                                                                              FILED
                                                                  United States Court of Appeals
                                      PUBLISH                             Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     March 3, 2014

                                                                      Elisabeth A. Shumaker
                                TENTH CIRCUIT                             Clerk of Court
                       ___________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
v.                                                         No. 13-3101
JERMAINE LAMAR MOSLEY,

      Defendant - Appellant.


                       ____________________________________

         APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF KANSAS
                    (D.C. No. 6:12-CR-10214-EFM-1)
                 ____________________________________

John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, KS, for
Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States
Attorney, with him on the brief), Topeka, KS, for Plaintiff-Appellee.

                       ____________________________________

Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges.
               ____________________________________

BALDOCK, Circuit Judge.
                 ____________________________________


      Defendant Jermaine Mosley entered a conditional guilty plea to one count of being

a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He appeals the
district court’s denial of his motion to suppress the gun that was the basis of this offense.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                             I.

       At about 3:00 a.m. on Friday, September 21, 2012, Wichita police officers

received word from Sedgwick County 911 that two black males were handling a gun

while sitting in a black Ford Focus parked in a Denny’s parking lot. The 911 caller had

identified himself as Brandon Jackson, but admitted that he himself had not seen the gun;

rather another anonymous person told Jackson about the gun. Ultimately, the district

court found this tip was anonymous as far as the police were concerned.

       Two officers initially responded to the call. They pulled into a shopping center

next to the Denny’s. Only one black Ford Focus was in the Denny’s parking lot. The

officers then began to sneak up on the car from the front passenger’s side with weapons

drawn. When the officers were 25 to 30 feet from the car, they could see two black males

inside. The officers then approached the car; one crossed in front of the car from the

passenger’s side over to the driver’s side, and one remained on the passenger’s side.

With weapons raised, the officers caught the car’s occupants off guard, shouting “Hands

up, hands up, get your hands up.” The driver put his hands up immediately. Defendant

(the passenger), however, did not.        Although he hesitated briefly and appeared

momentarily disoriented, Defendant quickly began making furtive motions with his right

shoulder and arm that officers testified were consistent with trying to either hide or

retrieve a weapon. In response, one of the officers began yelling louder and kicking the

driver’s door to shock Defendant into compliance. After ignoring repeated commands to

                                            -2-
put his hands up, Defendant eventually complied. After Defendant raised his hands, one

of the officers re-holstered his weapon, opened the passenger’s door, and ordered

Defendant to exit the car. Defendant did not immediately comply or respond so the

officer pulled him from the car, put him on the ground face-down, and handcuffed him.

Another officer then took Defendant into custody.

      After the two occupants had been detained, one of the officers advised the others

(multiple officers were by now on the scene) that Defendant “dumped a gun under [the

passenger’s] seat.” Another officer then searched underneath the passenger’s seat and

found a black Ruger nine-millimeter handgun. Prior to recovering this gun, none of the

officers had actually observed a gun.

      A grand jury indicted Defendant on one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). Defendant moved to suppress the gun as

the fruit of an unlawful search and seizure in violation of the Fourth Amendment. In

ruling on Defendant’s motion to suppress, the district court concluded (1) Defendant was

first seized when police surrounded the car and shouted “hands up,” (2) this seizure was a

Terry stop, and (3) Defendant had standing to challenge this initial seizure. Nevertheless,

the court also concluded the officers possessed the requisite reasonable suspicion to

justify the Terry stop and therefore the seizure did not violate Defendant’s Fourth

Amendment rights. The court thus denied Defendant’s motion to suppress. On appeal,

Defendant argues (1) he has standing to contest the lawfulness of the stop and to seek

suppression of the gun found in the vehicle as the fruit of that unlawful stop, (2) the

amount of force used by the officers to detain him rose to the level of a de facto arrest,

                                            -3-
and (3) neither the anonymous tip about the gun nor the totality of the circumstances

justified his seizure.

                                            II.

       “When reviewing the denial of a motion to suppress, we view the evidence in the

light most favorable to the government, accept the district court’s findings of fact unless

clearly erroneous, and review de novo the ultimate determination of reasonableness under

the Fourth Amendment.” United States v. Apperson, 441 F.3d 1162, 1184 (10th Cir.

2006) (quoting United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir. 2004)). “We also

review de novo the issue of whether a defendant has standing to challenge a search.”

United States v. DeLuca, 269 F.3d 1128, 1131 (10th Cir. 2001). Furthermore, “the key

question here—when the seizure occurred—is a legal one that we must examine de

novo.” United States v. Salazar, 609 F.3d 1059, 1064 (10th Cir. 2010).

                                            A.

       We first address the issue of Defendant’s standing to challenge the admissibility of

the gun under the Fourth Amendment. “Fourth Amendment rights are personal, and,

therefore, ‘a defendant cannot claim a violation of his Fourth Amendment rights based

only on the introduction of evidence procured through an illegal search and seizure of a

third person’s property or premises.’”     United States v. DeLuca, 269 F.3d at 1131

(quoting United States v. Erwin, 875 F.2d 268, 270 (10th Cir. 1989)). As such, “without

a possessory or property interest in the vehicle searched, ‘passengers lack standing to

challenge vehicle searches.’” Id. at 1132 (quoting United States v. Eylicio-Montoya, 70

F.3d 1158, 1162 (10th Cir. 1995)).       Even where a defendant lacks “the requisite

                                            -4-
possessory or ownership interest in a vehicle to directly challenge a search of that

vehicle,” however, “the defendant may nonetheless contest the lawfulness of his own

detention and seek to suppress evidence found in the vehicle as the fruit of the

defendant’s illegal detention.” Id. (internal marks and citations omitted). In DeLuca, the

defendant conceded “he did not have a possessory or property interest in the vehicle in

which . . . methamphetamine was found,” and we therefore held he “lack[ed] standing to

directly challenge the search of the vehicle.”     Id.   Nevertheless, we concluded the

defendant had standing “to contest the lawfulness of his own detention and to seek to

suppress the methamphetamine as the fruit or derivative evidence of that illegal

detention.” Id. To suppress evidence as the fruit of his unlawful detention, a defendant

must show, first, that he was seized in violation of his Fourth Amendment rights and,

second, that “a factual nexus” exists between his unlawful seizure and detention and the

challenged evidence. Id. “‘Only if the defendant has made these two showings must the

government prove that the evidence sought to be suppressed is not fruit of the poisonous

tree.’” Id. (quoting United States v. Nava–Ramirez, 210 F.3d 1128, 1131 (10th Cir.

2000)) (internal quotation marks omitted).

      Like DeLuca, Defendant conceded he did not have a possessory or property

interest in the vehicle in which the gun was found. He therefore lacks standing to

challenge the search of the vehicle directly but does have standing to contest the

lawfulness of his own seizure and seek to suppress the gun as the fruit of that seizure.

This means he must show that the officers violated his Fourth Amendment rights when



                                             -5-
they seized him, and that a factual nexus existed between this unlawful seizure and the

discovery of the gun under his seat. 1

                                            B.

       We now address whether Defendant was seized in violation of his Fourth

Amendment rights. We first explain that, by the time Defendant was seized within the

meaning of the Fourth Amendment, the officers possessed the requisite reasonable

suspicion to justify a Terry stop. We then address, and ultimately reject, Defendant’s

argument that the amount of force used by the officers transformed the interaction into a

de facto arrest without probable cause.     We therefore conclude Defendant’s Fourth

Amendment rights were not violated.




1
    By way of a post-argument Fed. R.App. P. 28(j) letter, Defendant argues that the
factual nexus requirement of DeLuca should not apply in cases where the initial seizure
of the vehicle was unlawful. Defendant, however, misconstrues DeLuca. Although the
initial seizure in DeLuca was lawful, the opinion nowhere cabins its test to lawful vehicle
seizures that later become unlawful detentions. But see United States v. Ibarra, 853 F.
Supp. 2d 1103, 1107 (D. Kan. 2012) (“DeLuca is inapposite if the initial traffic stop was
invalid.”). Rather, whether the initial seizure of the vehicle was lawful goes to whether
the factual nexus requirement is satisfied. See United States v. Mosley, 454 F.3d 249,
256 (3d Cir. 2006) (“[E]ven under the Tenth Circuit’s heightened ‘factual nexus’ test,
such a temporal scenario [in which the illegal police conduct preceded the means by
which the evidence was obtained] would appear to clearly supply the requisite ‘factual
nexus.’”); United States v. Roberts, 91 F. App’x 645, 648 (10th Cir. 2004) (unpublished)
(“[I]n those cases [where] the illegal conduct preceded the means by which the evidence
was obtained, [this] establish[ed] the requisite factual nexus between the evidence and the
illegal conduct.” (emphasis in original)). Because, as we address below, Defendant was
never seized in violation of his Fourth Amendment rights, we need not address whether
the initial seizure of the vehicle was unlawful or whether, assuming that initial seizure
was unlawful, it automatically established the requisite factual nexus under DeLuca.
                                            -6-
                                            1.

      In order to determine whether the officers violated Defendant’s Fourth

Amendment rights, “[o]ur first task is to establish at what point in this encounter the

Fourth Amendment becomes relevant.” Terry v. Ohio, 392 U.S. 1, 16 (1968). The

Fourth Amendment provides, in part, “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not

be violated . . . .”   U.S. Const. amend. IV.      Defendant argues the gun should be

suppressed as the fruit of his unlawful seizure, and so we must determine, “whether and

when” the officers “seized” Defendant within the meaning of the Fourth Amendment.

Terry, 392 U.S. at 16.    The parties do not dispute that Defendant was at some point

seized during his interaction with the officers in the Denny’s parking lot; but the parties

do dispute when this seizure occurred. Defendant argues the officers seized him as soon

as they surrounded the car with weapons raised shouting “hands up, hands up.” The

Government responds, for the first time on appeal, that Defendant was not seized until he

was physically pulled from the vehicle. The district court agreed with Defendant that he

was first seized when the officers surrounded the car with weapons raised shouting

“hands up.” This conclusion, however, was incorrect.2


2
  Defendant argues the Government waived the issue of when he was seized because the
Government acquiesced in the district court’s conclusion that “the first seizure occurred
when the officers approached the car with weapons drawn and instructed the occupants to
put their hands in the air,” and then conceded that Defendant “ha[d] standing to challenge
that seizure.” But “[w]e are free to affirm a district court decision on any grounds for
which there is a record sufficient to permit conclusions of law, even grounds not relied
upon by the district court.” United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir.
1994) (citation omitted); accord United States v. Winningham, 140 F.3d 1328, 1332 (10th
                                            -7-
       In Terry, the Supreme Court stated that a seizure must be “justified at its

inception.” 392 U.S. at 20. More recently, the Supreme Court has clarified that “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; otherwise, there is at most an attempted

seizure.”   Brendlin v. California, 551 U.S. 249, 254 (2007) (emphasis added).3

“Attempted seizures of a person are beyond the scope of the Fourth Amendment.” Cnty.

of Sacramento v. Lewis, 523 U.S. 833, 845 n.7 (1998). We have therefore held that,

“When an officer does not apply physical force to restrain a suspect, a Fourth

Amendment seizure occurs only if (a) the officer shows his authority; and (b) the citizen

submits to the assertion of authority.” Salazar, 609 F.3d at 1064 (internal marks omitted)



Cir. 1998). True, this concession probably would have at least forfeited the issue if the
Government were seeking reversal of an unfavorable decision. See United States v.
Zubia-Torres, 550 F.3d 1202, 1204–07 (10th Cir. 2008). But here, though the district
court erroneously concluded Defendant was first seized when police surrounded the car
and the Government erroneously agreed, the court ultimately held for the Government
and denied Defendant’s motion to suppress. As such, “we may consider . . . alternative
grounds for affirmance.” United States v. Tinklenberg, 131 S. Ct. 2007, 2017 (2011).
An uncontested faulty legal conclusion by the district court need not preclude us from
affirming an otherwise proper denial of a motion to suppress when the record below is
sufficient to permit us to conclude, as a matter of law, that Defendant’s Fourth
Amendment rights were not violated. We therefore address the issue.
3
  In Brendlin, the Supreme Court held a passenger was seized during a traffic stop at the
moment the driver’s car “came to a halt on the side of the road.” 551 U.S. at 263. The
Court reasoned that “Brendlin 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. Unlike in Brendlin, here the car was already
parked when the officers arrived, and Defendant had an effective way to signal
submission—putting his hands up in compliance with the officer’s orders or, at the very
least, remaining still without making furtive motions—but he did not do so.

                                            -8-
(citing California v. Hodari D., 499 U.S. 621, 625–26 (1991)).4            Here, Defendant

nowhere argues the officers applied physical force to restrain him when they surrounded

the vehicle.5   But the parties also do not dispute that the officers showed their authority

when they surrounded the car with weapons drawn shouting “hands up, hands up.” Thus,

“the primary dispute concerns the submission-to-authority requirement.” Salazar, 609

F.3d at 1064.


4
  By way of another 28(j) letter, Defendant points us to United States v. Rodriguez, 739
F.3d 481 (2013). There we said: “A person is seized for Fourth Amendment purposes
when, considering all the surrounding circumstances, the police conduct would have
communicated to a reasonable person that the person was not free to decline the officers’
requests or otherwise terminate the encounter.” Id. at 486 (quoting United States v. King,
990 F.2d 1552, 1556 (10th Cir. 1993)) (internal marks omitted). This line of precedent
essentially applies the so-called Mendenhall test, formulated by Justice Stewart in United
States v. Mendenhall, 446 U.S. 544, 554 (1980): “A person has been ‘seized’ within the
meaning of the Fourth Amendment only if, in view of all the circumstances surrounding
the incident, a reasonable person would have believed that he was not free to leave.” The
Supreme Court later adopted this test in cases such as INS v. Delgado, 466 U.S. 210, 215
(1984), and Michigan v. Chesternut, 486 U.S. 567, 573 (1988). As the Supreme Court
made clear in Hodari D., however, Mendenhall “says that a person has been seized ‘only
if,’ not that he has been seized ‘whenever’; it states a necessary, but not a sufficient,
condition for seizure—or, more precisely, for seizure effected through a ‘show of
authority.’” 499 U.S. at 628 (emphases in original). The Court in Hodari D. then held
“assuming that [the officer’s] pursuit in the present case constituted a ‘show of authority’
enjoining Hodari to halt, since Hodari did not comply with that injunction he was not
seized until he was tackled.” Id. at 629. Thus, the rule as stated in Rodriguez and King
applies when the facts indicate the suspect actually submitted to the officers’ show of
authority. Were we to apply that rule alone here, we would, in effect, be treating the
Mendenhall test as sufficient to establish a seizure, in direct contravention of Hodari D.
5
     “Hodari D. suggests that touching is required [to meet the physical force
requirement]—‘[t]here can be no arrest without either touching or submission.’” United
States v. Waterman, 569 F.3d 144, 145 n.2 (3d Cir. 2009) (quoting Hodari D., 499 U.S. at
626–27); see also United States v. Holloway, 962 F.2d 451, 456 (5th Cir. 1992) (“Hodari
D. is not explicit as to whether touching is an essential element of ‘application of physical
force,’ but we have found no post-Hodari D. cases supporting [the] proposition that
touching is not required.” (emphasis in original)).
                                            -9-
       “In determining whether particular conduct constitutes submission to authority, we

must examine the totality of the circumstances—the whole picture.” Id. at 1064 (internal

marks and citations omitted). “[W]hat 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.” Brendlin, 551 U.S. at 262. “‘[T]o 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.’” Salazar, 609 F.3d at

1066 (quoting United States v. Baldwin, 496 F.3d 215, 219 (2d Cir. 2007)) (internal

marks omitted). “‘[S]ubmission’ under Hodari D. requires, at minimum, that a suspect

manifest compliance with police orders.” Salazar, 609 F.3d at 1066 (quoting United

States v. Waterman, 569 F.3d 144, 146 n.3 (3d Cir. 2009)). The submission-to-authority

standard is an objective one: “we consider whether a citizen has submitted to authority by

examining the view of a reasonable law enforcement officer under the circumstances.”

Salazar, 609 F.3d at 1065.     Moreover, we have characterized the reasonable officer in

this context as “prudent, cautious, and trained.” Id. (citations omitted).

       Our circuit has applied Hodari D.’s submission-to-authority standard in a variety

of circumstances. For example, in Salazar, a Highway Patrol Trooper activated his

emergency lights as he drove toward a pickup that was moving suspiciously. The pickup

continued to pull forward until the officer directed his spotlight at the driver. The truck

then stopped momentarily, backed up for about 20 seconds, stopped again, and then

began pulling up slowly toward the driver’s side of the patrol car. “When Mr. Salazar’s

                                            -10-
pickup started to go around Trooper Berner’s patrol car, Trooper Berner stepped out of

his car, drew his firearm, and yelled at Mr. Salazar to stop and get out of the pickup. At

that point, Mr. Salazar complied.” Id. at 1061–62. The district court held that Salazar

submitted and was thus seized as soon as he stopped his car in response to the Trooper’s

emergency lights. Id. at 1063. We reversed, and held that, even though Salazar had

stopped his pickup after the Trooper showed his authority, he “was not seized [within the

meaning of the Fourth Amendment] until he submitted to Trooper Berner’s show of

authority by obeying the command to get out of his truck.” Id. at 1066.

       Similarly, in United States v. Harris, 313 F.3d 1228 (10th Cir. 2002), a police

officer repeatedly asked the defendant for identification but the defendant ignored the

officer and kept walking. Id. at 1231–32. Eventually, the defendant turned and, with his

hands in his pockets, began walking backwards while facing the officer.           After the

defendant refused the officer’s request to remove his hands from his pockets, the officer

grabbed the defendant’s hands, removed them from his pockets, and took him to the

police car. We rejected the defendant’s argument that he was seized the moment the

officer asked for identification. We reasoned that, “even if [the officer’s] requests for

identification could be construed as an ‘assertion of authority,’ Defendant did not submit

to it. Accordingly, Defendant was not seized for purposes of the Fourth Amendment

until [the officer] implemented physical force by removing Defendant’s hands from his

pockets and escorting him to the police car.” Id. at 1235.

       In United States v. Morgan, 936 F.2d 1561 (10th Cir. 1991), however, an officer

pulled over a car and a passenger got out of the car as soon as it stopped. The officer told

                                           -11-
the passenger to “hold up” and the passenger responded, “What do you want?” The

passenger then began walking away and ultimately tried to flee. Id. at 1065. We held

that, by asking, “What do you want?” before backing away, the passenger “at least

momentarily[] yielded to the Officer’s apparent show of authority,” and was therefore

“momentarily” seized when he responded to the officer’s question. Id. at 1567 (emphasis

omitted).

      Although this case falls somewhere between Salazar and Harris, on the one hand,

and Morgan, on the other, we find it virtually indistinguishable from United States v.

Johnson, 212 F.3d 1313 (D.C. Cir. 2000). There, Johnson was the passenger in a parked

car in a “high-narcotics area” and two police officers saw a young woman “leaning into

the passenger’s window and handing Johnson an object, which they could not identify.”

Id. at 1314–15. The officers then approached the car and saw Johnson make a “shoving

down” motion, consistent with hiding a weapon. Id. at 1315. One of the officers then

“drew his gun, advised his partner to do the same, and shouted, ‘Let me see your hands.’

Johnson did not immediately comply but rather made ‘a couple of more shoving motions

down’ before raising his hands.” Id. In analyzing when Johnson was seized within the

meaning of the Fourth Amendment under Hodari D., the D.C. Circuit explained:

      Before Johnson raised his hands, [the officer] had made a show of authority
      but Johnson had not submitted to it. On the contrary, he 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. Further, the court pointed out that, “[i]f the seizure had taken place”

when the officer first raised his weapon and shouted “hands up” at Johnson, “we doubt

                                         -12-
very much whether it would have been valid.” Id. at 1316. But, the court reasoned, “by

the time the stop actually took place, it was supported by Johnson’s continued furtive

gestures in response to being confronted by a police officer, and that was suspicious

enough to support a reasonable belief that Johnson may have been engaged in criminal

activity.” Id. at 1317. Thus, the D.C. Circuit held Johnson was not seized until he put his

hands up, and that his furtive gestures in response to police confrontation gave rise to a

reasonable suspicion, validating the Terry stop of Johnson.

          Here, as in Johnson, the officers clearly showed their authority by raising their

weapons and shouting “hands up,” but Defendant—although he may have frozen

momentarily out of confusion—did not immediately manifest compliance with their

orders.     See Salazar, 609 F.3d at 1066; Waterman, 569 F.3d at 146 n.3.          True, a

reasonable officer shouting “hands up” likely would have viewed Defendant as “seized”

had Defendant simply sat still in the car without making furtive motions. See Brendlin,

551 U.S. at 262 (“[O]ne sitting in a chair may submit to authority by not getting up to run

away.”).      Furthermore, had 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. See Johnson, 212 F.3d at 1316. But here, as in Johnson, Defendant did not

simply remain seated; rather, he began making furtive motions consistent with hiding—or

worse, retrieving—a gun. Defendant did not manifest submission; quite the opposite,

Defendant went from sitting still before being confronted by the officers, to moving

furtively, directly contrary to the officers’ commands. We hold Defendant did not submit

to the officers’ show of authority, and therefore was not “seized” within the meaning of

                                             -13-
the Fourth Amendment, until he manifested compliance with the officers’ orders—when

he put his hands up.

       Furthermore, Johnson supports our conclusion that, by the time Defendant put his

hands up and was actually seized, the totality of the circumstances gave rise to reasonable

suspicion justifying a Terry stop of Defendant. During “brief investigatory stops of

persons or vehicles that fall short of [a] traditional arrest,” such as Terry stops, “the

Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion

to believe that criminal activity ‘may be afoot.’” United States v. Arvizu, 534 U.S. 266,

273 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). “As long as the

precautionary measures employed by officers during a Terry stop are reasonable, they

will be permitted without a showing of probable cause.” Gallegos v. City of Colorado

Springs, 114 F.3d 1024, 1030 (10th Cir. 1997). We have held “[f]urtive movements,

nervousness, and the fact that conduct occurs in an area known for criminal activity are

all appropriate factors to consider in determining whether reasonable suspicion exists.”

United States v. DeJear, 552 F.3d 1196, 1201 (10th Cir. 2009); see also Johnson, 212

F.3d at 1317 (“[F]urtive gestures in response to being confronted by a police officer[ are]

suspicious enough to support a reasonable belief that [a person] may have been engaged

in criminal activity.”). “We have likewise held that the fact that an incident occurred late

at night or early in the morning is relevant to the Terry analysis.” United States v.

McHugh, 639 F.3d 1250, 1257 (10th Cir. 2011).

       Here, by the time Defendant raised his hands in submission to the officers’ show

of authority, he had already made furtive gestures consistent with hiding or retrieving a

                                           -14-
weapon in response to being confronted by police officers. We need not rely on this fact

alone, however. One of the officers who responded to the call testified that “shootings”

and “several types of situations [had] gone down in that [Denny’s] parking lot over the

years.” We note also that the confrontation occurred at around 3:00 a.m., in response to a

tip, albeit anonymous, that one of the occupants of the car in which Defendant sat had a

gun in his lap. In light of all these facts, the officers could reasonably suspect Defendant

either was or had been engaged in criminal activity, which justified a Terry stop to

investigate further. Moreover, these facts render Florida v. J.L., 529 U.S. 266 (2000),

where officers stopped and frisked a citizen based on an anonymous tip alone, inapposite.

Defendant’s reliance on J.L. is therefore misplaced.

                                             2.

       Because the officers possessed the requisite reasonable suspicion justifying a

Terry stop by the time Defendant was seized, Defendant’s seizure was valid unless the

amount of force used transformed the interaction into a de facto arrest without probable

cause. Assuming without deciding that the officers lacked probable cause to justify

Defendant’s initial seizure, we must determine whether the district court properly

concluded the officers’ actions were consistent with a Terry stop, or if the degree of force

used transformed Defendant’s seizure into a de facto arrest.6


6
   The Government argues Defendant waived the issue whether his seizure amounted to a
de facto arrest because he did not raise the issue before the district court. This assertion
is belied by the record. For example, Defendant’s Revised Motion to Suppress says: “The
question presented here is whether or not the 911 call . . . establish[ed] reasonable
suspicion or probable cause to . . . seize and arrest [Defendant].” (emphasis added).
Furthermore, at the suppression hearing, the court acknowledged that Defendant
                                           -15-
       “[O]fficers may use force during a Terry-type detention to the extent that ‘such

steps are reasonably necessary to protect their personal safety and to maintain the status

quo during the course of the stop.’” Novitsky v. City of Aurora, 491 F.3d 1244, 1254

(10th Cir. 2007) (internal alterations omitted) (quoting United States v. Hensley, 469 U.S.

221, 235 (1985)). “Under certain circumstances, the steps officers may permissibly take

to protect their safety include drawing their weapons, placing a suspect in handcuffs, or

forcing a suspect to the ground.” Id. “In evaluating whether the precautionary steps

taken by an officer were reasonable, the standard is objective—would the facts available

to the officer at the moment of the seizure warrant a man of reasonable caution in the

belief that the action taken was appropriate.” Id. (emphasis added) (internal marks and

quotations omitted). “Determining whether the force used to effect a particular seizure is

reasonable under the Fourth Amendment requires a careful balancing of the nature and

quality of the intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396

(1989) (internal marks and citations omitted). This test “requires careful attention to the

facts and circumstances of each particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the officers or

others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”

“complains of the manner in which [the officers] made that stop, and I understand his
concern, that it was a pretty hot interdiction, if that’s the right word . . . .” Indeed, even
the Government at times discussed Defendant’s seizure below in terms of “arrest” and
“probable cause.” In short, we do not believe Defendant waived or even forfeited this
issue and therefore address it. Cf. Zubia-Torres, 550 F.3d at 1205 (“[W]aiver is
accomplished by intent, [but] forfeiture comes about through neglect.” (citation
omitted)).
                                            -16-
Id. Further, “The ‘reasonableness’ of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Id. Moreover, “The calculus of reasonableness must embody allowance for

the fact that police officers are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly evolving—about the amount of force

that is necessary in a particular situation.” Id. at 396–97. Finally, although an arrest,

unlike a Terry stop, requires probable cause, “[i]f an officer has probable cause to believe

that an individual has committed even a very minor criminal offense in his presence, he

may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of

Lago Vista, 532 U.S. 318, 354 (2001).

       “Although effectuating a Terry stop by pointing guns at a suspect may elevate a

seizure to an ‘arrest’ in most scenarios,” United States v. Perdue, 8 F.3d 1455, 1463 (10th

Cir. 1993), “the use of guns in connection with a [Terry] stop is permissible where the

police reasonably believe they are necessary for their protection,” United States v.

Merritt, 695 F.2d 1263, 1273 (10th Cir. 1982). For example, in Perdue, 8 F.3d at 1458,

officers saw a car enter a long dirt road leading to a remote building where marijuana was

being cultivated. Officers knew at the time that the building’s bedroom contained a pistol

and an unloaded shotgun. With weapons drawn, the officers stopped the car and ordered

the driver to get out of the car and lie face down. The government conceded the officers

did not have probable cause to arrest the driver at the time of the stop. Nevertheless, we

held that this initial stop was in fact a Terry stop and that “[i]t was not unreasonable

under the circumstances for the officers to execute the Terry stop with their weapons

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drawn.” Id. at 1462. Although the officers had no idea whether the driver was armed, we

reasoned that “[t]he officers knew that guns were found on the property where marijuana

was being cultivated. This fact alone justifies any concern the officers had for their

personal safety.” Id. at 1463. We further reasoned that “The Fourth Amendment does

not require that officers unnecessarily risk their lives when encountering a suspect whom

they reasonably believe to be armed and dangerous.” Id. We therefore held “the officers

conducted a reasonable Terry stop[ and, a]lthough bordering on an illegal arrest, the

precautionary measures of force employed by the officers were reasonable under the

circumstances.” Id.

      In light of Perdue, we cannot hold the officers acted unreasonably when they

initially stopped Defendant with weapons raised. In Perdue, the only fact indicating the

driver may have been armed or had weapons in his car was the fact that he was driving

toward a remote building in which officers had found marijuana, a pistol and an unloaded

shotgun. Here, officers were in a high-crime area, at around 3:00 a.m., and had received

an anonymous tip that one of the occupants of the car in which Defendant sat had a gun

in his lap. Furthermore, by the time the officers had actually seized Defendant within the

meaning of the Fourth Amendment, they had witnessed him making furtive motions

consistent with hiding or retrieving a weapon in response to their show of authority.7


7
  Although the officers had their weapons raised before Defendant made furtive motions,
the Fourth Amendment does not become relevant until the moment Defendant was
seized. See Terry, 397 U.S. at 16; Novitsky, 491 F.3d at 1254. As explained above,
Defendant was not seized until after he made the furtive motions. At that point, officer
safety concerns justified effecting the Terry stop with weapons drawn. See Perdue, 8
F.3d at 1463.
                                          -18-
Under these circumstances, we cannot say the precautionary measures of force employed

by the officers were unreasonable or rose to the level of a de facto arrest. Moreover, as

Perdue makes clear, when officers have the requisite reasonable suspicion to justify a

Terry stop of the occupants of a vehicle, and reason to believe those occupants may be

armed and dangerous, the officers may reasonably order the occupants out of the vehicle

“as a means of neutralizing the potential danger” without elevating the stop to the level of

an arrest. 8 F.3d at 1463. Thus, the officers also acted lawfully when one officer opened

the car door and ordered Defendant out of the vehicle.

       Because the officers acted lawfully when they ordered Defendant out of the car

and Defendant did not comply, we need not decide whether the officers’ actions

thereafter rose to the level of an arrest. Defendant’s failure to comply with this lawful

order gave the officers probable cause to arrest him at least for the Kansas criminal

offense of “interference with law enforcement.” See Kan. Stat. Ann. § 21-5904(a)(3)

(“Interference with law enforcement is . . . knowingly obstructing, resisting or opposing

any person authorized by law . . . in the discharge of any official duty”). In other words,

even assuming the officers’ use of force at this point transformed Defendant’s seizure

into a de facto arrest, still no violation of Defendant’s Fourth Amendment rights occurred

because, by that time, the officers had the requisite probable cause to justify arresting

him. See Atwater, 532 U.S. at 354.

       Having established Defendant was not seized in violation of his Fourth

Amendment rights, we need not decide whether a factual nexus existed between

Defendant’s seizure and the search of the vehicle that yielded the gun under Defendant’s

                                           -19-
seat.   Accordingly, the district court’s denial of Defendant’s motion to suppress is

AFFIRMED.




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