UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 coleaseholder, 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