Summary
finding police officer justified in conducting Terry stop based on reasonable suspicion to believe the defendant was trespassing
Summary of this case from United States v. BertOpinion
No. 07-4893-cr.
October 3, 2008.
UPON DUE CONSIDERATION of appeal No. 07-4893-cr, from the judgment of the United States District Court for the Southern District of New York (Crotty, J., and Mukasey, J.), it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court is AFFIRMED.
Jesse M. Siegel, New York, N.Y. for Appellant.
Nicholas S. Goldin, Assistant United States Attorney, of counsel (Katherine Polk Failla, on the brief) for Michael J. Garcia, United States Attorney for the Southern District of New York.
PRESENT: Hon. GUIDO CALABRESI, Hon. SONIA SOTOMAYOR, and Hon. B.D. PARKER, Circuit Judges.
SUMMARY ORDER
Defendant appeals a conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We assume the parties' familiarity with the facts of the case, its procedural history, and the scope of the issues on appeal.
I. Nexus with Interstate Commerce
Defendant contends that his crime lacked a sufficient nexus to interstate commerce. Defendant first argues that the federal criminal prohibition against being a felon in possession of a firearm exceeds Congress's powers under the Commerce Clause to the extent that it applies to possession where the only nexus to interstate commerce is that the gun, at some past time, has traveled in interstate commerce. Both the Supreme Court and our Court have made clear that there is a constitutionally sufficient nexus between being a felon a possession of a firearm and interstate commerce when that firearm has previously moved in interstate commerce. See Scarborough v. United States, 431 U.S. 563, 566-67, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977); United States v. Sorrentino, 72 F.3d 294, 297 (2d Cir. 1995). Although, as Defendant argues, the Supreme Court has limited the reach of Congress's power under the Commerce Clause, it has not done so with respect to the type of specific jurisdictional basis present in the case before us. See United States v. Lopez, 514 U.S. 549, 561-62, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (citing United States v. Bass, 404 U.S. 336, 337, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971)).
Defendant next argues that 18 U.S.C. § 922(g) is, by its own terms, not satisfied merely by the firearm in question having once crossed state lines, but rather requires a stronger connection to commerce than was alleged in the case before us, We have long held that 18 U.S.C. § 922(g)(1)'s "in and affecting commerce" element is satisfied by proof that the firearm that a defendant possessed had previously traveled in interstate commerce. See, e.g., United States v. Palozie, 166 F.3d 502, 504 (2d Cir. 1999) (per curiam).
II. Suppression
Defendant argues that the gun taken from his pocket and his subsequent statement should have be excluded as products of violation(s) of the Fourth Amendment and fruit of the poisonous tree. The police's initial conversation with Defendant was not a seizure and did not raise any Fourth Amendment concerns. See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992). At the point in which the conversation evolved into more, it constituted a legitimate Terry stop based on a reasonable suspicion that Defendant was trespassing. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); Phaneuf v. Fraikin, 448 F.3d 591, 599 (2d Cir. 2006) (holding that a citizen's conduct during a police encounter may establish reasonable suspicion for a subsequent stop and frisk); United States v. Oates, 560 F.2d 45, 61 (2d Cir. 1977). The subsequent grab of Defendant's pocket and then retrieval of a gun from that pocket were justified as part of the Terry stop. See Terry, 392 U.S. at 23, 27, 88 S.Ct. 1868; United States v. Casado, 303 F.3d 440, 449 n. 5 (2d Cir. 2002) (observing that the scope of a Terry search is not limited to a classic pat down).
Because the search was not unconstitutional, Defendant's statements were correctly admitted. Defendant argues his statement itself was nonvoluntary, however he fails to show that coercive tactics were used to elicit that statement. See Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).
III. Conclusion
We have considered after argument all of Defendant-Appellant's arguments and have found them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.