                                                                                   FILED
                                                                       United States Court of Appeals
                                       PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                           July 25, 2017

                                                                            Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                              Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 16-6136

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).



                                            -2-
                               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




      1
        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.

                                         -3-
“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




       2
        At the suppression hearing, Sergeant Stephens testified to seeing a cloud of
smoke in the car when it was illuminated, but he did not record the observation in his
original police report. Because the Government did not rely on this fact to justify the
officers’ conduct, the court did not make a factual finding as to whether this
testimony was credible. Neither do I.
       3
         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, 409 F.3d 1221, 1224 (10th Cir.
2005) (stating that we reverse factual findings and credibility assessments only if they are
“without factual support in the record” or leave us “with a definite and firm conviction
that the district court erred”) (quotations omitted).

                                            -4-
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

      4
         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 making the furtive motions was not clearly
erroneous. Jarvison, 409 F.3d at 1224.
      5
         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.

                                         -5-
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

                                         -6-
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

                                           -7-
‘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

                                           -8-
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

      6
        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.

                                          -9-
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


      7
        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 d]efendant 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.

743 F.3d at 1324 n.3.

                                         - 10 -
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.”


      8
         In reaching this conclusion, we distinguished United States v. Morgan, 936
F.2d 1561 (10th Cir. 1991). Salazar, 609 F.3d at 1067-68. We explained that the
Morgan defendant had submitted to a show of authority, “at least momentarily,” by
asking an officer, “What do you want?” before attempting to flee. Id. at 1068
(quoting Morgan, 936 F.2d at 1565, 1567). Unlike Morgan, where a reasonable
officer could have viewed the defendant’s brief attempt at conversation as yielding to
a show of authority, there was no conversation between the officer and defendant in
Salazar. Id. We concluded “the fleeting pause of a moving vehicle” would not show
submission to a reasonable officer. Id.
       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, 721 F.3d 746, 752-53 (6th Cir. 2013) (finding no
submission where suspect “momentar[ily] paused” as officers approached him, then
abandoned his bicycle and ran away, without any attempt to converse with the
officers).
       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, 633 F.3d 889, 893 (9th Cir. 2011) (no submission where
suspect “initially hesitated and engaged in short verbal exchange” with police);
United States v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000) (no submission when the
defendant paused for a few moments and gave his name to officers).

                                        - 11 -
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


       9
         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
                                                                           Continued . . .
                                          - 12 -
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.




seizure to occur through physical force. Brooks v. Gaenzle, 614 F.3d 1213, 1222 (10th
Cir. 2010) (discussing how we interpret Hodari D. as standing for the proposition that “a
‘seizure’ occurs only when a fleeing person is physically touched by police or when he or
she submits to a show of authority by police”) (quotations omitted). Mr. Roberson was
therefore not seized by physical force.
       10
         The dissent mistakenly equates the opinion’s assuming there was a show of
authority with ignoring its nature. See Dissent at 2. But the analysis here considers
how the officers showed their authority and how Mr. Roberson responded.

                                          - 13 -
      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 car.

      #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.11 The parties agree Mr.

Roberson had submitted to a show of authority at least by #3 when he showed his

hands on the steering wheel. The question is whether he submitted earlier than #3.

Mr. Roberson argues the show of authority arose at #1, see Aplt. Br. at 19, and that

he was seized “immediately” at #1 by submitting to the officers’ initial show of

authority by not running or driving away, id. at 23. I disagree. Under the totality of

the circumstances, a reasonable officer would not have viewed Mr. Roberson as

submitting “immediately” because he started his furtive motions in response to their

show of authority. A reasonable officer would have thought Mr. Roberson submitted



      11
         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.

                                         - 14 -
only when he complied with the officers’ commands and put his hands on the

steering wheel at #3.

       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, 609 F.3d at 1065.

2. Application

       First, viewed in the light most favorable to the Government, Moran, 503 F.3d

at 1139, the evidence at the suppression hearing showed that Mr. Roberson did not

hesitate before furtively hiding his gun in response to the lights and the officers’

approach. Rather than remain passively seated, he made furtive stuffing motions

beneath his seat consistent with hiding or retrieving a gun. See ROA, Vol. III at 105

(district court’s finding that the stuffing motions were consistent with concealing or

retrieving a gun). Sergeant Stephens testified that the officers’ exiting their car and

Mr. Roberson’s stuffing motions happened “pretty simultaneously.” ROA, Vol. III at

                                            - 15 -
40. This means that no time elapsed between #1 (the show of authority) and #2 (Mr.

Roberson’s furtive stuffing motions). This evidence is stronger than in Mosley,

where the defendant “hesitated briefly” before his furtive motions, 743 F.3d at 1321.

      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 time 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, 609 F.3d at 1065. A reasonable

officer would not have concluded that Mr. Roberson submitted to authority until he

complied with the command to show his hands at #3.

      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. But Mr. Roberson and the dissent

wrongly contend that these were the only ways to refuse to submit. See Dissent at 11

(reasoning that Mr. Roberson submitted immediately by remaining seated, rather than

fleeing on foot or driving away); Aplt. Br. at 22 (arguing the same).

      In Mosley, we recognized that furtive motions in response to officers’ show of

authority reflect lack of submission. See 743 F.3d at 1327 (stating that the furtive

                                         - 16 -
motions did not manifest submission but were instead “directly contrary to the

officers’ commands” shouting “hands up”). Mosley thus supports that Mr.

Roberson’s immediate furtive motions at #2—which were consistent with reaching

for a gun under his seat and continued even after the officers shouted their commands

to show his hands—were actions a reasonable officer could view as contrary to

submission. And as previously noted, Mr. Roberson does not challenge the district

court’s conclusion that the officers had reasonable suspicion to seize him at #2 when

he started making his furtive stuffing motions. A reasonable officer would not have

thought Mr. Roberson submitted until he stopped his stuffing motions and complied

with the officers’ orders by showing his hands on the steering wheel at #3—at which

time the officers had reasonable suspicion to seize Mr. Roberson.12

                                    *   *    *   *

      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, 743 F.3d at 1325 (“To comply with an order to

stop—and thus to become seized—a suspect must do more than halt temporarily; he

must submit to police authority, for there is no seizure without actual submission.”)


      12
         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.

                                        - 17 -
(brackets and quotations omitted). And, as the record supports, Mr. Roberson did not

hesitate before engaging in non-submissive furtive motions.

3. The Dissent

      The following responds to the dissent’s remaining arguments.

      First, the dissent argues the foregoing analysis “disregards Brendlin’s guidance”

that, “depend[ing] 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

10 (quoting Brendlin, 551 U.S. at 255, 261-62). The dissent errs by overlooking a critical

distinguishing fact between Brendlin and this case, and by disregarding our circuit’s

binding precedent.

      Quoting Brendlin that “passive acquiescence” can consist of remaining seated

inside a car, Brendlin, 551 U.S. at 255, 262, the dissent would hold that Mr.

Roberson “immediately submitted to the officers’ command through passive

acquiescence by remaining seated in his parked car in response to the command to

stay put, rather than attempting to flee on foot or run over the approaching officers by

driving away.” Dissent at 11. The problem with this argument is that, although Mr.

Roberson remained inside the car like the Brendlin defendant, he did not acquiesce.

He instead immediately made furtive motions consistent with reaching for a gun. See

ROA, Vol. III at 105. The dissent “see[s] no reason to consider” Mr. Roberson’s




                                          - 18 -
stuffing motions, Dissent at 15, but Mosley holds that furtive stuffing motions are

inconsistent with submission.13

       Although the dissent criticizes this opinion’s use of Salazar’s “reasonable officer”

test and “question[s]” our court’s “basis for adopting such a test,” see Dissent at 12-13, it

agrees that Salazar binds this court, id. at 12. The dissent’s actual quarrel seems more

with our circuit’s precedent, not how this opinion follows it.14

       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 14, but its argument is not

well-grounded.

       The dissent first notes that Mr. Mosley was caught by surprise when the

officers approached, id. at 13-14 (citing Mosley, 743 F.3d at 1321), whereas Mr.


       13
         The dissent notes that in Brendlin, the passenger submitted despite “briefly
open[ing] and then clos[ing] the passenger door” rather than “remain[ing] frozen in
place.” Dissent at 15 n.4 (citing Brendlin, 551 U.S. at 252). As the dissent
recognizes, the Supreme Court stated that such movements could have been either
contrary or consistent with submission. Id. (citing Brendlin, 551 U.S. at 258 n.4).
But here Mr. Roberson’s actions left no room for debate—he started furtive stuffing
motions that Mosley held are directly contrary to submission.
       14
          The dissent posits the Supreme Court’s “Mendenhall/Bostick test” “says
nothing about analyzing submission from a reasonable officer’s view,” Dissent at 12
(referring to United States v. Mendenhall, 446 U.S. 544, 544 (1980) and Florida v.
Bostick, 501 U.S. 429, 435-36 (1991)), and criticizes United States v. Cardoza, 129
F.3d 6, 14 n.4 (1st Cir. 1997), which Salazar cited in support of the reasonable
officer test, Dissent at 12-13. But none of this changes that Salazar, and for that
matter Mosley, are binding circuit precedent.
       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, 776 F.3d 1134,
1147 (10th Cir. 2015) (quotations and emphasis omitted).

                                           - 19 -
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.” Id. at 14. The record

shows otherwise. The dissent’s assertion that Mr. Roberson perceived “several patrol

cars” entering the parking lot conflicts with the district court’s finding that Mr.

Roberson was not yet aware of any patrol car other than that of Sergeants Stephens

and Anderson at the initial show of authority.15 The dissent also lacks record support

for its supposition that Mr. Roberson was not caught off guard, or that he had “at

least a few seconds to process” the officers’ actions before making his stuffing

motions. Id.16



      15
           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 4. 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 5-6 n.1. 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 5-6 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.
      16
         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[]”);
                                                                           Continued . . .
                                          - 20 -
      Even assuming Mr. Roberson had paused after becoming aware of the officers’

show of authority and starting his stuffing motions, any pause would have been a few

seconds at most. This is so because, taking the evidence in the light most favorable

to the Government, the stuffing motions were only a part of the 10 to 15 seconds

between the time the officers exited their car (#1) and smelled marijuana (#3).17

Mosley supports that any such brief hesitation between perceiving a show of

authority and making furtive stuffing motions would not signal submission to a

reasonable officer. 743 F.3d at 1321, 1327.

      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 13-14. The officers’ initial command to Mr. Roberson, in the

dissent’s view, was an “implicit” one to “stay put.” Id. at 14. 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


id. at 35 (Sergeant Stephens testifying that, from his perspective, Mr. Roberson was
“startled” by the officers). There was no contrary testimony.
      17
        Although Sergeant Stephens testified that the timeframe may have been “30
seconds tops,” he testified that 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 that the
timeframe was only 10 to 15 seconds.

                                        - 21 -
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.




                                        - 22 -
16-6136, United States v. Roberson

HARTZ, Circuit Judge, 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 Stephens turned on his car’s spotlight; his

emergency lights were not activated. The Chrysler was backed into a parking space,

blocked on all sides except its front. Officer Stephens stopped the patrol car far enough

away from the Chrysler so as not to block its path. He and Sergeant Anderson then

walked “resolutely” toward the Chrysler, R., Vol. 1 at 54 (District Court Order), blocking

any escape route for the vehicle. Defendant was in the driver’s seat and a woman sat

beside him. Although there were four other officers and three other patrol cars in other
areas of the parking lot, the district court found that their presence did not “contribute[],

in any way that is significant for present purposes, to [Defendant’s] perception of his

situation—and his responses to that perception.” Id. at 51 n.3.

         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, 392 U.S. 1, 19 n.16 (1968),

that a seizure occurs “[o]nly when the officer, by means of physical force or show of

authority, has in some way restrained the liberty of a citizen.” The Court did not,

however, define show of authority. Not until 1980 did the generally accepted formulation

appear, although not in binding precedent. In United States v. Mendenhall, 446 U.S. 544

(1980), Justice Stewart, joined only by then-Justice Rehnquist, recognized the competing

interests at stake. He wrote, “The purpose of the Fourth Amendment is not to eliminate

all contact between the police and the citizenry, but to prevent arbitrary and oppressive


                                               2
interference by enforcement officials with the privacy and personal security of

individuals.” Id. at 553–54. “[C]haracterizing every street encounter between a citizen

and the police as a ‘seizure,’” he continued, “while not enhancing any interest secured by

the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety

of legitimate law enforcement practices.” Id. at 554. He concluded that a seizure occurs

“only if, in view of all of the circumstances surrounding the incident, a reasonable person

would have believed that he was not free to leave.” Id.

       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, 551 U.S. 249, 255 (2007).

But the test has been tweaked for those occasions when “a person has no desire to leave

for reasons unrelated to the police presence”; in that circumstance, the proper test is not

the free-to-leave test but whether a reasonable innocent person “would feel free to decline

the officers’ requests or otherwise terminate the encounter.” Id. (internal quotation marks

omitted); see Florida v. Bostick, 501 U.S. 429, 438 (1991) (“the ‘reasonable person’ test

presupposes an innocent person”).

       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, “‘[i]mplicit 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


                                               3
and respond.’” LaFave, 4 Search and Seizure § 9.4(a) (5th ed.) (original brackets

omitted) (quoting Illinois Migrant Council v. Pilliod, 398 F.Supp. 882, 899 (1975)).

Thus, “if the ultimate issue is perceived as being whether the suspect ‘would feel free to

walk away,’ then virtually all police-citizen encounters must in fact be deemed to involve

a Fourth Amendment Seizure.” Id. (footnote omitted) (stating that the free-to-leave

standard “should not be given such a literal reading”). We must therefore look to the

Supreme Court’s application of the test for more specific guidance.

       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, 489 U.S. 593, 599 (1989)

(seizure where vehicle stopped by police roadblock); United States v. Cortez, 449 U.S.

411, 415, 417 (1981) (seizure where vehicle intercepted with emergency lights).

Likewise, there is generally a seizure when officers retain the civilian’s property with no

indication that he or she can have it back before complying with the officers’ requests. In

Florida v. Royer, 460 U.S. 491, 493‒94 (1983) (prevailing plurality opinion by Justice

White), two plainclothes detectives had an encounter with the defendant in an airport

concourse. While it was permissible for the detectives to approach and question the

defendant, and to request and examine his driver’s license and plane ticket, the prevailing

plurality of the Court held that there was a seizure once “the officers identified

themselves as narcotics agents, told [the defendant] that he was suspected of transporting

narcotics, and asked him to accompany them to the police room, while retaining his ticket


                                              4
and driver’s license and without indicating in any way that he was free to depart.” Id. at

501.

         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, 501 U.S. at 434. And the Court has explained that the free-to-leave standard

does not require that the average person be equally likely to stay or leave:

         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, 466 U.S. 210, 216 (1984) (citations omitted). The Supreme Court has

thus granted wide latitude for police attempts at voluntary contact. In Delgado the Court

considered “factory surveys” by immigration agents. Id. at 212. The majority did not

dispute the following description in Justice Brennan’s opinion dissenting on the seizure

issue:

         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 their
         badges and direct pointed questions at the workers.

Id. at 230 (Brennan, J., concurring in part and dissenting in part) (citations omitted). In

Justice Brennan’s view, it was “simply fantastic to conclude that a reasonable person


                                               5
could ignore all that was occurring throughout the factory and . . . have the temerity to

believe that he was at liberty to refuse to answer their questions and walk away.” Id. But

the Court held that the factory workers were not seized. Id. at 218. It discounted the

dissenters’ concern with the stationing of agents near factory exits because the

restrictions on the workers’ freedom to move were a result of their work obligations and

the workers “were not prevented by the agents from moving about the factories.” Id.

The presence of agents at the doors was merely “to insure that all persons in the factories

were questioned.” Id. “This conduct should have given [the workers] no reason to

believe that they would be detained if they gave truthful answers to the questions put to

them or if they simply refused to answer.” Id. And “the mere possibility that they would

be questioned if they sought to leave the buildings should not have resulted in any

reasonable apprehension by any of them that they would be seized or detained in any

meaningful way.” Id. at 219.

       In Michigan v. Chesternut, 486 U.S. 567 (1988), the Supreme Court found no

seizure even though the officers were clearly intent on speaking to the defendant. When

the defendant saw officers in a police cruiser approaching an intersection, he promptly

turned and began to run. Id. at 569. The cruiser caught up to him and drove alongside

him. Id. The Court acknowledged that “[w]hile the very presence of a police car driving

parallel to a running pedestrian could be somewhat intimidating, this kind of police

presence does not, standing alone, constitute a seizure.” Id. at 575. It noted that there

was nothing in the record reflecting “that the police activated a siren or flashers; or that

they commanded [the defendant] to halt, or displayed any weapons; or that they operated


                                              6
the car in an aggressive manner to block [the defendant’s] course or otherwise control the

direction or speed of his movement.” Id. Thus, “the police conduct involved here would

not have communicated to the reasonable person an attempt to capture or otherwise

intrude upon [the defendant’s] freedom of movement.” Id. at 575. The conduct was not

“so intimidating that [the defendant] could reasonably have believed that he was not free

to disregard the police presence and go about his business.” Id. at 576 (internal quotation

marks omitted).

       A third informative opinion is United States. v. Drayton, 536 U.S. 194 (2002).

Three police officers boarded a bus as part of a routine drug and weapons interdiction.

Id. at 197. One knelt on the front driver’s seat and faced the rear; he did not block the

aisle or otherwise obstruct the bus exit. Id. at 197‒98. A second officer was at the rear of

the bus, facing forward. Id. at 198. The third worked his way from the back toward the

front of the bus, speaking individually with the passengers as he went. Id. The Court

stated that “the traditional rule, which states that a seizure does not occur so long as a

reasonable person would feel free to disregard the police and go about his business, is not

an accurate measure of the coercive effect of a bus encounter.” Id. at 201 (internal

quotation marks omitted). The passenger’s freedom of movement might be confined in

that he or she may not want to leave the bus because of the risk that it would depart

without him or her, “but this is the natural result of choosing to take the bus; it says

nothing about whether the police conduct is coercive.” Id. at 201–02. The proper test,

then, should be “whether a reasonable person would feel free to decline the officers’

requests or otherwise terminate the encounter.” Id. at 202. Under that test, there was no


                                              7
seizure. See id. at 203. The encounter was not coercive because “[t]here was no

application of force, no intimidating movement, no overwhelming show of force, no

brandishing of weapons, no blocking of exits, no threat, no command, not even an

authoritative tone of voice.” Id. at 204. That the officers wore sidearms was of no

importance; it is well-known that officers are usually armed, so “[t]he presence of a

holstered firearm . . . is unlikely to contribute to the coerciveness of the encounter

absent active brandishing of the weapon.” Id. at 205. As in Delgado, the Court

recognized that few passengers in that circumstance would refuse to cooperate. But they

do so not because of coercion but because they “know that their participation enhances

their own safety and the safety of those around them.” Id. at 205.

       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, 446 U.S. at 554: “the threatening presence of several officers, the

display of a weapon by an officer, some physical touching of the person of the citizen, or


                                             8
the use of language or tone of voice indicating that compliance with the officer’s request

might be compelled.” But none of those factors is independently dispositive. “[W]hat

constitutes a restraint on liberty prompting a person to conclude that he is not free to

‘leave’ will vary . . . with the setting in which the conduct occurs.” Chesternut, 486 U.S.

at 573. We must “assess the coercive effect of police conduct, taken as a whole, rather

than to focus on particular details of that conduct in isolation.” Id. On the only occasion

on which the Supreme Court invoked the factors recited by Justice Stewart in Mendenhall

to find a seizure, the Court said that there was “evidence of every one of the probative

circumstances mentioned”; and there was more besides. Kaupp v. Texas, 538 U.S. 626,

631 (2003) (17-year-old boy was awakened in his bedroom by at least three officers,

taken out in handcuffs in his underwear in January, and driven away in a patrol car).

       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.


                                              9
       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, 551 U.S. at 255

(internal quotation marks omitted). True, almost any innocent person approached by

officers in this situation would feel like complying. But that was equally true on the

factory floors in Delgado and the bus in Drayton. What is missing here is any police

conduct that conveys compulsion. I fail to see how, as the dissent puts it, “the officers

specifically targeted [Defendant’s] vehicle immediately upon arriving in the parking lot,”

Dissent at 7, any more than the officers “specifically targeted” the first person they

questioned in Delgado or Drayton. Officers checking out a large gathering (such as cars

in a parking lot) have to start somewhere.

       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 not 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, 682 F.3d 920, 925 (10th Cir. 2012); see also United States v.

Griffith, 533 F.3d 979, 981, 983 (8th Cir. 2008) (no seizure when one officer approached


                                              10
window of parked car to speak with driver while other walked around to the back for

safety); United States v. Taylor, 511 F.3d 87, 91‒92 (1st Cir. 2007) (no seizure when

officers parked behind car and approached driver’s window); United States v. Williams,

413 F.3d 347, 352 (3d Cir. 2005) (no seizure when officers drove up to parked van and

then approached it on foot); United States v. Kim, 25 F.3d 1426, 1430 (9th Cir. 1994)

(“[W]here . . . officers come upon an already parked car, th[e] disparity between

automobile and pedestrian stops dissipates and the driver is not clearly stopped in any

sense ab initio, except of his own volition.”).

       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 encounter into a seizure. See, e.g., United

States v. Mabery, 686 F.3d 591, 597 (8th Cir. 2012) (“In this case, the act of shining a

spotlight on [the defendant’s] vehicle from the street was certainly no more intrusive (and

arguably less so) than knocking on the vehicle’s window.”)); United States v.

Washington, 490 F.3d 765, 770 (9th Cir. 2007) (no seizure when officer approached and

shined flashlight into car); United States v. Douglass, 467 F.3d 621, 623‒24 (7th Cir.

2006) (no seizure when officers parked in front of defendant’s car, approached car from

two sides, and shined flashlights into the car); see also United States v. Clements, 522

F.3d 790, 792, 794 (7th Cir. 2008) (no seizure when “officers shined a spotlight on the

[parked] Oldsmobile and activated their flashing red and blue lights [to alert the car’s

occupants that they were going to approach the vehicle]” (internal quotation marks




                                             11
omitted) (emphasis added)). Were the officers supposed to check out the parking lot in

the dark?

       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.




                                             12
16-6136, United States v. Roberson

MORITZ, Circuit Judge, 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.

                                               I

       The lead opinion is correct that the timing of Roberson’s seizure turns on the

timing of his submission. Lead Op. 12-13; see Brendlin v. California, 551 U.S. 249, 254

(2007) (“A police officer may make a seizure by a show of authority and without the use

of physical force, but there is no seizure without actual submission . . . .”). But I decline
to shortcut the analysis by assuming, rather than deciding, that the officers exhibited a

show of authority.

       Determining the nature of the show of authority is a critical step in determining

when Roberson submitted. Brendlin, 551 U.S. at 262 (emphasizing 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”); United States v. Lowe, 791 F.3d

424, 430-31 (3d Cir. 2015) (explaining that submission question “depends on both the

nature of the show of authority [and] the suspect’s conduct at the moment the officer

asserted his or her authority”). And because the nature of the show of authority here

effectively commanded Roberson—the stationary occupant of a parked car—to stay put, I

would conclude that Brendlin rather than United States v. Salazar, 609 F.3d 1059 (10th

Cir. 2010), and United States v. Mosley, 743 F.3d 1317 (10th Cir. 2014), informs the

submission analysis. Guided by Brendlin, I would conclude that Roberson immediately

submitted to the officers’ initial show of authority by remaining seated in his car.

                                              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., 499 U.S. 621, 628 (1991). To determine whether a

show of authority has occurred, we sometimes ask whether, viewing all of the

“circumstances surrounding the incident, a reasonable person would have believed that he

was not free to leave.” Id. (quoting United States v. Mendenhall, 446 U.S. 544, 554

                                              2
(1980) (Stewart, J., concurring)). But “when a person ‘has no desire to leave’ for reasons

unrelated to the police presence,” the more relevant question is “whether ‘a reasonable

person would feel free to decline the officers’ requests or otherwise terminate the

encounter.’” Brendlin, 551 U.S. at 255 (quoting Florida v. Bostick, 501 U.S. 429, 435-36

(1991)).

       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, 847 F.3d

1257, 1264 (10th Cir. 2017) (listing non-exclusive factors); United States v. Little, 18

F.3d 1499, 1504 (10th Cir. 1994) (noting that courts focus on “‘the coercive effect of

police conduct, taken as a whole,’ on a reasonable person” (quoting Michigan v.

Chesternut, 486 U.S. 567, 573 (1988))).

       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. Two officers parked one patrol car 15 feet from the

front of Roberson’s car (the first occupied car they saw), while a second patrol car parked

“[c]loser to” his car. Id. at 64. The first patrol car beamed spotlights and bright takedown

lights through Roberson’s windshield, and two armed, uniformed officers got out of that

patrol car and “[w]alked toward the front of [Roberson’s] car via a route that inhibited

                                             3
[his] ability to leave.” R. vol. 1, 55. At that point, no reasonable person in Roberson’s

situation would have believed that either getting out of the car and walking away or

otherwise terminating the encounter was an option.

       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. 20 & n.15; Concurring Op. 1-2; see also United States v.

Moran, 503 F.3d 1135, 1139 (10th Cir. 2007) (“[W]e accept the district court’s factual

findings . . . unless they are clearly erroneous.” (quoting United States v. Harris, 313 F.3d

1228, 1233 (10th Cir. 2002))).

       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

                                               4
that after the first car with lights parked in front of Roberson’s car, a second car 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, 486 U.S. at 573 (noting that courts must

“assess the coercive effect of police conduct, taken as a whole, rather than . . . focus on

particular details of that conduct in isolation”). Second, by suggesting that Roberson’s

subjective perception of the events played a role in its analysis, the court failed to apply

the proper perspective. See Hodari D., 499 U.S. at 628 (“[T]he test for existence of a

‘show of authority’ is an objective one: not whether the citizen perceived that he was

being ordered to restrict his movement, but whether the officer’s words and actions

would have conveyed that to a reasonable person.” (emphasis added)).1



       1
         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 converged on the parking lot. And Byers’
                                              5
       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. 2. 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 3 (quoting Brendlin, 551 U.S. at 255). But the concurring opinion then

posits that “[i]t is hardly obvious . . . how to determine whether a reasonable innocent

person would feel free to leave or to decline a request” because, according to the

concurring opinion, “most people will not ‘feel’ free to leave or refuse a request when

confronted by a police officer.” Id.

       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 4. 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


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, 847 F.3d at 1263 (10th Cir.
2017) (“A finding of fact is clearly erroneous if it is without factual support in the record
or if, after reviewing all of the evidence, we are left with the definite and firm conviction
that a mistake has been made.” (quoting In re Vaughn, 765 F.3d 1174, 1180 (10th Cir.
2014))). Rather, the court simply asserted that the presence of the other patrol cars didn’t
“contribute[] . . . to [Roberson’s] perception of his situation.” R. vol. 1, 51 n.3.
                                              6
“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, 466 U.S. 210 (1984); Michigan v. Chesternut, 486 U.S.

567 (1988); and United States v. Drayton, 536 U.S. 194 (2002)—“informative” with

respect to these circumstances. Concurring Op. 7. Delgado and Drayton both involved

multiple officers attempting “voluntary contact,” id. at 5, with random individuals

situated among larger groups of individuals. I don’t doubt that a reasonable person might

feel less intimidated when he or she is one among many workers in a large factory, see

Delgado, 466 U.S. at 230 (Brennan, J., concurring in part and dissenting in part), or one

among many passengers on a public bus, see Drayton, 536 U.S. at 198. But here, there

was no large group of other individuals to dilute the coercive effect of the officers’

actions. Roberson was one among two occupants in his private vehicle. And the officers

specifically targeted his vehicle immediately upon arriving in the parking lot. Neither

Delgado nor Drayton speaks to these circumstances.

       The third case, Chesternut, did involve officers targeting a specific individual. 486

U.S. at 569. But the similarities between Chesternut and this case begin and end there. In

Chesternut, the defendant saw a police car approaching the intersection where he was

standing and ran the other way. Id. The officers caught up with him and drove their patrol

car alongside him as he continued running. Id. As the concurring opinion points out, the

Court found nothing in the record in that case to show that the officers used sirens or

flashing lights, commanded the defendant to halt, or “operated the car in an aggressive

                                              7
manner to block [the defendant’s] course or otherwise control the direction or speed of

his movement.” Concurring Op. 6-7 (alteration in original) (quoting Chesternut, 486 U.S.

at 575). Here though, Roberson was seated in his parked car when six police officers in

four patrol cars converged on the parking lot; one patrol car parked directly in front of

Roberson’s car and trained its bright takedown lights and spotlights on his car; and two

officers approached his parked car in a manner that inhibited his ability to drive away. To

be fair, the officers here, like the officers in Chesternut, didn’t explicitly command

Roberson to halt. But it would make little sense for them to do so given that Roberson

was seated in his parked car. Thus, like Delgado and Drayton, Chesternut bears little

resemblance to this case.

       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 approach[ing]” Roberson’s car to talk to him,

Concurring Op. at 10, nor their “use of a floodlight to illuminate the vehicle,” id. at 11,

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 10. 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 11.

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, 486 U.S. at 573. Thus,

rather than sift through cases that each address only one or two of the circumstances that

                                              8
exist here,2 I consider collectively all of the circumstances present. And doing so leads

me to disagree with the concurring opinion’s conclusion that the officers’ conduct in this

case, taken as a whole, “signaled no more than that they wished to talk with [Roberson],”

or equates to “ordinary social intercourse.” Concurring Op. 12. Instead, the officers’

conduct was a show of authority.

       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. 8 (quoting Brendlin, 551



       2
         For example, the concurring opinion cites United States v. Mabery, 686 F.3d 591
(8th Cir. 2012), and United States v. Douglass, 467 F.3d 621 (7th Cir. 2006) for the
proposition that shining a spotlight on a parked car doesn’t constitute a seizure.
Concurring Op. 11. True enough. But in Mabery, one patrol car stopped near a parking
lot entrance and shined a spotlight on the defendant’s car from the street. Beyond that, the
two officers in the patrol car “did nothing else that would support a demonstration of
authority.” 686 F.3d at 597. Moreover, even if the court had found a show of authority in
Mabery, the defendant didn’t submit to it; he “dropped his contraband and fled the
police.” Id. That isn’t what happened here. Douglass is likewise dissimilar. There, two
patrol officers responded to a possible assault in a parking lot. Armed with an address, a
specific description of the vehicle believed to be involved, and the license plate number
of that vehicle, the officers found the suspect vehicle, parked their patrol car directly in
front of it and—with one officer on each side—approached the car. 467 F.3d at 622. One
officer asked the man seated in the driver’s seat for identification. Id. At the same time,
the second officer shined a flashlight into the car, saw ammunition, and shouted “‘10-32,’
the police code for a gun.” Id. The first officer drew his gun and ordered the man out of
the car, but the man “seemed to be looking around[,] possibly for an escape route,” and
refused to get out of the car. Id. Like the officers, the man then found what he was
looking for: he put his car in gear, drove around the patrol car, and fled the parking lot.
Id. at 622-23. Each of these cases shares some similarities with this one, but not enough
to offer any meaningful guidance.
                                             9
U.S. at 254). I agree. But, after a brief nod to Brendlin, the lead opinion builds its

submission analysis around Salazar and Mosley. In doing so, the lead opinion

(1) disregards Brendlin’s guidance that an individual can submit to a show of authority

through passive acquiescence and (2) overlooks a critical distinction between the show of

force here and the show of force in Mosley.

       In Brendlin, the question before the Court was “whether a traffic stop subjects a

passenger . . . to [a] Fourth Amendment seizure.” Id. at 254. The Brendlin Court

answered that question in the affirmative, holding that a traffic stop seizes a passenger of

a stopped car just as it seizes a driver. Id. at 251. In reaching that conclusion, the Court

rejected the notion that a passenger can’t be seized by a traffic stop simply because he or

she has no ability to signal submission to the officer’s command to stop the car. Id. at

261-62. Specifically, the Court acknowledged that while the vehicle in which the

defendant was a passenger was moving, the defendant “had no effective way to signal

submission.” Id. at 262. But the Court concluded that once the car “came to a stop,” the

defendant “could, and apparently did, submit by staying inside.” Id.

       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, 551

U.S. at 255.

                                              10
       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, and (2) the defendant submitted

through passive acquiescence by remaining inside the car during the traffic stop, id. at

262.

       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, 808 F.3d 991, 1001-02 (4th

Cir. 2015) (Gregory, J., dissenting) (reasoning that Brendlin’s “passive acquiescence test”

applied to determine when officers seized occupant of parked car); United States v.

Jones, 562 F.3d 768, 774 & n.3 (6th Cir. 2009) (applying Brendlin to determine if

occupants of car that was “hemmed in” by two police vehicles submitted to show of

authority).

       And applying Brendlin, I would conclude that Roberson immediately submitted to

the officers’ command through passive acquiescence by remaining seated in his parked

car in response to the command to stay put, rather than attempting to flee on foot or run

over the approaching officers by driving away. Compare Lowe, 791 F.3d at 433 (citing

Brendlin for proposition that “responding to a show of authority by staying put is a means

of passively submitting to that authority”), with Jones, 562 F.3d at 774 (applying

Brendlin and concluding that defendant didn’t submit because he “did not passively



                                             11
acquiesce; he did not remain seated in the Nissan . . . . Rather, he opened the car door and

‘jumped out’ as though he wanted to run”).

         But the lead opinion disregards Brendlin’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.

8 (quoting Salazar, 609 F.3d at 1064-65); see also id. at 15 (“[W]hether and when an

individual submits to a show of authority turns on the perception of a reasonable officer,

not that of the individual.”). But the Mendenhall/Bostick test says nothing about

analyzing submission from a reasonable officer’s view. See Brendlin, 551 U.S. at 255

(explaining the relevant test for determining whether the defendant submitted through

passive acquiescence is “whether ‘a reasonable person would feel free to decline the

officers’ requests or otherwise terminate the encounter’” (quoting Bostick, 501 U.S. at

436)).

         I agree that this court adopted a “reasonable officer” test in Salazar. See 609 F.3d

at 1065 (“[W]e consider whether a citizen has submitted to authority by examining the

view of a reasonable law enforcement officer under the circumstances.” (citing United

States v. Cardoza, 129 F.3d 6, 14 n.4 (1st Cir. 1997))). And I recognize that we are bound

by Salazar. But I nevertheless question its basis for adopting such a test. Significantly,

Salazar cited Cardoza for support. See id. But Cardoza said only, “[G]iven the generally

objective standards employed in Fourth Amendment seizure analysis, we would see little

reason to inquire into the subjective intent of the detainee in making the determination

                                              12
whether or not he or she has ‘submitted to’ a show of authority.” Cardoza, 129 F.3d at 14

n.4.

       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, 808 F.3d at 1006-07 (Gregory, J.,

dissenting) (criticizing Salazar as “troubling precedent,” noting that “the Tenth Circuit

has offered no analytical basis for its ‘reasonable officer’ rule,” and pointing out that no

other circuit has explicitly adopted it).

       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. 743 F.3d at 1321. The

officers took the occupants of the car by surprise, and, with weapons drawn, immediately

commanded the occupants to show their hands. Id. One occupant complied. But the

defendant did not—at least, not immediately. Instead, he “hesitated briefly,” “began

making furtive motions,” and ignored the officers’ repeated commands before eventually

complying. Id.

       In determining when the defendant was seized in Mosley, we reasoned that “the

officers clearly showed their authority by raising their weapons and shouting ‘hands up,’

but [d]efendant—although he may have frozen momentarily out of confusion—did not

immediately manifest compliance with their orders.” Id. at 1327. And we suggested that

                                             13
had the defendant “simply sat still in response to the officer’s commands and allowed

himself to be seized from the outset, the seizure may not have been valid.” Id. But we

held that the defendant, by making furtive motions and therefore acting “directly contrary

to the officers’ commands,” “did not manifest submission.” Id. Thus, we concluded that

the officers didn’t seize the defendant until he “manifested compliance with the officers’

orders—when he put his hands up.” Id.

       The lead opinion applies Mosley’s reasoning to conclude that Roberson didn’t

submit, and 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. 17. 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 hands3—and because Roberson complied with that order, Mosley’s



       3
         The lead opinion characterizes this distinction as immaterial. Lead Op. 21-22.
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. 743 F.3d at 1321, 1327. Here, the officers approached
Roberson’s car with a show of authority that effectively, albeit implicitly, ordered
                                             14
submission analysis simply doesn’t apply here. See Mosley, 743 F.3d at 1326

(emphasizing that in order to submit to show of authority, individual must comply with

police orders).

       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.4 In short, the

officers’ initial show of authority ordered Roberson to stay put. And he did. Their

command and Roberson’s immediate compliance with it constituted a seizure. Thus, I




Roberson to remain in place. But they didn’t immediately order him to raise his hands.
Thus, Roberson complied with the officers’ initial implied order to remain in place,
whereas the defendant in Mosley directly disobeyed the officers’ initial order to raise his
hands. Mosley, 743 F.3d at 1327.
        4
          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. 551 U.S. at 252. Yet in
concluding that the defendant in Brendlin submitted by remaining inside the stopped car,
id. at 262, the Court summarily dismissed the state court’s suggestion that the defendant’s
movements signaled he was “awar[e] of the available options,” i.e., the options to not
submit, either by leaving or otherwise ignoring the officers’ commands. Id. at 258 n.4
(alteration in original) (quoting People v. Brendlin, 136 P.3d 845, 852 (Cal. 2006)).
Instead, the Court reasoned that the defendant’s “conduct could equally be taken to
indicate that [he] felt compelled to remain inside the car.” Id. at 258 n.4. The Court didn’t
even hint that the defendant’s post-seizure movements somehow negated the defendant’s
initial submission. Id. at 261-63.
                                             15
wouldn’t consider anything that happened after that point—including Roberson’s post-

seizure stuffing motions—as evidence of non-submission.5

                                       *      *      *

       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 takedown lights. And with their 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.




       5
         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.
                                             16
