UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4099

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WILLIAM JAMES LOWERY, III,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Anderson. Henry M. Herlong, Jr., District

Judge. (8:05-cr-00524-HMH)

Submitted: March 30, 2007 Decided: July 11, 2007

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ronald R. Hall, HALL & HALL ATTORNEYS AT LAW, West Columbia, South

Carolina, for Appellant. Reginald I. Lloyd, United States

Attorney, Regan A. Pendleton, Assistant United States Attorney,

Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

William James Lowery, III, appeals his convictions

following a jury trial for conspiracy to possess with intent to

distribute five kilograms or more of powder cocaine, in violation

of 21 U.S.C. § 846 (2000) (“Count One”), and possession with intent

to distribute five kilograms or more of powder cocaine, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (2000) (“Count Two”).

For the reasons set forth below, we affirm. 

Lowery first challenges the sufficiency of the evidence

underlying his conviction on Count Two. We review the denial of a

motion for a directed verdict de novo. United States v. Alerre,

430 F.3d 681, 693 (4th Cir. 2005), cert. denied, 126 S. Ct. 1925

(2006). Where, as here, the motion was based on a claim of

insufficient evidence, “[t]he verdict of a jury 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). 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 (quoting

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en

banc)). In evaluating the presence of substantial evidence, we

“consider circumstantial as well as direct evidence, and allow the

government the benefit of all reasonable inferences from the facts
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proven to those sought to be established.” United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). This court “may not

weigh the evidence or review the credibility of the witnesses.”

United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997). 

In order to establish a violation of 21 U.S.C.

§ 841(a)(1), the Government must prove beyond a reasonable doubt

that Lowery: (1) knowingly; (2) possessed the controlled substance;

(3) with the intent to distribute it. Burgos, 94 F.3d at 873.

Possession may be actual or constructive. United States v. Rusher,

966 F.2d 868, 878 (4th Cir. 1992). “A person has constructive

possession of a narcotic if he knows of its presence and has the

power to exercise dominion and control over it.” United States v.

Schocket, 753 F.2d 336, 340 (4th Cir. 1985). Possession need not

be exclusive but may be joint, and “may be established by direct or

circumstantial evidence.” Id.; United States v. Wright, 991 F.2d

1182, 1187 (4th Cir. 1993). This court has held that “where other

circumstantial evidence . . . is sufficiently probative, proximity

to contraband coupled with inferred knowledge of its presence will

support a finding of guilt on such charges.” United States v.

Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980) (internal quotations

and citation information omitted). 

Lowery maintains that the Government failed to present

sufficient evidence to establish that he either constructively or

actually possessed the cocaine in question. After reviewing the
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evidence presented at trial in the light most favorable to the

Government, we find that there was sufficient evidence on which the

jury could conclude that Lowery constructively possessed the

cocaine he gave Alvin Reed, one of Lowery’s co-conspirators. Law

enforcement officials discovered the cocaine in the trunk of the

vehicle Reed was driving. Reed testified at trial that Lowery gave

him the cocaine and that he (Reed) did not know the ultimate

destination of the cocaine. Lowery was a passenger in the vehicle

that closely trailed Reed’s vehicle. While Lowery challenges

Reed’s veracity, we will not disturb the jury’s credibility

determinations. See Wilson, 118 F.3d at 234. 

Lowery next raises a Fourth Amendment challenge to the

traffic stop that preceded the seizure of small quantities of

heroin and cocaine from the vehicle in which Lowery was a

passenger. Lowery contends that, because the police officer who

initiated the traffic stop lacked probable cause or reasonable,

articulable suspicion to stop the vehicle, any evidence derived

from that stop constitutes fruit of the poisonous tree and should

have been suppressed. 

Because Lowery did not challenge the validity of the stop

in the district court, this court reviews the issue only for plain

error. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005);

United States v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002).

Under the plain error standard, Lowery must show: (1) there was
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error; (2) the error was plain; and (3) the error affected his

substantial rights. United States v. Olano, 507 U.S. 725, 732-34

(1993). When these conditions are satisfied, this court may

exercise its discretion to notice the error only if the error

“seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.” Id. at 736 (internal quotation marks

omitted). The burden of showing plain error is on the defendant.

United States v. Strickland, 245 F.3d 368, 379-80 (4th Cir. 2001).

Although Lowery has standing to challenge the stop,

United States v. Rusher, 966 F.2d 868, 874 n.4 (4th Cir. 1992), we

nonetheless reject Lowery’s argument on the merits. The police

officer who initiated the traffic stop had probable cause to

believe the vehicle’s driver had violated various traffic laws. 

See United States v. Whren, 517 U.S. 806, 809-10 (1996) (noting

probable cause undisputed where officer witnessed traffic

violation). Accordingly, the stop was well-within the bounds of

the Fourth Amendment. United States v. Hassan El, 5 F.3d 726, 730

(4th Cir. 1993) (“[W]hen an officer observes a traffic offense or

other unlawful conduct, he or she is justified in stopping the

vehicle under the Fourth Amendment.”). 

For the foregoing reasons, we affirm Lowery’s

convictions. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process. 

AFFIRMED