Search and Seizure: Section 922(g)(5)(A) indictment survives Second Amendment attack

Where the defendant argued that 18 U.S.C. § 922(g)(5)(A), which prohibits an unlawful alien from possessing a firearm, violates the Second Amendment, this argument was rejected. Undocumented non-citizens “do not belong to the class of law-abiding members of the political community to whom the Second Amendment gives protection.”

Background

In August 2022, officers stopped a Ford Explorer at a gas station in Sterling, Virginia. Herbert Murillo-Lopez was in the driver’s seat and, after a brief interaction, the officers recovered a firearm from a satchel affixed to” his body. A grand jury charged Murillo-Lopez with violating § 922(g)(5)(A). Murillo-Lopez filed a pretrial motion to suppress the evidence from the traffic stop (including the firearm), which the district court denied.

Five days before trial—and after the pretrial motions deadline had passed—Murillo-Lopez moved to dismiss the indictment, arguing § 922(g)(5) is unconstitutional given New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022). The district court denied that motion as well, deeming Murillo-Lopez’s arguments “untimely” and “unpersuasive.” After a trial, a jury found Murillo-Lopez guilty, and the district court denied his motion for a judgment of acquittal.

Sufficiency

Murillo-Lopez challenges the sufficiency of the evidence. If he “prevail[s] on this point,” he is “entitled to a judgment of acquittal without further proceedings.”

The only element of the crime whose sufficiency Murillo-Lopez disputes is knowledge that he was “illegally or unlawfully in the United States.” An officer testified that, during the stop, Murillo-Lopez admitted that “he wasn’t a [United States] citizen” and that he “was illegal.”

True, the jury could have discounted the officer’s account and concluded that Murillo-Lopez only admitted to being a non-citizen while denying he was illegally present in the United States. But the court must assume for these purposes that the jury credited the officer’s testimony.

The government offered corroborative evidence too. When asked for his country of citizenship during a post-arrest interview with an immigration officer, Murillo-Lopez explained he was born in El Salvador and that both he and his parents were citizens of that country.

During that same interview, Murillo-Lopez never claimed to be “lawfully present in the United States.” He also expressed no confusion when told he had been placed in removal proceedings, and he never offered to provide any form of identification or proof of lawful status. In addition, the immigration officer testified at trial that a search of Murillo-Lopez’s fingerprints in government immigration databases revealed no record that he ever entered the country through a designated port of entry. This court thus rejects Murillo-Lopez’s sufficiency challenge.

Search

Murillo-Lopez’s primary contention is that the stop was unconstitutional because “[t]he record is devoid of evidence indicating that Mr. Murillo-Lopez was involved in criminal activity” at the time. As the district court observed, officers only began surveilling “a few specific residences” after receiving uncontested information that a person wanted for armed robbery was there.

Equipped with a description and photograph of the target, officers then saw two or three men—at least one of whom fit the target’s physical description—leave one of the homes under surveillance and drive off in the Ford Explorer that was eventually stopped. Even as he approached the stopped car, the marshal believed—based on both a photograph and a physical description—that Murillo-Lopez may have been the person they were looking for. This case is thus far different from those where officers stopped people based on vague (and often anonymous) physical descriptions in the general area of a suspected crime.

The district court found Murillo-Lopez consented to the search of his satchel, and that finding is not clearly erroneous. Murillo-Lopez insists that he “was unable to consent in light of [a] language barrier,” pointing to evidence he says shows he could not understand the officer’s request to search his satchel. But the district court addressed that argument and found it “not supported by the record,” noting Murillo-Lopez “heard, understood, and responded in English to questions asked only in English.”

Statute

Murillo-Lopez argues the district court should have dismissed the indictment because the statute he was charged with violating itself violates the Second Amendment. In United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012), this court rejected a Second Amendment challenge to § 922(g)(5), concluding undocumented non-citizens “do not belong to the class of law-abiding members of the political community to whom the Second Amendment gives protection.” That decision conducted precisely the sort of textual and historical analysis that more recent Supreme Court decision require.

Affirmed.

Concurring/dissenting opinion

Benjamin, J., concurring in part and dissenting in part:

While I agree with the majority’s conclusions on the sufficiency of the evidence and the constitutionality of § 925(g)(5), because the stop of the car does not satisfy the strictures of the Fourth Amendment, I respectfully dissent.

United States v. Murillo-Lopez, Case No. 23-4302, Aug. 18, 2025. 4th Cir. (Heytens), from EDVA at Alexandria (Ellis). Ariel H. Bryant and Ashley B. Eickhof for Appellant. Daniel J. Honold for Appellee. VLW 025-2-340. 18 pp.