864 F.3d 1118 (10th Cir. 2017), 16-6136, United States v. Roberson

Docket Nº:16-6136
Citation:864 F.3d 1118
Opinion Judge:MATHESON, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LOUIS ROBERSON, Defendant - Appellant
Attorney: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 Attorn...
Judge Panel:Before HARTZ, MATHESON, and MORITZ, Circuit Judges. HARTZ, Circuit Judge, concurring. MORITZ, Circuit Judge, dissenting. CONCUR BY: HARTZ HARTZ, Circuit Judge, concurring: MORITZ, Circuit Judge, dissenting:
Case Date:July 25, 2017
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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864 F.3d 1118 (10th Cir. 2017)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

LOUIS ROBERSON, Defendant - Appellant

No. 16-6136

United States Court of Appeals, Tenth Circuit

July 25, 2017

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. HARTZ, Circuit Judge, concurring. MORITZ, Circuit Judge, dissenting.

OPINION

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MATHESON, Circuit Judge.

Appellant-Defendant Louis Roberson pled guilty to being a felon in possession in violation of 18 U.S.C. § 922(g)(1). His plea was conditioned on his ability to pursue this appeal of the district court's denial of his motion to suppress evidence of his firearm under the Fourth Amendment.

Mr. Roberson argued in district court and now on appeal that he submitted to police officers' show of authority when they shined bright lights on him and approached his car in a parking lot. He contends that because he had immediately submitted and was therefore seized at this point without reasonable suspicion, the ensuing search of his car violated the Fourth Amendment.

I would affirm the district court because, assuming the bright lights and officers' approach amounted to a show of authority, Mr. Roberson did not submit until later when the officers had reasonable suspicion to seize him. Judge Hartz would affirm because the police did not exercise a show of authority when they shined the lights and approached the car. Judge Moritz would reverse because the officers' actions amounted to a show of authority and Mr. Roberson submitted before the officers had reasonable suspicion to detain him.

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

I.

BACKGROUND

The following facts are taken from evidence presented at the suppression hearing. They are presented in the light most favorable to the Government because the district court denied Mr. Roberson's motion to suppress. United States v. Moran, 503 F.3d 1135, 1139 (10th Cir. 2007).

A.

Factual Background

Around 10:15 p.m. on December 31, 2014, Mr. Roberson met a blind date, Annette Byers, at Slick Willie's Pool Hall in Oklahoma City. They met in Mr. Roberson's car, which he had backed into a parking spot near the entrance of Slick Willie's. Mr. Roberson and Ms. Byers talked for about fifteen minutes and smoked a marijuana cigarette--Ms. Byers's first. Due to the winter chill, Mr. Roberson left the car running.

At 10:30 p.m., four marked Oklahoma City patrol cars drove into the parking lot in " wolf-pack" technique by entering from different corners of the lot. The officers were not responding to a specific incident. They came instead because Slick Willie's had asked for more frequent police patrol due to problems with criminal activity. Among the police were Sergeants Monte Stephens and Michael Anderson, who entered through the southwest entrance of the parking lot.

Upon entering, Sergeants Stephens and Anderson stopped their patrol car about 15 feet from the first occupied car they saw--Mr. Roberson's car. The officers tried to make what they called " voluntary contact" with Mr. Roberson and Ms. Byers. Because the parking lot was dimly lit, they shined spotlights and bright takedown lights on the car.1 Sergeants Stephens and Anderson then exited their patrol car and " resolutely" walked toward Mr. Roberson's car from the front. ROA, Vol. I at 54.2 The officers' patrol car did not block Mr. Roberson's car, but their line of approach

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meant that Mr. Roberson would have hit the officers had he tried to drive away.3

" As soon as" the officers got out of their car or " pretty simultaneously," the officers saw Mr. Roberson making " stuffing motions" underneath the driver's seat. ROA, Vol. III at 17, 40. After seeing the stuffing motions, the officers ordered Mr. Roberson and Ms. Byers to show their hands. Ms. Byers complied, but Mr. Roberson did not, and instead continued to make the stuffing motions.

The officers then drew their guns and once again commanded Mr. Roberson to show his hands. Mr. Roberson still did not comply. Only when Sergeant Stephens reached the driver's side window--and after about three or four commands to show his hands--did Mr. Roberson stop the stuffing motions, roll down the window, and put his hands on the steering wheel.4 The officers opened the door and smelled marijuana. They later found a gun under the driver's seat, where Mr. Roberson had been making his stuffing motions, and a bag of marijuana in the center console.

In the district court's words, " [t]his all unfolded in a big hurry." ROA, Vol. III at 104. According to Sergeant Stephens, the time between the officers' exiting their car and reaching the car's window was " a matter of seconds. Probably ten, 15 seconds. Maybe a little bit more, maybe 30 seconds tops." Id. at 50.5

B.

Procedural Background

On August 4, 2015, a federal grand jury indicted Mr. Roberson in the United States District Court for the Western District of Oklahoma for possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). Mr. Roberson moved to suppress evidence of his firearm, arguing his seizure and arrest violated the Fourth Amendment, thereby invalidating the search for and recovery of the firearm. On

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September 24, 2015, the district court held an evidentiary hearing on the suppression motion. Sergeant Stephens and Ms. Byers were the only witnesses.

On December 3, 2015, the court issued a written order denying the motion to suppress. The court held the officers did not " seize" Mr. Roberson within the meaning of the Fourth Amendment until after they had developed reasonable suspicion based on Mr. Roberson's furtive stuffing motions. The arrest and search were therefore valid.

After the court's order, Mr. Roberson pled guilty conditioned on his ability to appeal the denial of the suppression motion. On May 16, 2016, the court sentenced Mr. Roberson to 80 months in prison and three years of supervised release.

II.

DISCUSSION

On appeal, Mr. Roberson challenges the district court's order holding the officers did not violate his Fourth Amendment rights. This court should affirm the district court's denial of Mr. Roberson's motion to suppress because Mr. Roberson did not submit to the officers' initial show of authority and therefore was not seized at that time. When the officers later seized Mr. Roberson, they had reasonable suspicion to do so.

A.

Standard of Review

" When reviewing the denial of a motion to suppress, we accept the district court's factual findings and determinations of witness credibility unless they are clearly erroneous." Moran, 503 F.3d at 1139 (quotations omitted). But " the ultimate issue of whether a seizure occurred is a question of law, which we review de novo." United States v. Guerrero, 472 F.3d 784, 786 (10th Cir. 2007). We also review de novo the question of when a seizure occurred. United States v. Salazar, 609 F.3d 1059, 1064 (10th Cir. 2010).

B.

Legal Standards

1.

The Fourth Amendment and Seizure

The Fourth Amendment guarantees " [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. A seizure must be " justified at its inception" to comply with the Fourth Amendment. United States v. Mosley, 743 F.3d 1317, 1326 (10th Cir. 2014) (quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 847 F.3d 1257, 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...

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