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U.S. v. Wells

United States Court of Appeals, Fourth Circuit
Oct 25, 1996
98 F.3d 808 (4th Cir. 1996)

Summary

holding that § 922(g) constitutional under Commerce Clause

Summary of this case from United States v. Faison

Opinion

No. 95-5823

Argued September 24, 1996

Decided October 25, 1996

ARGUED: Timothy Joseph Sullivan, Sullivan Sullivan, College Park, MD, for Defendant-Appellant. Maury S. Epner, Assistant United States Attorney, Greenbelt, MD, for Plaintiff-Appellee.

ON BRIEF: Lynne A. Battaglia, United States Attorney, Sandra Wilkinson, Assistant United States Attorney, Greenbelt, MD, for Plaintiff-Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Alexander Williams, Jr., District Judge. (CR-95-49-AW)

Before WILKINSON, Chief Judge, and WILKINS and WILLIAMS, Circuit Judges.

Affirmed by published opinion. Judge Wilkins wrote the opinion, in which Chief Judge Wilkinson and Judge Williams joined.


Kevin Michael Wells pled guilty to unlawful possession of a firearm by a convicted felon, see 18 U.S.C.A. Section(s) 922(g) (West Supp. 1996), reserving his right to challenge on appeal various decisions of the district court. He now maintains that the district court erred in refusing to suppress the firearm, arguing that the law enforcement agent who seized the weapon during a search of Wells' apartment had no lawful right of access to it and that the incriminating nature of the firearm was not immediately apparent. Wells also contends that because Congress exceeded its authority under the Commerce Clause in enacting Section(s) 922(g), his conviction under that statute cannot stand. We affirm.

I.

Agents of the United States Secret Service executed a search of Wells' apartment pursuant to a warrant authorizing a search for evidence relating to federal bank fraud offenses. After the agents entered the apartment, they handcuffed Wells and began searching for the items described in the warrant. While doing so, one of the agents discovered a loaded firearm on the headboard of Wells' bed. Following established Secret Service procedures, the agent unloaded the weapon and replaced it on the headboard; he also advised the other officers in the apartment that he had located a weapon. Upon learning of this discovery, the agent responsible for supervising the search ordered the firearm seized as evidence. Although the warrant did not list weapons among the items to be seized as evidence of bank fraud, a criminal records review by the supervising agent prior to the search indicated that Wells had a prior felony conviction; the weapon, therefore, was evidence of a violation of Section(s) 922(g).

Wells subsequently was indicted on one count of violating 18 U.S.C.A. Section(s) 922(g). He thereafter filed a motion requesting that the district court suppress the firearm, arguing that the seizure of the weapon was improper since firearms had not been specified in the warrant and seizure of the weapon could not be justified under the plain view doctrine; the district court denied the motion. Wells also moved to dismiss the indictment on the ground that Section(s) 922(g) is unconstitutional under United States v. Lopez, 115 S.Ct. 1624 (1995). The district court denied this motion as well. Wells then entered a conditional plea of guilty to violating Section(s) 922(g).

II.

Ordinarily, government agents may seize only items that are "particularly describ[ed]" in a warrant issued upon probable cause. U.S. Const. amend. IV. It is undisputed that the warrant permitting the search of Wells' apartment did not specify firearms among the items to be seized as evidence of bank fraud. Thus, to be proper the seizure must satisfy an exception to the warrant requirement. See Horton v. California, 496 U.S. 128, 133-34 (1990). The Government maintains that the seizure was proper under the plain view doctrine.

Three predicate showings are required in order to justify a warrantless seizure under the plain view doctrine. First, "the seizing officer [must] be lawfully present at the place from which the evidence can be plainly viewed. Second, the officer must have a lawful right of access to the object itself. And [third], the object's incriminating character must . . . be immediately apparent." United States v. Legg, 18 F.3d 240, 242 (4th Cir.) (third alteration in original) (citations and internal quotation marks omitted), cert. denied, 114 S.Ct. 2761 (1994).

Although Wells concedes that the first predicate was met because the agents were acting pursuant to a properly issued search warrant and, thus, were lawfully present in his apartment, he asserts that neither the second nor third conditions for a proper plain view seizure were present. We disagree. The agents were lawfully searching Wells' apartment pursuant to a warrant, and the weapon was located in plain view in a place where items that were described in the warrant reasonably could have been found. See Maryland v. Garrison, 480 U.S. 79, 84 (1987) ("[T]he scope of a lawful search is defined by the object of the search and the places in which there is probable cause to believe that it may be found.") (internal quotation marks omitted). Accordingly, the agents possessed a lawful right of access to the weapon. Furthermore, the evidence from the prior criminal records review indicating that Wells had a previous felony conviction was sufficient to provide probable cause to believe that the firearm constituted evidence of a Section(s) 922(g) offense. See United States v. Smith, 899 F.2d 116, 118 (1st Cir. 1990); United States v. Robinson, 756 F.2d 56, 60 (8th Cir. 1985). And, although the agent who actually seized the weapon pursuant to the supervising agent's instructions had no personal knowledge that Wells was a convicted felon, it is sufficient that the agents collectively had probable cause to believe the weapon was evidence of a crime at the time of the seizure. United States v. Laughman, 618 F.2d 1067, 1072 n. 3 (4th Cir.), cert. denied, 447 U.S. 925 (1980); cf. United States v. Hensley, 469 U.S. 221, 231-33 (1985) (holding that admissibility of evidence uncovered during an investigatory stop made in reliance on a police bulletin turns on knowledge of the officers who issued the bulletin, rather than on knowledge of the detaining officers); United States v. Gaither, 527 F.2d 456, 458 (4th Cir. 1975) (discussing probable cause for arrest and holding "that probable cause can rest upon the collective knowledge of the police, rather than solely on that of the officer who actually makes the arrest") (internal quotation marks omitted), cert. denied, 425 U.S. 952 (1976). As a result, the incriminating nature of the firearm was immediately apparent. Thus, the seizure of the firearm was proper under the plain view doctrine.

Because mere possession of a firearm is a presumptively legal activity, knowledge of Wells' status as a felon was necessary to make the incriminating nature of the firearm immediately apparent in these circumstances. The present situation, however, is distinguishable from one in which a weapon is seized as evidence of a violation of 18 U.S.C.A. Section(s) 924(c) (West Supp. 1996). If a firearm is seized as evidence that it was used or carried during or in relation to a crime of violence or a drug-trafficking crime, the incriminating nature of the object presumably would be immediately apparent based on the evidence of the underlying violent or drug-trafficking crime without knowledge that the possessor is a convicted felon.

III.

Relying on United States v. Lopez, 115 S.Ct. 1624 (1995), Wells next challenges the constitutionality of 18 U.S.C.A. Section(s) 922(g), asserting that the enactment of the statute exceeded Congress' Commerce Clause authority. In Lopez, the Supreme Court held that Congress unconstitutionally exceeded its power under the Commerce Clause, U.S. Const., art. I, Section(s) 8, cl. 3, by enacting the Gun-Free School Zones Act of 1990, 18 U.S.C.A. Section(s) 922(q) (West Supp. 1996), making it a federal offense to possess a firearm in a school zone. Lopez, 115 S.Ct. at 1626. The Court found that the activity regulated by the statute did not come within the power of Congress to regulate activities having a substantial affect on interstate commerce, observing that Section(s) 922(q) "by its terms has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." Id. at 1630-31. Moreover, the Court relied on the fact that "Section(s) 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at 1631. As a result, in order to obtain a conviction under the Gun-Free School Zones Act, the Government was not required to demonstrate that a criminal defendant's "possession of the firearm [had a] concrete tie to interstate commerce." Id. at 1634.

Lopez, however, does not compel the conclusion that Wells seeks. Unlike the statute at issue in Lopez, Section(s) 922(g) expressly requires the Government to prove the firearm was "ship[ped] or transport[ed] in interstate or foreign commerce"; was "possess[ed] in or affect[ed] commerce"; or was received after having "been shipped or transported in interstate or foreign commerce." 18 U.S.C.A. Section(s) 922(g). The existence of this jurisdictional element, requiring the Government to show that a nexus exists between the firearm and interstate commerce to obtain a conviction under Section(s) 922(g), distinguishes Lopez and satisfies the minimal nexus required for the Commerce Clause. See Scarborough v. United States, 431 U.S. 563, 575 (1977) (finding predecessor felon-in-possession statute within the bounds of the Commerce Clause); United States v. Presley, 52 F.3d 64, 67 (4th Cir.) (holding pre-Lopez that Section(s) 922(g) "does not violate the Commerce Clause because sufficient nexus exists between the harm of firearms and interstate concerns"), cert. denied, 116 S.Ct. 237 (1995). This holding is in accord with the decisions of the other circuit courts of appeals that have addressed the constitutionality of Section(s) 922(g) under the Commerce Clause after Lopez. See, e.g., United States v. Gateward, 84 F.3d 670, 671-72 (3d Cir. 1996), petition for cert. filed, No. 96-5709 (U.S. Aug. 21, 1996); United States v. Abernathy, 83 F.3d 17, 20 (1st Cir. 1996); United States v. Spires, 79 F.3d 464, 466 (5th Cir. 1996); United States v. Turner, 77 F.3d 887, 889 (6th Cir. 1996); United States v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996), petition for cert. filed, No. 96-5610 (U.S. Aug. 15, 1996); United States v. Sorrentino, 72 F.3d 294, 296-97 (2d Cir. 1995); United States v. Bell, 70 F.3d 495, 497-98 (7th Cir. 1995); United States v. Bolton, 68 F.3d 396, 400 (10th Cir. 1995), cert. denied, 116 S. Ct. 966 (1996); United States v. Shelton, 66 F.3d 991, 992 (8th Cir. 1995) (per curiam), cert. denied, 116 S.Ct. 1364 (1996); United States v. Hanna, 55 F.3d 1456, 1461-62 n. 2 (9th Cir. 1995).

IV.

We have reviewed Wells' remaining arguments and conclude that they are without merit. Therefore, we affirm his conviction and sentence.

AFFIRMED


Summaries of

U.S. v. Wells

United States Court of Appeals, Fourth Circuit
Oct 25, 1996
98 F.3d 808 (4th Cir. 1996)

holding that § 922(g) constitutional under Commerce Clause

Summary of this case from United States v. Faison

holding Congress did not exceed its authority under the Commerce Clause in enacting § 922(g)

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holding that, while seeing a firearm might not in itself make it immediately apparent that the firearm was contraband, an officer's knowledge of a person's felony conviction makes the object's incriminating nature immediately apparent

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holding that the incriminating nature of the object to be seized depends on whether "the agents collectively had probable cause to believe the [object] was evidence of a crime at the time of the seizure"

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finding requirement satisfied because agents "were lawfully searching" an apartment when they found a firearm

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upholding 18 U.S.C. § 922(g), which prohibits possession of a firearm by a felon, and noting ten other circuits that had upheld its constitutionality under Lopez

Summary of this case from Brzonkala v. Virginia Polytechnic Institute

upholding seizure of firearm under the plain view doctrine

Summary of this case from United States v. Jones

rejecting similar argument made in reliance on United States v. Lopez, 514 U.S. 549

Summary of this case from United States v. Robinson

rejecting similar argument made in reliance on United States v. Lopez, 514 U.S. 549

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rejecting the argument that § 922(g)'s constitutionality was affected by the Court's decision in United States v. Lopez, 514 U.S. 549

Summary of this case from United States v. Morrison

rejecting defendant's argument that the incriminating character of the item must be readily apparent to the individual agent who actually seizes it and holding that in determining whether the incriminating character of the seized item is "readily apparent," it is sufficient if "the agents collectively ha[ve] probable cause to believe the [item] was evidence of a crime at the time of the seizure."

Summary of this case from United States v. Taylor

rejecting the defendant's jurisdictional challenge to § 922(g), explaining that the § 922(g) requirement that the Government prove "that a nexus exists between the firearm and interstate commerce . . . satisfies the minimal nexus required for the Commerce Clause" (citing Scarborough v. United States, 431 U.S. 563, 575 (1977))

Summary of this case from Guess v. United States

rejecting Commerce Clause argument

Summary of this case from U.S. v. Moore

rejecting Commerce Clause argument

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rejecting Commerce Clause argument

Summary of this case from U.S. v. Loveland

rejecting Lopez challenge to 18 U.S.C.A. 922(g) (West 2000 Supp. 2007) because a commerce nexus was shown by the statute's requirement that the defendant received a gun shipped or transported in interstate commerce

Summary of this case from U.S. v. Hinen

In United States v. Wells, 98 F.3d 808, 810-11 (4th Cir. 1996), this court determined that "[u]nlike the statute at issue in Lopez, § 922(g) expressly requires the Government to prove the firearm was shipped or transported in interstate or foreign commerce; was possessed in or affected commerce; or was received after having been shipped or transported in interstate or foreign commerce."

Summary of this case from United States v. Kline

In UnitedStates v. Wells, 98 F.3d 808, 810-11 (4th Cir. 1996), we determined that "[u]nlike the statute at issue in Lopez, § 922(g) expressly requires the Government to prove the firearm was shipped or transported in interstate or foreign commerce; was possessed in or affected commerce; or was received after having been shipped or transported in interstate or foreign commerce."

Summary of this case from U.S. v. Vincent

In Wells, this court determined that "[u]nlike the statute at issue in Lopez, § 922(g) expressly requires the Government to prove the firearm was shipped or transported in interstate or foreign commerce; was possessed in or affected commerce; or was received after having been shipped or transported in interstate or foreign commerce."

Summary of this case from U.S. v. Anderson

observing that agents who were aware prior to entering the home of a suspect that he had prior felonies, were provided with sufficient probable cause to believe that a firearm seen in plain view constituted evidence of a § 922(g) violation

Summary of this case from U.S. v. Santiago

In United States v. Wells, 98 F.3d 808 (4th Cir. 1996), this court found that the same jurisdictional element satisfied the "minimal nexus required for the Commerce Clause" and held that Congress did not exceed its authority under the Commerce Clause in enacting Section 922(g)(1), the felon-in-possession statute.

Summary of this case from U.S. v. Bostic

applying the plain view doctrine

Summary of this case from U.S. v. Munoz

In United States v. Wells, 98 F.3d 808 (4th Cir. 1996), we rejected a Lopez challenge to 18 U.S.C. § 922(g), which criminalizes the shipment, transport, possession, or receipt of a firearm by a specific class of persons.

Summary of this case from U.S. v. Cobb

In Wells, Secret Service agents were lawfully searching the defendant's apartment pursuant to a warrant authorizing a search for evidence relating to bank fraud offenses.

Summary of this case from United States v. Holmes

applying the collective knowledge doctrine where the supervising agent ordered the seizure of a firearm as evidence

Summary of this case from U.S. v. Tataw
Case details for

U.S. v. Wells

Case Details

Full title:UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. KEVIN MICHAEL WELLS, A/K/A…

Court:United States Court of Appeals, Fourth Circuit

Date published: Oct 25, 1996

Citations

98 F.3d 808 (4th Cir. 1996)

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