Case: 15-11240 Document: 00513756977 Page: 1 Date Filed: 11/11/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-11240 November 11, 2016
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GLEN MICHAEL COOK,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:15-CR-41-1
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Glen Michael Cook was charged with intent to distribute
methamphetamine and possession of a firearm in furtherance of a drug
trafficking crime and aiding and abetting both of the underlying offenses in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. §§ 2, 924(c). Cook
moved to suppress the evidence obtained during a warrantless search and
seizure. Cook waived his right to a jury trial, and the district court held a joint
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 15-11240
hearing on suppression and trial. The only disputed issue at trial was the
legality of the Terry 1 stop and subsequent pat-down search of Cook, which led
to the discovery of a canister containing 32 distribution packets of
methamphetamine. After denying Cook’s motion to suppress, the court found
Cook guilty as charged. The court sentenced Cook to a total term of
imprisonment of 123 months, followed by concurrent 3-year terms of
supervised release. Cook filed a timely notice of appeal.
In his first issue on appeal, Cook argues that the district court erred in
denying his motion to suppress. When reviewing a denial of a motion to
suppress evidence, this court reviews factual findings for clear error and the
ultimate constitutionality of law enforcement’s action de novo. See Ornelas v.
United States, 517 U.S. 690, 699 (1996); United States v. Pack, 612 F.3d 341,
347 (5th Cir. 2010). In addition to deferring to the district court’s factual
findings, this court must view the evidence in the light most favorable to the
prevailing party. United States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009).
According to Cook, the investigative stop and subsequent pat-down
search were unsupported by reasonable suspicion of criminal activity or a
reasonable belief that Cook was dangerous. He points out that the only facts
that the officer had when he stopped Cook for questioning was that Cook was
apparently lawfully in possession of a firearm. Cook suggests that if the
officer’s conduct in this case is condoned, then every citizen in Texas will be
subject to a Terry stop based solely on the lawful possession of a firearm.
This argument ignores the totality of the circumstances surrounding the
stop. The officer had reasonable suspicion that criminal activity was underfoot
when he stopped Cook for questioning after Cook left a .38 caliber revolver in
a stranger’s car. It is well established that a police officer who is reasonably
1 Terry v. Ohio, 392 U.S. 1 (1968).
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suspicious that criminal activity “may be afoot” is permitted to briefly detain a
person to investigate the suspicious circumstances. Terry, 392 U.S. at 30. As
such, the officer was justified in stopping Cook and investigating further in
light of the suspicious nature of Cook’s conduct.
Cook also challenges the voluntariness of his consent to the pat-down
search. As the Government points out, though, Cook conceded this point before
the district court. This court has held that “failure to raise specific issues or
arguments in pre-trial suppression proceedings operates as a waiver of those
issues or arguments for appeal.” United States v. Pope, 467 F.3d 912, 918-19
(5th Cir. 2006) (emphasis in original). As such, Cook has waived any challenge
to the district court’s factual finding of voluntary consent to the pat-down
search. 2
Alternatively, Cook argues that, even if he gave valid consent, the officer
exceeded the scope of a pat-down search for weapons when he opened the
canister containing the distribution packets of methamphetamine. This court
has recognized that a Terry pat-down search may continue “so long as an officer
is investigating an object that reasonably may be a weapon.” United States v.
Maldonado, 42 F.3d 906, 909 (5th Cir. 1995).
The officer testified that he “felt a hard cylindrical object in [Cook’s]
pocket.” He further testified on cross-examination that while a canister was
not a weapon, it “could contain a weapon,” such as a knife or an explosive
device. The district court credited the officer’s testimony and found that the
officer’s conclusion that the canister could have contained a weapon was “not
unreasonable.” Cook complains that the canister could not possibly have
2 Cook also argues that even if his consent was voluntary, it was not an independent
act of free will. Because his consent was not given during an illegal stop, however, the court
need not consider this prong of the consent inquiry. See United States v. Khanalizadeh, 493
F.3d 479, 484 (5th Cir. 2007) (declining to address whether consent was an independent act
of free will where no constitutional violation preceded consent).
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contained any weapon which the officer could have reasonably believed posed
a danger. “This ipse dixit is inadequate to reverse the district court.” United
States v. Campbell, 178 F.3d 345, 349 (5th Cir. 1999). When viewed in the light
most favorable to the Government, the officer had not ruled out the possibility
that the canister contained a weapon, and his opening of the canister was not
beyond the scope of the Terry pat-down search. See id.
In his second issue, Cook argues that the court erred in its written
judgment by ordering Cook’s federal sentence to run consecutively, as opposed
to concurrently, to the state sentences as announced at the sentencing hearing.
When a conflict exists between the sentence orally pronounced in court and a
later written judgment, the oral pronouncement controls. United States v.
Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003). According to 28 U.S.C.
§ 2106, appellate courts “may affirm, modify, vacate, set aside or reverse any
judgment . . . and may remand the cause and direct the entry of such
appropriate judgment . . . as may be just under the circumstances.”
Accordingly, the district court’s judgment is AFFIRMED as modified to reflect
that Cook’s federal term of imprisonment is to run concurrently with the
related state sentences.
4