CA10: Def didn’t submit to police authority until after his furtive movements under the car seat

Police officers pulled into a bar’s parking lot from different directions looking for criminal activity. When they pulled up behind him, defendant did not submit to police authority until after his furtive movements under the seat, where a gun was ultimately found. United States v. Roberson, 2017 U.S. App. LEXIS 13397 (10th Cir. July 25, 2017) (1+1-1):

The following discussion focuses on (1) three key parts of what happened, (2) three aspects of Mosley, and (3) two main points that structure the analysis.

First, this episode included three key parts (as discussed below, parts #1 and #2 happened “pretty simultaneously”):

#1: The officers’ shining the lights, exiting their car, and approaching Mr. Roberson’s 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. 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 only when he complied with the officers’ commands and put his hands on the steering wheel at #3.

. . .

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 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.