UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4003

CHARLES E. HURT,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Marvin J. Garbis, District Judge.

(CR-95-316-MJG)

Submitted: February 3, 1998

Decided: February 24, 1998

Before HALL, NIEMEYER, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert M. Simels, New York, New York, for Appellant. Lynne A.

Battaglia, United States Attorney, Martin J. Clarke, Assistant United

States Attorney, Baltimore, Maryland, 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Unpublished opinions are not binding precedent in this circuit.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:

Charles E. Hurt was convicted of possession of a firearm by a felon

in violation of 18 U.S.C.A. § 922(g)(1) (West Supp. 1997), and sentenced to 180 months imprisonment and three years of supervised

release. On appeal, Hurt challenges the district court's denial of his

motion to suppress the firearm found in the vehicle Hurt was driving

and the sufficiency of the evidence to support his conviction. We

affirm the district court's denial of the motion to suppress and the

conviction.

This court reviews the district court's factual findings on Hurt's

motion to suppress for clear error. See United States v. McCraw, 920

F.2d 224, 227 (4th Cir. 1990). We review the district court's legal

conclusions de novo. See United States v. Daughtrey, 874 F.2d 213,

217 (4th Cir. 1989).

After receiving testimony at the suppression hearing, the district

court found that when police officers first saw Hurt, he was illegally

double-parked and walking away from his vehicle. All three officers

saw Hurt carrying a clear, plastic bag that contained yellow and green

items; however, the district court concluded that regardless of whether

the sighting was sufficient to justify a conclusion that the items were

narcotics, the traffic violation alone was sufficient to justify a traffic

stop. After being spotted by the police, Hurt returned to his vehicle

and moved it a short distance to a legal parking space. The officers

then left their police vehicle and approached Hurt's vehicle from the

rear. Hurt's car had illegally heavy tint on all of the windows except

the front windshield. The court found that as the officers approached

the vehicle, two officers saw Hurt through the heavily tinted driver's

side window make some movements inside the vehicle, which the

officers interpreted as stuffing something between the seats. The third

officer, who approached the passenger's side of the vehicle, saw

through a similarly-tinted window a shadowy object that was sticking

out from beneath the passenger's seat. The first two officers removed

and arrested Hurt. At about the same time, the third officer opened the

passenger-side door and identified the shadowy object as a firearm,

a .380 automatic handgun. An inventory of the car revealed a plastic

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bag containing yellow and green capsules that contained heroin. At

trial, the district court disavowed some of its prior factual findings,

but again concluded that no Fourth Amendment violation occurred.*

Hurt contends that in light of the district court's rejection at trial

of portions of the police officers' testimony, the officers lacked reasonable suspicion to stop his vehicle after he moved it to a legal parking space. Hurt also argues that his Fourth Amendment rights were

violated when the third officer opened the door of the vehicle and

visually inspected the interior to find the drugs and the weapon in

plain view.

Hurt admits that the car was double-parked in violation of the

state's traffic laws. A temporary stop of a motorist that is supported

by probable cause to believe the motorist committed a traffic violation

is reasonable under the Fourth Amendment regardless of the police

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*At the hearing on the suppression motion, the officer who approached

the passenger side of the vehicle testified that he had no problem seeing

inside Hurt's vehicle and that he did not notice any tinting on the windows. The officer also testified that he saw what appeared to be the butt

of a gun protruding from under the passenger's seat and that he opened

the passenger door to better identify and ultimately seize the item. One

of the officers who approached the driver's side of the vehicle testified

that he saw Hurt stuffing something between the seats and that he saw

a plastic bag between the seats with green and yellow items which he

believed were capsules containing narcotics.

At the suppression hearing, the only testimony about the tinting of the

windows came from a female friend of Hurt, who also testified that she

owned the vehicle and allowed Hurt to drive it. She stated that every

window in the vehicle was heavily tinted, so much so that the officers

could not have seen inside the vehicle, even with the use of a flashlight.

The district court found that the Government met its burden of proving

its version of the events by a preponderance of the evidence and denied

the motion to suppress. However, at the bench trial, Hurt presented

expert evidence that established that all of the windows were tinted

except for the front windshield. The expert witness also established and

the district court accepted that due to the heavy tinting of the windows,

the police officers could not have seen what they claimed to have seen.

Thus, the district court modified its findings of fact and upheld its earlier

decision to deny the motion to suppress.

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officer's motivations in making the stop. See Whren v. United States,

___ U.S. ___, 64 U.S.L.W. 4409, 4410-11 (U.S. June 10, 1996) (No.

95-5841). Therefore, the investigative stop was constitutionally permissible. Furthermore, this Circuit has previously stated:

[W]henever, during a lawful traffic stop, officers are

required to approach a vehicle with windows so heavily

tinted that they are unable to view the interior of the stopped

vehicle, they may, when it appears in their experienced

judgment prudent to do so, open at least one of the vehicle's

doors and, without crossing the plane of the vehicle, visually

inspect its interior in order to ascertain whether the driver is

armed, whether he has access to weapons, or whether there

are other occupants of the vehicle who might pose a danger

to the officers.

United States v. Stanfield, 109 F.3d 976, 981 (4th Cir. 1997), cert.

denied, ___ U.S. ___, 66 U.S.L.W. 3085 (U.S. Oct. 6, 1997) (No.

97-8).

The traffic stop at issue occurred in an area of Baltimore known for

its open narcotics trafficking and high crime rate. In Stanfield we

noted that where there are drugs, there is a great likelihood that guns

are also present. See id. at 984. In addition, the Supreme Court has

noted that in a high crime area, "the possibility that any given individual is armed is significant." Maryland v. Buie, 494 U.S. 325, 334 n.2

(1990). Furthermore, the officers testified that they were concerned

about the possibility of weapons. An inherent danger faced the officers who approached Hurt's vehicle because of the illegally dark window tinting, which prevented the officers from making reliable

observations inside the vehicle. See Stanfield , 109 F.3d at 984. In

light of these facts, we find that the officers acted reasonably in opening the passenger's door to visually inspect for potential danger. See

id. Accordingly, the district court properly denied the motion to suppress.

Hurt next contends that there was insufficient evidence to conclude

that he constructively possessed the firearm that was found beneath

the passenger's seat. The crux of his argument is that although he was

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driving the vehicle when the gun was found, he did not own the car

or drive it exclusively.

When addressing an insufficiency of the evidence claim, this court

will affirm a criminal conviction if, in light of the totality of the evidence presented at trial, a rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. See United

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

denied, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No. 96-6868); see

also Jackson v. Virginia, 443 U.S. 307, 319 (1979). Hurt was charged

with possession of a firearm by a felon in violation of 18 U.S.C.A.

§ 922(g)(1). The elements of that offense are: (1) that Hurt was previously convicted of a crime punishable by imprisonment for more than

one year in a court of the United States or a state; (2) that he possessed the firearm; and (3) that the possession was in or affecting

interstate commerce. See 18 U.S.C.A. § 922(g). Hurt stipulated to the

first and third elements, so the issue in dispute is whether Hurt knowingly possessed the firearm.

Possession of a firearm may be actual or constructive and may be

proven by direct or circumstantial evidence. See United States v.

Nelson, 6 F.3d 1049, 1053 (4th Cir. 1993). Constructive possession

exists when the defendant exercises or has the power to exercise

dominion and control over the object in question or the premises or

vehicle in which the contraband is concealed. See United States v.

Blue, 957 F.2d 106, 107-08 (4th Cir. 1992).

Hurt was the sole occupant and driver of the automobile. The gun

was found with the butt end protruding from beneath the passenger's

seat, clearly visible and accessible from the driver's seat. Hurt's

female friend, the registered owner of the vehicle, testified that Hurt

frequently used the vehicle. She testified that he had used the vehicle

off and on during the previous month and had possession of it for the

two days preceding his arrest. She also denied that the handgun was

hers. There was additional testimony from Hurt, his brother, and the

expert witness who installed the tint on the windows, that linked Hurt

to the car. Furthermore, a rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt in light of

the facts that: (1) Hurt was in an area of Baltimore known as an open

air drug market; (2) he was seen carrying yellow and green capsules

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that turned out to contain heroin; (3) guns are frequently used to protect drug dealers from the dangers inherent in drug dealing, Stanfield,

109 F.3d at 984; and (4) the officers found $806 on Hurt's person

after the arrest, including 115 five-dollar bills, which is consistent

with the sale of $10 capsules of heroin. See Jackson, 443 U.S. at 319.

Therefore, the evidence was sufficient to establish that Hurt constructively possessed the firearm.

Accordingly, we affirm the district court's denial of the motion to

suppress and we affirm Hurt's conviction. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court, and oral argument would not

aid the decisional process.

AFFIRMED

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