UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4472

RONALD LEE JOHNSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CR-98-7)

Submitted: February 16, 1999

Decided: March 1, 1999

Before MICHAEL and MOTZ, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Andrea C. Long, BOONE, BEALE, COSBY & LONG, Richmond,

Virginia, for Appellant. Helen F. Fahey, United States Attorney, John

S. Davis, Assistant United States Attorney, Richmond, Virginia, for

Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Ronald Lee Johnson on separate counts of possession with intent to distribute crack cocaine and heroin in violation of

21 U.S.C. § 841(a) (1994). He was subsequently sentenced to 360

months' imprisonment. On appeal, Johnson alleges that the district

court erred in denying his pre-trial motion to suppress evidence recovered as a result of an allegedly unconstitutional seizure. He further

challenges the sufficiency of the evidence to support the jury's finding that he intended to distribute the crack cocaine and heroin seized

from his person. Finding no error, we affirm.

The record discloses that on December 1, 1997, Richmond Police

Detectives Ronald McClaren, Jr., and Deborah Allen were working

off-duty at the Midlothian Village Apartments. Off-duty officers had

recently made numerous arrests in the apartment complex, known to

be a high crime area, for narcotics and trespassing violations. A "no

trespassing" sign is posted on the front of each building and the complex's policy is that visitors must be accompanied by residents at all

times. That evening, McClaren and Allen, in uniform, driving an

unmarked car, observed other officers conducting a traffic stop and

arrest nearby. They then noticed Johnson walking alone and slowly

in the complex parking lot in the direction of the officers making the

arrest. When Johnson observed the officers making the arrest, he

noticeably changed his direction and quickened his pace.

Upon observing Johnson's behavior, McClaren and Allen pulled

alongside Johnson and asked if they could talk to him. Johnson, in

turn, asked, "Who are you?" McClaren identified himself as a police

officer, at which point Johnson changed his direction and began to

walk back again towards the apartment. The two officers parked and

exited their vehicles to speak with Johnson. When McClaren again

asked Johnson if they could speak with him, Johnson asked McClaren

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what he wanted. After identifying himself, McClaren questioned

Johnson as to whether he was a resident or a visitor. Becoming

noticeably agitated, Johnson asked, "Why?" When McClaren referred

to the "No Trespassing" signs and their commitment to enforcing the

policy, Johnson stated that he was visiting someone. Again, Johnson

grew increasingly agitated and began screaming that he had rights.

McClaren continued his questioning, asking Johnson the name of the

resident he was allegedly visiting. Johnson gave a woman's name

which was not recognizable to either McClaren or Allen. When

McClaren asked Johnson where this woman lived, Johnson replied, "I

don't know, back there in the back, around the corner." Now irate and

appearing nervous, Johnson claimed he did not know the woman's

address. McClaren advised Johnson that he was under investigative

detention and called for additional police assistance.

Upon request for identification, Johnson produced a Virginia driver's license which did not bear an address in the apartment complex.

McClaren asked again the name of the woman he was visiting. This

time Johnson gave what seemed to the officers to be a different

woman's name. When Johnson was again unable to verify the

woman's residence, McClaren advised Johnson that he was under

arrest for trespassing. Because Johnson became very defensive and

aggressive when McClaren attempted to handcuff Johnson, who continued to yell that he had rights, McClaren frisked him for weapons,

finding none. McClaren advised Johnson of his Miranda rights and

proceeded to take him to the rental office.

A search of Johnson incident to arrest revealed a brown paper bag

consisting of a plastic baggie filled with chunks of crack cocaine and

a blue wax paper pouch containing five individually wrapped hits of

heroin. Subsequent tests revealed that the total amount of drugs was

9.217 grams of cocaine and .262 grams of heroin. McClaren also

recovered fifty-five dollars cash from Johnson's wallet, and a pager.

He did not find any other drug paraphernalia in Johnson's possession.

After receiving his Miranda rights a second time, Johnson made several incriminating statements. He voluntarily identified the drugs in

the bag as crack cocaine and heroin and upon questioning stated that

each packet of heroin would sell for ten dollars. Although he first

stated that the drugs were for personal use, he later stated that he did

not use the "stuff." Johnson was then taken to the police station. The

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officers observed no signs that Johnson personally used the drugs,

such as burn marks or withdrawal. Johnson subsequently pleaded

guilty in state court to trespassing.

Following federal indictment on separate counts for possession

with intent to distribute crack cocaine and heroin, Johnson filed a pretrial motion to suppress the evidence claiming that it was the result

of an unconstitutional seizure. At the pre-trial hearing on the motion,

Yolanda Carter testified that Johnson was visiting her at the Midlothian Village Apartments on December 1, 1997 and that her apartment was "around the back on the corner." The district court denied

the motion. A jury ultimately convicted Johnson on both counts and

he was sentenced to 360 months' imprisonment.

We first address whether Detectives McClaren and Allen conducted a legal Terry stop of Johnson. See Terry v. Ohio, 392 U.S. 1

(1968). The Fourth Amendment permits limited investigative stops by

law enforcement officers when they are justified"by a reasonable and

articulable suspicion that the person seized is engaged in criminal

activity." Reid v. Georgia, 448 U.S. 438, 440 (1980) (per curiam).

Thus, an officer who stops and detains a person for investigative

questioning "must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21 (footnote

deleted). While such a detention does not require probable cause, it

does require something more than an "inchoate and unparticularized

suspicion or `hunch.'" Id. at 27.

While we review de novo the ultimate question of reasonable suspicion, we review findings of historical fact only for clear error and

"`give due weight to inferences drawn from those facts by resident

judges and local law enforcement officers.'" United States v. Sprinkle,

106 F.3d 613, 616-17 (4th Cir. 1997) (quoting Ornelas v. United

States, 517 U.S. 690, 699 (1996)). We consider the "totality of the circumstances" surrounding the stop to assess its constitutionality. See

United States v. Cortez, 449 U.S. 411, 417 (1981). "Based upon that

whole picture the detaining officers must have a particularized and

objective basis for suspecting the particular stopped of criminal activity." Id. at 417-18.

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In light of these principles, we believe that the facts set forth above,

when taken as a whole, justified the initial stop of Johnson. Given the

high crime nature of the apartment complex, Johnson's behavior, and

his apparent violation of the complex's policies, the police had reasonable articulable suspicion that Johnson was guilty of trespassing.

Because the police conducted a legitimate Terry stop, the investigative detention did not constitute an unconstitutional seizure. Johnson's

continued evasive conduct and agitated behavior upon questioning

during the investigative detention then gave rise to probable cause to

arrest. The drugs recovered from his person were thus admissible

because they were obtained pursuant to the valid search incident to

arrest. Furthermore, the validity of the arrest precludes any challenge

to the admission into evidence of his incriminating statements.

We next address Johnson's challenge to the sufficiency of the evidence supporting the jury's finding that he possessed the crack

cocaine and heroin with the intent to distribute the substances. The

jury's verdict "must 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). Thus, we may reverse a jury

verdict only if the record demonstrates a lack of evidence from which

a jury could find guilt beyond a reasonable doubt. See United States

v. Lowe, 65 F.3d 1137, 1142 (4th Cir. 1995).

In this case, there was sufficient evidence from which the jury

could find beyond a reasonable doubt that Johnson knowingly possessed the crack cocaine and heroin with intent to distribute them. At

trial, Detective Mark Dunn testified as an expert that drug distributors

use pagers to facilitate distribution and paper bags for packaging

drugs. Police recovered 9.2 grams of crack cocaine from Johnson's

person. Dunn testified that the typical crack user ingests approximately 1/10 of a gram per "hit." See United States v. LaMarr, 75 F.3d

964, 973 (4th Cir. 1996) (finding 5.72 grams of crack consistent with

distribution). He further stated that it was customary for distributors

to carry a large chunk of the drug, and cut off pieces for individual

buyers. Johnson carried the equivalent of ninety hits. Additionally,

Dunn maintained that crack users usually smoke as much as they have

and they typically have burned and scarred fingers or burned lips.

Regarding the heroin, Dunn stated that Johnson possessed the

equivalent of five individual hits of heroin. Although the quantity of

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heroin was relatively small, Dunn testified that it would be unusual

for a user to possess that much heroin at one time. Furthermore, the

heroin was packaged into smaller packages, containing individual

dosages, for ready distribution.

Moreover, there is little evidence that Johnson actually used the

drugs. The officers noticed no such indication in his physical condition. They also recovered no drug paraphernalia on his person suggestive of personal use. Last, the woman he visited in the apartment

complex testified that she had never witnessed Johnson using drugs.

This statement is buttressed by Johnson's own admission to the police

after arrest that he did not use that "stuff." We therefore find sufficient

evidence from which the jury could have inferred Johnson's intent to

distribute cocaine base and heroin.

Accordingly, we affirm Johnson's conviction and sentence. 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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