2002 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
 

 NOT PRECEDENTIAL 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, 84 F.3d 670 (3d Cir. 1996), that holding must be reconsidered 

in the wake 

of the Court's decisions in United States v. Morrison, 529 U.S. 598 

(2000), and Jones v. 

United States, 529 U.S. 848 (2000). We hold that this argument is now 

totally foreclosed 

by our recent decision in United States v. Singletary, 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 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, 528 U.S. 119 (2000) than to those in Florida v J.L. In 

discussing the 

requirements of Terry v. Ohio, 392 U.S. 1 (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. 

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 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