United States v. Mosley

Filing

[10153709] Affirmed. Terminated on the merits after oral hearing. Written, signed, published. Judges Tymkovich, Baldock(authoring judge), and Phillips. Mandate to issue. [13-3101]

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PUBLISH

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FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

March 3, 2014

TENTH CIRCUIT
___________________________________

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.

No. 13-3101

JERMAINE LAMAR MOSLEY,
Defendant - Appellant.

____________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 6:12-CR-10214-EFM-1)
____________________________________
John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, KS, for
Defendant-Appellant.
James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States
Attorney, with him on the brief), Topeka, KS, for Plaintiff-Appellee.
____________________________________
Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges.
____________________________________
BALDOCK, Circuit Judge.
____________________________________

Defendant Jermaine Mosley entered a conditional guilty plea to one count of being
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He appeals the

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district court’s denial of his motion to suppress the gun that was the basis of this offense.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
At about 3:00 a.m. on Friday, September 21, 2012, Wichita police officers
received word from Sedgwick County 911 that two black males were handling a gun
while sitting in a black Ford Focus parked in a Denny’s parking lot. The 911 caller had
identified himself as Brandon Jackson, but admitted that he himself had not seen the gun;
rather another anonymous person told Jackson about the gun. Ultimately, the district
court found this tip was anonymous as far as the police were concerned.
Two officers initially responded to the call. They pulled into a shopping center
next to the Denny’s. Only one black Ford Focus was in the Denny’s parking lot. The
officers then began to sneak up on the car from the front passenger’s side with weapons
drawn. When the officers were 25 to 30 feet from the car, they could see two black males
inside. The officers then approached the car; one crossed in front of the car from the
passenger’s side over to the driver’s side, and one remained on the passenger’s side.
With weapons raised, the officers caught the car’s occupants off guard, shouting “Hands
up, hands up, get your hands up.” The driver put his hands up immediately. Defendant
(the passenger), however, did not.

Although he hesitated briefly and appeared

momentarily disoriented, Defendant quickly began making furtive motions with his right
shoulder and arm that officers testified were consistent with trying to either hide or
retrieve a weapon. In response, one of the officers began yelling louder and kicking the
driver’s door to shock Defendant into compliance. After ignoring repeated commands to
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put his hands up, Defendant eventually complied. After Defendant raised his hands, one
of the officers re-holstered his weapon, opened the passenger’s door, and ordered
Defendant to exit the car. Defendant did not immediately comply or respond so the
officer pulled him from the car, put him on the ground face-down, and handcuffed him.
Another officer then took Defendant into custody.
After the two occupants had been detained, one of the officers advised the others
(multiple officers were by now on the scene) that Defendant “dumped a gun under [the
passenger’s] seat.” Another officer then searched underneath the passenger’s seat and
found a black Ruger nine-millimeter handgun. Prior to recovering this gun, none of the
officers had actually observed a gun.
A grand jury indicted Defendant on one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). Defendant moved to suppress the gun as
the fruit of an unlawful search and seizure in violation of the Fourth Amendment. In
ruling on Defendant’s motion to suppress, the district court concluded (1) Defendant was
first seized when police surrounded the car and shouted “hands up,” (2) this seizure was a
Terry stop, and (3) Defendant had standing to challenge this initial seizure. Nevertheless,
the court also concluded the officers possessed the requisite reasonable suspicion to
justify the Terry stop and therefore the seizure did not violate Defendant’s Fourth
Amendment rights. The court thus denied Defendant’s motion to suppress. On appeal,
Defendant argues (1) he has standing to contest the lawfulness of the stop and to seek
suppression of the gun found in the vehicle as the fruit of that unlawful stop, (2) the
amount of force used by the officers to detain him rose to the level of a de facto arrest,
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and (3) neither the anonymous tip about the gun nor the totality of the circumstances
justified his seizure.
II.
“When reviewing the denial of a motion to suppress, we view the evidence in the
light most favorable to the government, accept the district court’s findings of fact unless
clearly erroneous, and review de novo the ultimate determination of reasonableness under
the Fourth Amendment.” United States v. Apperson, 441 F.3d 1162, 1184 (10th Cir.
2006) (quoting United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir. 2004)). “We also
review de novo the issue of whether a defendant has standing to challenge a search.”
United States v. DeLuca, 269 F.3d 1128, 1131 (10th Cir. 2001). Furthermore, “the key
question here—when the seizure occurred—is a legal one that we must examine de
novo.” United States v. Salazar, 609 F.3d 1059, 1064 (10th Cir. 2010).
A.
We first address the issue of Defendant’s standing to challenge the admissibility of
the gun under the Fourth Amendment. “Fourth Amendment rights are personal, and,
therefore, ‘a defendant cannot claim a violation of his Fourth Amendment rights based
only on the introduction of evidence procured through an illegal search and seizure of a
third person’s property or premises.’”

United States v. DeLuca, 269 F.3d at 1131

(quoting United States v. Erwin, 875 F.2d 268, 270 (10th Cir. 1989)). As such, “without
a possessory or property interest in the vehicle searched, ‘passengers lack standing to
challenge vehicle searches.’” Id. at 1132 (quoting United States v. Eylicio-Montoya, 70
F.3d 1158, 1162 (10th Cir. 1995)).

Even where a defendant lacks “the requisite
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possessory or ownership interest in a vehicle to directly challenge a search of that
vehicle,” however, “the defendant may nonetheless contest the lawfulness of his own
detention and seek to suppress evidence found in the vehicle as the fruit of the
defendant’s illegal detention.” Id. (internal marks and citations omitted). In DeLuca, the
defendant conceded “he did not have a possessory or property interest in the vehicle in
which . . . methamphetamine was found,” and we therefore held he “lack[ed] standing to
directly challenge the search of the vehicle.”

Id.

Nevertheless, we concluded the

defendant had standing “to contest the lawfulness of his own detention and to seek to
suppress the methamphetamine as the fruit or derivative evidence of that illegal
detention.” Id. To suppress evidence as the fruit of his unlawful detention, a defendant
must show, first, that he was seized in violation of his Fourth Amendment rights and,
second, that “a factual nexus” exists between his unlawful seizure and detention and the
challenged evidence. Id. “‘Only if the defendant has made these two showings must the
government prove that the evidence sought to be suppressed is not fruit of the poisonous
tree.’” Id. (quoting United States v. Nava–Ramirez, 210 F.3d 1128, 1131 (10th Cir.
2000)) (internal quotation marks omitted).
Like DeLuca, Defendant conceded he did not have a possessory or property
interest in the vehicle in which the gun was found. He therefore lacks standing to
challenge the search of the vehicle directly but does have standing to contest the
lawfulness of his own seizure and seek to suppress the gun as the fruit of that seizure.
This means he must show that the officers violated his Fourth Amendment rights when

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they seized him, and that a factual nexus existed between this unlawful seizure and the
discovery of the gun under his seat. 1
B.
We now address whether Defendant was seized in violation of his Fourth
Amendment rights. We first explain that, by the time Defendant was seized within the
meaning of the Fourth Amendment, the officers possessed the requisite reasonable
suspicion to justify a Terry stop. We then address, and ultimately reject, Defendant’s
argument that the amount of force used by the officers transformed the interaction into a
de facto arrest without probable cause.

We therefore conclude Defendant’s Fourth

Amendment rights were not violated.

1

By way of a post-argument Fed. R.App. P. 28(j) letter, Defendant argues that the
factual nexus requirement of DeLuca should not apply in cases where the initial seizure
of the vehicle was unlawful. Defendant, however, misconstrues DeLuca. Although the
initial seizure in DeLuca was lawful, the opinion nowhere cabins its test to lawful vehicle
seizures that later become unlawful detentions. But see United States v. Ibarra, 853 F.
Supp. 2d 1103, 1107 (D. Kan. 2012) (“DeLuca is inapposite if the initial traffic stop was
invalid.”). Rather, whether the initial seizure of the vehicle was lawful goes to whether
the factual nexus requirement is satisfied. See United States v. Mosley, 454 F.3d 249,
256 (3d Cir. 2006) (“[E]ven under the Tenth Circuit’s heightened ‘factual nexus’ test,
such a temporal scenario [in which the illegal police conduct preceded the means by
which the evidence was obtained] would appear to clearly supply the requisite ‘factual
nexus.’”); United States v. Roberts, 91 F. App’x 645, 648 (10th Cir. 2004) (unpublished)
(“[I]n those cases [where] the illegal conduct preceded the means by which the evidence
was obtained, [this] establish[ed] the requisite factual nexus between the evidence and the
illegal conduct.” (emphasis in original)). Because, as we address below, Defendant was
never seized in violation of his Fourth Amendment rights, we need not address whether
the initial seizure of the vehicle was unlawful or whether, assuming that initial seizure
was unlawful, it automatically established the requisite factual nexus under DeLuca.
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1.
In order to determine whether the officers violated Defendant’s Fourth
Amendment rights, “[o]ur first task is to establish at what point in this encounter the
Fourth Amendment becomes relevant.” Terry v. Ohio, 392 U.S. 1, 16 (1968). The
Fourth Amendment provides, in part, “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated . . . .”

U.S. Const. amend. IV.

Defendant argues the gun should be

suppressed as the fruit of his unlawful seizure, and so we must determine, “whether and
when” the officers “seized” Defendant within the meaning of the Fourth Amendment.
Terry, 392 U.S. at 16.

The parties do not dispute that Defendant was at some point

seized during his interaction with the officers in the Denny’s parking lot; but the parties
do dispute when this seizure occurred. Defendant argues the officers seized him as soon
as they surrounded the car with weapons raised shouting “hands up, hands up.” The
Government responds, for the first time on appeal, that Defendant was not seized until he
was physically pulled from the vehicle. The district court agreed with Defendant that he
was first seized when the officers surrounded the car with weapons raised shouting
“hands up.” This conclusion, however, was incorrect.2

2

Defendant argues the Government waived the issue of when he was seized because the
Government acquiesced in the district court’s conclusion that “the first seizure occurred
when the officers approached the car with weapons drawn and instructed the occupants to
put their hands in the air,” and then conceded that Defendant “ha[d] standing to challenge
that seizure.” But “[w]e are free to affirm a district court decision on any grounds for
which there is a record sufficient to permit conclusions of law, even grounds not relied
upon by the district court.” United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir.
1994) (citation omitted); accord United States v. Winningham, 140 F.3d 1328, 1332 (10th
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In Terry, the Supreme Court stated that a seizure must be “justified at its
inception.” 392 U.S. at 20. More recently, the Supreme Court has clarified that “a police
officer may make a seizure by a show of authority and without the use of physical force,
but there is no seizure without actual submission; otherwise, there is at most an attempted
seizure.”

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

“Attempted seizures of a person are beyond the scope of the Fourth Amendment.” Cnty.
of Sacramento v. Lewis, 523 U.S. 833, 845 n.7 (1998). We have therefore held that,
“When an officer does not apply physical force to restrain a suspect, a Fourth
Amendment seizure occurs only if (a) the officer shows his authority; and (b) the citizen
submits to the assertion of authority.” Salazar, 609 F.3d at 1064 (internal marks omitted)

Cir. 1998). True, this concession probably would have at least forfeited the issue if the
Government were seeking reversal of an unfavorable decision. See United States v.
Zubia-Torres, 550 F.3d 1202, 1204–07 (10th Cir. 2008). But here, though the district
court erroneously concluded Defendant was first seized when police surrounded the car
and the Government erroneously agreed, the court ultimately held for the Government
and denied Defendant’s motion to suppress. As such, “we may consider . . . alternative
grounds for affirmance.” United States v. Tinklenberg, 131 S. Ct. 2007, 2017 (2011).
An uncontested faulty legal conclusion by the district court need not preclude us from
affirming an otherwise proper denial of a motion to suppress when the record below is
sufficient to permit us to conclude, as a matter of law, that Defendant’s Fourth
Amendment rights were not violated. We therefore address the issue.
3

In Brendlin, the Supreme Court held a passenger was seized during a traffic stop at the
moment the driver’s car “came to a halt on the side of the road.” 551 U.S. at 263. The
Court reasoned that “Brendlin had no effective way to signal submission while the car
was still moving on the roadway, but once it came to a stop he could, and apparently did,
submit by staying inside.” Id. at 262. Unlike in Brendlin, here the car was already
parked when the officers arrived, and Defendant had an effective way to signal
submission—putting his hands up in compliance with the officer’s orders or, at the very
least, remaining still without making furtive motions—but he did not do so.
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(citing California v. Hodari D., 499 U.S. 621, 625–26 (1991)).4

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Here, Defendant

nowhere argues the officers applied physical force to restrain him when they surrounded
the vehicle.5

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

when they surrounded the car with weapons drawn shouting “hands up, hands up.” Thus,
“the primary dispute concerns the submission-to-authority requirement.” Salazar, 609
F.3d at 1064.

4

By way of another 28(j) letter, Defendant points us to United States v. Rodriguez, 739
F.3d 481 (2013). There we said: “A person is seized for Fourth Amendment purposes
when, considering all the surrounding circumstances, the police conduct would have
communicated to a reasonable person that the person was not free to decline the officers’
requests or otherwise terminate the encounter.” Id. at 486 (quoting United States v. King,
990 F.2d 1552, 1556 (10th Cir. 1993)) (internal marks omitted). This line of precedent
essentially applies the so-called Mendenhall test, formulated by Justice Stewart in United
States v. Mendenhall, 446 U.S. 544, 554 (1980): “A person has been ‘seized’ within the
meaning of the Fourth Amendment only if, in view of all the circumstances surrounding
the incident, a reasonable person would have believed that he was not free to leave.” The
Supreme Court later adopted this test in cases such as INS v. Delgado, 466 U.S. 210, 215
(1984), and Michigan v. Chesternut, 486 U.S. 567, 573 (1988). As the Supreme Court
made clear in Hodari D., however, Mendenhall “says that a person has been seized ‘only
if,’ not that he has been seized ‘whenever’; it states a necessary, but not a sufficient,
condition for seizure—or, more precisely, for seizure effected through a ‘show of
authority.’” 499 U.S. at 628 (emphases in original). The Court in Hodari D. then held
“assuming that [the officer’s] pursuit in the present case constituted a ‘show of authority’
enjoining Hodari to halt, since Hodari did not comply with that injunction he was not
seized until he was tackled.” Id. at 629. Thus, the rule as stated in Rodriguez and King
applies when the facts indicate the suspect actually submitted to the officers’ show of
authority. Were we to apply that rule alone here, we would, in effect, be treating the
Mendenhall test as sufficient to establish a seizure, in direct contravention of Hodari D.
5

“Hodari D. suggests that touching is required [to meet the physical force
requirement]—‘[t]here can be no arrest without either touching or submission.’” United
States v. Waterman, 569 F.3d 144, 145 n.2 (3d Cir. 2009) (quoting Hodari D., 499 U.S. at
626–27); see also United States v. Holloway, 962 F.2d 451, 456 (5th Cir. 1992) (“Hodari
D. is not explicit as to whether touching is an essential element of ‘application of physical
force,’ but we have found no post-Hodari D. cases supporting [the] proposition that
touching is not required.” (emphasis in original)).
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“In determining whether particular conduct constitutes submission to authority, we
must examine the totality of the circumstances—the whole picture.” Id. at 1064 (internal
marks and citations omitted). “[W]hat may amount to submission depends on what a
person was doing before the show of authority: a fleeing man is not seized until he is
physically overpowered, but one sitting in a chair may submit to authority by not getting
up to run away.” Brendlin, 551 U.S. at 262. “‘[T]o comply with an order to stop—and
thus to become seized—a suspect must do more than halt temporarily; he must submit to
police authority, for there is no seizure without actual submission.’” Salazar, 609 F.3d at
1066 (quoting United States v. Baldwin, 496 F.3d 215, 219 (2d Cir. 2007)) (internal
marks omitted). “‘[S]ubmission’ under Hodari D. requires, at minimum, that a suspect
manifest compliance with police orders.” Salazar, 609 F.3d at 1066 (quoting United
States v. Waterman, 569 F.3d 144, 146 n.3 (3d Cir. 2009)). The submission-to-authority
standard is an objective one: “we consider whether a citizen has submitted to authority by
examining the view of a reasonable law enforcement officer under the circumstances.”
Salazar, 609 F.3d at 1065.

Moreover, we have characterized the reasonable officer in

this context as “prudent, cautious, and trained.” Id. (citations omitted).
Our circuit has applied Hodari D.’s submission-to-authority standard in a variety
of circumstances. For example, in Salazar, a Highway Patrol Trooper activated his
emergency lights as he drove toward a pickup that was moving suspiciously. The pickup
continued to pull forward until the officer directed his spotlight at the driver. The truck
then stopped momentarily, backed up for about 20 seconds, stopped again, and then
began pulling up slowly toward the driver’s side of the patrol car. “When Mr. Salazar’s
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pickup started to go around Trooper Berner’s patrol car, Trooper Berner stepped out of
his car, drew his firearm, and yelled at Mr. Salazar to stop and get out of the pickup. At
that point, Mr. Salazar complied.” Id. at 1061–62. The district court held that Salazar
submitted and was thus seized as soon as he stopped his car in response to the Trooper’s
emergency lights. Id. at 1063. We reversed, and held that, even though Salazar had
stopped his pickup after the Trooper showed his authority, he “was not seized [within the
meaning of the Fourth Amendment] until he submitted to Trooper Berner’s show of
authority by obeying the command to get out of his truck.” Id. at 1066.
Similarly, in United States v. Harris, 313 F.3d 1228 (10th Cir. 2002), a police
officer repeatedly asked the defendant for identification but the defendant ignored the
officer and kept walking. Id. at 1231–32. Eventually, the defendant turned and, with his
hands in his pockets, began walking backwards while facing the officer.

After the

defendant refused the officer’s request to remove his hands from his pockets, the officer
grabbed the defendant’s hands, removed them from his pockets, and took him to the
police car. We rejected the defendant’s argument that he was seized the moment the
officer asked for identification. We reasoned that, “even if [the officer’s] requests for
identification could be construed as an ‘assertion of authority,’ Defendant did not submit
to it. Accordingly, Defendant was not seized for purposes of the Fourth Amendment
until [the officer] implemented physical force by removing Defendant’s hands from his
pockets and escorting him to the police car.” Id. at 1235.
In United States v. Morgan, 936 F.2d 1561 (10th Cir. 1991), however, an officer
pulled over a car and a passenger got out of the car as soon as it stopped. The officer told
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the passenger to “hold up” and the passenger responded, “What do you want?” The
passenger then began walking away and ultimately tried to flee. Id. at 1065. We held
that, by asking, “What do you want?” before backing away, the passenger “at least
momentarily[] yielded to the Officer’s apparent show of authority,” and was therefore
“momentarily” seized when he responded to the officer’s question. Id. at 1567 (emphasis
omitted).
Although this case falls somewhere between Salazar and Harris, on the one hand,
and Morgan, on the other, we find it virtually indistinguishable from United States v.
Johnson, 212 F.3d 1313 (D.C. Cir. 2000). There, Johnson was the passenger in a parked
car in a “high-narcotics area” and two police officers saw a young woman “leaning into
the passenger’s window and handing Johnson an object, which they could not identify.”
Id. at 1314–15. The officers then approached the car and saw Johnson make a “shoving
down” motion, consistent with hiding a weapon. Id. at 1315. One of the officers then
“drew his gun, advised his partner to do the same, and shouted, ‘Let me see your hands.’
Johnson did not immediately comply but rather made ‘a couple of more shoving motions
down’ before raising his hands.” Id. In analyzing when Johnson was seized within the
meaning of the Fourth Amendment under Hodari D., the D.C. Circuit explained:
Before Johnson raised his hands, [the officer] had made a show of authority
but Johnson had not submitted to it. On the contrary, he continued to make
“shoving down” motions, gestures that were the very opposite of
complying with [the officer’s] order, and which a reasonable officer could
have thought were actually suggestive of hiding (or retrieving) a gun.
Id. at 1316–17. Further, the court pointed out that, “[i]f the seizure had taken place”
when the officer first raised his weapon and shouted “hands up” at Johnson, “we doubt
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very much whether it would have been valid.” Id. at 1316. But, the court reasoned, “by
the time the stop actually took place, it was supported by Johnson’s continued furtive
gestures in response to being confronted by a police officer, and that was suspicious
enough to support a reasonable belief that Johnson may have been engaged in criminal
activity.” Id. at 1317. Thus, the D.C. Circuit held Johnson was not seized until he put his
hands up, and that his furtive gestures in response to police confrontation gave rise to a
reasonable suspicion, validating the Terry stop of Johnson.
Here, as in Johnson, the officers clearly showed their authority by raising their
weapons and shouting “hands up,” but Defendant—although he may have frozen
momentarily out of confusion—did not immediately manifest compliance with their
orders.

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

True, a

reasonable officer shouting “hands up” likely would have viewed Defendant as “seized”
had Defendant simply sat still in the car without making furtive motions. See Brendlin,
551 U.S. at 262 (“[O]ne sitting in a chair may submit to authority by not getting up to run
away.”).

Furthermore, had Defendant simply sat still in response to the officer’s

commands and allowed himself to be seized from the outset, the seizure may not have
been valid. See Johnson, 212 F.3d at 1316. But here, as in Johnson, Defendant did not
simply remain seated; rather, he began making furtive motions consistent with hiding—or
worse, retrieving—a gun. Defendant did not manifest submission; quite the opposite,
Defendant went from sitting still before being confronted by the officers, to moving
furtively, directly contrary to the officers’ commands. We hold Defendant did not submit
to the officers’ show of authority, and therefore was not “seized” within the meaning of
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the Fourth Amendment, until he manifested compliance with the officers’ orders—when
he put his hands up.
Furthermore, Johnson supports our conclusion that, by the time Defendant put his
hands up and was actually seized, the totality of the circumstances gave rise to reasonable
suspicion justifying a Terry stop of Defendant. During “brief investigatory stops of
persons or vehicles that fall short of [a] traditional arrest,” such as Terry stops, “the
Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion
to believe that criminal activity ‘may be afoot.’” United States v. Arvizu, 534 U.S. 266,
273 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). “As long as the
precautionary measures employed by officers during a Terry stop are reasonable, they
will be permitted without a showing of probable cause.” Gallegos v. City of Colorado
Springs, 114 F.3d 1024, 1030 (10th Cir. 1997). We have held “[f]urtive movements,
nervousness, and the fact that conduct occurs in an area known for criminal activity are
all appropriate factors to consider in determining whether reasonable suspicion exists.”
United States v. DeJear, 552 F.3d 1196, 1201 (10th Cir. 2009); see also Johnson, 212
F.3d at 1317 (“[F]urtive gestures in response to being confronted by a police officer[ are]
suspicious enough to support a reasonable belief that [a person] may have been engaged
in criminal activity.”). “We have likewise held that the fact that an incident occurred late
at night or early in the morning is relevant to the Terry analysis.” United States v.
McHugh, 639 F.3d 1250, 1257 (10th Cir. 2011).
Here, by the time Defendant raised his hands in submission to the officers’ show
of authority, he had already made furtive gestures consistent with hiding or retrieving a
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weapon in response to being confronted by police officers. We need not rely on this fact
alone, however. One of the officers who responded to the call testified that “shootings”
and “several types of situations [had] gone down in that [Denny’s] parking lot over the
years.” We note also that the confrontation occurred at around 3:00 a.m., in response to a
tip, albeit anonymous, that one of the occupants of the car in which Defendant sat had a
gun in his lap. In light of all these facts, the officers could reasonably suspect Defendant
either was or had been engaged in criminal activity, which justified a Terry stop to
investigate further. Moreover, these facts render Florida v. J.L., 529 U.S. 266 (2000),
where officers stopped and frisked a citizen based on an anonymous tip alone, inapposite.
Defendant’s reliance on J.L. is therefore misplaced.
2.
Because the officers possessed the requisite reasonable suspicion justifying a
Terry stop by the time Defendant was seized, Defendant’s seizure was valid unless the
amount of force used transformed the interaction into a de facto arrest without probable
cause. Assuming without deciding that the officers lacked probable cause to justify
Defendant’s initial seizure, we must determine whether the district court properly
concluded the officers’ actions were consistent with a Terry stop, or if the degree of force
used transformed Defendant’s seizure into a de facto arrest.6

6

The Government argues Defendant waived the issue whether his seizure amounted to a
de facto arrest because he did not raise the issue before the district court. This assertion
is belied by the record. For example, Defendant’s Revised Motion to Suppress says: “The
question presented here is whether or not the 911 call . . . establish[ed] reasonable
suspicion or probable cause to . . . seize and arrest [Defendant].” (emphasis added).
Furthermore, at the suppression hearing, the court acknowledged that Defendant
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“[O]fficers may use force during a Terry-type detention to the extent that ‘such
steps are reasonably necessary to protect their personal safety and to maintain the status
quo during the course of the stop.’” Novitsky v. City of Aurora, 491 F.3d 1244, 1254
(10th Cir. 2007) (internal alterations omitted) (quoting United States v. Hensley, 469 U.S.
221, 235 (1985)). “Under certain circumstances, the steps officers may permissibly take
to protect their safety include drawing their weapons, placing a suspect in handcuffs, or
forcing a suspect to the ground.” Id. “In evaluating whether the precautionary steps
taken by an officer were reasonable, the standard is objective—would the facts available
to the officer at the moment of the seizure warrant a man of reasonable caution in the
belief that the action taken was appropriate.” Id. (emphasis added) (internal marks and
quotations omitted). “Determining whether the force used to effect a particular seizure is
reasonable under the Fourth Amendment requires a careful balancing of the nature and
quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396
(1989) (internal marks and citations omitted). This test “requires careful attention to the
facts and circumstances of each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”
“complains of the manner in which [the officers] made that stop, and I understand his
concern, that it was a pretty hot interdiction, if that’s the right word . . . .” Indeed, even
the Government at times discussed Defendant’s seizure below in terms of “arrest” and
“probable cause.” In short, we do not believe Defendant waived or even forfeited this
issue and therefore address it. Cf. Zubia-Torres, 550 F.3d at 1205 (“[W]aiver is
accomplished by intent, [but] forfeiture comes about through neglect.” (citation
omitted)).
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Id. Further, “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Id. Moreover, “The calculus of reasonableness must embody allowance for
the fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of force
that is necessary in a particular situation.” Id. at 396–97. Finally, although an arrest,
unlike a Terry stop, requires probable cause, “[i]f an officer has probable cause to believe
that an individual has committed even a very minor criminal offense in his presence, he
may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of
Lago Vista, 532 U.S. 318, 354 (2001).
“Although effectuating a Terry stop by pointing guns at a suspect may elevate a
seizure to an ‘arrest’ in most scenarios,” United States v. Perdue, 8 F.3d 1455, 1463 (10th
Cir. 1993), “the use of guns in connection with a [Terry] stop is permissible where the
police reasonably believe they are necessary for their protection,” United States v.
Merritt, 695 F.2d 1263, 1273 (10th Cir. 1982). For example, in Perdue, 8 F.3d at 1458,
officers saw a car enter a long dirt road leading to a remote building where marijuana was
being cultivated. Officers knew at the time that the building’s bedroom contained a pistol
and an unloaded shotgun. With weapons drawn, the officers stopped the car and ordered
the driver to get out of the car and lie face down. The government conceded the officers
did not have probable cause to arrest the driver at the time of the stop. Nevertheless, we
held that this initial stop was in fact a Terry stop and that “[i]t was not unreasonable
under the circumstances for the officers to execute the Terry stop with their weapons
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drawn.” Id. at 1462. Although the officers had no idea whether the driver was armed, we
reasoned that “[t]he officers knew that guns were found on the property where marijuana
was being cultivated. This fact alone justifies any concern the officers had for their
personal safety.” Id. at 1463. We further reasoned that “The Fourth Amendment does
not require that officers unnecessarily risk their lives when encountering a suspect whom
they reasonably believe to be armed and dangerous.” Id. We therefore held “the officers
conducted a reasonable Terry stop[ and, a]lthough bordering on an illegal arrest, the
precautionary measures of force employed by the officers were reasonable under the
circumstances.” Id.
In light of Perdue, we cannot hold the officers acted unreasonably when they
initially stopped Defendant with weapons raised. In Perdue, the only fact indicating the
driver may have been armed or had weapons in his car was the fact that he was driving
toward a remote building in which officers had found marijuana, a pistol and an unloaded
shotgun. Here, officers were in a high-crime area, at around 3:00 a.m., and had received
an anonymous tip that one of the occupants of the car in which Defendant sat had a gun
in his lap. Furthermore, by the time the officers had actually seized Defendant within the
meaning of the Fourth Amendment, they had witnessed him making furtive motions
consistent with hiding or retrieving a weapon in response to their show of authority.7

7

Although the officers had their weapons raised before Defendant made furtive motions,
the Fourth Amendment does not become relevant until the moment Defendant was
seized. See Terry, 397 U.S. at 16; Novitsky, 491 F.3d at 1254. As explained above,
Defendant was not seized until after he made the furtive motions. At that point, officer
safety concerns justified effecting the Terry stop with weapons drawn. See Perdue, 8
F.3d at 1463.
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Under these circumstances, we cannot say the precautionary measures of force employed
by the officers were unreasonable or rose to the level of a de facto arrest. Moreover, as
Perdue makes clear, when officers have the requisite reasonable suspicion to justify a
Terry stop of the occupants of a vehicle, and reason to believe those occupants may be
armed and dangerous, the officers may reasonably order the occupants out of the vehicle
“as a means of neutralizing the potential danger” without elevating the stop to the level of
an arrest. 8 F.3d at 1463. Thus, the officers also acted lawfully when one officer opened
the car door and ordered Defendant out of the vehicle.
Because the officers acted lawfully when they ordered Defendant out of the car
and Defendant did not comply, we need not decide whether the officers’ actions
thereafter rose to the level of an arrest. Defendant’s failure to comply with this lawful
order gave the officers probable cause to arrest him at least for the Kansas criminal
offense of “interference with law enforcement.” See Kan. Stat. Ann. § 21-5904(a)(3)
(“Interference with law enforcement is . . . knowingly obstructing, resisting or opposing
any person authorized by law . . . in the discharge of any official duty”). In other words,
even assuming the officers’ use of force at this point transformed Defendant’s seizure
into a de facto arrest, still no violation of Defendant’s Fourth Amendment rights occurred
because, by that time, the officers had the requisite probable cause to justify arresting
him. See Atwater, 532 U.S. at 354.
Having established Defendant was not seized in violation of his Fourth
Amendment rights, we need not decide whether a factual nexus existed between
Defendant’s seizure and the search of the vehicle that yielded the gun under Defendant’s
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Accordingly, the district court’s denial of Defendant’s motion to suppress is

AFFIRMED.

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