BALDOCK, Circuit Judge.
Defendant Jermaine Mosley entered a conditional guilty plea to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He appeals the district court's denial of his motion to suppress the gun that was the basis of this offense. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
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 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
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, and (3) neither the anonymous tip about the gun nor the totality of the circumstances justified his seizure.
"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).
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 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
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 they seized him, and that a factual nexus existed between this unlawful seizure and the discovery of the gun under his seat.
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.
In order to determine whether the officers violated Defendant's Fourth
In Terry, the Supreme Court stated that a seizure must be "justified at its inception." 392 U.S. at 20, 88 S.Ct. 1868. 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, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (emphasis added).
"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, 127 S.Ct. 2400. "`[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,
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 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 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 1565. 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).
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 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, 127 S.Ct. 2400 ("[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 the Fourth Amendment, until he manifested compliance with the officers' orders-when he put his hands up.
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 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, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), where officers stopped and frisked a citizen based on an anonymous tip alone, inapposite. Defendant's reliance on J.L. is therefore misplaced.
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.
"[O]fficers may use force during a Terry-type detention to the extent
"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
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.
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
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 seat. Accordingly, the district court's denial of Defendant's motion to suppress is AFFIRMED.