2008 Decisions

Opinions of the United

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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation

"USA v. Cooper" (2008). 2008 Decisions. Paper 521.

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 NOT PRECEDENTIAL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.
 The District Court sentenced Cooper to 97 months’ incarceration on each of counts 1

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. 

 We restate the facts as found by the District Court. 2

2

§ 924(c)(1) (count two); and possession of a firearm by a convicted felon, 18 U.S.C. §

922(g) (count three). When entering his guilty plea, Cooper preserved the right to appeal

1

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. Cooper spoke to the men for five to ten minutes. 

2

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
 We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a 3

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

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.
4

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
 18 Pa. Cons. Stat § 6108 provides, in relevant part: 4

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.

 Subsequently, the Pennsylvania legislature amended a separate section of the Uniform 5

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

possession of a firearm, 18 Pa. Cons. Stat § 6108 – rather than non-licensure constituting 4

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
6

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.