Invited-Error Forecloses Wooden/Erlinger “Separate Occasions” Instruction Challenges; Pacing-Based Stops and Plain-View Firearms Support Warrants

I. Introduction

United States v. Tommie Conner (Sixth Circuit, Jan. 15, 2026) addresses three recurring criminal-procedure and sentencing issues arising from a traffic-stop gun case: (1) whether a speeding stop based on officers’ pacing supplies probable cause under the Fourth Amendment; (2) whether alleged inaccuracies in a warrant affidavit invalidate a vehicle search under Franks; and (3) whether evidence supported both a felon-in-possession conviction under 18 U.S.C. § 922(g) and an Armed Career Criminal Act enhancement under 18 U.S.C. § 924(e), including the post-Wooden/Erlinger “separate occasions” inquiry.

Police stopped a Dodge Durango after officers paced it above a 45 mph limit. Officers saw a firearm and magazine in the vehicle and later obtained a search warrant. A jury convicted Tommie Conner of being a felon in possession and, in a bifurcated second phase, found his 1992 robberies were committed on different occasions, triggering ACCA’s mandatory minimum. The district court imposed 200 months. The Sixth Circuit affirmed across the board.

II. Summary of the Opinion

Traffic stop: The stop was constitutional because officers had probable cause to believe Conner was speeding; pacing for the distances described was sufficient under Sixth Circuit precedent.
Search warrant: The court rejected Conner’s claim that the affidavit contained materially false statements under Franks v. Delaware; the affidavit adequately supported probable cause, especially given officers’ observation of a gun in the car and Conner’s felony status.
§ 922(g) possession: Although actual possession evidence was thin, a rational juror could find constructive possession based on Conner’s control over and proximity to a clearly visible gun in his vehicle.
ACCA instruction challenge: The court declined to review the “separate occasions” jury-instruction challenge under the invited-error doctrine because Conner proposed a materially identical instruction and did not object.
ACCA sufficiency: Viewing the evidence favorably to the government, a rational juror could find at least three of Conner’s 1992 robberies occurred on separate occasions, particularly because they were separated by up to six weeks.

III. Analysis

A. Precedents Cited

1. Standards of review for suppression and sufficiency

United States v. Moon and United States v. Carter: Frame suppression review (facts for clear error; law de novo) and require viewing evidence in the government’s favor when suppression is denied.
United States v. Martinez (quoting Jackson v. Virginia) and United States v. Davis: Govern sufficiency review; reversal is appropriate only if no rational factfinder could find the elements beyond a reasonable doubt.

2. Traffic stops for speeding; pacing as a basis for probable cause

United States v. Gross and Rodriguez v. United States: Confirm that a traffic stop for a civil infraction is constitutional if supported by probable cause of a violation.
United States v. Garrido-Santana and United States v. Puckett: Establish that speeding in violation of state law supplies probable cause; Puckett specifically approves pacing over a short distance as supporting a reasonable speed estimate.
United States v. Hill: Reinforces that pacing over less than a mile can suffice.
The court distinguished two unpublished district court opinions, United States v. Dillard-Cribbs and United States v. Hayes, as factually and procedurally different (insufficient evidentiary support or an admitted non-pace).

3. Affidavit challenges and probable cause to search

Franks v. Delaware: Supplies the two-step suppression framework for false statements in a warrant affidavit (falsity plus materiality to probable cause).
Illinois v. Gates: Provides the “fair probability” totality-of-circumstances standard for probable cause.
United States v. Hang Le-Thy Tran: Used to illustrate that minor inaccuracies in description do not necessarily invalidate a warrant.

4. Possession under § 922(g): actual vs. constructive

Rehaif v. United States: Requires proof the defendant knew of possession and knew of prohibited status.
United States v. Bailey: Defines actual and constructive possession and emphasizes intent to exercise dominion and control.
United States v. Morrison, United States v. Garcia, and United States v. Brooks: Provide examples where evidence supported actual possession (gun effectively on the person; observed discard; observed “stuffing motion”).
United States v. Grubbs (quoting United States v. Arnold): “Mere proximity” is insufficient; additional incriminating evidence is needed—though less is required when proximity at arrest is close.
United States v. White: Allows constructive possession to be shown through dominion/control over the vehicle/premises where contraband is concealed.
United States v. Hilliard and United States v. Adamo: Reinforce the jury’s role in weighing evidence and that alternative explanations do not defeat sufficiency if a rational juror could convict.

5. ACCA “separate occasions,” jury instructions, and invited error

United States v. Durham: Quoted for the ACCA “committed on occasions different from one another” requirement.
Wooden v. United States: Establishes the holistic, multi-factor “occasions” inquiry—timing, location proximity, and character/relationship of offenses.
United States v. Erlinger: Applied for the idea that a jury could reasonably reach different conclusions under Wooden depending on the evidence; the inquiry is not mechanical.
United States v. Sharpe: Invited-error doctrine; where a defendant proposes the instruction and does not object, appellate review may be declined.
The panel noted Sixth Circuit “separate occasions” cases including United States v. Cogdill, United States v. Durham, and United States v. Kimbrough, emphasizing that even if some cases could support a different outcome, sufficiency review is highly deferential.

B. Legal Reasoning

1. Pacing supplied probable cause for the speeding stop

The court treated the case as a straightforward probable-cause stop: officers paced the Durango above the posted limit. It relied on the Sixth Circuit’s repeated acceptance of pacing as a valid speed-measurement method in Fourth Amendment analysis, particularly United States v. Puckett and United States v. Hill. The opinion emphasized the amount of pacing here (Officer Roberts for roughly a quarter mile and Officer Walker for close to a minute) and credited detailed officer testimony plus corroborating materials (reports, maps, and camera footage). On these facts, the district court did not err in finding probable cause.

2. No material falsity under Franks; warrant supported by probable cause

The court rejected claimed falsities concerning when lights were activated, whether the driver refused to pull over, whether Conner ran from the driver’s door, and whether a “foot chase” occurred. It relied heavily on dash/bodycam footage and “common sense” inferences (an empty vehicle when approached; no visible passenger exit; bystanders identifying Conner). Even where the affidavit’s wording might have overstated details (e.g., “ran”), the court treated any discrepancy as minor rather than Franks-material.

Importantly, the opinion also underscored that probable cause was strong because officers could see a handgun through the window and knew Conner was a felon—facts Conner did not meaningfully challenge—bringing the analysis comfortably within Illinois v. Gates’ totality-of-circumstances standard.

3. Constructive possession was supported despite an alternative innocent narrative

Conner’s ex-wife testified that the gun was hers and that she left it in the shared vehicle without his knowledge. The panel acknowledged this evidence and conceded actual possession was not clearly shown (no fingerprints; no direct proof of handling).

But on constructive possession, the court emphasized: (i) the firearm’s visibility (bright orange handgun in clear view), supporting knowledge; (ii) Conner’s ownership of and dominion over the Durango; and (iii) the Sixth Circuit principle that close proximity at arrest strengthens the inference of control, reducing the amount of corroborating evidence required (United States v. Grubbs). Applying the deferential sufficiency standard, the panel held a rational juror could reject the ex-wife’s account or still infer Conner intended to exercise control over the firearm while driving the vehicle.

4. Invited error barred review of the Wooden/Erlinger-based instruction critique

Conner argued on appeal that the “separate occasions” instruction was too simplistic under Wooden v. United States and United States v. Erlinger. The panel did not reach the merits because Conner proposed an instruction that was “materially identical” and affirmatively assented to the court’s final version. Under United States v. Sharpe, these facts fit the invited-error doctrine, allowing the appellate court to decline review.

5. ACCA sufficiency: timing evidence (weeks apart) permitted a “separate occasions” finding

On the merits of sufficiency, the panel applied Wooden’s holistic factors and cited Erlinger for the proposition that reasonable juries may differ given the evidence. While acknowledging the robberies were similar in character and that location evidence was limited (only that they occurred within the same county and were consolidated for sentencing), the panel found the timing evidence significant: four robberies spread from November 9 to December 20, 1992. Under deferential review, that temporal separation was enough for a rational jury to find at least three occurred on different occasions.

C. Impact

Fourth Amendment traffic-stop litigation: The decision reinforces that pacing—supported by testimony and basic corroboration—can readily establish probable cause for speeding, limiting suppression arguments that focus solely on the “length” of pacing.
Franks challenges: The opinion illustrates a pragmatic approach: minor imprecision (e.g., whether a suspect “ran”) may not be treated as a materially false statement when core facts (visible firearm; felony status; flight captured on video) remain solid.
§ 922(g) constructive possession: In vehicle cases, visible contraband plus defendant’s control over the vehicle can sustain constructive possession even when a third party claims ownership—leaving credibility and inference-drawing to the jury.
ACCA post-Wooden/Erlinger practice: The most practice-significant procedural takeaway is the invited-error holding: defendants who propose or accept a Wooden-factor instruction may be foreclosed from later claiming it lacked nuance. Defense counsel must preserve objections and avoid proposing the very language later attacked.

IV. Complex Concepts Simplified

Probable cause (traffic stop): A reasonable basis to believe a traffic violation occurred. For speeding, credible pacing evidence can satisfy it.
Pacing: An officer follows a vehicle at a steady distance and uses the patrol car speedometer to estimate the target vehicle’s speed.
Franks challenge: A defendant can invalidate a warrant if he proves the affidavit had false statements (or omissions) and, without them, probable cause disappears.
Actual vs. constructive possession: Actual possession is physical control (like holding or effectively carrying the gun). Constructive possession is the power and intent to control it, often inferred from circumstances like control of a car where the gun is visible.
Invited error: A party generally cannot complain on appeal about an error it asked the trial court to make—such as proposing the same jury instruction later challenged.
ACCA “separate occasions”: Under ACCA, prior convictions count only if they were committed on different “occasions.” Wooden v. United States directs a holistic review of timing, location, and relationship of the offenses.

V. Conclusion

United States v. Tommie Conner affirms a felon-in-possession conviction and ACCA enhancement by applying settled Fourth Amendment and sufficiency doctrines while delivering a procedurally consequential lesson for ACCA litigation: a defendant who proposes and accepts a Wooden-style “separate occasions” instruction may invite any asserted instructional error and thereby lose appellate review. Substantively, the court also reinforces that pacing can establish probable cause for a speeding stop and that visible firearms in a vehicle—coupled with the defendant’s dominion over the vehicle—can support both probable cause for a search and constructive possession under § 922(g).