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


11-8-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3683




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"USA v. Almond" (2006). 2006 Decisions. Paper 230.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/230


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                    NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                          No. 04-3683



               UNITED STATES OF AMERICA

                                v.

                        DARU ALMOND,
                                  Appellant



         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                     (D.C. No. 03-cr-00055)
          District Judge: Honorable Cynthia M. Rufe



           Submitted Under Third Circuit LAR 34.1(a)
                      November 6, 2006

 Before: SLOVITER, CHAGARES, and NYGAARD, Circuit Judges

                  (Filed : November 8, 2006 )

                           OPINION
SLOVITER, Circuit Judge.

       Daru Almond appeals from the order of the District Court denying his motion to

suppress evidence obtained from a search warrant. This appeal is limited to review of

that order.1

       Almond pled guilty to possession with intent to distribute more than five grams of

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and one count of being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), preserving

his right to appeal the denial of the motion to suppress. He was sentenced to 120 months

imprisonment, a $2,500 fine, eight years of supervised release, and a $200 special

assessment.

       Almond challenges both the action of the Magistrate Judge in issuing the search

warrant and the order of the District Court denying the motion to suppress.

       The Magistrate Judge issued the contested search warrant for Almond’s house on

Sixteenth Street in South Philadelphia based on an affidavit that contained information

that two Philadelphia police officers, Louis Gregg and Raymond Tancredi, separately

responded to an anonymous tip that a man, described as a black male with braided hair,

wearing jeans and a grey jacket with black sleeves, had a gun on Tasker Street. When the

officers approached a man matching that description, later identified as Almond, he

began to run. Gregg observed a “black handled handgun” in Almond’s waistband as



                   1
                    This court has jurisdiction under 28 U.S.C. § 1291.

                                             2
Almond ran. Supp. App. at 2. Almond ran into a house on Sixteenth Street and locked

the front door. The house was later identified as his residence. The police secured the

property until they received the search warrant. A short time thereafter, Almond

surrendered into police custody. After receiving the search warrant, police recovered

four handguns, seven grams of crack cocaine, a bullet-proof vest, narcotics packaging

material, and $17,657 cash.

       Almond filed a motion to suppress the evidence obtained from the search warrant.

At the suppression hearing, Gregg and Tancredi, along with one defense witness,

testified. Based on the evidence presented, the District Court found that the affidavit

presented to the Magistrate Judge contained a substantial basis for finding probable cause

to search Almond’s residence. The District Court credited Gregg’s testimony that he saw

a gun with a black handle in Almond’s waistband before Almond ran into his house and

locked the door before either Gregg or Tancredi had reached it. Although Tancredi did

not see a weapon, he did see Almond push his hand into his waistband, at least two times,

which led him to believe that Almond was hiding a weapon. The District Court denied

the motion to suppress.

       This court reviews factual findings of the District Court’s denial of a motion to

suppress for clear error, and we exercise plenary review of its application of the law to

those facts. United States v. Riddick, 156 F.3d 505, 509 (3d Cir 1998). In deciding

whether the affidavit for the warrant establishes probable cause, the Magistrate Judge



                                             3
should consider all of the circumstances set forth in the affidavit and make a common

sense determination. United States v. Williams 3 F.3d 69, 72 (3d Cir. 1993). Even if the

affidavit is not supported by probable cause, evidence will not be suppressed, under a

“good faith” exception, if the police acted in good faith when executing the warrant. Id.

at 73-74. We have stated that “[A] warrant issued by a magistrate normally suffices to

establish that a law enforcement officer has acted in good faith in conducting the search.”

Id. at 74 (citations and internal quotation marks omitted).

       Almond argues that the search warrant was not supported by probable cause for

two reasons. First, that no negative inference should be made from the fact that Almond

ran from the police. Second, that Gregg could not have seen the gun, and the District

Court erred in making this finding. Almond also contends that even if Gregg saw a gun,

Gregg did not know whether Almond had a license to carry the gun. Therefore, there

was no basis to believe that any laws had been violated.

       Almond’s arguments do not address the legal issue, which was whether the search

warrant itself, considering the totality of the circumstances, was supported by probable

cause. The facts necessary to support the search warrant arise not only from Almond’s

flight and the observation that he had a gun, but also from the fact that he resided in the

house he entered, that his possession of a firearm was a violation of his parole, and that

he did not have a license to possess a firearm.

       Almond argues vigorously that Gregg did not see the gun, but the District Court’s



                                              4
finding of fact is reviewed for clear error. Although Almond asserts that Tancredi was

closer to Almond, both officers testified consistently that they were approximately next to

each other. Almond also asserts that Tancredi had a better view of Almond because he

was “coming from the side.” Almond’s Br. at 11. However, Almond was running away

from Tancredi, so it would be natural to assume that Almond had his back to Tancredi.

Gregg was to the left of Tancredi and Almond, heading at an angle towards Almond, and

would have had a frontal view of Almond when he turned. Gardner, the defense witness,

corroborated both Gregg’s and Tancredi’s testimony as to Almond’s location and

direction. Finally, Almond does not contest the assertion that he turned to look at

Tancredi. In sum, there is no basis to the claim that Gregg was mistaken or lying when

he testified that he saw Almond’s gun. The District Court did not clearly err when it

made this finding.

       Almond contends that even if Gregg saw the gun, “[t]here is no indication that the

officers knew who the Appellant was, or whether or not he had a license to possess a

firearm[.]” Almond’s Br. at 12. The Government responds that a license to carry a

firearm is an affirmative defense to a weapons charge, so that the police were justified in

searching unless Almond proved that he had the license. Again, Almond’s argument is

without merit. Almond conceded at the hearing that if Gregg saw the gun, the warrant

was proper.

       The search warrant was clearly supported by probable cause. The affidavit stated



                                             5
that a man matching the description from an anonymous tip was observed with a gun,

that he ran into his residence, that he did not have a license for the gun, and that by

possessing the weapon, he was in violation of his parole.

       As the Government notes, acts that are innocent in isolation may collectively

amount to a reasonable suspicion. United States v. Nelson, 284 F.3d 472, 480 (3d Cir.

2002). Similarly, we have held that furtive hand movements used to conceal a weapon

were sufficient to support a finding of reasonable suspicion. United States v. Moorefield,

111 F.3d 10, 14 (3d Cir. 1997). We have also held that when an officer observed actions

he reasonably believed to be intended to conceal a weapon, he was justified in searching

for the weapon. United States v. Robertson, 305 F.3d 164, 170-71 (3d Cir. 2003). It

follows that the Magistrate Judge did not err in granting the search warrant.

       Similarly, we reject Almond’s argument that “the warrant was so facially deficient

that it failed to particularize the place to be searched or the things to be seized.”

Almond’s Br. at 14. There is no basis for this court to conclude that the District Court’s

findings of fact were clearly erroneous. The affidavit was sufficiently detailed and

particularized, it relied on more than the allegation that Almond was armed and that he

fled. It also included the claims that Almond did not have a license to possess a firearm,

and that such possession was in violation of his parole. The District Court heard the

testimony of the officers and found them credible. The District Court did not err in

denying the motion to suppress.



                                               6
For the reasons set forth, we will affirm the judgment of conviction and sentence.




                                     7
