Vehicle Stop to Investigate Alleged Misdemeanor Approved
United States v. Moran, 06-2175 (10th Cir. Sept. 25, 2007)
10th affirms Defendant’s jury conviction for being a felon in possession of a firearm.
1. Motion to suppress. (A) Police had reasonable suspicion that Defendant, for whom they were looking and for whom they had reasonable suspicion, had criminally trespassed in the neighborhood, was driving the black SUV. The complaining neighbors named Defendant by name as the trespasser and said he had not left the area and one cop knew Defendant drove a black SUV. (B) In a case of first impression, the 10th, noting the circuit split, decides that police can make a stop based on reasonable suspicion of a completed misdemeanor. Here, there was a strong governmental interest in addressing an ongoing and potentially violent crime (Defendant was continually crossing private land to access a national forest for hunting), and the 4 amendment intrusion was brief and limited. The 10th underscores the “limited and fact-dependent” nature of the holding.
2. 404(b) evidence. Not an abuse of discretion to admit Defendant’s 1994 firearms conviction. It was properly admitted to address Defendant’s defense that he did not knowingly possess the rifle found in his girlfriend’s SUV, which he was driving (he was bow-hunting, but his girlfriend’s rifle was half out of its case in the back seat). His knowing possession of a rifle in the past supports an inference that he knowingly possessed it in this case.(The 10th’s explanation sounds like a justification for admitting propensity evidence)
3. Theory of defense instruction. While a defendant is entitled to a theory of the case instruction, he is not entitled to one containing the specific facts of the theory and case. (?!) The “knowing” stock instruction given by the court covered the territory. Defendant was not entitled to a “fleeting possession” instruction either. There was no evidence that Defendant’s possession was momentary and otherwise, his lack of knowledge defense was addressed by the stock knowledge instruction.
10th affirms Defendant’s jury conviction for being a felon in possession of a firearm.
1. Motion to suppress. (A) Police had reasonable suspicion that Defendant, for whom they were looking and for whom they had reasonable suspicion, had criminally trespassed in the neighborhood, was driving the black SUV. The complaining neighbors named Defendant by name as the trespasser and said he had not left the area and one cop knew Defendant drove a black SUV. (B) In a case of first impression, the 10th, noting the circuit split, decides that police can make a stop based on reasonable suspicion of a completed misdemeanor. Here, there was a strong governmental interest in addressing an ongoing and potentially violent crime (Defendant was continually crossing private land to access a national forest for hunting), and the 4 amendment intrusion was brief and limited. The 10th underscores the “limited and fact-dependent” nature of the holding.
2. 404(b) evidence. Not an abuse of discretion to admit Defendant’s 1994 firearms conviction. It was properly admitted to address Defendant’s defense that he did not knowingly possess the rifle found in his girlfriend’s SUV, which he was driving (he was bow-hunting, but his girlfriend’s rifle was half out of its case in the back seat). His knowing possession of a rifle in the past supports an inference that he knowingly possessed it in this case.(The 10th’s explanation sounds like a justification for admitting propensity evidence)
3. Theory of defense instruction. While a defendant is entitled to a theory of the case instruction, he is not entitled to one containing the specific facts of the theory and case. (?!) The “knowing” stock instruction given by the court covered the territory. Defendant was not entitled to a “fleeting possession” instruction either. There was no evidence that Defendant’s possession was momentary and otherwise, his lack of knowledge defense was addressed by the stock knowledge instruction.
posted by Anonymous at 10:34 AM
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