Summaries of Selected Opinions
| Publication year | 2009 |
| Pages | 153 |
| Citation | Vol. 38 No. 10 Pg. 153 |
2009, October, Pg. 153. Summaries of Selected Opinions
October 2009
Vol. 38, No. 10 [Page 153]
Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: www.cobar.org (click on "Opinions/Rules/Statutes").
No. 08-6235. United States v. McCane. 07/28/2009. W.D.Okla. Judge Murphy. Search and Seizure-Search of Vehicle Incident to Arrest-Good-Faith Exception to Exclusionary Rule.
A jury convicted defendant of possession of a firearm by a convicted felon. After being stopped for a suspected traffic violation, defendant was arrested, handcuffed, and placed in the back of the officer's patrol car. The officer then conducted a search of defendant's vehicle and discovered the firearm in the pocket of the driver's side door. The district court denied defendant's motion to suppress the firearm as the fruit of an unlawful search. Defendant was convicted of the offense, and he appealed.
While his case was pending on appeal, the U.S. Supreme Court decided Arizona v. Gant, 129 S.Ct. 1710 (2009). There, the Court determined that a search is not valid as incident to a lawful arrest where the defendant is stopped for a traffic violation and is placed in handcuffs in the back of a patrol car during the search. An officer may search a vehicle incident to a recent occupant's arrest only where the occupant is unsecured and within reaching distance of the vehicle, or when it is reasonable to believe that evidence relevant to the crime of arrest may be found in the vehicle.
The Tenth Circuit held, however, that the evidence was properly admitted, because the good-faith exception to the exclusionary rule applied. Circuit precedent predating Gant had upheld searches under nearly identical circumstances.
Turning to the other issues presented by defendant, the Circuit held that there was sufficient evidence to show that defendant constructively possessed the firearm. The firearm was near defendant when the car door was closed. Defendant made this statement concerning the firearm: "I forgot that was even there." Finally, the Circuit held that 18 U.S.C. § 922(g) prohibiting a felon from possessing a firearm did not violate the Second Amendment or the Commerce Clause.
No. 08-2190. United States v. Fox. 07/29/2009. D.N.M. Judge McConnell. Felon-in-Possession-Indian Treaty Rights to Possession of Firearm for Hunting on Reservation.
Defendant, a member of the Navajo nation, pled guilty to being a felon in possession of a firearm after he was arrested on the Navajo Reservation and found in possession of a shotgun and a rifle. He reserved his right to appeal the issue of whether he had the right to possess guns for the limited purpose of hunting on the reservation, pursuant to an 1868 treaty between the United States and the Navajo nation.
The Tenth Circuit noted that the 1868 treaty preserved the right of the Navajo Nation to hunt on reservation lands. Moreover, the treaty created rights that can be asserted collectively by individuals and the tribe. However, just as convicted felons may forfeit other important constitutional...
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