                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-18-2008

USA v. Cooper
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2538




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-2538


                           UNITED STATES OF AMERICA

                                            v.

                                  LATWAN COOPER,
                                             Appellant


                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             D.C. Criminal No. 05-cr-0027
                           (Honorable Mary A. McLaughlin)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  September 8, 2008

         Before: SCIRICA, Chief Judge, McKEE and SMITH, Circuit Judges.

                               (Filed: September 18, 2008)


                               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 Allen 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 Allen then observed Cooper lift his shirt, displaying a silver handgun to the men.

Cooper then returned to his car and drove away. Officer Allen 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 semi-automatic

handgun with its serial number 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

   1
    The District Court sentenced Cooper to 97 months’ incarceration on each of counts
one and three, to be served concurrently, and to 60 months’ incarceration on count two, to
be served consecutively. Cooper was also sentenced to four years’ supervised release and
a $300 special assessment.
   2
       We restate the facts as found by the District Court.

                                                2
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.




   3
    We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a
District Court’s determination of reasonable suspicion and probable cause. United States
v. Valentine, 232 F.3d 350, 353 (3d Cir. 2000) (citation omitted). We review the District
Court’s findings of fact for clear error. United States v. Perez, 280 F.3d 318, 336 (3d Cir.
2002).

                                             3
Ohio, 392 U.S. 1, 30 (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, 673 A.2d 374, 377 (Pa. Super. Ct. 1996); Commonweath v. Robinson, 600 A.2d

957, 959 (Pa. Super. Ct. 1991) (“[P]ossession 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.

       In Commonwealth v. Bigelow, 399 A.2d 392, 396 (Pa. 1979), the Pennsylvania

Supreme Court held that licensure is an affirmative defense to a statutory violation for




                                              4
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



   4
       18 Pa. Cons. Stat § 6108 provides, in relevant part:
          No person shall carry a firearm, rifle or shotgun at any time upon the public
          streets or upon any public property in a city of the first class unless:
                  (1) such person is licensed to carry a firearm; or
                  (2) such person is exempt from licensing under section 6106 of this title.
   5
    Subsequently, the Pennsylvania legislature amended a separate section of the Uniform
Firearms Act to state that a gun owner’s failure to produce proof of gun licensure upon
lawful demand by a law enforcement officer “shall create a rebuttable presumption of
nonlicensure.” 18 Pa. Cons. Stat. § 6122. Cooper contends “[t]he addition and
amendment of § 6122 after the adoption of § 6108 and its interpretation in Bigelow
signifies the legislature’s intent to change the Uniform Firearms Act.” Cooper Br. at 11
(citations omitted). On this view, according to Cooper, “licensure under § 6108 is an
evidentiary presumption, not an affirmative defense,” id. at 11-12, and therefore the
potential for non-licensure would not be sufficient to create a reasonable suspicion when
a law enforcement officer observes the possession of a firearm in a public place. We see
no merit to this argument.

                                                5
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 (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.”)

                                              IV.

       Cooper also appeals the District Court’s factual findings that credited the

testimony of the arresting officers. We agree with the District Court that the four

Philadelphia Police Officers were credible and had no reason to fabricate a detailed story

involving Cooper’s arrest. We see no error.

                                              V.

       Accordingly, we see no error in the District Court’s denial of Cooper’s motion to

suppress and will affirm the judgment of conviction and sentence.




                                               6
