United States v. Pender

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5283
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY PENDER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:06-cr-00083-DKC)
Submitted: December 28, 2007 Decided: January 11, 2008
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Raymond J. Rigat, Washington, D.C., for Appellant. Rod J.
Rosenstein, United States Attorney, Del Wright, Jr., Special
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Pender appeals his convictions entered after a
jury trial to possession of a firearm by a convicted felon and
possession with intent to distribute cocaine base. On appeal, he
challenges the denial of his motion to suppress and the sufficiency
of the evidence supporting his convictions. We affirm.
Pender first challenges the denial of his motion to
suppress the drugs and firearm found in the closet of the master
bedroom of his apartment, arguing that his girlfriend and co-
leaseholder, Lakesha Smith, lacked authority to consent to the
search. The Government can justify a warrantless search by showing
permission to search by “a third party who possessed common
authority over or other sufficient relationship to the premises or
effects sought to be inspected.” United States v. Matlock, 415
U.S. 164, 171 (1974). Authority to consent arises from mutual use
of the property by those with joint access or control, so that a
cohabitant would recognize the risk that another might allow a
common area to be searched. Trulock v. Freeh, 275 F.3d 391, 403
(4th Cir. 2001). “[T]he exception for consent extends even to
entries and searches with the permission of a co-occupant whom the
police reasonably, but erroneously, believe to possess shared
authority as an occupant.” Georgia v. Randolph, 547 U.S. 103, 109
(2006). “[I]t would be unjustifiably impractical to require the
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police to take affirmative steps to confirm the actual authority of
a consenting individual whose authority was apparent.” Id. at 122.
Here, Smith was a leaseholder of the apartment and shared
the master bedroom with Pender. The closet contained articles
clearly belonging to a woman. Moreover, even if the closet
contained more men’s items than women’s, there was nothing to alert
the officers that Smith lacked mutual access to the closet – it was
not locked and nothing inside it was in a locked or sealed
container. Thus, we conclude that the police acted reasonably in
relying on Smith’s consent. See United States v. Kinney, 953 F.2d
863, 867 (4th Cir. 1992) (holding that officers acted reasonably in
relying on the consent of cohabitant to search a locked closet when
she produced a key, even though it turned out that the defendant
did not give the cohabitant permission to use it). Accordingly, we
find that the district court properly denied the motion to suppress
the evidence found in the closet.
Pender next contends that, if the court finds that Smith
had equal access to the closet, then there was insufficient
evidence to show that he possessed the drugs and firearm in the
closet, because they could have just as easily been put there by
Smith. We review the denial of a motion for acquittal de novo.
United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005), cert.
denied, 547 U.S. 1113 (2006). Where, as here, the motion was based
on a claim of insufficient evidence, “[t]he verdict of a jury must
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be sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942). This court “ha[s] defined
‘substantial evidence’ as ‘evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.’”
Alerre, 430 F.3d at 693. We “must consider circumstantial as well
as direct evidence, and allow the government the benefit of all
reasonable inferences from the facts proven to those sought to be
established.” United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir. 1982). If evidence “supports different, reasonable
interpretations, the jury decides which interpretation to believe.”
United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994).
On appeal, the only element of his convictions that
Pender challenges is whether he possessed the drugs and firearm
found in the closet. Possession may be actual, constructive, or
joint. United States v. Gallimore, 247 F.3d 134, 136-37 (4th Cir.
2001). “[T]o establish constructive possession, the government
must produce evidence showing ownership, dominion, or control over
the contraband itself or the premises or vehicle in which the
contraband is concealed.” United States v. Blue, 957 F.2d 106, 107
(4th Cir. 1992). Possession may be established by circumstantial
evidence. United States v. Schocket, 753 F.2d 336, 340 (4th Cir.
1985).
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Here, the evidence showed that Pender slept in the room
in which the closet was located and that the closet contained his
possessions. Smith testified that the drugs and gun did not belong
to her and that nobody besides herself and Pender had access to the
closet. In addition, police officers observed Pender conduct a
drug transaction the very day the apartment was searched.
Accordingly, the jury could have easily determined that Pender
possessed the contraband in question. See United States v.
Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989) (stating that
“circumstantial evidence . . . may be sufficient to support a
guilty verdict even though it does not exclude every reasonable
hypothesis consistent with innocence.”).
Accordingly, we affirm Pender’s convictions. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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