Tenth Circuit clarifies Long protective-sweep reasonable suspicion: pre-approach “dramatic” movement, objectively grounded recent gang affiliation, and violent criminal history can, in combination, justify a vehicle sweep

Introduction

In United States v. McGregor (10th Cir. Oct. 28, 2025), a published opinion authored by Chief Judge Holmes, the Tenth Circuit affirmed the denial of a motion to suppress a firearm recovered in a vehicle search conducted during a daytime traffic stop in Aurora, Colorado. The officers—members of a gang unit—stopped Clover McGregor for speeding. As the patrol car’s lights and siren activated, both officers observed an exaggerated “dramatic” lean by McGregor toward the passenger side—so pronounced that one officer briefly lost visual contact with his body. Approaching the car, the officers recognized McGregor as associated with a violent local gang and learned he was on parole for robbery. After removing McGregor from the car, patting him down (no weapon found), and seating him on the curb, the officers performed a limited search of the passenger area and recovered a firearm. McGregor, a felon, pled guilty to violating 18 U.S.C. § 922(g)(1), reserving the right to appeal the suppression ruling and the statute’s constitutionality.

The appeal presented two issues: (1) whether the officer-safety exception under Michigan v. Long permitted the protective sweep of the passenger area based on reasonable suspicion that McGregor was “armed and dangerous,” and (2) whether § 922(g)(1) is unconstitutional under the Second Amendment. The Tenth Circuit affirmed on both, offering important clarifications on the kinds of facts that, in combination, can supply reasonable suspicion for a Long vehicle sweep, and reiterating (post–Rahimi) that felon-in-possession remains constitutional in this circuit under Vincent v. Bondi.

Summary of the Opinion

Fourth Amendment holding: The court held that officers had reasonable suspicion to conduct a Michigan v. Long protective sweep of the vehicle’s passenger area based on three interlocking factors:
- a “dramatic,” “frantic,” and “abrupt” pre-approach lean toward the passenger seat (a furtive movement);
- an objectively grounded belief that McGregor was a contemporaneous or recent member of a violent local gang; and
- McGregor’s admission he was on parole for robbery, a violent offense.
Viewed collectively and under the totality of the circumstances, these facts provided “more than an inchoate and unparticularized suspicion or hunch” that McGregor was presently dangerous and that a weapon could be concealed in the car.
Second Amendment holding: The panel rejected McGregor’s facial and as-applied challenges to § 922(g)(1) as foreclosed by circuit precedent. After the Supreme Court vacated and remanded Vincent v. Garland for reconsideration in light of United States v. Rahimi, the Tenth Circuit in Vincent v. Bondi readopted its earlier decision upholding § 922(g)(1). That binding precedent controls here.

Analysis

Precedents cited and how they shaped the decision

Terry v. Ohio and Michigan v. Long: Long extends Terry’s officer-safety frisk doctrine to automobiles, allowing a limited protective sweep of those areas where a weapon may be placed or hidden if officers have reasonable suspicion the suspect is dangerous and may gain immediate access to a weapon.
Core Tenth Circuit authorities on protective sweeps and reasonable suspicion:
- United States v. Canada (2023): reaffirms Long and explains the two elements: (1) suspect is “presently dangerous,” and (2) reason to believe weapons may be in the vehicle; also illustrates how a pre-approach reach to the rear seat plus a “slow roll” can establish reasonable suspicion.
- United States v. Dennison and United States v. Samilton: emphasize de novo review of reasonableness, deference to trial court fact findings, and the principle that reasonable suspicion is a non-onerous standard informed by common sense and officers’ training.
- United States v. DeJear and Samilton: treat “furtive movements” as a relevant factor supporting reasonable suspicion when considered with other facts.
- United States v. Garcia (I and II) and United States v. Hammond: criminal history and gang affiliation can support reasonable suspicion when combined with other circumstances; criminal history alone is insufficient.
- United States v. Guardado and United States v. Torres: gang affiliation or attire contributes to reasonable suspicion; not determinative standing alone.
Persuasive sister-circuit cases: The panel drew support from cases treating pre-approach dips, shoulder movements, or leaning as “furtive” and probative (e.g., Sixth Circuit’s Graham; Seventh Circuit’s Kenerson; First Circuit’s Soares) and cases grounding reasonable suspicion in gang affiliation or violent/drug histories when paired with contemporaneous cues.
Second Amendment precedents: After Rahimi, the Tenth Circuit in Vincent v. Bondi readopted its earlier holding (Vincent I) upholding § 922(g)(1), which forecloses McGregor’s challenge.

Legal reasoning

Standards and framework

Standard of review: Reasonableness under the Fourth Amendment is reviewed de novo; historical facts are reviewed for clear error; the record is viewed most favorably to the government; credibility determinations are deferred to the district court.
Method: The court assesses each factor in isolation and then evaluates their aggregate weight under the totality of the circumstances.
Reasonable suspicion: Requires “something more than an inchoate and unparticularized suspicion or hunch,” yet is “not an onerous standard.”
Long’s officer-safety sweep: Limited to places in the car where a weapon may be hidden; permissible if officers reasonably suspect the suspect is presently dangerous and may gain immediate access to a weapon.

Factor 1: Furtive movement—“dramatic” pre-approach lean to the passenger side

The panel placed substantial weight on the officers’ consistent testimony that McGregor made a “dramatic,” “frantic,” and “abrupt” lean toward the passenger area as soon as the lights and siren activated, to the point one officer could not see him. The district court credited those observations; McGregor did not challenge those factual findings on appeal.

Why it mattered: Such a movement, made in direct response to police activation, aligns with cases deeming shoulder dips, floorboard reaches, or exaggerated leans as suggestive of retrieving or concealing a weapon.
Timing objection rejected: The court explained that furtive movements can occur before officers physically reach the window; the key is whether the movement was responsive to police presence, which it was here.
Innocent explanations do not negate reasonable suspicion: Although everyday activities could theoretically explain the lean, deference is due to trained officers’ ability to distinguish suspicious from innocuous conduct, especially when the trial court credited their testimony.

Factor 2: Objectively grounded contemporaneous or recent gang affiliation

The panel accepted the district court’s finding that both officers recognized McGregor as affiliated with the violent Seanville gang based on multiple, current indicators: two recent gang-member funerals at which McGregor was seen, the officers’ familiarity with his social media, and inclusion in an “intel” knowledge base of active local gang members.

Clarifying principle: The opinion articulates an important guardrail—gang affiliation can be probative of present dangerousness only when there is an objective basis to believe the suspect’s association is contemporaneous or recent. Historic or stale affiliation alone has little probative value regarding present dangerousness.
Not a standalone factor: Consistent with circuit precedent, suspected gang status cannot by itself create reasonable suspicion, but it can meaningfully enhance it when coupled with other facts (here, the dramatic movement and the robbery parole).
No “gang colors” requirement: The panel rejected any notion that probative gang affiliation must be shown by attire; non-attire evidence (funerals, social media, intelligence photos) can suffice when objectively grounded.

Factor 3: Violent criminal history—on parole for robbery

McGregor admitted he was on parole for robbery. The district court labeled robbery a violent crime under Colorado law, and the panel agreed. While reiterating that criminal history cannot, standing alone, justify a search, the court emphasized its probative value when it “interacts” with the stop’s circumstances to trigger specific safety concerns.

Key clarification: The Tenth Circuit rejected the argument that only weapon-related priors can support reasonable suspicion of being “armed and dangerous.” Although a weapon-related history is especially probative, non-weapon violent offenses (like robbery) remain significant when paired with contemporaneous suspicious conduct.
Why it mattered here: The robbery parole status, combined with the dramatic movement and gang affiliation, made it objectively reasonable to fear the presence of a weapon and present dangerousness.

Totality of the circumstances

Individually, each factor had probative force; collectively, they crossed the reasonable-suspicion threshold. The panel also addressed and discounted several mitigating facts McGregor invoked:

Daylight in a residential area: Though sometimes mitigating, daytime/residential settings do not preclude reasonable suspicion when other risk indicators exist.
Polite and cooperative demeanor: Compliance may reduce, but does not eliminate, safety concerns, especially where officers have concrete reasons to fear a weapon in the car.
Number of officers: Additional officers on scene does not negate a suspect’s dangerousness or the need for a protective sweep.

Notably, the government urged the court to add a “slow roll” factor (time to stop) by analogy to Canada. The panel declined because the officers gave conflicting testimony and the district court made no factual finding on duration. This underscores the appellate court’s commitment to defer to trial-level credibility determinations and to avoid supplementing the record with contested facts.

Immediate access to a weapon

Under Canada and Long, a protective sweep requires not only present dangerousness but also reason to believe the suspect may gain immediate access to a weapon in the vehicle. While the panel’s discussion centered on dangerousness and the likelihood a weapon was in the passenger area, the facts fit Long’s premise: the encounter was ongoing at the curb beside the car, McGregor was not yet handcuffed when the sweep began, and the search was confined to the passenger-area zone of the suspicious movement. Under Long, even suspects outside the vehicle may “gain immediate control of weapons” during a traffic stop, which justifies a targeted sweep for officer safety.

Impact

Practical effects on Fourth Amendment traffic-stop law in the Tenth Circuit

Pre-approach movements count: The court expressly treats a dramatic pre-approach lean in response to police activation as a significant “furtive movement” for reasonable-suspicion purposes. Officers need not wait for window-side interaction to credit what they observe.
Gang affiliation—an objective, current-link requirement: McGregor meaningfully clarifies that the probative force of gang affiliation rests on an objective foundation of contemporaneous or recent membership (e.g., recent sightings with gang members, social media, current intelligence photos). Historic or unmoored assertions of affiliation carry little weight. And gang affiliation still cannot stand alone.
Violent priors can matter even if not weapon-specific: The decision reconfirms that violent criminal history—like robbery—may significantly contribute to reasonable suspicion of present dangerousness when combined with contemporaneous suspicious conduct, even if the prior did not formally include weapon possession or use.
Totality remains decisive: Absence of typical aggravators (nighttime, high-crime area, evasive driving) does not foreclose reasonable suspicion where a concentrated cluster of different risk factors exists.
Appellate restraint on factual gaps: The panel’s refusal to credit a “slow roll” without a district court finding emphasizes the necessity of clear trial-level factual development; parties should ensure critical facts are resolved below.

Guidance for law enforcement

Document the “why”: When movements are described as “dramatic,” “frantic,” or “abrupt,” articulate how they were responsive to police presence and how they suggested concealment or retrieval of a weapon.
Build an objective gang-affiliation foundation: Note recent, verifiable indicators—social media, current intelligence photos, recent association events (e.g., funerals), and training/experience in gang identification.
Link criminal history to present risk: Specify how violent priors, in the particular circumstances encountered, heightened safety concerns and justified a limited passenger-area sweep.
Maintain sweep limits: Restrict searches to areas where a weapon could be placed or hidden, consistent with Long.

Guidance for defense counsel

Challenge staleness and objectivity: Probe whether alleged gang affiliation is demonstrably current and objectively grounded. Contest reliance on vague labels or uncorroborated “knowledge bases.”
Contest characterization and timing of movements: Where feasible, challenge whether movements truly appeared responsive to police or could be credibly innocuous, and whether officers consistently testified.
Develop the record on proximity and access: The “immediate access” prong can be a limiting principle where suspects are secured, distanced, or otherwise unable to reenter the vehicle.
Preserve issues early: McGregor underscores appellate deference to trial fact-finding; critical factual disputes must be developed and resolved at suppression hearings.

Second Amendment landscape in the Tenth Circuit

For the foreseeable future in the Tenth Circuit, facial and as-applied challenges to § 922(g)(1) are foreclosed by Vincent v. Bondi’s reaffirmation of Vincent I after Rahimi. Unless and until en banc review or the Supreme Court says otherwise, felon-in-possession prosecutions remain on firm constitutional footing here.

Complex concepts simplified

Reasonable suspicion: A common-sense, low threshold allowing brief, targeted intrusions when specific and articulable facts suggest criminal activity or danger. It is less demanding than probable cause but requires more than a hunch.
Protective sweep of a vehicle (Long search): A narrowly tailored search of areas in a car where a weapon could be hidden, performed to neutralize immediate danger to officers during an encounter. It requires reasonable suspicion that the person is presently dangerous and may quickly access a weapon in the car.
Furtive movement: A movement that, to trained officers, suggests concealment or retrieval of contraband or a weapon. Its probative value is strongest when made in response to police presence.
Gang affiliation as a factor: Evidence that a person is currently or recently associated with a criminal gang can increase concern about weapon possession, but it must be objectively grounded and is never sufficient by itself.
Criminal history as a factor: Prior convictions can increase concerns about danger, especially violent or weapon-related histories. Criminal history alone cannot justify a search; it must combine with present circumstances.
Facial vs. as-applied constitutional challenge: A facial challenge attacks a statute in all applications; an as-applied challenge targets the statute’s application to the particular defendant’s circumstances. Both fail here under binding circuit precedent.

Conclusion

United States v. McGregor is an important, published clarification of the Tenth Circuit’s Long-protective-sweep jurisprudence. The court crystallizes three points:

Pre-approach, highly exaggerated movements in response to police activation can substantially support reasonable suspicion;
Gang affiliation is probative only when objectively grounded in contemporaneous or recent association and must be combined with other factors; and
Violent criminal history, even without a weapon-specific predicate, can significantly contribute to present-dangerousness assessments when integrated with contemporaneous suspicious conduct.

By affirming the suppression denial, the panel reinforces a practical, totality-based approach that privileges common sense, trained-officer judgment, and trial-court credibility findings while maintaining core constraints: no single factor is dispositive, criminal history and gang affiliation cannot stand alone, and searches must remain narrowly limited to areas where a weapon could be hidden. On the Second Amendment front, McGregor confirms that—post-Rahimi—§ 922(g)(1) remains constitutional in the Tenth Circuit under Vincent v. Bondi. Together, these holdings offer clear guidance to law enforcement, defense counsel, and district courts on how to document, challenge, and evaluate officer-safety searches during traffic stops going forward.