United States v. McCane: Judge Tymkovich Questions Heller’s Disarming Dicta

I. INTRODUCTION Just how far does the Supreme Court's recent holding in District of Columbia v. Helled go to protect what it deems to be the individual right to bear arms for self-defense? In Heller, the Court states that "nothing in our opinions should be taken to cast doubt on longstanding prohibitions on the possession by felons."2 The Tenth Circuit recently challenged this now famous dictum in United States v. McCane,3 in which the criminal defendant, charged with being a felon in possession of a handgun, asserted that Heller's individual right to bear arms invalidated the constitutional basis of the felon dispossession law. Though McCane's conviction was upheld, the concurring opinion of Judge Tymkovich illustrates a growing scholarly and judicial dissatisfaction with Heller's ostensibly unprincipled exceptions. This Note addresses both the holding in McCane and the broader question of whether the exceptions articulated in Heller can be sustained in light of the Court's recognition of an individual right to bear arms. II. BACKGROUND A. Facts On the evening of April 18, 2007, Officer Aaron Ulmann, of the Oklahoma City Police Department, observed Markice Lavert McCane, a convicted felon, straddling two eastbound lanes ofa fourlane highway in Oklahoma City.4 The officer followed McCane for three city blocks before stopping McCane for violating state traffic law and because the officer suspected McCane was intoxicated.5 Upon approaching the vehicle, the officer asked McCane for his license and insurance information, whereupon McCane informed the officer that he was driving under a suspended license.6 The officer then requested that McCane accompany him to his patrol car. McCane complied with the officer's request.7 Upon exiting the vehicle, McCane was subjected to a pat-down search and was then placed in the back seat of the patrol car.8 McCane's driver's-side door remained open for the duration of the stop.9 With McCane in the back of the patrol car, the officer performed a records check, confirming that McCane's license was suspended and that the car he was driving was not registered to him.10 The officer arrested McCane, placed him in handcuffs, and summoned a towing service to tow the vehicle.11 He then returned to the car and asked McCane's passenger, Joseph Carr, to accompany him back to the patrol car. The officer then searched the car.12 In the pocket of the driver's-side door, hidden underneath a rag, the officer found a .25 caliber pistol with seven rounds of ammunition in the magazine.13 The officer brought the weapon to the patrol car to secure it, and, upon seeing the gun, McCane said, "I forgot that was even there."14 The officer then advised McCane of his Miranda rights15 and transported him to the police station for booking.16 While in police custody, McCane declined to make any further statement.17 The officer cited McCane for driving with a suspended license and for straddling lane Unes.18 McCane was then charged under 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm.19 B. Procedural History McCane sought to suppress both his inculpatory statement ("I forgot that was even there") and the gun. He began by arguing that Officer Ulmann 's traffic stop violated the Fourth Amendment and therefore any evidence from that stop was inadmissible.21 The argument proceeded as follows: In United States v. Botero-Ospina,22 the Tenth Circuit adopted the rule that "a traffic stop is valid under the Fourth Amendment if . . . based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a . . . violation ... is occurring."23 Further, under the Supreme Court's decision Terry v. Ohio24 the reasonableness of McCane's stop must be (1) "justified at its inception" and (2) "reasonably related in scope to the circumstances which justified the interference in the first place."25 McCane claimed that road construction at the time of his traffic stop warranted deviation from his lane. …