PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

LOUIS ROBERSON, 

 Defendant - Appellant. 

No. 16-6136 

_________________________________ 

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 

FILED 

United States Court of Appeals

Tenth Circuit 

July 25, 2017

Elisabeth A. Shumaker 

Clerk of Court
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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). 
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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. 
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“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). 
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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. 
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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 
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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 
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‘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 
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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. 
- 10 - 

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. 
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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). 
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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 . . . 
- 13 - 

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. 
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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. 
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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 
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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 
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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. 
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(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 
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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). 
- 20 - 

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 . . . 
- 21 - 

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. 
- 22 - 

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. 
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 
2 

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 
3 

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 
4 

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 
5 

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 
6 

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 
7 

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 
8 

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 
9 

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. 
10 

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 
11 

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 
12 

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. 
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 
2 

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 
3 

(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 
4 

[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 “wolfpack 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 
5 

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’
6 

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. 
7 

“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 
8 

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 
9 

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. 
10 

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. 
11 

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 
12 

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 
13 

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 
14 

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 
15 

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. 
16 

wouldn’t consider anything that happened after that point—including Roberson’s postseizure 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.