United States v. Cooper

293 F. App'x 117
Court of Appeals for the Third Circuit·Decided September 18, 2008·No. 07-2538·Unpublished·Cited by 4 cases

Opinion

OPINION OF THE COURT

SCIRICA, Chief Judge.

Latwan Cooper entered a conditional guilty plea to possession of fifty or more grams of cocaine base with intent to distribute, 21 U.S.C. § 841(a)(1) and (b)(1)(A) (count one); possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c)(1) (count two); and possession of a firearm by a convicted felon, 18 U.S.C. § 922(g) (count three). 1 When entering his guilty plea, Cooper preserved the right to appeal the District Court’s denial of his motion to suppress. At issue is whether there was reasonable suspicion to stop and investigate Cooper, whether there was probable cause to arrest Cooper, and whether the arresting officers’ testimony was improperly credited. We will affirm.

I.

At 8:25 PM on September 8, 2004, while surveilling a high-crime area, Philadelphia Police Officer Marcus Alen observed Cooper exit a black Lexus and approach two men on a street corner. 2 Cooper spoke to the men for five to ten minutes. Officer Alen then observed Cooper lift his shirt, displaying a silver handgun to the men. Cooper then returned to his car and drove away. Officer Alen radioed three assisting officers, who pulled Cooper over two blocks away, removed him from his car, and took the weapon from his waistband. The weapon was a nine millimeter semiautomatic handgun with its serial number *119 scratched off. It was loaded with eleven live rounds in the magazine and one live round in the chamber. When the officers asked Cooper if he had a license for the weapon, he responded that he did not. The officers also observed a large quantity of crack cocaine in plain view on the floor of Cooper’s car. The police seized the crack cocaine and firearm and arrested Cooper.

In District Court, Cooper moved to suppress the weapon and drug evidence seized by the officers. The District Court denied the motion, explaining:

The Court concludes that when Officer Allen saw the defendant lift his shirt and reveal the gun in his waistband, and radioed that information to his backup officers, the backup officers had reasonable suspicion to conduct a Terry stop of the car. They had a basis at that point to get the defendant out of the car for their own safety. It was then permissible for the officer to put his hand where Officer Allen said that he saw the gun. Once Officer Wiley retrieved the gun, he asked the defendant if he had a permit for it. The defendant said no. At this point, there was probable cause to arrest the defendant. In addition, Officer Wiley saw the bag of what appeared to be crack cocaine in plain view inside the car. He, therefore, could legally seize the contraband. At that point, there was also probable cause to arrest the defendant for narcotics violations as well as for firearms violations.

Cooper appeals the District Court’s denial of his suppression motion. 3

II.

Cooper contends the stop of his vehicle was improper because it was not based on Officer Allen’s reasonable suspicion. Under Pennsylvania law, police officers may perform an “investigative detention” of a vehicle if they have reasonable suspicion to do so. E.g., Commonwealth v. Hill, 874 A.2d 1214, 1217 (Pa.Super.Ct.2005); cf . Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (holding a police officer may stop a suspect and search for weapons where the officer “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot”). Because a firearm may be lawfully possessed under some circumstances, Cooper contends the facts here — Officer Allen’s mere viewing of Cooper in possession of a weapon on a public street in Philadelphia — did not create reasonable suspicion.

But Pennsylvania courts have consistently held an officer’s observance of an individual’s possession of a firearm in a public place in Philadelphia is sufficient to create reasonable suspicion to detain that individual for further investigation. Commonwealth v. Romero, 449 Pa.Super. 194, 673 A.2d 374, 377 (1996); Commonweath v. Robinson, 410 Pa.Super. 614, 600 A.2d 957, 959 (1991) (“[Pjossession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed.”). Accordingly, Cooper’s contention is without merit.

*120 In Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392, 396 (1979), the Pennsylvania Supreme Court held that licensure is an affirmative defense to a statutory violation for possession of a firearm, 18 Pa. Cons.Stat § 6108 4 — rather than non-licensure constituting an element of the crime that must be proved by the prosecution. 5

Officer Allen’s decision to stop Cooper’s vehicle was based on reasonable suspicion, and the motion to suppress evidence was properly denied.

III.

Cooper also contends his arrest was unlawful because it was not supported by probable cause. After discovering Cooper possessed a concealed firearm, the police officers asked him whether he was licensed to carry a concealed weapon. Cooper admitted illegal activity by responding that he was not licensed. See 18 Pa. Cons.Stat § 6108 (requiring a license to possess a concealed weapon in public). Additionally, the officers observed what they recognized to be crack cocaine in plain view in Cooper’s vehicle. On these facts, the police had probable cause to arrest Cooper. See, e.g., United States v. Hensley, 469 U.S. 221, 235-36, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (“Having stopped [the Defendant], the ... police were entitled to seize evidence revealed in plain view in the course of the lawful stop, to arrest [the Defendant’s] passenger when evidence discovered in plain view gave probable cause to believe the passenger had committed a crime, and subsequently to search the passenger compartment of the car because it was within the passenger’s immediate control.... [And h]aving discovered additional weapons in [the Defendant’s] car during the course of a lawful search, the ... officers had probable cause to arrest [the Defendant] himself for possession of firearms.”)

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United States v. Cooper, 293 F. App'x 117 (3d Cir. 2008).

293 F. App'x 117 (United States v. Cooper) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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