                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-23-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1664




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Recommended Citation
"USA v. Bond" (2006). 2006 Decisions. Paper 1394.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1394


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                                                  NOT PRECEDENTIAL
                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                          No. 05-1664


                              UNITED STATES OF AMERICA
                                         v.

                                         AQUIL BOND,
                                                              Appellant.


                      On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                  (D.C. No. 03-cr-00434)
                        District Judge: Hon. Eduardo C. Robreno


                         Submitted under Third Circuit LAR 34.1(a)
                                    on January 12, 2006

               BEFORE: ROTH, FUENTES and ROSENN*, Circuit Judges

                               (Opinion Filed: March 23, 2006)


                                         OPINION


ROTH, Circuit Judge:

       Aquil Bond appeals his judgment of conviction for violating 18 U.S.C. §

922(g)(1), which prohibits the possession of a firearm by a convicted felon. We will affirm


      *This case was submitted to the panel of Judges Roth, Fuentes and Rosenn. Judge
Rosenn died after submission, but before the filing of the opinion. The decision is filed by a
quorum of the panel. 28 U.S.C.§46(d).
                                           I. Facts

       Because the parties are familiar with the facts, we will provide only a brief

synopsis. On October 5, 2002, two undercover Philadelphia Police Officers, Arthur

Herder and Lawrence Tilghman, observed Bond on the north side of the 3800 block of

Reno Street. As the officers drove past Bond, he looked toward the car, lifted up his shirt,

and put his hand on what the officers recognized as the handle of a gun protruding from

his waistband. Bond walked past the car and the officers lost sight of him. They circled

the block, did not see him, and concluded that Bond must have entered one of the houses

in the immediate area. The officers radioed uniformed back-up officers that they had

seen a man with a gun at 38 th and Reno, provided a description of Bond, and waited for

him to reappear. Approximately two minutes later, the officers saw Bond leave a house

and get into the passenger seat of a light grey two-door vehicle. The plainclothes officers

radioed their back-up to inform them that Bond was in a light grey two-door vehicle

heading west.

       Within a minute, two back-up uniformed officers, John Joyce and Sean

McLaughlin, spotted a light grey vehicle, occupied by two men, traveling west. The

officers followed the grey car, lost sight of it briefly, and eventually signaled the car to

stop. As the officers approached the car on foot from the rear, Officer Joyce saw Bond

look over his left shoulder toward Officer McLaughlin and reach into his waistband area.



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Officer Joyce pulled his gun and ordered Bond to put his hands on the dashboard. The

officer recovered a loaded automatic pistol from Bond’s waistband, put it on the roof of

the car, and removed Bond from the car to arrest him. Bond subsequently broke away

from the officer and fled into an abandoned house at 934 Belmont Avenue. Officer Joyce

took possession of the gun, and the officers followed in pursuit and found Bond on the

third floor of the building. On the second floor landing of the house, the officers found a

loaded magazine that fit the handgun the officers had recovered from Bond. Officer

Herder identified Bond as the male he had observed earlier in possession of a gun on

Reno Street. Bond was arrested.

       Bond was taken to the police station, where a detective informed him of his

Miranda rights. Bond signed a written waiver of his rights and told the detective that he

had bought the gun a couple of weeks before.

       Bond moved to suppress the firearm and other fruits of his arrest. The District

Court denied the motion. On February 27, 2004, a jury found Bond guilty of possession

of a firearm by a convicted felon. Bond appealed.

                        II. Jurisdiction and Standard of Review

       The District Court had jurisdiction of this case pursuant to 18 U.S.C. § 3231. We

have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We subject the District

Court’s application of the law to the facts and its determinations of reasonable suspicion

and probable cause to plenary review. United States v. Valentine, 232 F.3d 350, 353 (3d



                                             3
Cir. 2000) (citing Ornelas v. United States, 517 U.S. 690, 699 (1996)).

                                       III. Discussion

       Bond argues that mere possession of a firearm on Philadelphia Streets is not a

criminal offense and thus does not create probable cause for arrest. However, section

6108 of 18 P A. C ONST. S TAT. A NN., titled “Carrying Firearms on Public Streets or Public

Property in Philadelphia,” makes it a crime to carry a firearm on a public street in

Philadelphia. The statute provides that:

       “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 licenced to carry a firearm; or

       (2) such person is exempt from licensing under section 6106(b) of this title

       (relating to firearms not to be carried without a license).” (West 2000).




       The Pennsylvania courts have interpreted this statute as not requiring the

prosecution to prove that the defendant did not have a license for the firearm.

Commonwealth v. Bigelow, 399 A.2d 392, 396 (Pa. 1979). The possession of a license is

an affirmative defense that can be raised by the defendant. Id. Thus, under Pennsylvania

law, a police officer has probable cause to arrest an individual for violation of section

6108 based solely on the officer’s observation that the individual is in possession of a

firearm on the streets of Philadelphia. See Commonwealth v. Romero, 673 A.2d 374, 377



                                              4
(Pa. Super. 1996). When Officers Herder and Tilghman observed Bond in possession of

a firearm on a public street in Philadelphia, they observed the commission of a completed

crime and had probable cause to arrest him.

       Bond contends, however, that the information transmitted to Officers Joyce and

McLaughlin was insufficient to supply either the requisite reasonable suspicion to justify

an investigatory stop or probable cause to arrest him. Consistent with the Fourth

Amendment, law enforcement officers may detain a person if they have reasonable

suspicion that “criminal activity is afoot.” United States v. Valentine, 232 F.3d 350, 353

(3d Cir. 2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). If officers are relying on

radioed information, the information must have been sufficient to allow the officers a

reasonable suspicion to believe the individual they stopped engaged in criminal activity.

See id. (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)). Further, in United States

v. Harple, we found that the “temporal and geographic proximity” of a car to the scene of

the crime, the fact that the car substantially matched the description which the officers

received, and the fact that the observation of the passengers was consistent with the

description given, supplied arresting officers with reasonable suspicion to effect an

investigatory stop. 202 F.3d 194, 197 (3d Cir. 1999). Under the facts here, Officers

Joyce and McLaughlin had reasonable suspicion that the car they stopped contained the

individual that Officers Herder and Tilghman had observed in commission of a crime.

       After the vehicle was stopped, when Officer Joyce saw Bond glance over his



                                              5
shoulder towards Officer McLaughlin and reach into his waistband, Officer Joyce was

permitted to search Bond and seize his gun. “[A] police officer may conduct a reasonable

search for weapons for his own protection ‘where he has reason to believe that he is

dealing with an armed and dangerous individual.’” United States v. Moorefield, 111 F.3d

10, 13 (3d Cir. 1997) (quoting Terry v. Ohio, 392 U.S. 1., 27 (1968)). “[A] pat-down for

weapons can occur only where the officer is ‘able to point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant that

intrusion.’” Id. (citations omitted). These principles also apply in the context of officers

and motorists. Id.

       For the above reasons, Bond’s seizure did not violate the Fourth Amendment and

the motion to suppress evidence was properly denied.

                                      IV. Conclusion

       For the foregoing reasons, we will affirm the judgment of conviction.




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