United States v. McGregor, 2025 WL 3012035 (10th Cir. 2025)
Officers Roch Gruszeczka and David Jaworowski saw Clover McGregor driving a white Nissan sedan at 50 mph in a 25-mph speed zone. When Officer Gruszeczka hit the lights and siren, he saw McGregor “leaning to the left and then leaning to the right. At one point, the driver leaned so far over, Gruszeczka couldn’t even see McGregor. Officer Jaworowski described McGregor’s movement as “a dramatic lean-over that was frantic and abrupt.”
When Officer Gruszeczka approached the vehicle, he recognized McGregor both from his social media and from seeing him at two different Seanville gang funerals. As members of the Aurora (Colorado) Police Department’s Gang Intervention Unit, both officers were familiar with the Seanville gang. It was an “extremely violent criminal street gang involved in armed robberies, car jackings, high speed pursuits, and aggravated assaults involving weapons.” Based on his interviews with known gang members and his own observations, Officer Gruszeczka believed McGregor was a Seanville gang member. Officer Jaworowski recognized McGregor “because he had seen photographs of him in the intel database as a local gang member.”
McGregor told the officers he was on his way to a urinalysis test required by his parole conditions for a robbery conviction. When Officer Gruszeczka asked McGregor for his driver’s license, McGregor began “reaching all around in different areas” of the car. Officer Gruszeczka thought this was a strange response, because most people know exactly where their wallet is located.
Concerned about his safety, Officer Gruszeczka directed McGregor to get out of the car. Gruszeczka frisked McGregor for weapons, then asked him to sit on the curb. Officer Jaworowski searched the passenger seat and found a gun. McGregor was arrested and charged with possession of a firearm by a felon.
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McGregor asked the trial court to suppress the gun, claiming the warrantless vehicle search violated the Fourth Amendment. The trial court denied the motion. McGregor entered a conditional guilty plea, reserving his right to appeal the suppression ruling, and was sentenced to 37 months in federal prison.
The U.S. Supreme Court has held a vehicle may be given a quick, cursory inspection for weapons, also known as a “vehicle frisk,” when there is reasonable suspicion there are weapons in the vehicle (Michigan v. Long, 463 U.S. 1032 (1983)). Observing furtive movements, particularly movement fairly characterized as hiding something under the seat or taking something out from under the seat, is generally a basis for a vehicle frisk. Such protective sweeps are limited, however, “to those areas in which a weapon may be placed or hidden.”
The appellate court affirmed the trial court ruling. The court explained that “to lawfully conduct a protective sweep, an officer must have reasonable suspicion that a suspect (1) poses a danger and (2) may gain immediate access to a weapon.” McGregor asserted the furtive movements described by the officers were consistent with innocent actions, such as hiding a pornographic magazine or tossing away smelly socks. The court stated that “furtive movements in the presence of police is an appropriate factor to consider in determining whether reasonable suspicion exists.” McGregor sought to minimize the impact of his furtive movements because they happened before the officers walked up to his car and because he did not continue movements after the officers approached. Nonetheless, the court noted additional factors supported the finding of reasonable suspicion under the totality of the circumstances.
“Furtive movements in the presence of police is an appropriate factor to consider in determining whether reasonable suspicion exists.”
The court next considered McGregor’s alleged membership in the Seanville gang. McGregor argued he was not showing any signs of gang activity during the traffic stop. He wasn’t wearing gang colors, didn’t declare himself as a gang member, and wasn’t near any other gang members at the time. He also claimed the evidence that he was a gang member — appearing at gang funerals and being included in a gang database — were too tenuous for the officers to conclude his membership status. However, there was even more evidence of his gang affiliation. Officer Gruszeczka had seen McGregor’s social media and had previously spoken with known Seanville gang members who indicated McGregor’s affiliation. Both officers recognized him as a gang member and Officer Jaworowski testified that “in his experience most of the local gang members were armed.” Based on these facts, the court didn’t accept McGregor’s argument, stating, “gang affiliation can support a finding of reasonable suspicion that an individual is armed and dangerous.”
Finally, the court considered McGregor’s parole status. Robbery is generally a violent crime. The court held “McGregor’s prior robbery conviction lent significant support to a finding of reasonable suspicion that he was presently armed and dangerous.”
The court concluded the combination of the McGregor’s “frantic and abrupt movement,” his recognized gang membership, and his parole for robbery provided reasonable suspicion he was armed and dangerous. Thus, the officers were justified in performing a protective vehicle frisk leading to the discovery of the gun. The court of appeals upheld the denial of McGregor’s suppression motion and his conviction.
- White Papers
