United States v. Adams

95 F.3d 1148, 1996 WL 481272

Opinion

UNITED STATES COURT OF APPEALS for the Fifth Circuit

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No. 93-8290 Summary Calendar _____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

STERLING TYRONE ADAMS,

Defendant-Appellant.

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Appeal from the United States District Court for the Western District of Texas (A-92-CR-223-01-SS) ______________________________________________________ (September 22, 1995)

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges

PER CURIAM:1

Adams challenges his conviction and sentence in a drug

trafficking and a related weapons offense. We affirm.

I.

Sterling Tyrone Adams was convicted by a jury of possession

with intent to distribute cocaine base (crack) and using or

carrying a firearm during a drug-trafficking crime and was

sentenced to 220 months' imprisonment and five years' supervised

release.

1 Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. On the night of November 12, 1992, narcotics officers executed

a search warrant at the residence of Anthony Harper. Officers

discovered a quantity of crack cocaine and Harper began to disclose

information about his drug-trafficking activities and the

activities of others involved in the Austin, Texas, area.

While Harper was talking to the officers, he was paged by an

individual identified as Sterling. Harper told the officers that

Sterling was his supplier and that Sterling needed to sell 11

ounces of crack cocaine before going to Las Vegas. Over the next

two hours, Harper received several telephone calls from Sterling

and eventually arranged for the purchase of the 11 ounces of crack.

Harper agreed to meet Sterling in front of a grocery store in

Austin at 2:00 a.m. on November 13. In the last telephone

conversation, Sterling indicated that he was on his way to the

store with the crack cocaine.

Harper described Sterling as a very large black man, over six

feet tall and weighing more than 200 pounds. Harper stated that

Sterling would be driving a light-colored van, and that it was

possible that he would be armed.

When the narcotics officers arrived at the grocery store, they

observed only one individual and one vehicle in the parking lot.

The individual and vehicle matched the description given by Harper.

The officers immediately detained the individual, who identified

himself as "Sterling Adams."

Almost simultaneously, one of the officers searched the van

for anyone who could have been concealed in it. As the officer

2 exited the van he noticed a fast food bag on the floor between the

seats with the top rolled down containing what appeared to be crack

cocaine. He also saw a handgun sticking out from beneath the

driver's seat. Adams was placed under arrest and later gave

consent to search his residence. A search of his residence

revealed one ounce of crack cocaine, beakers associated with the

manufacture of crack cocaine, a digital scale, two gun cases, $4700

cash, and two kinds of bullets.

II.

A.

Adams argues first that his Fourth Amendment rights were

violated when the officers arrested and searched him and his van

without a warrant. In the district court, Adams filed a motion to

suppress the evidence obtained after his arrest and the search of

his van. The district court held that probable cause existed to

believe Adams would have crack cocaine on his person or in his

vehicle based on the reliability of the informant's tip as

corroborated by the officers and denied the motion to suppress.

In reviewing a district court's ruling on a motion to

suppress, this court reviews the district court's factual findings

under the clearly erroneous standard, and the district court's

conclusions of law de novo. United States v. Tellez, 11 F.3d 530,

532 (5th Cir. 1993), cert. denied, 114 S. Ct. 1630 (1994). Under

this standard, the district court's ruling denying the motion to

suppress should be upheld "if there is any reasonable view of the

evidence to support it." Id. (internal quotations and citation

3 omitted).

The officers required probable cause to arrest Adams without

a warrant. United States v. Raborn, 872 F.2d 589, 593 (5th Cir.

1989). Probable cause exists when the facts available at the time

of arrest warrant a person of reasonable caution to believe that an

offense has been or is being committed and that the individual

arrested is the offender. Id. This is an objective standard which

takes into account the expertise and experience of the police

officer. Id.

Adams argues that the officers did not have probable cause to

arrest him because Harper was a first time informant not known by

the officers as being reliable. He also argues that the

information given by the informant was not sufficiently detailed or

particularized as to warrant the belief that he was the black male

in question.

Prior performance by an informant is not the only indicia of

reliability. A tip made in great detail, evincing a strong basis

for the informant's knowledge, strengthens reliability. United

States v. Delario, 912 F.2d 766, 768 (5th Cir. 1990). An

informant's prediction of future behavior, corroborated by police

observation, can establish probable cause. United States v. Roch,

5 F.3d 894, 898-99 (5th Cir. 1993).

The officers knew the basis of the informant's knowledge.

Agent Williamson was present when Harper received telephone calls

from Adams setting up the drug transaction and overheard the

conversations. Harper described the person on the other end of the

4 telephone as a very large black man, over six feet tall and over

200 pounds, named Sterling, driving a light-colored van, who was

going to be at a particular grocery store at 2:00 a.m. to sell 11

ounces of crack cocaine. The officers proceeded to the store when

Sterling called to say he was on his way there. When they arrived,

they observed a very large black man using the telephone in the

parking lot of the store. The only vehicle in the store parking

lot was a light colored van as the informant had predicted. The

officers arrested the man and searched the van for possible

accomplices.

Based on the corroboration of the informant's tip by police

observation, we agree with the district court that the facts were

sufficient to establish probable cause that Adams was the person

with whom the informant had arranged a drug buy, thus warranting

his arrest.

Adams argues that even if his arrest was legal, the

warrantless search of his van was not constitutionally authorized.

A warrantless search of a vehicle is permissible if the police have

probable cause to believe that the vehicle contains contraband.

Delario, 912 F.2d at 768. The determination of whether probable

cause exists involves a practical, common-sense decision whether

there is a fair probability that contraband will be found in the

place to be searched. Id.

After the officers arrested Adams, patted him down, and failed

to find any drugs or weapons on him, one of the officers

immediately went to the van to determine if there was anyone else

5 in the van. In the course of checking the van for possible

accomplices, the officer discovered the cocaine and weapon.

For the same reasons that probable cause existed to arrest

Adams, probable cause existed to search his van. The officers, in

reliance on the information given by the informant, as corroborated

by them, had probable cause to believe that Adams' van contained

crack cocaine once they ascertained that it was not on his person.

B.

Adams argues next that the evidence was insufficient to

sustain his conviction under 18 U.S.C. § 924(c) because the

evidence did not establish that the firearm found in his van was

connected to the drug-trafficking offense. He contends that

evidence at trial established a coincidental and inadvertent

presence of the gun in his van, and that he was carrying the gun

with him on a family trip to Houston. He argues that the

Government failed to show any more than mere proximity between the

gun and the drugs found in the van.

Adams did not move for a judgment of acquittal so this court

restricts its review of his claim of insufficient evidence to

whether the conviction resulted in a manifest miscarriage of

justice, which would exist only if the record was devoid of

evidence pointing to guilt, or if the evidence on a key element of

the offense was so tenuous that a conviction would be shocking.

United States v. Thomas, 12 F.3d 1350, 1358 (5th Cir.), cert.

denied, 114 S. Ct. 1861, 2119 (1994).

To sustain a conviction under 18 U.S.C. § 924(c), the

6 Government must prove: 1) that the defendant committed a drug-

trafficking crime; and 2) that he knowingly used or carried a

weapon; 3) during and in relation to the drug-trafficking crime.

United States v. Willis, 6 F.3d 257, 264 (5th Cir. 1993).

Adams does not challenge the sufficiency of the evidence

relating to his drug-trafficking activities but he asserts that he

did not use or carry the gun in relation to the drug-trafficking

crime as required by the statute. To demonstrate use in relation

to the drug-trafficking crime, the Government must show only that

the firearm was available to provide protection to the defendant in

connection with his drug-trafficking, or that the weapon could have

been used to protect the operation and that the presence of the

weapon was connected with the drug-trafficking. United States v.

Foy, 28 F.2d 464, 475 (5th Cir.), cert. denied, 115 S. Ct. 610

(1994).

Adams' operation of the van with knowledge that the gun was in

the van establishes the carrying requirement. United States v.

Speer, 30 F.3d 605, 612 (5th Cir.), cert. denied, 115 S. Ct. 768

(1994). The gun was located on the floor of the van under the

driver's seat, next to the bag of cocaine. Proof of the presence

of the weapon under the driver's seat where Adams had just been

sitting while driving to the location of the planned drug

transaction is sufficient to meet the Government's burden to show

that the firearm was available to provide protection to Adams in

connection with his drug-trafficking activities. See United States

v. Featherson, 949 F.2d 770, 776-77 (5th Cir. 1991) (pistol under

7 driver's seat; evidence of connection sufficient), cert. denied,

503 U.S. 995 (1992). The record is certainly not devoid of

evidence of any connection between the gun and the drug-

trafficking.

C.

Adams argues finally that the provisions of the sentencing

guidelines requiring higher sentences for cocaine base as compared

to cocaine powder violate substantive due process and the Eighth

Amendment. He acknowledges that this court has previously rejected

these arguments, but he contends that new factors warrant

reconsideration en banc. He notes that the Sentencing Commission

has recently submitted a report to Congress containing findings

that the current guidelines are not supported.

Adams did not raise this issue in the district court and we

decline to address it here. This court has consistently rejected

arguments that the disparate sentencing provisions for crack

cocaine and cocaine powder violate due process or equal protection.

United States v. Thomas, 932 F.2d 1085, 1090 (5th Cir. 1991), cert.

denied, 502 U.S. 1038 (1992); United States v. Galloway, 951 F.2d

64, 66 (5th Cir. 1992); United States v. Watson, 953 F.2d 895, 898

(5th Cir.), cert. denied, 504 U.S. 928 (1992). We are not inclined

to speculate on whether or how Congress will change current law.

III.

For the reasons stated above, Adams' conviction and sentence

are affirmed.

AFFIRMED.