     Case: 10-10358 Document: 00511406114 Page: 1 Date Filed: 03/10/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 10, 2011

                                     No. 10-10358                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

MICHAEL HOOKER,

                                                   Defendant - Appellant




                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:08-CR-229-5


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Michael Hooker (“Hooker”) appeals the district court’s denial of his motion
to suppress approximately one kilogram of cocaine seized from his car as well as
his motion to suppress inculpatory statements made to the police after a
subsequent arrest. Hooker argues that the district court erred in denying his
motion to suppress the cocaine for two reasons: (1) the police officer who
searched his car did not have probable cause because the collective knowledge


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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doctrine, which could be used to impute probable cause to the searching officer,
did not apply; and (2) the inventory of Hooker’s rental car was an unlawful
search because the officer did not conduct the inventory pursuant to the
department’s policy. Hooker also argues that the district court erroneously
admitted statements he made to the police because the statements were coerced.
We AFFIRM the district court’s denial of Hooker’s motions to suppress.
                I. FACTS AND PROCEDURAL HISTORY
      On June 3, 2008, Agent Tony Dyess (“Agent Dyess”), a Fort Worth police
officer assigned to a Drug Enforcement Administration (“DEA”) task force,
lawfully intercepted a phone call from Hooker to Jesus Hernandez (“Hernandez”)
asking to purchase a kilogram of cocaine from Hernandez at his home in Grand
Prairie, Texas. Shortly after intercepting the call, Agent Dyess observed, via a
pole camera, Hooker enter Hernandez’s home and then exit with an item that
Agent Dyess understood to be a kilogram of cocaine. Hooker placed the item in
the trunk of his vehicle and departed. Soon after leaving, Hooker received a
phone call from Hernandez increasing the price of the cocaine. After listening
to this call, Agent Dyess contacted the DEA team responsible for the surveillance
of Hernandez’s house and told them not to stop Hooker at that time. Hooker
returned and took the item from the trunk of his car back into Hernandez’s
house. Hooker soon departed, placing the item back in the left side of the trunk.
During this time, Agent Dyess was in communication with the DEA surveillance
team and told them that he had probable cause to believe there was a kilogram
of cocaine in the trunk of Hooker’s vehicle.
      Officer Kelly and his partner Officer Parker—Grand Prairie police officers
who would ultimately locate and stop Hooker—began their shift on June 3, 2008
by meeting DEA agents at an elementary school in Grand Prairie. The officers
and DEA agents exchanged phone numbers to allow for direct communication.
Approximately one hour later, Officer Kelly “located the vehicle that was told to

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us that a certain individual [Hooker] would be driving.” Officer Kelly, who had
been given Hooker’s license plate number, began following Hooker’s Chevrolet
Impala. He testified that it was “the vehicle that was described to us, the one
we were looking for to conduct a traffic stop.” Hooker failed to signal for a lane
change, and Officer Kelly made a traffic stop.      Hooker was compliant and
provided the officers with his Tennessee driver’s license and an expired
insurance card. While checking for outstanding warrants, the officers observed
Hooker talking on his telephone, which concerned the officers because of
intelligence they had received from the DEA about Hooker’s phone use. The
officers cited Hooker for two traffic violations and arrested him.
      The officers placed Hooker in the patrol car and began the inventory
process to impound Hooker’s vehicle because the officers believed the vehicle was
without insurance. Later, the officers found a rental agreement, which Hooker
argues established that there was some insurance on the vehicle, but the officers
continued to search the vehicle.       Additionally, the Grand Prairie police
department policy stated that an inventory must occur with the tow truck driver
present, but there was no tow truck driver at the scene. By this time, Officer
Chasteen, another Grand Prairie police officer, had arrived at the scene, and he
and Officer Kelly inventoried the trunk. Under the carpet and inside the left
wheel well, Officer Chasteen found a bag containing a white-yellow substance.
The officers then drove the rental car to a nearby parking lot, where they met
with a group of DEA agents who conducted a field test on the substance, which
tested positive for cocaine.
      Approximately eight weeks later, Hooker was arrested again, this time in
Tennessee. Along with several co-conspirators, he was charged with conspiracy
to distribute and to possess with intent to distribute five kilograms or more of

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cocaine (count one), and forfeiture of real property (count two). At the time of his
arrest, Hooker waived his Miranda rights and made inculpatory statements to
the arresting officers. Hooker claims that they promised that he would be
released on bond if he cooperated. Allegedly as a result of this promise, Hooker
answered questions about his involvement in a drug conspiracy in Dallas and
Memphis and discussed his arrest in Grand Prairie, Texas.
      Hooker filed motions to suppress the cocaine and post-arrest statements,
which the district court denied.      Hooker then accepted a plea agreement,
reserving the right to appeal the denial of his motions to suppress. He filed a
timely notice of appeal.
           II. JURISDICTION AND STANDARD OF REVIEW
      The district court had jurisdiction pursuant to 18 U.S.C. § 3231, which
gives the district courts jurisdiction over “all offenses against the laws of the
United States.” We have jurisdiction under 28 U.S.C. § 1291.
      When reviewing a ruling on matters raised in a motion to suppress, we
review the district court’s factual findings for clear error and its conclusions of
law de novo. United States v. Charles, 469 F.3d 402, 405 (5th Cir. 2006).
Additionally, when reviewing the denial of a motion to suppress, we view the
evidence in the light most favorable to the government. Id. “Where a district
court’s denial of a suppression motion is based on live oral testimony, the clearly
erroneous standard is particularly strong because the judge had the opportunity
to observe the demeanor of the witnesses.” United States v. Santiago, 410 F.3d
193, 197 (5th Cir. 2005).




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                                     III. DISCUSSION
       A.      Motion To Suppress the Cocaine
       On appeal, Hooker argues that the cocaine was inadmissible because the
police officer who searched his car did not have probable cause, and the
inventory of Hooker’s rental car was an unlawful search because the officer did
not conduct the inventory pursuant to the department’s policy. Although we
conclude that Hooker waived his argument based on the collective knowledge
doctrine by failing to raise it before the district court,1 we will proceed to analyze
his claim under a plain error standard for “good measure.” See generally United
States v. Scroggins, 599 F.3d 433, 448 (5th Cir.), cert. denied, 131 S. Ct. 158
(2010) (stating that “a defendant who fails to make a timely suppression motion
cannot raise that claim for the first time on appeal,” but noting that “our cases
identifying such waiver have often proceeded to evaluate the issues under a
plain error standard for good measure”). We will only find plain error when:
“(1) there was an error; (2) the error was clear and obvious; and (3) the error
affected the defendant’s substantial rights.” United States v. Khanalizadeh, 493


       1
          In his reply brief to this court, Hooker argued for the first time that the district court
erred in sua sponte addressing the collective knowledge doctrine, which he claims that neither
party raised at the suppression hearing. See United States v. Darensbourg, 236 F. App’x 991,
993 (5th Cir. 2007) (per curiam) (unpublished) (“In issuing such sua sponte rulings, however,
district courts should ensure the parties have an opportunity to present their contentions and
evidence, so that factual and legal questions are developed fully.”). He contends that because
the district court raised the issue sua sponte, he was deprived of the opportunity to prepare
and present evidence; therefore, he contends that he did not waive this issue. We reject
Hooker’s argument because the government clearly alleged that the police officers had
probable cause to search the trunk of Hooker’s vehicle in both its response to the motion to
suppress and at the suppression hearing. The response brief, filed in the district court six
weeks before the hearing, states: “The officers also had probable cause to believe that
Hooker’s vehicle contained evidence of a crime, specifically a kilogram of cocaine.” It then
recounted many of the same facts described here. Thus, contrary to Hooker’s assertion, the
district court did not sua sponte raise this issue.

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F.3d 479, 482 (5th Cir. 2007). “Plain errors are obvious, clear, or so conspicuous
that the trial judge and prosecutor were derelict in countenancing [them], even
absent the defendant’s timely assistance in detecting [them].” United States v.
Puckett, 505 F.3d 377, 384 (5th Cir. 2007), aff’d, 129 S. Ct. 1423 (2009) (internal
quotation marks and citations omitted). Because we find that the district court
did not plainly err in concluding that there was probable cause to search the car,
we do not address Hooker’s argument attacking the “inventory search” rationale.
      Under the Fourth Amendment, warrantless searches are presumptively
unreasonable. Horton v. California, 496 U.S. 128, 133 (1990). An exception to
the warrant requirement exists when a police officer has probable cause to
search an automobile for contraband. See Almeida-Sanchez v. United States, 413
U.S. 266, 269 (1973). Probable cause to search exists when a reasonably prudent
person could believe, based on the facts and circumstances, that the vehicle
contains contraband. Maryland v. Dyson, 527 U.S. 465, 467 (1999) (per curiam)
(“If a car is readily mobile and probable cause exists to believe it contains
contraband, the Fourth Amendment . . . permits police to search the vehicle
without more.” (quoting Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per
curiam))).
      Additionally, “‘probable cause can rest upon the collective knowledge of the
police, rather than solely on that of the officer who actually makes the arrest,’
when there is ‘some degree of communication between the two.’” United States
v. Kye Soo Lee, 962 F.2d 430, 435 (5th Cir. 1992); see also United States v. Nieto,
510 F.2d 1118, 1120 (5th Cir. 1975). We have applied the collective knowledge
doctrine to two types of cases: “(1) those where the arresting officer has no
personal knowledge of any of the facts establishing probable cause, but simply
carries out directions to arrest given by another officer who does have probable

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cause . . .; and (2) those where the arresting officer has personal knowledge of
facts which standing alone do not establish probable cause but, when added to
information known by other officers involved in the investigation, tips the
balance in favor of arrest . . . .” United States v. Webster, 750 F.2d 307, 323 (5th
Cir. 1984) (internal citations omitted).2
       For example, in Nieto, we held that where a tip passed from an informant
who was known to be reliable through two police officers to the officer who
performed the search, “[t]he collective knowledge of this closely coordinated team
of drug agents can be attributed to the seizing officer on the scene . . . .” 510
F.2d at 1120.        Similarly, in Ibarra, we concluded that where there was
communication between the officer who had the facts giving rise to probable
cause and the officer who performed the search, probable cause can be imputed
to the searching officer under the collective knowledge doctrine. 493 F.3d at 531.
       Neither the government nor the district court stated that the search was
justified as a search incident to Hooker’s arrest for the traffic violations.3
Although the district court did not use the phrase “the collective knowledge


       2
         Although Webster discusses probable cause to arrest rather than to search, we have
applied the collective knowledge doctrine to cases analyzing whether the police had probable
cause to search. See Nieto, 510 F.2d at 1120; United States v. Ibarra, 493 F.3d 526, 531 (5th
Cir. 2007).
       3
          Hooker relies on Arizona v. Gant, 129 S. Ct. 1710 (2009), in which the Supreme Court
held that a search of a vehicle incident to an arrest violates the Fourth Amendment unless
“the arrestee is within reaching distance of the passenger compartment at the time of the
search or it is reasonable to believe the vehicle contains evidence of the offense of the arrest.”
 Id. at 1723. We find Gant inapplicable to this case because the government does not contend
that the police officers searched the car incident to Hooker’s arrest; rather, they searched the
car because they had probable cause to believe that it contained contraband. In the
alternative, the government argues that the officers searched the car pursuant to a
department policy directing the officers to inventory a vehicle’s contents prior to impounding
the vehicle.

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doctrine,” the judge found that “Officer Dyess’[s] testimony was sufficient, they
could have searched [the car] right then. I think he had sufficient probable
cause based upon the conversations that he listened to and what he observed
over the camera, what was said, and then things being placed in the trunk by
Mr. Hooker at that point.”
      Hooker argues that the district court erred in admitting the evidence
because there was no direct showing that the agents who belonged to the DEA
surveillance team were the same DEA agents who told Officer Kelly to stop
Hooker’s car. Hooker failed to raise this issue before the district court, and we
conclude that, viewing the evidence in the light most favorable to the
government, which we are required to do, Charles, 469 F.3d at 405, the district
court did not plainly err in ruling on Hooker’s motion to suppress the cocaine.
The testimony at the suppression hearing shows that Officer Kelly met with
DEA agents at a school and was instructed to conduct a traffic stop on Hooker’s
vehicle, a Chevrolet Impala with specific license plate number. Officer Dyess
testified that it was his goal to have Hooker stopped with what he understood
to be a kilogram of cocaine in his car and that, based on the recorded calls
between Hooker and Hernandez and his observations of the house, he had
probable cause to believe that Hooker had a kilogram of cocaine in the trunk of
his car.
      Based on this evidence, the district court was not incorrect in assuming
that there was “some degree of communication,” Kye Soo Lee, 962 F.2d at 435,
between the DEA agents with probable cause and the police officers who
searched the vehicle. The error, if there was one, of relying on the collective
knowledge doctrine was simply not “obvious, clear, or so conspicuous that the
trial judge and prosecutor were derelict in countenancing [it].” Puckett, 505 F.3d

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at 384. We therefore uphold the district court’s ruling that the cocaine was
admissible.
      B.      Motion To Suppress the Post-Arrest Statements
      Hooker also argues that the district court erred in denying his motion to
suppress the post-arrest statements that he made to the police. Hooker claims
that the police officers promised that he would be released on bond if he spoke
to the officers and, therefore, his statements were coerced. By contrast, Officer
Price, an officer who was present at the time of arrest and questioning, testified
that the officers read Hooker his rights when he was arrested and again when
he arrived at the DEA office. She also testified that the questioning officers,
including herself, only told Hooker that they would “speak with the [Assistant
U.S. Attorney] who’s handling the case here in Texas and tell them [sic] that he
fully cooperated. We have no charge over bond. We can’t promise him a bond.
. . . That’s the extent of it.” When asked on several occasions whether any
officer promised Hooker that he would be released on bond, Officer Price
answered that the officers never made such a promise.
      In determining whether a confession is voluntary, we consider “whether,
taking into consideration the ‘totality of the circumstances,’ the statement is the
product of the accused’s ‘free and rational’ choice.” United States v. Ornelas-
Rodriguez, 12 F.3d 1339, 1347 (5th Cir. 1994) (quoting Martinez v. Estelle, 612
F.2d 173, 177 (5th Cir. 1980)).   A promise to convey cooperation to a court or
prosecutor is insufficient to render a statement involuntary. United States v.
Broussard, 80 F.3d 1025, 1034 (5th Cir. 1996); United States v. Ballard, 586 F.2d
1060, 1063 (5th Cir. 1978). Similarly, the Supreme Court concluded that a non-
threatening statement that cooperation is to the defendant’s benefit does not



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render a statement involuntary. See Fare v. Michael C., 442 U.S. 707, 727
(1979).
      This issue rests solely on a credibility determination between Hooker and
the questioning officers. We have held that “[i]f the record supports more than
one permissible interpretation of the facts, the reviewing court will accept the
district’s choice between them, absent clear error.” Santiago, 410 F.3d at 197.
Here, the district court chose to believe Officer Price, and Hooker presents no
persuasive argument that the district court’s credibility determination was
clearly erroneous.   We therefore hold that the district court did not err in
admitting Hooker’s post-arrest inculpatory statements.
                             IV. CONCLUSION
      For the reasons set forth above, the district court’s denial of Hooker’s
motions to suppress is correct, and the judgment of conviction is AFFIRMED.




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