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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN MICHAEL WELLS, a/k/a
No. 95-5823
Charles Rainey, a/k/a Bernard
Taylor, a/k/a Barnard Tyler, a/k/a
Christopher Westbrooks, a/k/a
Zermee Pryor, a/k/a McCullen Pitts,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Alexander Williams, Jr., District Judge.
(CR-95-49-AW)
Argued: September 24, 1996
Decided: October 25, 1996
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.
_________________________________________________________________
COUNSEL
ARGUED: Timothy Joseph Sullivan, SULLIVAN & SULLIVAN,
College Park, Maryland, for Appellant. Maury S. Epner, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee. ON
BRIEF: Lynne A. Battaglia, United States Attorney, Sandra Wilkin-
son, Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
_________________________________________________________________
OPINION
WILKINS, Circuit Judge:
Kevin Michael Wells pled guilty to unlawful possession of a fire-
arm by a convicted felon, see 18 U.S.C.A.§ 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 § 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 evi-
dence 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 dis-
covered 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 § 922(g).
Wells subsequently was indicted on one count of violating 18
U.S.C.A. § 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§ 922(g) is uncon-
stitutional under United States v. Lopez , 115 S. Ct. 1624 (1995). The
district court denied this motion as well. Wells then entered a condi-
tional plea of guilty to violating § 922(g).
II.
Ordinarily, government agents may seize only items that are "par-
ticularly 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 warrant-
less 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 char-
acter 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 nei-
ther 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 war-
rant 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 § 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 suffi-
cient 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
ing 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 knowl-
edge of the police, rather than solely on that of the officer who actu-
ally 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 fire-
arm was proper under the plain view doctrine.*
III.
Relying on United States v. Lopez , 115 S. Ct. 1624 (1995), Wells
next challenges the constitutionality of 18 U.S.C.A.§ 922(g), assert-
ing 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, § 8, cl. 3, by enacting the Gun-Free School Zones
Act of 1990, 18 U.S.C.A. § 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 hav-
ing a substantial affect on interstate commerce, observing that
§ 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
"§ 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 Gov-
ernment was not required to demonstrate that a criminal defendant's
"possession of the firearm [had a] concrete tie to interstate com-
merce." Id. at 1634.
Lopez , however, does not compel the conclusion that Wells seeks.
Unlike the statute at issue in Lopez , § 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.§ 922(g). The exis-
tence of this jurisdictional element, requiring the Government to show
that a nexus exists between the firearm and interstate commerce to
obtain a conviction under § 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 pre-
decessor felon-in-possession statute within the bounds of the Com-
merce Clause); United States v. Presley , 52 F.3d 64, 67 (4th Cir.)
(holding pre- Lopez that § 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§ 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 sen-
tence.
AFFIRMED
*Because mere possession of a firearm is a presumptively legal activ-
ity, knowledge of Wells' status as a felon was necessary to make the
incriminating nature of the firearm immediately apparent in these cir-
cumstances. 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.
§ 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.