U.S. v. Cooper, 98-2410

• Decision Date: 04 February 1999
• Docket Number: No. 98-2410,98-2410
• Citation: 168 F.3d 336
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frederick COOPER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 336

168 F.3d 336

UNITED STATES of America, Plaintiff-Appellee, v. Frederick COOPER, Defendant-Appellant.

No. 98-2410.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 14, 1999.

Decided Feb. 4, 1999.

Linda Lipe, Little Rock, AR, argued (Paula J. Casey, U.S. Attorney, on the brief), for Plaintiff-Appellee.

Sam T. Heuer, Little Rock, AR, argued, for Defendant-Appellant.

Before BOWMAN, Chief Judge, MURPHY, Circuit Judge, and VIETOR, ^* District Judge.

MURPHY, Circuit Judge.

Frederick Cooper was convicted by a jury of conspiracy to possess with intent to distribute and to distribute cocaine base (crack cocaine), distribution of cocaine base, possession with intent to distribute cocaine base possession with intent to distribute cocaine hydrochloride, and possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1) and 846. The district court ¹ sentenced him to life imprisonment. He claims on appeal that the denial of his motion to suppress evidence seized pursuant to a search warrant violated his Fourth Amendment rights and that he is entitled to resentencing because of a three level sentencing enhancement for his role in the offenses. We affirm.

Frederick Cooper was suspected by police of dealing drugs from a residence at 2420 Moss Street in North Little Rock, where he was believed to live with Michael Butler. A man named Darryl Jones had been cooperating with the police after returning to Arkansas to face drug charges. He had had prior dealings with Cooper, and he went to the Moss Street residence to purchase cocaine from Cooper in the early morning hours of May 1, 1996. Jones was acting in his role as a confidential informant and had been wired with a body mike. The conversations Jones had at the scene were monitored by law enforcement officials who also kept him under surveillance as he approached the house. When there was no answer, he called Cooper's pager from a pay phone. Cooper returned the call and instructed Jones to knock on a back window so that Michael Butler could let him into the house. A few minutes later Cooper returned to the residence, and Jones purchased one half ounce of crack from him. Jones saw Cooper retrieve the crack from a sock in the bedroom, where he also observed a .45 caliber weapon on the dresser. Before leaving, Jones borrowed a scale from Cooper and broke the half ounce into two quarters, and Cooper handed him a trash bag and instructed him to dump it far away. The trash bag was later found to contain a wrapper in the shape of a kilo of cocaine, with cocaine residue on it, and bearing the words Medellin, Colombia. Cooper's latent fingerprint was found on another plastic bag on which cocaine appeared to have been cut.

Based on this information, a search warrant was obtained the same day for Cooper's residence. The warrant provided that "due to information contained in the affidavit and the occurrence of circumstances that are difficult to predict ... speedy access into the residence is justified and this warrant shall be executed at any time of day or night." That afternoon, surveillance officers saw Cooper leave the residence in an automobile. They stopped him shortly thereafter, told him about the warrant, and asked for a key to the house. Cooper maintained that he did not have a key. The officers executed the search warrant and entered Cooper's house within ten minutes after he was stopped. The house had an iron security door on the front door and steel bars on all windows. Without knocking, the officers proceeded to pull the front door from its hinges with a wrecker. They entered the house with weapons drawn and discharged a grenade-type distraction device. No one was inside at the time. The subsequent search uncovered weapons, cocaine base, cocaine hydrochloride, marijuana, and drug paraphernalia, including scales and a glass beaker.

Cooper was arrested and later indicted. Cooper's motion to suppress evidence obtained in the search of his residence was denied, and a jury found Cooper guilty on all five counts. At sentencing, the court imposed a three level enhancement based on Cooper's role in the offense and a two level enhancement for possession of a weapon, bringing his base offense level to 43. He was sentenced to life imprisonment.

Cooper asserts the district court erred in denying his motion to suppress because his Fourth Amendment rights were violated by the officers' failure to knock and announce their presence. The district court's findings of fact are reviewed for clear error giving " 'due weight to inferences drawn from those facts by resident judges and local law enforcement officers.' " United States v. Ball, 90 F.3d 260, 262 (8th Cir.1996) (quoting Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). A de novo standard of review is applied to the ultimate determination of whether the facts constitute exigent circumstances sufficient to make a no knock entry reasonable under the Fourth Amendment. Id.

The common law requirement that officers must knock and announce their presence before entering is part of the Fourth Amendment reasonableness inquiry. Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). The common law has found no knock entries reasonable "in situations involving threats of physical violence, prisoner escapes, and...