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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 01-1679

UNITED STATES OF AMERICA,

v.

GEMALLE L. WYNNE,

Ap pellant.

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

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

Before: BARRY and ALDISERT, Circuit Judges, and FUL LAM, District Judge.

(Filed January 24, 2002)

MEMORANDUM OPINION OF THE COURT

ALDISERT, Circuit Judge. We discuss two questions in this appeal by Ge malle L. Wynne from a conviction and sentence. Wynne first contends that the felon-in-possess ion statute is unconstitutional because the conduct it proscribes--the intrastate p ossession of a firearm- -does not have a substantial effect upon interstate commerce, and th us does not constitute a valid exercise of Congressional authority under the Commerce Claus e. 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 th e Commerce Clause in United Statesv. Gateward, 84 F.3d 670 (3d Cir. 1996), that holdi ng must be reconsidered

in the wake of the Court's decisions in United States v. Morris on, 529 U.S. 598 (2000), and Jones v. United States, 529 U.S. 848 (2000). We hold that t his argument is now totally foreclosed by our recent decision in United States v. Singleta ry, 268 F.3d 196 (3d Cir. 2001), in which we rejected the identical contention. His next contention hinges on the teachings of Florida v. J.L., 529 U.S. 266 (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 co nducted by a police officer, and thus the district court erred in denying his motion to suppr ess. Wynne argues that neither the anonymous telep hone call to the 911 operator reporting the gunshots emanating from the area of F rancine's bar, nor the shouted remark at the scene of the arrest that he had a gun, estab lished reasonable suspicion to believe that Wynne was engaged in criminal conduct. On its part, the government argues that the to tality of circumstances confronting the police established reasonable suspicion. The g overnment 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 locati on at which gunshots had been fired moments earlier; 3) he was in a high crime area whe re guns were frequently fired; 4) he had refused repeated police commands to stop and sh ow his hands; and finally 5) a bystander shouted in the presence of both police an d Appellant that Appellant had a gun. We are satisfied that the facts here bear a cl oser resemblance to those in Illinois v. Wardlow, 528 U.S. 119 (2000) than to those in Flori da v J.L. In discussing the requirements of Terry v. Ohio, 392 U.S. 1 (1968), t he Wardlow Court explained: [W]e have previously noted the fact that the s top occurred in a "high crime area" among the relevant contextual considerat ions in a Terry analysis . . . In this case, moreover, it was not merely resp ondent's presence in an area of heavy narcotics trafficking that aroused the o fficers' suspicion, but his

unprovoked flight upon noticing the police. O ur cases have also recognizedthat nervous, evasive behavior is a pertinent factor in determining

reasonable suspicion . . . Headlong flight--wh erever it occurs--is the consummate act of evasion: It is not necessar ily indicative of wrongdoing, but it is certainly suggestive of such. In re viewing the propriety of an officer's conduct, courts do not have availabl e 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 reaso nable suspicion must be based on commonsense judgments and inferences about human behavior . . . We conclude [the officer] was justified in suspec ting that Wardlow was involved in criminal activity, and, therefore, in investigating further.

Wardlow, 528 U.S. at 124-125.

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 advanc ed by the parties and conclude that no further discussion is necessary. The judgment o f the district court will be affirmed.

TO THE CLERK: Please file the foregoing opinion.

/s/ Ruggero J. Aldise rt Circuit Judge