UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.

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Unpublished opinions are not binding precedent in this circuit.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 district 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 Chesapeake 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 permission to question them. Carl Douglas, the driver, agreed to answer the

officers' questions, while Wiggins sat in the front passenger seat staring 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. Yarborough 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-

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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 packages 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 Wiggins 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 scientist 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 distribute 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 federal prosecution.

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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 Amendment. We review legal conclusions involved in the district court's

suppression determination de novo but review factual findings underlying 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

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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 evidence 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 knowingly 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). Possession 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 Testimony 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 suppress and because the evidence was sufficient to convict Wiggins, we

affirm the judgment of the district court. 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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