United States v. Adams , 95 F.3d 1148 ( 1995 )

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 93-8290
Summary Calendar
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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)
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(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.
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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that this opinion should not be published.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
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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
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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
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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
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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
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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
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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.
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