United States of America v. Frelimo Shorter, a/k/a JOHN SMITH Frelimo Shorter

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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NO. 01-3384
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UNITED STATES OF AMERICA
v.
FRELIMO SHORTER,
a/k/a JOHN SMITH
Frelimo Shorter,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 00-cr-00152)
District Judge: Honorable J. Curtis Joyner
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Submitted Under Third Circuit LAR 34.1(a)
on April 26, 2002
Before: BECKER, Chief Judge, SCIRICA, and RENDELL, Circuit Judges,
(Filed: May 3, 2002 )
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Appellant Frelimo Shorter was convicted of possessing a controlled substance with
intent to deliver in violation of 21 U.S.C. 841(a) and being a felon in possession of a
firearm in violation of 18 U.S.C. 922(g) and 924(c). The District Court had
jurisdiction pursuant to 18 U.S.C. 3742, and since Shorter is appealing a final judgment,
we have jurisdiction pursuant to 28 U.S.C. 1291.
Two police officers observed an apparent drug transaction in an area known for
drug trafficking. The two officers separated in order to observe the suspicious activity
more closely. One officer, approaching from the north end of the block, observed a
transaction in which money was exchanged for an object. He also recognized Shorter as
someone that he had arrested for drug transactions on the same block. The officer exited
his vehicle and approached Shorter. As he did so, Shorter shouted the officer’s name and
ran, clenching his waist. When the officer caught Shorter, Shorter struggled, and during
the struggle pulled out a gun, which the officer knocked from Shorter’s hand. After he
was subdued, the officers recovered the weapon, and they also found $217 and fourteen
"baggies" of marijuana on his person. Shorter filed a pretrial motion to suppress the gun,
money, and marijuana. The District Court held an evidentiary hearing, at which Shorter
did not testify, and declined to suppress the evidence.
Before us, Shorter appeals the denial of the motion to suppress, and also raises a
challenge to 18 U.S.C. 922(g), claiming that the statute was enacted in violation of the
Commerce Clause of the United States Constitution. We review the District Court’s
findings of fact on a denial of a motion to suppress for clear error, but we subject the
District Court’s legal analysis and application of law to facts to a plenary review. United
States v. Riddick, 156 F. 3d 505, 509 (3d Cir. 1998). Likewise, a question of the

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constitutionality of a statute is subject to plenary review. United States v. Singletary, 268
F.3d 196, 198-99 (3d Cir. 2001). Because we find both of Shorter’s arguments to be
without merit, we will affirm the District Court.
Under our case law it is clearly established that, if the "facts and circumstances
within the arresting officer’s knowledge are sufficient to warrant a reasonable person to
believe an offense had been committed," the officer had probable cause to arrest the
suspect. United States v. McGlory, 968 F.2d 309, 342 (3d Cir. 1992). Where probable
cause to arrest exists, a search may be conducted, and any evidence thus recovered
admitted. Id. at 343.
In United States v. Singletary, we considered the precise challenge to the validity
of 18 U.S.C. 922(g)(1) that is brought by Shorter. 268 F.3d 196. There we found that
the statute, by its terms, regulates only those weapons that affect interstate commerce, and
thus avoids the constitutional infirmity of 18 U.S.C. 922(q)(1)(A) found in United
States v. Lopez, 514 U.S. 549 (1995). 268 F.3d at 204.
The District Court’s denial of Shorter’s suppression motion was based on its view
that, because the police officers saw Shorter’s conduct and his fleeing, they had
reasonable suspicion that he was involved in criminal activity. As noted above, the gun
was in plain view. We will not disturb the District Court’s reasoning or the result it
reached.
For the foregoing reasons, we will AFFIRM the judgment of the District Court.
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Please file the foregoing Not Precedential Opinion.
/s/ Marjorie O. Rendell
Circuit Judge

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