United States v. Cooper ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARION CLARENCE COOPER, a/k/a
No. 96-4940
Fatty Watty, a/k/a Gary Tyrone
Capers, a/k/a Henry Colbert, a/k/a
Craig Williams, a/k/a James
Williams,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CR-95-163)
Submitted: September 2, 1997
Decided: September 26, 1997
Before HALL, MURNAGHAN, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
J. Robert Haley, Assistant Federal Public Defender, Charleston, South
Carolina, for Appellant. J. Rene Josey, United States Attorney, Mat-
thew R. Hubbell, Assistant United States Attorney, Charleston, South
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Marion Clarence Cooper appeals from his criminal conviction for
possession of cocaine base with the intent to distribute. We affirm.
Cooper's conviction arose from events following a lawful traffic
stop for speeding along Northbound Interstate 95 in South Carolina.
According to the testimony of Officer Schoonover, the officer who
stopped Cooper, Cooper gave a false name in response to questioning
and stated that his license had been suspended. After verifying this
suspension, Schoonover conducted a pat down search of Cooper,
handcuffed him, and placed him under arrest for driving with a sus-
pended license. At this point another officer, Laird, arrived to see if
Schoonover needed assistance. Schoonover and Laird then began an
inventory search of Cooper's car in accordance with police proce-
dures.
Shortly into the search of the vehicle, which smelled strongly of
incense, Laird found a blunt--a cigar containing marijuana--on the
passenger side of the front seat between the console and the seat. An
open cigar box on the seat also revealed a razor blade which caused
Laird to suspect the presence of crack cocaine. Further searching
revealed a small glassine bag full of crack cocaine beside the seat on
the floor. A fast food bag also contained a quantity of marijuana. At
this point, the officers believed that they had probable cause to extend
the scope of their search.
Upon inspecting the back seat of the vehicle, Laird noticed that the
passenger back side panel of the car's interior did not lay flush to the
car but appeared as if it had been pried back. Laird had found drugs
hidden in such compartments on prior occasions and suspected that
drugs might be hidden in this compartment as well. He therefore pried
the panel back with a screwdriver and found a large quantity of crack
cocaine masked with coffee grounds.
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Cooper moved to suppress this evidence, arguing that the search of
the side panel exceeded the scope of a valid inventory search or a
search incident to lawful arrest. The district court denied this motion,
and we find no error in its decision. Although the search started as an
inventory search, the officers' observation of drugs in plain sight gave
them the probable cause necessary to conduct a thorough search of
the car under the "automobile exception." See Carroll v. United
States, 267 U.S. 132 (1925); see also United States v. Bullock, 94
F.3d 896, 899 (4th Cir. 1996) (holding that there was no need to
determine if search of secret compartment in automobile exceeded
scope of consent to search where probable cause supported a search
under the "automobile exception"), cert. denied, ___ U.S. ___, 65
U.S.L.W. 3560 (U.S. Feb. 18, 1997) (No. 96-1120).
Cooper also moved to exclude evidence of two prior drug convic-
tions which the Government sought to introduce under Fed. R. Evid.
404(b). The district court denied Cooper's motion and a police officer
testified regarding these two prior incidents. As to one of these con-
victions, the officer simply testified that Cooper had pled guilty to
selling cocaine. As to the other, the officer testified that while con-
ducting a drug investigation four years earlier, officers pulled over a
car in which Cooper was a passenger. Another passenger was found
to be in possession of marked money which had been used by the
officers to make a controlled buy of cocaine earlier in the day. The
driver of the car had cocaine in his pocket and Cooper had $1269 dol-
lars in cash in his coat. A search of the car revealed twenty-three bags
of crack cocaine hidden in the heater vents and a single piece of crack
cocaine where Cooper had been sitting. As a result of this stop Coo-
per was charged with and pled guilty to possession of cocaine with
the intent to distribute.
Cooper now contends that the admission of these prior convictions
was improper. We disagree. Rule 404(b) provides that evidence of
other crimes is not admissible to prove the character of a defendant
in order to show that he acted in conformity therewith. However,
prior bad acts may be admissible, subject to Rule 403's balancing
concerns, if they are: (1) relevant to an issue other than character, (2)
necessary, and (3) reliable. See United States v. Rawle, 845 F.2d
1244, 1247 (4th Cir. 1988). Addressing each of these factors, we first
find that the evidence was relevant to issues other than character--
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specifically, intent, knowledge, and absence of mistake. Cooper's
defense at trial was that he was unaware that crack cocaine was hid-
den in the side panel of the car he was driving and that the owner of
the car was using him as a drug courier without his knowledge.* The
prior incidents of drug transactions, especially the conviction which
involved the hiding of drugs in an internal compartment of a car,
made it more likely than not that Cooper was not the innocent victim
of mistake, but rather that he was aware of the contents of the side
panel. See United States v. King, 768 F.2d 586, 588 (4th Cir. 1985)
(upholding admission of 404(b) evidence to prove that defendant
intended to distribute drugs and was not simply"an innocent friend
of [his co-defendant's] caught in the wrong place at the wrong time").
We find United States v. Hernandez, 975 F.2d 1035 (4th Cir.
1992), upon which Cooper relies to attack the relevance of this evi-
dence, distinguishable. In Hernandez, this court reversed the district
court's admission of 404(b) evidence that Hernandez once shared
with a witness a recipe for crack cocaine alleged to increase its quan-
tity. We held that this evidence was not relevant where Hernandez
was claiming that she had not sold the crack cocaine which formed
the basis of the charge against her. Simply put, Hernandez's prior
knowledge of crack cocaine was not relevant to whether she actually
committed the act of selling it at the time in question other than to
suggest action conforming to her character, which is specifically for-
bidden by Rule 404(b). In Cooper's case, however, a prior conviction
for possession of crack with intent to distribute which involved the
hiding of crack cocaine within the internal structure of an automobile
is relevant to intent, knowledge, and absence of mistake in the
charges at issue.
The determination of relevancy, however, does not end the inquiry
for admissibility under Rule 404(b). Instead, the evidence sought to
be admitted must also be necessary and reliable. Cooper's brief does
not challenge the district court's findings regarding these require-
ments, and our review reveals no error in these determinations. See
United States v. DiZenzo, 500 F.2d 263, 266 (4th Cir. 1974) (discuss-
ing necessity). Finally, we find that the district court did not abuse its
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*Cooper also denied knowledge of the drugs during the search and
suggested that the police officers must have planted the crack in the car.
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discretion in determining that the probative value of the prior convic-
tions was not substantially outweighed by the danger of unfair preju-
dice under Rule 403, and note that the district court gave the jury two
thorough limiting instructions. Accordingly, finding no error in the
admission of these prior convictions, we affirm. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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