United States v. Al Cooper , 416 F. App'x 409 ( 2011 )

Case: 10-30615 Document: 00511400140 Page: 1 Date Filed: 03/03/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 3, 2011
No. 10-30615
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
AL DEANGELO COOPER,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:09-CR-154-1
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Al Deangelo Cooper was convicted by a jury of conspiracy to possess with
intent to distribute 50 grams or more of crack cocaine and possession with intent
to distribute 50 grams or more of crack cocaine. Cooper was sentenced to a total
of 240 months of imprisonment and to 10 years of supervised release. Cooper
contends that the district court erred in denying his motion to suppress the crack
cocaine found in his vehicle based upon the automobile exception to the warrant
requirement.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-30615 Document: 00511400140 Page: 2 Date Filed: 03/03/2011
No. 10-30615
“The standard of review for a motion to suppress based on live testimony
at a suppression hearing is to accept the trial court’s factual findings unless
clearly erroneous or influenced by an incorrect view of the law.” United States
v. Outlaw, 319 F.3d 701, 704 (5th Cir. 2003) (citations and internal quotation
marks omitted). This court views the evidence in the light most favorable to the
party that prevailed before the district court. United States v. Laury, 985 F.2d
1293, 1314 (5th Cir. 1993). “Questions of law are reviewed de novo, as are the
district court’s ultimate conclusions of Fourth Amendment reasonableness.”
United States v. Vasquez, 298 F.3d 354, 356 (5th Cir. 2002) (citations omitted).
The detail of the information given by the informant and the corroboration
of this information by the agents was sufficient to establish probable cause that
there was crack cocaine in Cooper’s vehicle. See United States v. Reyes, 792 F.2d
536, 539-40 (5th Cir. 1986). Cooper’s argument that the officers created exigent
circumstances to intentionally circumvent getting a search warrant is
unavailing. The officers were at the bus station conducting surveillance in an
effort to corroborate the information provided by the informant that would
justify obtaining a search warrant. Thus, they cannot be faulted for not having
one in their possession before the information was in fact corroborated. See id.
at 540. Cooper’s argument that the automobile exception is inapplicable because
his vehicle was not actually moving is similarly unavailing. Even where an
automobile is not immediately mobile at the time of the search, “the lesser
expectation of privacy resulting from its use as a readily mobile vehicle justifie[s]
application of the vehicular exception.” California v. Carney, 471 U.S. 386, 391
(1985). Accordingly, the district court did not err in denying Cooper’s motion to
suppress the evidence.
Cooper also contends that there was insufficient evidence to convict him
on any of the above charges. Because Cooper moved for a judgment of acquittal
at the close of the case, he has preserved his sufficiency claim for appellate
review. See United States v. Ferguson, 211 F.3d 878, 882 (5th Cir. 2000).
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No. 10-30615
Accordingly, this court reviews to determine whether a rational jury could have
found the essential elements of the offense beyond a reasonable doubt. See
United States v. Lopez-Moreno, 420 F.3d 420, 437-38 (5th Cir. 2005). This court
does “not evaluate the weight of the evidence or the credibility of the witnesses,
but view[s] the evidence in the light most favorable to the verdict, drawing all
reasonable inferences to support the verdict.” United States v. Delgado, 256 F.3d
264, 273-74 (5th Cir. 2001).
As to his conspiracy conviction, Cooper contends that there was
insufficient evidence to show the existence of an agreement to sell drugs. To
establish a conspiracy to distribute a controlled substance, the Government must
prove beyond a reasonable doubt: “(1) the existence of an agreement between two
or more persons to violate narcotics laws; (2) the defendant’s knowledge of the
agreement; and (3) his voluntary participation in the conspiracy.” United States
v. Valdez, 453 F.3d 252, 256-57 (5th Cir. 2006). There is nothing inherently
incredible or insubstantial about the testimony of the informant linking Cooper
to the conspiracy. See United States v. Silva, 748 F.2d 262, 266 (5th Cir. 1984).
Viewing the evidence in the light most favorable to the jury’s verdict, there was
sufficient evidence to find that Cooper agreed to participate in a conspiracy to
distribute crack cocaine. See Lopez-Moreno, 420 F.3d at 437-38.
As to his possession with intent to distribute conviction, Cooper argues
that there was insufficient evidence to establish that he possessed the crack
cocaine found in his vehicle. To establish the offense of possession of a controlled
substance with intent to distribute, the Government must prove beyond a
reasonable doubt that Cooper had (1) knowledge, (2) possession of a controlled
substance, and (3) an intention to distribute the controlled substance. See
Delgado, 256 F.3d at 274. “Possession may be actual or constructive and may
be joint among several defendants.” United States v. Cardenas, 9 F.3d 1139,
1158 (5th Cir. 1993).
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It is undisputed that Cooper did not have actual possession of the crack
cocaine seized from his vehicle. However, “[c]onstructive possession exists if the
defendant knowingly has dominion and control, or has the power to exercise
dominion and control, over the drugs or if the defendant has knowing dominion
and control over a vehicle in which the drugs are concealed.” United States v.
Brito, 136 F.3d 397, 411 (5th Cir. 1998) (citations omitted). There is sufficient
evidence to indicate that Cooper had constructive possession of the drugs found
in his vehicle. The informant testified that Cooper told him that he was going
to the bus station that day to pick up a shipment of crack cocaine. Further,
Cooper is liable for Richard Rogers’s actual possession of the drugs since it was
in furtherance of the conspiracy. See United States v. Lopez, 979 F.2d 1024, 1031
(5th Cir. 1992). Accordingly, Cooper’s arguments lack merit and the judgment
of the district court is AFFIRMED.
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