United States v. Jones

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4548
VINSON LAMONT JONES,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge;
Robert R. Merhige, Jr., Senior District Judge.
(CR-97-308)
Argued: January 28, 2000
Decided: February 25, 2000
Before LUTTIG and KING, Circuit Judges, and
Norman K. MOON, United States District Judge for the
Western District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed in part and vacated in part by published opinion. Judge Lut-
tig wrote the opinion, in which Judge King and Judge Moon joined.
_________________________________________________________________
COUNSEL
ARGUED: Christopher Ford Cowan, COWAN, NORTH &
LAFRATTA, L.L.P., Richmond, Virginia, for Appellant. James Brien
Comey, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee. ON BRIEF: Helen F. Fahey,
United States Attorney, Laura A. Colombell, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Rich-
mond, Virginia, for Appellee.
_________________________________________________________________
OPINION
LUTTIG, Circuit Judge:
Appellant Vinson Jones appeals from his conviction and sentence
for possession of heroine residue, possession of cocaine base, and
possession of cocaine base with intent to distribute. For the reasons
that follow, we affirm in part and vacate in part.
I.
On September 17, 1997, five Richmond police officers patrolling
near an area known for frequent drug trafficking noticed a group of
men standing behind a parked car on a street corner. One of the men,
Charles Claxton, had money in his hand, which was extended toward
defendant-appellant Vinson Jones, and Jones' hand was extended
toward Claxton. As the officers approached the men, they noticed that
Jones was carrying a grocery bag. When they saw the officers, Clax-
ton placed a small plastic bag, which contained white powder, in his
mouth, and Jones turned and walked quickly away, toward a resi-
dence. One of the officers followed Jones and ordered him to stop, but
Jones ran up the porch steps, entered the house, and slammed and
locked the door. The officer saw Jones run up the stairs inside, clutch-
ing his pocket.
The officer banged on the front door, and entered the house without
consent after an elderly woman, who turned out to be Jones' grand-
mother, appeared at the door. The officer went upstairs, encountered
Jones exiting a bedroom, and arrested him. The officer then con-
ducted a protective sweep of the upper floor of the house, and found
in the bedroom the grocery bag he had seen Jones carrying. He also
saw a small plastic bag in the toilet. The officer returned downstairs,
and obtained consent to search the house from Jones' grandmother.
In the bedroom that the officer had seen Jones leaving, authorities
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found 3.4 grams of cocaine base, drug sale paraphernalia (baking
soda, a scale, sifters, test tubes, razor blades, and tin foil rolling
papers), and papers belonging to Jones and addressed to him at the
residence.
Jones was convicted after a bench trial of possession of heroine
residue, possession of crack cocaine, and possession of crack cocaine
with intent to distribute, for which he was sentenced to twelve,
twelve, and forty-eight months imprisonment, respectively, to run
concurrently.
II.
Although Jones concedes that the officers had sufficient articulable
suspicion to approach him and Claxton initially, he claims that the
officers lacked probable cause to arrest him when they entered his
home. Jones therefore asserts that the evidence secured from his home
by the officers was obtained in violation of his Fourth Amendment
rights, and should have been excluded at trial. However, prior to
entering Jones' home, a police officer saw Jones: (1) take part in an
apparent drug transaction near an area known for a high incidence of
drug trafficking, (2) walk away while his companion attempted to
swallow a small bag containing white powder when the pair spotted
the police, (3) run into a residence when ordered to halt by the officer,
(4) slam and lock the door behind him when he entered the residence,
and (5) run up a staircase within the residence while clutching his
pocket. Under these circumstances, the officer clearly had probable
cause to arrest Jones at the time the officer entered Jones' home.
Jones correctly points out that, even assuming the existence of
probable cause, exigent circumstances are required to justify an offi-
cer's warrantless entry into a residence. We have no difficulty con-
cluding that such circumstances existed here. First, the officers
reasonably believed that evidence could be destroyed if they waited
to obtain a warrant before entering Jones' home. See United States v.
Turner, 650 F.2d 526, 528 (4th Cir. 1981). Second, they were in "hot
pursuit" of Jones when he entered the house. See United States v.
Santana, 427 U.S. 38, 42-43 (1976). Third, they had no idea whether
the house belonged to Jones, and thus were reasonably concerned for
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the safety of innocent inhabitants of the house. See United States v.
Moss, 963 F.2d 673, 674, 678 (4th Cir. 1992).
We therefore conclude that the officers had probable cause to arrest
Jones, amid the requisite exigent circumstances, at the time they
entered his residence, and that the district court properly admitted into
evidence the items obtained during their consensual search of Jones'
home.
III.
We also reject Jones' argument that the evidence below was insuf-
ficient to establish that he possessed or intended to distribute the 3.4
grams of cocaine at issue.
As to possession, the government was not required to prove below
that Jones actually possessed the drugs on his person at the time of
his arrest. Rather, evidence that a defendant exercised "dominion and
control" over narcotics is sufficient to support a possession convic-
tion. United States v. Harris, 31 F.3d 153, 156 (4th Cir. 1994). Given
that the cocaine at issue here was found behind a dresser drawer in
the bedroom from which the officer saw Jones exit and in which
authorities discovered Jones' personal papers, we cannot say that the
district court, sitting as trier of fact, erred in finding that Jones pos-
sessed the cocaine.
As to intent to distribute, Jones asserts that the small quantity of
cocaine discovered suggests an intent to use the cocaine personally,
rather than to distribute it. However, drug sale paraphernalia was dis-
covered along with the cocaine in the bedroom, and an expert testified
at trial that 3.4 grams of cocaine could be redistributed in as many as
35 units, see J.A. 118. The evidence was thus clearly sufficient to per-
mit the trier of fact to conclude that Jones intended to distribute the
cocaine.
IV.
Jones argues, and the government concedes, that possession of
cocaine base is a lesser included offense of possession with intent to
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distribute cocaine base, see United States v. Baker, 985 F.2d 1248,
1259 (4th Cir. 1993), and that, because Jones was charged with and
convicted of the two offenses with regard to the same 3.4 grams of
cocaine, the possession conviction must be merged into the posses-
sion with intent to distribute conviction for sentencing purposes, see
Brown v. Ohio, 432 U.S. 161, 169 (1977). As such, the district court
erred in imposing on Jones a separate twelve-month sentence for pos-
session of cocaine base, and we therefore vacate that portion of Jones'
sentence.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district
court with respect to the denial of Jones' motion to suppress and the
sufficiency of the evidence supporting his conviction. However,
because we conclude that Jones' cocaine possession conviction
should have been merged into the possession with intent to distribute
conviction, we vacate the separate twelve-month sentence for the pos-
session of cocaine base.
IT IS SO ORDERED
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