United States v. Wiggins ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5542
RICHARD F. WIGGINS, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
John A. MacKenzie, Senior District Judge.
(CR-93-152)
Submitted: November 28, 1995
Decided: September 18, 1996
Before WILKINSON, Chief Judge, and
NIEMEYER and LUTTIG, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William P. Robinson, ROBINSON, MADISON, FULTON &
ANDERSON, Norfolk, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Robert E. Bradenham, II, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Richard F. Wiggins, Jr., appeals his conviction for possession with
intent to distribute 525 grams of cocaine base ("crack cocaine") in
violation of 21 U.S.C.A. § 841(a)(1), (b) (West 1981 & Supp. 1995),
and 18 U.S.C. § 2 (1988). On appeal, Wiggins contends that the dis-
trict court should have suppressed the crack cocaine because it was
seized in violation of the Fourth Amendment and that the evidence
was insufficient to convict him. Because we find that no Fourth
Amendment violation occurred and that sufficient evidence supported
Wiggins' conviction, we affirm.
I.
Law enforcement officers conducted drug interdiction at the Chesa-
peake Bay Bridge Tunnel's southbound toll plaza. Special Agent
Koushel and Officer Yarborough testified that they approached a
rental car stopped at the toll plaza and asked the occupants for permis-
sion to question them. Carl Douglas, the driver, agreed to answer the
officers' questions, while Wiggins sat in the front passenger seat star-
ing straight ahead. After telling Koushel that they had no drugs or
weapons, Douglas consented to a search of the car rented for them by
Wiggins' sister and of any containers in the car.
Douglas moved the car to the side of the road, and he and Wiggins
exited the car. As Yarborough approached Wiggins on the passenger
side of the car, Yarborough noticed a large bulge in Wiggins' right
front pants pocket and asked Wiggins if he had any weapons. Yarbor-
ough reached out to pat Wiggins' pocket, but Wiggins turned and
fled. Yarborough's hand brushed against the bulge in Wiggins' pocket
as Wiggins passed him.
Wiggins ran toward a thicket of bushes and crawled through them,
exiting on the other side. When he reappeared, the officers appre-
2
hended Wiggins and noticed that there was no bulge in his pocket.
Koushel retraced Wiggins' path through the bushes and discovered a
torn plastic bag and a brown paper bag containing six smaller pack-
ages of crack cocaine. Officers found the missing piece of the plastic
bag inside Wiggins' pants. Based on this evidence, the district court
denied the motion to suppress. The court found that Wiggins was not
seized for Fourth Amendment purposes until after he fled and that the
officers had a right to seize the abandoned crack cocaine, but the
court noted that the Government had to prove at trial that it was Wig-
gins who had abandoned the crack cocaine. The court also found that
the officers did not search the car nor did Yarborough frisk Wiggins
in violation of the Fourth Amendment.
Wiggins then proceeded to trial.1 The Government called Koushel
and Yarborough as witnesses, and they testified about the events at
the toll plaza. Other officers involved in the interdiction corroborated
their testimony. In addition, Trooper Ardis testified that he watched
Wiggins crawl through the bushes and that Wiggins reached into his
pants and threw to the ground a plastic bag that tore and revealed a
brown paper bag. Ardis identified the bags he saw Wiggins discard
as the bags Koushel recovered from the bushes, and a forensic scien-
tist testified that the bags found in the bushes contained 525 grams of
crack cocaine.
The Government also called Douglas, the driver, as a witness.2
Douglas testified that Wiggins picked him up in a rental car for a trip
to New York to buy crack cocaine to sell in Virginia, as they had
done on two or three prior occasions. Douglas said Wiggins paid
approximately $10,000 for 539 grams of crack cocaine. Douglas
stated that when he consented to the search of the vehicle, Wiggins
removed the crack cocaine from where he had hidden it and put it
inside his pants because he planned to flee.
The jury found Wiggins guilty of possession with intent to distrib-
ute crack cocaine. The court sentenced Wiggins to 188 months
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1 Wiggins' first trial ended in a mistrial.
2 Douglas pled guilty to possession with intent to distribute crack
cocaine in state court and agreed to testify against Wiggins to avoid fed-
eral prosecution.
3
imprisonment, ordered five years of supervised release, and imposed
a $50 special assessment. This appeal followed.
II.
A. Motion to suppress
Wiggins contends that the district court should have suppressed the
crack cocaine because it was seized in violation of the Fourth Amend-
ment. We review legal conclusions involved in the district court's
suppression determination de novo but review factual findings under-
lying the legal conclusions subject to the clearly erroneous standard.
United States v. Rusher, 966 F.2d 868, 873 (4th Cir.), cert. denied,
___ U.S. ___, 61 U.S.L.W. 3285 (U.S. Oct. 13, 1992) (No. 92-5734).
Although Wiggins claims that Douglas--the driver--did not have
the authority to consent to a search of the vehicle rented by Wiggins'
sister and that Yarborough illegally seized him at the time he
attempted to pat-down the bulge in Wiggins' pocket before Wiggins
fled, the facts disclosed that no vehicle search, no frisk, and no search
of Wiggins' person occurred because Wiggins fled. Therefore, the
district court's factual determinations are not clearly erroneous. See
Rusher, 966 F.2d at 873.
Moreover, Wiggins' decision to flee and then take the crack
cocaine from his person and discard it in the bushes further supports
the district court's denial of his suppression motion. The Supreme
Court has held that a seizure does not occur for Fourth Amendment
purposes unless physical force is applied or unless a person submits
to a show of police authority. California v. Hodari D., 499 U.S. 621,
626 (1991). In Hodari D., the suspect fled when he saw the police and
threw down a small rock which later proved to be cocaine. Id. at 622-
23. The Supreme Court held that the suspect was not seized until the
police apprehended him, and the abandoned cocaine was not the fruit
of the suspect's seizure. Id. at 629. Like the defendant in Hodari D.,
Wiggins was not seized until the officers apprehended him. Further,
because he abandoned the crack cocaine, Wiggins cannot challenge
its seizure. Abel v. United States, 362 U.S. 217, 241 (1960); United
States v. Flowers, 912 F.2d 707, 712 (4th Cir. 1990), cert. denied, 501
4
U.S. 1253 (1991). Therefore, we find that the district court's denial
of Wiggins' motion to suppress the crack cocaine was proper.
B. Sufficiency of the evidence
Wiggins also claims that the evidence was not sufficient to convict
him because the Government did not prove that he ever possessed the
crack cocaine found in the bushes. We review sufficiency of the evi-
dence deferentially, sustaining the verdict if the evidence--when
viewed in the light most favorable to the government--is such that a
rational trier of fact could find guilt beyond a reasonable doubt. See
Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.
Capers, 61 F.3d 1100, 1107 (4th Cir. 1995). If substantial evidence
exists to support a verdict, the verdict must be sustained. Glasser, 315
U.S. at 80.
A conviction for possession with intent to distribute crack cocaine
requires proof of possession of the controlled substance both know-
ingly and intentionally with the intent to distribute it. United States
v. Nelson, 6 F.3d 1049, 1053 (4th Cir. 1993), cert. denied, ___ U.S.
___, 62 U.S.L.W. 3792 (U.S. May 31, 1994) (No. 93-8210). Posses-
sion may be actual or constructive. Constructive possession may be
established by circumstantial or direct evidence and exists when the
government shows ownership, dominion, or control over the item, see
Nelson, 6 F.3d at 1053, and knowledge of its presence. United States
v. Bell, 954 F.2d 232, 235 (4th Cir. 1992).
The evidence in this case easily satisfied the Glasser test.3 Testi-
mony at trial disclosed that Douglas saw Wiggins take the crack
cocaine from its hiding place in the car and put it inside his pants
because he planned to flee. When Wiggins exited the car, Yarborough
saw a bulge in Wiggins' pocket that was not there after Wiggins
crawled through the bushes. Koushel retraced Wiggins' path through
the bushes and discovered a torn plastic bag and a brown paper bag
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3 Wiggins does not dispute that 525 grams of crack cocaine evidenced
an intent to distribute. See Nelson, 6 F.3d at 1053 (finding that intent to
distribute may be inferred from drug quantities too large for personal
consumption); Bell, 954 F.2d at 235 (finding over 13 grams of crack
cocaine sufficient quantity to support inference of intent to distribute).
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containing six smaller packages of crack cocaine. Officers found the
missing piece of the plastic bag inside Wiggins' pants. Trooper Ardis
identified the bags he saw Wiggins discard in the bushes as the ones
Koushel recovered. Taking the evidence in the light most favorable
to the Government, a rational trier of fact could find guilt beyond a
reasonable doubt. See Glasser, 315 U.S. at 80.
Finally, Wiggins contends that the Government's case against him
was based on conflict, confusion, and bias. We reject this contention
because even if some facts support a contrary conclusion, we do not
weigh the evidence or judge the credibility of witnesses. United States
v. Reavis, 48 F.3d 763, 771 (4th Cir.) (citing United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989)), cert. denied, ___ U.S.
___, 63 U.S.L.W. 3890 (U.S. June 19, 1995) (No. 94-9316). We
therefore find that the evidence was sufficient to convict Wiggins of
possession with intent to distribute crack cocaine.
III.
Because the district court did not err in denying the motion to sup-
press and because the evidence was sufficient to convict Wiggins, we
affirm the judgment of the district court. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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