Reasonable Suspicion Leads to Questions About Seizure

By Ken Wallentine

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

New Year’s Eve didn’t end well for Louis Roberson. The evening started auspiciously. Roberson met a blind date in the parking lot of Slick Willie’s Pool Hall, and within a few minutes, he had enticed his date to try marijuana for the first time. She seemed happy to go along. Who knew where the evening might lead?

But then four police cars drove into the parking lot. The officers were conducting directed enforcement in response to Slick Willie’s request for additional patrol. The officers were also aware the parking lot was the location of many fights and drug deals.

The officers drove toward Roberson’s car, but did not block his exit path. They shone takedown and spot lights on the newly acquainted couple. As two officers strode “resolutely” toward the car, Roberson hastily began shoving things under the seat. The officers told Roberson and his date to show their hands. The woman immediately complied. The officers repeated their commands; there was reasonable suspicion, so drew their guns and advanced toward Roberson. Even facing drawn guns, Roberson continued to push something under the seat.

After three or four commands from the officers, Roberson put his hands on the steering wheel. The officers could smell marijuana coming from the car. They searched the car and found a gun under Roberson’s seat where he had been making stuffing motions. They also found a bag of marijuana in the center console. Roberson was charged with being a felon in possession of a gun.

Roberson claimed that he was “seized” without reasonable suspicion, and that the drug and gun evidence should be suppressed. In Terry v. Ohio (392 U.S. 1 (1968)), the Supreme Court held that a “seizure” occurs when an “officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Later, the Court held that a person is seized “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” (United States v. Mendenhall, 446 U.S. 544 (1980)).

The critical question in Roberson’s case is when he was seized. Roberson was eventually arrested; he was certainly seized then. But did the officers seize Roberson as they shouted commands for him to show his hands—commands that he ignored? Roberson claimed he was seized when officers shouted commands—before officers smelled the marijuana and before they had reasonable suspicion to seize him.

Deciding when a reasonable innocent person would feel free to leave or to refuse an officer’s request during an encounter is highly fact-dependent. Courts have found that blocking a person’s path, holding onto a person’s identification or other property, displaying pointed guns or using emergency lights can all lead to finding a person was seized with reasonable suspicion. However, not every encounter where an officer gives instructions or asks questions means a person is actually seized.

Despite the number of officers and the use of spotlights and takedown lights, the court held Roberson was not seized at the time officers told him to show his hands. Foremost, Roberson didn’t comply; he didn’t submit to the officers’ authority. The Supreme Court has held that there is no seizure when a person doesn’t actually submit to the officers’ commands or show of force (Brendlin v. California, 551 U.S. 249 (2007)).

The two judges in the majority agreed that Roberson was not seized prior to the point that officers had reasonable suspicion of criminal activity. The concurring opinion went so far as to state that the officers’ commands to show hands did not even constitute a show of authority. Additionally, the court felt the number of officers was reasonable when factoring the time of night and the high-crime location.

This case illustrates effective and safe police work that didn’t compromise Roberson’s constitutional rights. Though the officers were rightfully cautious, they were careful to not block Roberson in. Nor did they show force, drawing their weapons, until Roberson began stuffing something—later found to be a gun—under his seat. The concurring judge observed, “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.”

Lexipol Law Enforcement

CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.

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