UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4482

RODERICK EUGENE HARRIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

Frank W. Bullock, Jr., Chief District Judge.

(CR-98-16)

Submitted: January 29, 1999

Decided: March 12, 1999

Before NIEMEYER and WILLIAMS, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Romallus O. Murphy, James A. Dickens, Greensboro, North Carolina,

for Appellant. Walter C. Holton, Jr., United States Attorney, Michael

P. Joseph, Assistant United States Attorney, Greensboro, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

Roderick Eugene Harris appeals his jury trial conviction for possession with intent to distribute cocaine base (crack). On appeal, he

alleges (1) that the cocaine seized from his vehicle should have been

suppressed, and (2) that the district court should have granted his

motion for judgment of acquittal. Because we find both issues lack

merit, we affirm.

Regarding the first issue, we review legal conclusions made pursuant to a district court's suppression determination de novo, but review

the underlying factual findings for clear error. See United States v.

McDonald, 61 F.3d 248, 254 (4th Cir. 1995). We construe the evidence in the light most favorable to the Government, the prevailing

party below. See United States v. Elie, 111 F.3d 1135, 1140 (4th Cir.

1997).

The facts, as adduced at the suppression hearing, reveal the following. High Point Police Officer Herb Sampson received a call from the

dispatcher that an anonymous caller had alleged that Harris had two

ounces of cocaine in his Toyota Land Cruiser parked at "T.J.'s Tavern," a bar. To prevent Harris from possibly fleeing and thus preclude

a car chase, Sampson, with the assistance of other officers, drove into

T.J's parking lot and immediately blocked in Harris' Toyota Land

Cruiser with their patrol cars.1 The officers entered T.J.'s and asked

Harris to come outside. While in the parking lot, Sampson told Harris

of the tip and sought his consent to search his vehicle. Harris declined

stating, "I know my rights. Unless I give you consent, you cannot

search my vehicle."2 Sampson responded, "Yes, you are correct and

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1 Sampson knew which vehicle was Harris' because he had seen him

drive it on numerous prior occasions.

2 Joint appendix ("J.A.") at 18.

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you are free to leave."3 Harris then walked back inside the bar. Sampson instructed a K-9 officer, who was on the scene, to have his

specially-trained dog sniff the vehicle; the dog positively alerted for

the presence of drugs.

Sampson then left to obtain a search warrant based upon the dog's

alert and his perception that Harris appeared nervous to him when

confronted with the allegation that his vehicle contained cocaine.

After Officer Sampson had left, but before he returned with the search

warrant, officers refused to move their patrol cars and allow Harris to

drive away in his vehicle--although they told Harris that he was personally free to go. After a search warrant for the vehicle was issued,

officers searched the vehicle and found a loaded pistol and crack

cocaine in the console.

In denying Harris' motion to suppress, the district court assumed,

for purposes of its ruling, that the officers' initial blocking of the

Toyota Land Cruiser was an illegal seizure. Nonetheless, the court

found that the subsequent dog sniff, which properly provided the

basis for the search warrant, was independent of the illegal seizure.

The seizure, the court reasoned, did not lead in any way to the evidence forming the basis for the probable cause to search. Rather, the

dog sniff was an independent source from the presumed illegal seizure of the vehicle.

On appeal, Harris argues that because the initial seizure of the vehicle was illegal and because the cocaine was found after such seizure,

the cocaine must be suppressed as "fruit of the poisonous tree."

Nardone v. United States, 308 U.S. 338, 341 (1939). Evidence

obtained as a direct result of an unconstitutional search or seizure is

subject to exclusion. See Segura v. United States, 468 U.S. 796, 804

(1984). Exclusion is also required if the subsequently obtained evidence was derived by the exploitation of the initial illegality or "fruit

of the poisonous tree." Id. Evidence is not to be excluded, however,

if the connection between the illegal police conduct and the discovery

and seizure of the evidence is "so attenuated as to dissipate the taint."

Nardone, 308 U.S. at 341. That is, if police discover the evidence

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3 Id.

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from an source independent from the illegal conduct, the evidence

need not be excluded. See Segura, 468 U.S. at 805.

We agree with the district court that the canine sniff provided the

requisite probable cause to obtain the search warrant and was an independent source from the assumed illegal seizure of the vehicle. See

Segura, 468 U.S. at 814-15 (evidence will not be excluded as "fruit

of the poisonous tree" unless the illegality is at least the "but for"

cause of the discovery of the evidence; suppression is not justified

unless the challenged evidence is in some sense the product of illegal

governmental activity). Harris does not seriously contest that police

could legitimately have had the dog sniff his vehicle prior to blocking

in his vehicle, see generally United States v. Jeffus, 22 F.3d 554, 557

(4th Cir. 1994) (having a trained dog sniff the perimeter of the vehicle

in a public place does not constitute a search), or that the police

gained no advantage by blocking in his vehicle. See Segura, 468 U.S.

at 814-15.

In his second claim, Harris alleges that there was insufficient evidence to show that he knew the vehicle contained cocaine and, therefore, the Government failed to show an essential element of the crime.

See United States v. Nelson, 6 F.3d 1049, 1053 (4th Cir. 1993) (knowing and intentional possession is an essential element of the crime).

Harris alleges the Government failed to show that he had constructive

possession of the cocaine because the Toyota Land Cruiser was titled

in another person's name and because police did not catch him physically in the vehicle. Thus, he argues, the district court should have

granted his motion for acquittal.

We review the denial of a motion for acquittal under a sufficiency

of the evidence standard. See Fed. R. Crim. P. 29; United States v.

Romer, 148 F.3d 359, 364 (4th Cir. 1998), petition for cert. filed, 67

U.S.L.W. 3376 (U.S. Nov. 19, 1998) (No. 98-852). In deciding

whether the evidence was sufficient, the relevant question is not

whether the court is convinced of guilt beyond a reasonable doubt, but

rather whether the evidence, when viewed in the light most favorable

to the government, was sufficient for a rational trier of fact to have

found the essential elements of the crime beyond a reasonable doubt.

See Glasser v. United States, 315 U.S. 60, 80 (1942); United States

v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en banc), cert. denied,

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117 S. Ct. 1087 (1997). If substantial evidence exists to support a verdict, the verdict must be sustained. See Glasser , 315 U.S. at 80.

Viewing the facts as we are required, we find that any rational trier

of fact could have found Harris had constructive possession of the

cocaine because Harris regularly drove the Toyota Land Cruiser as if

it was his own car. The evidence shows that a police officer who lived

at the same apartment complex as Harris saw the vehicle parked in

front of Harris' apartment four or five times a week. Also, when officers asked for Harris' consent to search his vehicle, he did not disavow ownership; indeed, he later asked officers to move their cars so

that he could drive the vehicle away. Finally, the vehicle contained

documents addressed to Harris: a retail sales warranty in Harris'

name, a check from Hecht's to him, a confirmation for lodging reservations at Myrtle Beach, and a bill from a business called Treadworks. When viewed in the light most favorable to the government,

we find that the evidence was sufficient for a rational trier of fact to

have found that Harris had constructive possession of the cocaine. See

Burgos, 94 F.3d at 862; Nelson, 6 F.3d at 1053.

Accordingly, we affirm Harris' conviction. We dispense with oral

argument because the facts and legal contentions made by the parties

are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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