Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-24-2002

USA v. Wynne
Precedential or Non-Precedential:

Docket 1-1679




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Recommended Citation
"USA v. Wynne" (2002). 2002 Decisions. Paper 36.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/36


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                                                NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT


                           No. 01-1679


                  UNITED STATES OF AMERICA,

                                v.

                       GEMALLE L. WYNNE,

                                                   Appellant.


        On Appeal from the United States District Court
                 for the District of New Jersey
                     (D.C. No. 00-cr-00193)
         District Judge: Honorable Stephen M. Orlofsky



           Submitted under Third Circuit LAR 34.1(a)
                       December 11, 2001

Before: BARRY and ALDISERT, Circuit Judges, and FULLAM, District Judge.

                  (Filed    January 24, 2002)



                MEMORANDUM OPINION OF THE COURT


ALDISERT, Circuit Judge.
      We discuss two questions in this appeal by Gemalle L. Wynne from a
conviction
and sentence.
     Wynne first contends that the felon-in-possession statute is
unconstitutional
because the conduct it proscribes--the intrastate possession of a firearm-
-does not have a
substantial effect upon interstate commerce, and thus does not constitute
a valid exercise
of Congressional authority under the Commerce Clause. Specifically, Wynne
contends
that although we upheld the constitutionality of 18 U.S.C.   922(g)(1) as
a proper
exercise of Congressional regulatory power under the Commerce Clause in
United States
v. Gateward, 

(3d Cir. 1996), that holding must be reconsidered
in the wake
of the Court's decisions in United States v. Morrison, 

(2000), and Jones v.
United States, 

(2000). We hold that this argument is now
totally foreclosed
by our recent decision in United States v. Singletary, 

(3d
Cir. 2001), in
which we rejected the identical contention.
     His next contention hinges on the teachings of Florida v. J.L., 

(2000). In J.L., the Court held that an anonymous tip that the defendant
was carrying a
gun was insufficient to justify a stop and frisk conducted by a police
officer, and thus the
district court erred in denying his motion to suppress.
      Wynne argues that neither the anonymous telephone call to the 911
operator
reporting the gunshots emanating from the area of Francine's bar, nor the
shouted remark
at the scene of the arrest that he had a gun, established reasonable
suspicion to believe
that Wynne was engaged in criminal conduct.
     On its part, the government argues that the totality of circumstances
confronting
the police established reasonable suspicion. The government refers
specifically to the
following circumstances: 1) Wynne had fled, though unprovoked, in
response to the
arrival of the police; 2) he had fled from a location at which gunshots
had been fired
moments earlier; 3) he was in a high crime area where guns were frequently
fired; 4) he
had refused repeated police commands to stop and show his hands; and
finally 5) a
bystander shouted in the presence of both police and Appellant that
Appellant had a gun.
     We are satisfied that the facts here bear a closer resemblance to
those in Illinois v.
Wardlow, 

(2000) than to those in Florida v J.L. In
discussing the
requirements of Terry v. Ohio, 

(1968), the Wardlow Court
explained:
     [W]e have previously noted the fact that the stop occurred in a "high
crime
     area" among the relevant contextual considerations in a Terry
analysis . . .
     In this case, moreover, it was not merely respondent's presence in an
area of
     heavy narcotics trafficking that aroused the officers' suspicion, but
his

     unprovoked flight upon noticing the police.   Our cases have also
recognized
      that nervous, evasive behavior is a pertinent factor in determining
      reasonable suspicion . . . Headlong flight--wherever it occurs--is
the
     consummate act of evasion: It is not necessarily indicative of
wrongdoing,
     but it is certainly suggestive of such. In reviewing the propriety
of an
     officer's conduct, courts do not have available empirical studies
dealing
     with inferences drawn from suspicious behavior, and we cannot
reasonably
     demand scientific certainty from judges or law enforcement officers
where
     none exists. Thus, the determination of reasonable suspicion must be
based
     on commonsense judgments and inferences about human behavior . . . We
     conclude [the officer] was justified in suspecting that Wardlow was
     involved in criminal activity, and, therefore, in investigating
further.

.

     The district court here determined that it was "undisputed that shots
were fired and
it is undisputed that shots are frequently fired in the City of Camden,
and so the police
were obviously responding to a shots fired call in a high crime area."
App. at 193.
Accordingly, we reject this argument as well.
                            * * * * *
     We have considered all of the arguments advanced by the parties and
conclude that
no further discussion is necessary. The judgment of the district court
will be affirmed.

TO THE CLERK:
     Please file the foregoing opinion.

                                /s/ Ruggero J. Aldisert
                                     Circuit Judge