503 F.3d 1135 (10th Cir. 2007), 06-2175, United States v. Moran

Docket Nº:06-2175.
Citation:503 F.3d 1135
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David S. MORAN, Defendant-Appellant.
Case Date:September 25, 2007
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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503 F.3d 1135 (10th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,


David S. MORAN, Defendant-Appellant.

No. 06-2175.

United States Court of Appeals, Tenth Circuit.

September 25, 2007


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Dennis J. Candelaria, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of New Mexico, Las Cruces, NM, appearing for Defendant-Appellant.

Terri J. Abernathy, Assistant United States Attorney (David C. Iglesias, United States Attorney, with her on the brief), Office of the United States Attorney for the District of New Mexico, Las Cruces, NM, appearing for Plaintiff-Appellee.

Before TACHA, Chief Circuit Judge, BRISCOE, and GORSUCH, Circuit Judges.

TACHA, Chief Circuit Judge.

A jury convicted Defendant-Appellant David Moran of one count of being a felon

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in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). He appeals his conviction, arguing that the District Court erred in refusing to grant his motion to suppress evidence, abused its discretion by admitting evidence of a prior conviction under Federal Rule of Evidence 404(b), and erred by failing to instruct the jury on his theory of defense. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.


On January 8, 2005, Wanetta Ferguson, a resident of Mayhill, New Mexico, in Otero County, reported a trespasser on her property on Sleeping Bear Lane.1Located in the Sacramento Mountains, Mayhill is a rural community that is not densely populated. The Fergusons' property borders a national forest, and the easiest way to access the public lands of the forest from Sleeping Bear Lane is by crossing the Fergusons' property or the neighboring property, which belongs to the Pattersons. Licensed individuals may hunt on these public lands, and this particular time of year was bow hunting season.

Sergeant John Braziel of the Otero County sheriff's office received a dispatch reporting the trespass complaint at approximately 11:49 a.m. He responded to Mrs. Ferguson's report and spoke to Mrs. Ferguson at her residence. Mrs. Ferguson reported that she saw Mr. Moran on her property earlier that day and that the Fergusons had told him several times that he does not have permission to be there. Sergeant Braziel did not see Mr. Moran on the property, but told Mrs. Ferguson that he would tell Mr. Moran to stay off her property the next time he saw him.

Later that day, at approximately 4:45 p.m., Sergeant Braziel received a second report that Mr. Moran was trespassing on the Fergusons' property and again set out for the property. Officer Ty Jackson of the New Mexico Department of Game and Fish heard the call from Otero County dispatch reporting the trespassing complaint and also responded to the call.2 Cloudcroft Chief of Police Gene Green responded as well.3

Sergeant Braziel and Officer Green arrived at the Fergusons' property at approximately 5:00 p.m. Officer Jackson arrived shortly thereafter. Sergeant Braziel and Officer Jackson observed a black SUV parked across the road at William Barr's residence. Sergeant Braziel knew that Mr. Moran usually drove one of two vehicles, a white jeep or a black SUV.

Sergeant Braziel spoke with Mr. and Mrs. Ferguson, who told Sergeant Braziel that Mr. Moran was still on their property or on the hill behind it. Sergeant Braziel looked around the area surrounding the Fergusons' residence, but did not see Mr. Moran. Meanwhile, Officer Jackson interviewed the Fergusons' neighbors, the Pattersons. The Pattersons' property adjoins the Fergusons' and also borders the national

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forest. Mr. Patterson told Officer Jackson that they had given Mr. Moran permission to cross their property to go hunting in the national forest after he threatened to kill all the deer behind their property if they refused. After speaking with the Pattersons, Officer Jackson returned to the Fergusons' property, where Sergeant Braziel and Chief Green were waiting. Officer Jackson spoke with Mr. Ferguson, who reported having had several confrontations with Mr. Moran about trespassing on his land and indicated he did not want Mr. Moran on his property.

While the officers were talking to the Fergusons, the black SUV pulled out of Mr. Barr's driveway. Sergeant Braziel, Officer Jackson, and Chief Green, all in separate patrol vehicles, followed the vehicle, and Sergeant Braziel stopped the SUV approximately one-quarter of a mile from the Barr residence. It was dark when Sergeant Braziel stopped the vehicle. Sergeant Braziel exited his car and approached the SUV, shining his flashlight through the windows to see if there were any passengers inside the car. When he did so, he saw the butt of a rifle stock sticking out of an unzipped rifle case on the back seat. On the seat next to the rifle were a bow and arrows. Sergeant Braziel asked Mr. Moran, the sole occupant of the vehicle, to exit the SUV, and Mr. Moran complied. Sergeant Braziel then asked Mr. Moran who owned the rifle, and Mr. Moran responded that it belonged to his girlfriend, Melinda Cheek. Ms. Cheek also apparently owned the SUV. Mr. Moran explained to the officers that he had been bow hunting.

As Sergeant Braziel and Chief Green conducted a records check on Mr. Moran, Officer Jackson asked for and received permission to look inside the SUV. Officer Jackson opened the rear passenger door, removed the rifle case, and asked Mr. Moran if the rifle was loaded. Mr. Moran responded that it was. Officer Jackson asked Mr. Moran why he had the rifle, and Mr. Moran responded that he always had a rifle in his vehicle. The incident ended when Officer Jackson arrested Mr. Moran on an unrelated warrant.

A grand jury returned an indictment against Mr. Moran for being a felon in possession of a firearm on July 21, 2005. On November 1, 2005, Mr. Moran filed a motion to suppress physical evidence and statements, which the District Court denied. On January 26, 2006, Mr. Moran filed a motion in limine to exclude evidence of his prior convictions, and on February 3, the United States filed a notice of intent to offer evidence of other crimes or bad acts pursuant to Federal Rule of Evidence 404(b). The court granted Mr. Moran's motion in part, excluding all evidence of prior convictions except for a March 1994 conviction for being a felon in possession of a firearm. Mr. Moran's case went to trial on February 14, and at the end of the trial, the District Court declined to give Mr. Moran's requested jury instructions relating to knowledge and possession. A jury found Mr. Moran guilty on February 16, 2006, and he timely filed a notice of appeal.


A. Reasonable Suspicion to Stop Mr. Moran

When reviewing the denial of a motion to suppress, "we accept the district court's factual findings and determinations of witness credibility unless they are clearly erroneous." United States v. Harris, 313 F.3d 1228, 1233 (10th Cir. 2002) (quotation omitted). "We are permitted to consider evidence introduced at the suppression hearing, as well as any evidence properly presented at trial," id., and we view the evidence in the light most favorable to the government, United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir. 2004).

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We review de novo the ultimate question of reasonableness under the Fourth Amendment. Id.

The Fourth Amendment protects individuals from "unreasonable searches and seizures." U.S. Const. amend. IV. "[S]topping a car and detaining its occupants [for investigatory purposes] constitute[s] a seizure within the meaning of the Fourth Amendment." United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). We measure the constitutional validity of an investigatory stop by the standard set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), asking whether the stop is "supported by a reasonable suspicion of criminal activity." United States v. Treto-Haro, 287 F.3d 1000, 1004 (10th Cir. 2002). In so doing, "we examine the events that occurred leading up to the stop to determine whether the 'historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion.' " United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir. 2004) (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). We have explained that "an officer with reasonable suspicion need not 'rule out the possibility of innocent conduct' as long as the totality of the circumstances suffices to form 'a particularized and objective basis' " for a stop. Id. (quoting United States v. Arvizu, 534 U.S. 266, 277-78, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)).

Mr. Moran argues that the District Court should have suppressed physical evidence obtained after officers unlawfully stopped the SUV he was driving. Specifically, Mr. Moran argues that the stop was unreasonable because the officers did not have a reasonable suspicion that he was driving the SUV when...

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