United States v. McGregor.
No. 23-1399. 10/28/2025. D.Colo. Judge Holmes. Traffic Stop—Reasonable Suspicion—Fourth Amendment—Furtive Movements—Gang Membership—Prior Robbery Conviction—Constitutionality of 18 USC § 922(g)(1).
October 28, 2025
Officers Gruszeczka and Jaworowski, members of the Aurora Police Department’s Gang Intervention Unit, followed McGregor’s vehicle for speeding. After following the vehicle for a few blocks, Gruszeczka activated the police vehicle’s lights and siren. Officers then observed the driver dramatically lean toward the passenger side to such an extent that he was out of their view. The officers then became concerned that the driver could be concealing or attempting to conceal something, or retrieving something from the passenger’s side of the vehicle. McGregor’s vehicle eventually stopped. When the officers approached the vehicle, they recognized McGregor as a member of the Seanville gang, an extremely violent criminal street gang. When Gruszeczka began questioning McGregor, he admitted that he was on parole for robbery. Gruszeczka, who was positioned at the driver’s side window, asked McGregor for his driver’s license, and McGregor began reaching all around with his hands inside the car, though his wallet was on his lap. The officers thereafter asked McGregor to exit his vehicle, patted him down, and searched the passenger seat, where they found a firearm. McGregor was charged with possession of a firearm as a felon under 18 USC § 922(g)(1). McGregor moved to suppress the evidence discovered from the vehicle search. The district court determined that, based primarily on McGregor’s (1) furtive movement in his vehicle, (2) criminal gang affiliation, and (3) robbery conviction, the search was permissible under the officer safety exception because the officers had reasonable suspicion that McGregor was armed and dangerous. It thus denied the motion. McGregor subsequently entered a conditional plea of guilty, reserving his right to appeal the denial of his motion to suppress.
On appeal, McGregor argued that the district court erred by denying his motion to suppress because the officers lacked reasonable suspicion that he was armed and dangerous. McGregor did not challenge any of the district court’s factual findings as clearly erroneous. To assess whether the officers had reasonable suspicion, the Tenth Circuit individually analyzed the probative value of each of the relevant factors that the district court relied on and then viewed them collectively and in the context of the totality of the circumstances. As to the furtive movement, McGregor argued that his movement should be given little probative value because it happened before the officers exited their vehicle and did not continue after the officers arrived next to the vehicle. However, a defendant’s furtive movements need not occur as an officer is next to the vehicle for the movements to support a reasonable suspicion finding. And the district court credited the officers’ testimony that the movement caused them to feel that their safety was threatened because it appeared as if McGregor was hiding or retrieving something. Further, McGregor’s actions are factually analogous to Tenth Circuit and its sister courts’ cases in which furtive movements were found to support a reasonable suspicion finding. McGregor’s furtive movement thus weighs in favor of the district court’s finding of reasonable suspicion.
McGregor further contended that the fact that the officers recognized him as a criminal gang member while approaching his vehicle has limited probative value. Gang affiliation can support a finding of reasonable suspicion that an individual is armed and dangerous where officers have an objective basis for believing that the suspect is contemporaneously or recently associated with a criminal gang. Here, the district court relied on both officers’ testimony that they recognized McGregor as being a gang member and Jaworowski’s testimony that based on his experience, most local gang members are armed. Further, in its findings of fact, the district court credited Gruszeczka’s testimony that he had seen McGregor at two different Seanville gang funerals in the past year and Jaworowski’s testimony that he had seen McGregor’s face in an intel database as a local gang member. The officers’ knowledge of McGregor’s gang membership thus supports a finding of reasonable suspicion that he was presently armed and dangerous.
McGregor also asserted that for his criminal history to contribute to a reasonable suspicion finding, his prior convictions had to be tied to possession of, and propensity to use, a weapon. He maintained that his prior robbery conviction indicates neither that he possessed a weapon while committing the offense nor that he had a history of being armed and dangerous. Criminal history along with other factors can support a finding of reasonable suspicion. And the Tenth Circuit has never held that a defendant’s past conviction must include a weapon for it to be a viable factor in the reasonable suspicion calculus. Further, the Tenth Circuit has recognized that convictions that are not directly predicated on the possession or use of firearms can nevertheless support a reasonable suspicion determination. Here, McGregor’s prior robbery conviction, when viewed with his furtive movement and his status as a gang member, lends significant support to a finding of reasonable suspicion that he was presently armed and dangerous.
Based on the foregoing analysis, each of the three factors on which the district court primarily relied independently supports a finding of reasonable suspicion that McGregor was armed and dangerous. Viewed in the totality of the circumstances, these factors sufficiently establish the officers’ reasonable suspicion that McGregor was presently armed and dangerous. Accordingly, the warrantless search of McGregor’s vehicle was permissible under the officer safety exception to the Fourth Amendment, and the district court did not err in its ruling to this effect.
Lastly, McGregor asserted both a facial and as-applied challenge to 18 USC § 922(g)(1). However, McGregor’s challenge is foreclosed by Tenth Circuit precedent.
The order denying the motion to suppress and the judgment were affirmed.