective that counts in analyzing whether Mr. Roberson submitted. See Salazar,
Commensurate with the officers’ initial show of authority consisting of the bright lights and approaching the car, Mr. Roberson could have attempted to run or drive away to manifest his lack of submission.
In Mosley, we recognized that furtive motions in response to officers’ show of authority reflect lack of submission. See
⅜ $ ⅜ ⅜
The foregoing analysis comports with Mosley, where we held that a brief hesitation before engaging in furtive motions would not have signaled submission to a reasonable officer. See Mosley,
3. The Dissent
The following responds to the dissent’s remaining arguments.
First, the dissent argues the foregoing analysis “disregards Brendlin’s guidance” that, “depending] on what a person was doing before the show of authority,” “an individual can submit to a show of authority through passive acquiescence.” Dissent at 1139 (quoting Brendlin,
Quoting Brendlin that “passive acquiescence” can consist of remaining seated inside a car, Brendlin,
Although the dissent criticizes this opinion’s use of Solazaos “reasonable officer” test and “question[s]” our court’s “basis for adopting such a test,” see Dissent at 1140-41, it agrees that Salazar binds this court, id. at 1140. The dissent’s actual quarrel seems more with our circuit’s precedent, not how this opinion follows it.
Second, the dissent argues this opinion “overlooks a critical distinction between the show of force here and the show of force in Mosley,” id. at 1141, but its argument is not well-grounded.
The dissent first notes that Mr. Mosley was caught by surprise when the officers approached, id. at 1140-41 (citing Mosley,
The dissent second observes that the officers in Mosley explicitly and immediately commanded Mr. Mosley to show his hands, whereas the officers here commanded Mr. Roberson to show his hands only after he started his stuffing motions. Dissent at 1140-41. The officers’ initial command to Mr. Roberson, in the dissent’s view, was an “implicit” one to “stay put.” Id. at 1141. But any difference in the nature of the officers’ commands does not materially distinguish Mosley. The critical feature in both cases is that neither Mr. Mosley nor Mr. Roberson complied with those commands. Instead, they reacted by engaging in furtive stuffing motions that, from a reasonable officer’s perspective, evinced noncompliance with the officers’ commands. Because the defendants’ reactions to. the officers’ commands were the same, Mosley is analogous for the purpose of analyzing whether Mr. Roberson submitted.
III. CONCLUSION
'With Judge Hartz’s concurrence and this opinion, a majority of this panel affirms the district court’s order denying Mr. Roberson’s motion to suppress.
Notes
. Takedown lights are bright lights that allow police officers to see persons and objects illuminated by the lights and make it difficult for persons to see the officers.
. At the suppression hearing, Sergeant Ste
. In district court, the parties disputed the location of the patrol car and whether it had blocked in Mr. Roberson's car. The court credited Sergeant Stephens's testimony over Ms. Byers’s, finding the patrol car had not blocked the car. The court's factual finding regarding the position of the patrol car and its credibility assessment of Ms, Byers were not clearly erroneous. See United States v. Jarvison,
. The district court noted Ms. Byers's testimony that the first thing she remembered seeing after the officers shined their lights was Mr, Roberson sitting with his hands on the wheel. The court stated this may not have been inconsistent with Sergeant Stephens's testimony that Mr. Roberson made stuffing motions before putting his hands on the wheel because "she didn’t really look at [Mr. Roberson] until she saw the [officers’] guns.” ROA, Vol. III at 103; see also id, at 77 (Ms, Byers’s testimony supporting that, finding). To the extent the testimony conflicted, the court discounted Ms. Byers’s testimony because her first experience with marijuana, the bright lights, the guns, and the new setting may have affected her perception or memory. The court’s finding that Mr. Roberson did not put his hands on the steering wheel until after maldng the furtive motions was not clearly erroneous. Jarvison,
.The court found that the time between the officers’ exiting their car and smelling marijuana was as little as eight to ten seconds. The court’s finding that the timing was as little as eight seconds is not supported by the record. But its finding that it was as little as ten is supported by Sergeant Stephens's testimony and is therefore not clearly erroneous.
. We said nothing, however, about how long he would have had to sit “still” to constitute an objective submission from a reasonable officer's viewpoint.
. We stated that, unlike Brendlin, where the passenger defendant had no effective way to signal submission before the car was stopped, in Mosley.
the car was already parked when the officers arrived, and [the defendant had an effective way to signal submission—putting his hands up in compliance with the officer’s orders or, at the very least, remaining still without making furtive motions—but he did not do so.
. In reaching this conclusion, we distinguished United States v. Morgan,
The Sixth Circuit distinguished Morgan on similar grounds when it assessed whether a "momentary pause” without a conversation constituted submission to authority. United States v. Jeter,
Other circuits have not taken Morgan’s approach and instead have held that a momentary hesitation and a brief conversation did not amount to submission. See e.g., United States v. Smith,
.In his opening brief, Mr, Roberson contends he was seized not only by submitting to a show of authority but also-by'physical force when the officers shined their lights and approached his car. But we have generally required physical touching for a seizure to occur through physical force, Brooks v. Gaenzle,
.The dissent mistakenly equates the opinion's assuming there was a show of authority with ignoring its, nature. See Dissent at 1135. But the analysis here considers how the officers showed their authority and how Mr. Roberson responded.
. Although' Mr. Roberson argues there was no reasonable suspicion from the "onset” of the encounter, Aplt. Br, at 11, he does not challenge the district court's determination that the officers developed reasonable suspicion when Mr. Roberson made his stuffing motions after the officers confronted him.
. Mr. Roberson's attempts to distinguish Mosley are unavailing. For example, Mr. Roberson points out that the officers in Mosley were responding to an anonymous tip, id. at 1321, whereas the officers here had no such tip and were instead conducting a general patrol of Slick Willie’s. But the fact of the anonymous tip did not affect Mosley’s analysis as to whether the defendant submitted. It was instead a fact relevant to whether there was reasonable suspicion to seize the defendant at the time of his submission.
. The dissent notes that in Brendlin, the passenger submitted despite "briefly opening] and then closing] the passenger door” rather than "remaining] frozen in place.” Dissent at 1141-42 n.4 (citing Brendlin,
. The dissent posits the Supreme Court's "Mendenhall/Bostick test” “says nothing about analyzing submission from a reasonable officer’s view,” Dissent at 1140 (referring to United States v. Mendenhall,
Whatever merit there may be to the dissent’s critique of Tenth Circuit precedent, we must follow it “absent en banc reconsideration or a superseding contrary decision by the Supreme Court.” Barnes v. United States,
.The district court found that, apart from Sergeants Stephens and Anderson’s car, "[t]here [was] no basis in the evidence for a finding that the other squad cars that pulled into other parts of the parking lot contributed ... to the defendant’s perception of his situation.” ROA, Vol. I at 51 n.3. The dissent regards this finding as a legal conclusion. Dissent at 1136. The district court did not think so, and neither do I.
I disagree with the dissent that, if the finding was factual, it was clearly erroneous. Id. at 1137 n.l. The dissent points to Ms. Byers’s testimony that she saw other patrol cars arrive after the first patrol car with bright lights appeared. Dissent at 1137 n.1 (citing ROA, Vol. III at 107-08). But the dissent overlooks Ms. Byers’s further testimony that the "first car” she saw was the one with "the bright lights on,” ROA, Vol. III at 63 & 65, and that she "didn’t see the [other officers] in the back until [she] was detained,” which occurred when Mr. Roberson had already submitted by putting his hands on the steering wheel, id. at 66-67. Viewing her testimony in the light most favorable to the Government, as we must, the court’s finding was not clearly erroneous.
. Ms, Byers's and Sergeant Stephens’s testimony cuts against the dissent’s assertions that Mr. Roberson was not startled and perceived the police presence before they shined their lights. See ROA, Vol. III at 76 (Ms. Byers testifying that her attention was "first” drawn to the officers' spotlight that caught her by "surprise[ ]”); id. at 35 (Sergeant Stephens testifying that, from his perspective, Mr. Roberson was "startled’’ by-the officers). There was no contrary testimony.
. Although Sergeant Stephens testified that the timeframe may have been "30 seconds tops," he testified Aat it was ”[p]robably” 10 or 15 seconds. ROA, Vol. III at 50. The evidence viewed in the light most favorable to the Government is Aat Ae timeframe was only 10 to 15 seconds.
Concurrence Opinion
concurring:
At 10:30 p.m. on New Year’s Eve, six officers of the Oklahoma City Police Gang Enforcement Unit, traveling in four patrol cars, converged on the parking lot of Slick Willie’s Pool Hall. At the request of Slick Willie’s, officers often patrolled the parking lot, particularly on weekends, because of problems there with assaults and fights. There had been a shooting there in early September. In the words of the district court, Slick Willie’s was “beyond any question ... a place that is-very productive of criminal activity [,] ... a place where arrests take place [,] ... a place where narcotics, are dealt ” and “a high-crime location.... that is frequently in need of law enforcement attention.” R., Vol. 3 at 101 (Transcript).
There were four entrances to the parking lot. Officer Monte Stephens, accompanied by Sergeant Michael Anderson, drove his patrol car through the southwest entrance to check out that part of the parking lot while the other officers checked elsewhere. They promptly saw a Chrysler 300 with two occupants in the front seats. Because the lot was not well lit, Officer
In my view, this conduct by the two officers did not constitute a seizure of Defendant. Nothing they did amounted to.an assertion of authority, directing the occupants of the vehicle that they could not depart. There was no forcible restraint, no threat or command, no drawing of a weapon, and no activation of emergency lights. They merely took prudent steps to safely initiate a consensual investigation. If the officers’ actions had to be supported by reasonable suspicion or probable cause, it is hard to see how the police can conduct patrols involving consensual conversations in high-risk areas.
Supreme Court precedent does not support the conclusion that Defendant was seized before the officers arrived at his car. A brief review of the Court’s doctrine will put this case in context.
The Supreme Court first declared in Terry v. Ohio,
This feel-free-to-leave standard has now been adopted by the Court to resolve whether a seizure occurs when police actions “do not show an unambiguous attempt to restrain or when an individual’s submission to a show of governmental authority takes the form of passive acquiescence.” Brendlin v. California,
It is hardly obvious, however, how to determine whether a reasonable innocent person would feel free to leave or to decline a request. For a variety of reasons, most people will not “feel” free to leave or refuse a request when confronted by a police officer. After all, “ ‘[implicit in the introduction of the officer and the initial questioning is a show of authority to which the average person encountered will feel obliged to stop and respond.’ ” LaFave, 4 Search and Seizure § 9.4(a) (5th ed.) (original brackets omitted) (quoting Illinois Migrant Council v. Pilliod,
In some circumstances it is obvious that officers, without uttering any words, are exercising their authority—ordering compliance from civilians. It should be no surprise that the Supreme Court has held that use of a roadblock or emergency lights ordinarily constitutes a seizure. See, e.g., Brower v. County of Inyo,
On the other hand, “[Supreme Court] cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Bostick,
While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in the detention under the Fourth Amendment.
I.N.S. v. Delgado,
First, as the respondents explained, the surveys were carried out by surprise by relatively large numbers of agents, generally from 15 to 25, who moved systematically through the rows of workers who were seated at their work stations. Second, as the INS agents discovered persons whom they suspected of being illegal aliens, they would handcuff these persons and lead them away to waiting vans outside the factory. Third, all of the factory exits were conspicuously guarded by INS agents, stationed there to prevent anyone from leaving while the survey was being conducted. Finally, as the INS agents moved through the rows of workers, they would show then-badges and direct pointed questions at the workers.
Id. at 230,
In Michigan v. Chesternut,
A third informative opinion is United States, v. Drayton,
The common thread in these cases is that a reasonable person would not feel coerced when officers are simply engaging in reasonable actions to conduct a consensual encounter. The operation may require multiple officers so that they can safely engage with what may be a number of people (as in Delgado and Drayton) and they may even stand at exits so they can be sure that they have the chance to address everyone present (again, as in Delgado and Drayton), But if the officers are not taking actions inconsistent with seeking a, consensual encounter—such as using a siren or emergency lights, brandishing weapons, or speaking peremptorily—a reasonable person would feel free to refuse to cooperate.
Justice Stewart offered a few factors supporting the finding of a seizure in his opinion in Mendenhall,
What is the context here? Six officers were patrolling at night a dimly lit location known for violence and criminal activity. Their number was prudent, given the safety risk and the advantages of being able to approach several persons across a sizable parking lot at the same time. They used their lights to illuminate the interiors of vehicles so that they could see whether the vehicles were occupied and, if so, what was going on. When they saw someone, they approached in pairs. They did not turn on their emergency lights, brandish weapons, establish a checkpoint, or issue orders. If there' is a less “intrusive” way to safely and effectively patrol such an area and conduct consensual interviews, it is not apparent to me. If reasonable suspicion is necessary to conduct such an operation, then officers could' likely patrol such a location only after a reliable report of a criminal offense.
Considered in that light, the reasonable person contemplated by Supreme Court precedent would understand that the police were not compelling anyone to do anything. The person would not feel coerced by the police activity and “would feel free to decline the officers’ requests or otherwise terminate the encounter.” Brendlin,
As already noted, the mere presence of multiple officers is not in' itself coercive, and in any event here the district 'court found that Defendant was hot aware of the presence of any officers other than Officer Stephens and Sergeant Anderson. See R. at 51 n.3 (“There is no basis in the evidence for finding that the other squad cars that pulled into other parts of the parking lot contributed, in any way that is significant for present purposes, to the defendant’s perception of his situation [.] ”),
Further, as we have held, there is no seizure when an officer merely approaches a person seated in a vehicle to ask what he is doing and requests a driver’s license. See United States v. Madden,
The use of a floodlight to illuminate the vehicle, as opposed to turning on emergency lights, also was not coercive. Other circuits have agreed that shining a light into a vehicle does not transform a consensual
Finally, the approach of the officers toward the front of Defendant’s car was not coercive. To begin with, it is not clear that it was possible for the officers to approach from any other direction—Defendant had parked the car so that it was blocked on all other sides. The officers’ “resolute[]” approach, R. at 54, signaled no more than that they wished to talk with Defendant. In ordinary social intercourse, one typically approaches another person head on when initiating a conversation. Doing so does not signal that you will not give way if the other person so requests. The officers’ walking toward the front of Defendant’s vehicle is less coercive than the guarding of the factory exits by immigration agents in Delgado or the officer’s standing in the aisle while questioning bus passengers in Drayton.
I would hold that under the Supreme Court’s reasonable-person approach, there was no seizure during the officers’ initial approach to Defendant’s car. Their routine actions in pursuit of consensual conversations, taken separately or as a whole, did not convey that they were directing (coercing) Defendant into remaining where he was and engaging in conversation with them. By the time the officers drew their weapons, they had reasonable suspicion to support their action. Therefore, I concur in the affirmance of the district court.
Dissenting Opinion
dissenting:
I agree with the lead opinion that this case turns on the timing of Roberson’s seizure. And I agree that the timing of Roberson’s seizure turns on the timing of his submission. But I disagree with the lead opinion’s conclusion that Roberson didn’t submit—and that the officers therefore didn’t seize him—until he put his hands on his steering wheel. Instead, I would hold that the officers seized Roberson within the first few seconds after the Gang Enforcement Unit, rolling four patrol cars and six officers deep, converged on Slick Willie’s parking lot.
After parking their patrol car directly in front of Roberson’s car, two of those four officers immediately “lit [his car] up with” disorienting takedown lights and spotlights, R. vol. 3, 16, and aggressively approached his car in a manner that blocked his exit path. Rather than fleeing in response to this forceful police presence, Roberson submitted to it by remaining seated in his parked car. In my view, at that point, Roberson was seized. And because, at that point, the officers admittedly had no suspicion—let alone reasonable suspicion—that Roberson was engaged in criminal activity, I would reverse and remand with directions to suppress the evidence obtained through his unlawful seizure.
The lead opinion is correct that the timing of Roberson’s seizure turns on the timing of his submission. Lead Op. 1123—24; see Brendlin v. California,
Determining the nature of the show of authority is a critical step in determining when Roberson submitted. Brendlin,
A
A show of authority occurs when an officer’s words and actions would convey to a reasonable person that the officer is ordering the individual to restrict his or her movements. California v. Hodari D.,
Under either of these formulations, we consider various factors—e.g., the location of the encounter, the number of officers involved, the nature of the officers’ commands, the activation of sirens or lights, and the officers’ attire and display of weapons—to measure the coercive effect of the encounter. See United States v. Hernandez,
Here, the record amply demonstrates the officers’ initial actions would have conveyed to a reasonable person in Roberson’s situation that he wasn’t free to leave or otherwise terminate the encounter. The Gang Enforcement Unit—six officers in four marked Oklahoma City patrol cars— converged in a “wolf-pack” technique on Slick Willie’s parking lot. R. vol. 3, 101.
The. district court concluded otherwise. But in doing so, it misapplied two basic Fourth Amendment principles. The district court stated that it found “no basis in the evidence for a finding that the other squad cars that pulled into other parts of the parking lot contributed, in any way that is significant for present purposes, to the defendant’s perception of his situation.” R. vol. 1, 51 n.3. My colleagues treat this as a factual finding and accept it. See Lead Op. 1127-28 & n.15; Concurring Op. 1128-29; see also United States v. Moran,
But I view the district court’s refusal to consider the presence of the other patrol cars as a legal conclusion, and an erroneous one at that. Critically, the district court announced its factual findings at the end of the suppression hearing and, before doing so, advised both parties that they would “be stuck with [those] facts.”. R. vol. 3, 99. The court then found that “several officers arrived in separate cars,” that “there [were] a total of four cars that had a total of six officers in them,” and that the officers employed a “wolf-pack sort of technique.” R. vol. 3, 101. And the court found credible Annette Byers’ testimony that “[a]nother police car approached from the east” after the patrol car . with “bright lights appeared and pulled up near the front of [Roberson’s] , car.” Id. at 107-08. In fact, Byers testified that “possibly three police officers pulled up in different, cars,” and that after the first car with lights parked in front of Roberson’s car, a second ear parked “[c]loser to the white car”—i.e., Roberson’s car. Id. at 61, 64. Byers later reiterated that two patrol cars were “parked in front” of Roberson’s car. Id. at 71. The court also found Sergeant Stephens’ “account of the matter ,.. credible.” Id. at 109, And while Stephens testified that he didn’t remember the location of the other officers’ patrol cars, he also testified that it was “possible” Lieutenant Anderson (not.Sergeant Anderson) “would have driven his vehicle, around to ... meet” Stephens’ patrol car. Id. at 37.
By stating in its subsequent written order that.the presence of multiple patrol cars didn’t contribute “significantly” to Roberson’s perception of the situation, R. vol. 1, 51 n.3, the district court misapplied Fourth Amendment principles. First, by considering only the actions of two officers in one patrol car, the court unduly narrowed its view of the totality of the circumstances. See Chesternut,
The concurring opinion nonetheless follows the district court’s errant path and reaches , the same conclusion, i.e., that “,[n]othing [the two officers] did amounted to an assertion of authority.” Concurring Op. 1129. The concurring opinion recognizes the proper test for determining if a show of authority occurred is “whether a reasonable innocent person ‘would feel free to decline the officers’ requests or otherwise terminate the encounter.’ ” Id. at 1129 (quoting Brendlin,
I don’t disagree that, in many cases, the answer to the question of whether a reasonable person would feel free to terminate an encounter with one or more officers is “hardly obvious.” Id, But in this case “it is obvious that [the] officers, without uttering any words, [were] exercising their authority—ordering compliance from [Roberson].” Id. at 1130. The officers descended upon the parking lot en masse, and two officers specifically targeted the occupants of the first car they saw, parked their patrol car directly in front of that car, beamed disorienting spotlights and takedown lights toward that car, and “walk[ed] toward the front of th[at] car via a route that inhibited [Roberson’s] ability to leave.” R. vol. 1, 55.
What is not so obvious is how the concurring opinion finds the three primary cases it discusses—I.N.S. v. Delgado,
The third, case, Chesternut, did involve officers targeting a specific individual.
Finally, the concurring opinion adopts a piecemeal approach to evaluating whether the officers exhibited a show of authority: it reasons that neither the presence of multiple officers, nor their action in “merely approaching]” Roberson’s car to talk to him, Concurring Op. at 1133, nor their “use of a floodlight to illuminate the vehicle,” id. at 1133, nor their manner of approaching the front of Roberson’s blocked-in vehicle was coercive.
It’s true, but unremarkable, that “there is no seizure when an officer merely approaches a person seated in a vehicle to ask what he is doing and requests a driver’s license.” Id. at 1133. And I don’t dispute that other circuits have concluded “that shining a light into a vehicle does not transform a consensual encounter into a seizure.” Id. at 1133-34. But the show-of-authority analysis requires us .to consider “the coercive effect of police conduct, taken as a whole”—not in bits and pieces. Chesternut,
The only remaining question, therefore, is when Roberson submitted to that show of authority. And the answer to that question turns on how he submitted.
B
The lead opinion cites Brendlin for the proposition that “[a] show of authority alone is not a seizure ‘without actual submission.’ ” Lead. Op. 1121 (quoting Brendlin,
In Brendlin, the question before the Court was “whether a traffic'stop subjects a passenger ... to [a] Fourth Amendment seizure.” Id. at 254,
Critically, the Court emphasized that “what may amount to submission depends on what a person was doing before the show of authority; a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away.” Id. And the Court explained that “when an individual’s submission to a show of governmental authority takes the form of passive acquiescence,” the “test for telling when a seizure occurs” is the Mendenhall/Bostick test. Brendlin,
Applying that test, the Court determined that the officers seized the defendant when they effected the traffic stop because (1) “any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission,” id. at 257,
Here, as discussed, the officers’ initial show of authority implicitly commanded Roberson—the stationary occupant of a parked car—to stay put. Thus, Brendlin informs the submission analysis. See, e.g., United States v. Stover,
And applying Brendlin, I would conclude that Roberson immediately submit
But the lead opinion disregards Brend-lin’s guidance on submission through passive. acquiescence. Rather than applying the Mendenhall/Bostick test, the lead opinion applies a slightly different one. It states, “Actual submission depends on ‘the view of a reasonable law enforcement officer’ under ‘the totality of .the circumstances.’ ” Lead Op. 1122 (quoting Salazar,
I agree that this court adopted a “reasonable officer” test in Salazar. See
It simply doesn’t follow from the fact that we don’t inquire into the detainee’s subjective intent that we must therefore necessarily inquire into a reasonable officer’s view of the circumstances. Moreover, we appear to be the only circuit that has explicitly adopted this “reasonable officer” test. See Stover,
In addition to adding the Salazar gloss to the Mendenhall/Bostick test, the lead opinion opts to follow Mosley while overlooking a critical distinction between the show of force there and the one in this case. In Mosley, two officers responding to an anonymous tip approached a parked car in a Denny’s parking lot.
In determining when the defendant was seized in Mosley, we reasoned that “the
The lead opinion applies Mosley’s, reasoning to conclude that Roberson didn’t submit, hnd therefore wasn’t seized, until he complied with the officers’ commands to show his hands by placing his hands on the steering wheel. Lead Op. 1126. But in doing so, the lead opinion overlooks a critical distinction between the show of force here and the show of force in Mosley. Here, the officers didn’t sneak up on Roberson and catch him by surprise, as did the officers in Mosley. Nor did they immediately order him to show his hands. Instead, after the officers here forcefully made their presence known, Roberson had at least a few seconds to process that several patrol cars had entered the parking lot, one patrol car had pinpointed him by shining bright lights on his car, and two officers were aggressively, approaching his car. Because this show of authority was an implicit, command, for Roberson to stay put—not an immediate and explicit command for Roberson to show his hands
Finally, relying on Mosley, the lead opinion makes much of Roberson’s stuffing motions. But I see no . reason to consider them. Unlike the defendant in Mosley, who made stuffing motions in direct defiance of an explicit command to put his hands up, Roberson made, those motions only after he submitted to the officers’ initial command to stay put and, critically, before the officers ever commanded him to raise his hands.
⅜ * #
While Sergeant Stephens may have subjectively “hoped and intended” to initiate voluntary contact with Roberson, R. vol. 1, 54, the officers’ collective actions objectively demonstrate that there was nothing voluntary about Roberson’s New Year’s Eve encounter with the police. Instead, as Roberson and his date sat in Roberson’s car in the parking lot of Slick Willie’s pool hall, four patrol cars carrying six officers converged all at once in a pack and two officers immediately zeroed in on Roberson’s car, admittedly with absolutely no suspicion or basis for doing so. They purposely blinded Roberson with their take-down lights. And with them aggressive approach on foot, they effectively blocked his vehicle from leaving the parking lot. I would conclude that, with these blatant and purposeful actions, the officers unlawfully seized Roberson by asserting a show of authority to which he immediately submitted by remaining seated in his car. Further, I would find that Roberson’s post-seizure stuffing motions did not belatedly transform that unlawful seizure into a lawful one. Thus, I would reverse and remand with directions to suppress the evidence derived from the illegal seizure.
. Even if I could join my colleagues in treating the district court’s legal conclusion as a factual finding, I would reject it as clearly erroneous. As discussed, the district court expressly found that multiple patrol cars con- .. verged on the parking lot. And Byers’ testimony supports that.she was aware of their presence. But the district court didn’t find, and there is no evidence to support, that Roberson—who was seated next to Byers in his car—was unaware of the other patrol cars. See Hernandez,
. For example, the concurring opinion cites United States v. Mabery,
. The lead opinion characterizes this distinction as immaterial; Lead Op. 1128. But this distinction is key. As I’ve stated, the officers in Mosley approached the car in which the defendant was a passenger, drew their guns, and explicitly ordered the defendant to raise his hands.
. Notably, even the defendant in Brendlin didn’t remain frozen in place after he submitted to the show of authority by remaining seated inside the stopped vehicle in which he was a passenger. Instead, he "briefly open[ed] and then close[d] the passenger door” in full view of the officer conducting the traffic stop.
. I don’t discount that, for safety reasons, the officers were justified in ordering Roberson to raise his hands after he began making stuffing motions. But the officers simply can’t rely on Roberson’s post-seizure stuffing motions, his non-compliance with post-seizure commands, or their ultimate discovery of incriminating evidence to justify the unlawful seizure.