Criminal procedure.

• Author: Chase, Rachel S.
• Position: Investigatory stops based on past misdemeanor offenses

Tenth Circuit Authorizes Investigatory Stops Based on Past Misdemeanor Offenses--United States v. Moran, 503 F.3d 1135 (10th Cir. 2007)

The Fourth Amendment to the United States Constitution affords individuals the right to be free from unreasonable searches and seizures. (1) The United States Supreme Court recognizes that certain seizures, such as investigatory stops conducted by police officers, comport with the protections guaranteed by the Fourth Amendment. (2) In United States v. Moran, (3) the United States Court of Appeals for the Tenth Circuit considered whether investigatory stops based on reasonable suspicion of a completed misdemeanor are constitutionally permissible. (4) The Tenth Circuit held that the investigatory stop based on the commission of a past misdemeanor was reasonable in light of the strong governmental interest of "solving crimes and bringing offenders to justice" and the continuing threat to public safety posed by the unique factual circumstances presented in the case. (5) The court, however, declined to make a blanket endorsement of all investigatory stops based on past misdemeanors. (6)

On the afternoon of January 8, 2005, a resident of Mayhill, New Mexico, called the police to report that the defendant, David Moran, had been trespassing on her private property for the second time that day. (7) When officers arrived on the scene to investigate the trespass, they noticed a black SUV parked nearby. (8) One of the officers knew from past personal experience that Moran usually drove two vehicles, one of which was a black SUV. (9) When the officers saw the SUV drive away a few minutes later, they followed the SUV for a short distance before signaling for the driver to stop. (10) When the officer approached the vehicle on foot, he noticed a rifle on the backseat. (11) After requesting permission from Moran to search the vehicle, the officer determined that the rifle was loaded and eventually arrested Moran pursuant to an unrelated warrant. (12)

A jury convicted Moran of being a felon in possession of a firearm. (13) On appeal, Moran argued that the district court should have suppressed all physical evidence obtained from the search of his vehicle on the grounds that the stop was unlawful. (14) Moran argued that police may only stop an individual for suspected past criminal activity when that crime is a felony, not a misdemeanor. (15) The Tenth Circuit rejected Moran's appeal, reasoning that the limited intrusion imposed by the investigatory stop was warranted based on the ongoing threat to public safety and the government's strong interest in solving the crime. (16)

The Fourth Amendment to the United States Constitution protects individuals' fundamental rights by prohibiting the government from conducting unreasonable searches and seizures. (17) In Terry v. Ohio, (18) the Supreme Court ruled that, in limited situations, police officers may briefly stop individuals to prevent future crimes without violating the Fourth Amendment. (19) Later dubbed "Terry stops," these brief investigatory stops permit officers to detain individuals and conduct a limited search based on a reasonable belief that criminal activity is afoot. (20) Officers making investigatory stops must have reasonable suspicion of criminal activity--a less demanding standard than probable cause, which is required for full searches and arrests. (21) At a suppression hearing, courts consider the "totality of the circumstances" in determining the reasonableness of the officer's belief. (22) Furthermore, to justify a search, officers may rely on rational inferences based on specific and articulable facts. (23)

Almost two decades after Terry, the Supreme Court expanded the circumstances in which police officers may conduct investigatory stops in United States v. Hensley. (24) In Hensley, the Court held that it was constitutionally permissible for police officers to stop a person based on reasonable suspicion that he or she "was involved in or is wanted in connection with a completed felony." (25) The Supreme Court set forth a balancing test to determine the constitutionality of a stop by weighing "the nature and quality of the intrusion on personal security against the importance of the governmental interest alleged to justify the intrusion." (26) The Court in Hensley intentionally refrained from applying its holding to all past crimes, leaving unresolved the issue of whether completed misdemeanors are sufficient to authorize investigatory stops. (27)

Following Hensley, state and federal courts have utilized varying approaches to determine whether officers are permitted to conduct investigatory stops based on past crimes. (28) In Gaddis ex rel. Gaddis v. Redford Township, (29) the Sixth Circuit concluded that law enforcement officers are permitted to make stops based only on reasonable suspicion of completed felonies and not "mere completed misdemeanor[s]." (30) Alternatively, in United States v. Grigg, (31) the Ninth Circuit adopted a balancing test requiring courts to determine the legality of the stop in question based on the nature of the misdemeanor along with the possibility for continued risk of danger or escalation. (32) Similarly, in United States v. Hughes, (33) the Eighth Circuit refused to adopt a bright-line rule prohibiting police from making investigatory stops based on completed misdemeanors, instead favoring a case-by-case balancing of the government's interests with the defendant's personal interests. (34)

In United States v. Moran, the Tenth Circuit refused to hold as a matter of law that investigatory stops are permissible on the basis of past misdemeanors. (35) When applying the balancing test set forth in Hensley, the Tenth Circuit was forced to address the specific question left open by the Supreme Court regarding the legality of investigatory stops predicated solely on past misdemeanors. (36) While the Tenth Circuit ultimately validated the specific investigatory stop at issue in Moran, the court cautioned that the same may not be true for all past misdemeanors. (37) In Moran, the court relied on several factors in concluding that the officers' belief of an immediate threat to public safety was sufficient to justify governmental intrusion. (38) These factors included the risk of confrontation, the likelihood that Moran was armed, and the existence of reliable first-person reports of repeated trespass and threatening behavior. (39)

In United States v. Moran, the Tenth Circuit joined ranks with the Eighth and Ninth Circuits by concluding that Hensley does not restrict investigatory stops solely to future crimes or past felonies. (40) The court explicitly rejected the Sixth Circuit's determination that stops based on completed misdemeanors contravene Supreme Court precedent...