UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4472

RONALD LEE JOHNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-98-7)

Submitted: February 16, 1999

Decided: March 1, 1999

Before MICHAEL and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Andrea C. Long, BOONE, BEALE, COSBY & LONG, Richmond,
Virginia, for Appellant. Helen F. Fahey, United States Attorney, John
S. Davis, Assistant United States Attorney, Richmond, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Ronald Lee Johnson on separate counts of posses-
sion with intent to distribute crack cocaine and heroin in violation of
21 U.S.C. § 841(a) (1994). He was subsequently sentenced to 360
months' imprisonment. On appeal, Johnson alleges that the district
court erred in denying his pre-trial motion to suppress evidence recov-
ered as a result of an allegedly unconstitutional seizure. He further
challenges the sufficiency of the evidence to support the jury's find-
ing that he intended to distribute the crack cocaine and heroin seized
from his person. Finding no error, we affirm.

The record discloses that on December 1, 1997, Richmond Police
Detectives Ronald McClaren, Jr., and Deborah Allen were working
off-duty at the Midlothian Village Apartments. Off-duty officers had
recently made numerous arrests in the apartment complex, known to
be a high crime area, for narcotics and trespassing violations. A "no
trespassing" sign is posted on the front of each building and the com-
plex's policy is that visitors must be accompanied by residents at all
times. That evening, McClaren and Allen, in uniform, driving an
unmarked car, observed other officers conducting a traffic stop and
arrest nearby. They then noticed Johnson walking alone and slowly
in the complex parking lot in the direction of the officers making the
arrest. When Johnson observed the officers making the arrest, he
noticeably changed his direction and quickened his pace.

Upon observing Johnson's behavior, McClaren and Allen pulled
alongside Johnson and asked if they could talk to him. Johnson, in
turn, asked, "Who are you?" McClaren identified himself as a police
officer, at which point Johnson changed his direction and began to
walk back again towards the apartment. The two officers parked and
exited their vehicles to speak with Johnson. When McClaren again
asked Johnson if they could speak with him, Johnson asked McClaren

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what he wanted. After identifying himself, McClaren questioned
Johnson as to whether he was a resident or a visitor. Becoming
noticeably agitated, Johnson asked, "Why?" When McClaren referred
to the "No Trespassing" signs and their commitment to enforcing the
policy, Johnson stated that he was visiting someone. Again, Johnson
grew increasingly agitated and began screaming that he had rights.
McClaren continued his questioning, asking Johnson the name of the
resident he was allegedly visiting. Johnson gave a woman's name
which was not recognizable to either McClaren or Allen. When
McClaren asked Johnson where this woman lived, Johnson replied, "I
don't know, back there in the back, around the corner." Now irate and
appearing nervous, Johnson claimed he did not know the woman's
address. McClaren advised Johnson that he was under investigative
detention and called for additional police assistance.

Upon request for identification, Johnson produced a Virginia driv-
er's license which did not bear an address in the apartment complex.
McClaren asked again the name of the woman he was visiting. This
time Johnson gave what seemed to the officers to be a different
woman's name. When Johnson was again unable to verify the
woman's residence, McClaren advised Johnson that he was under
arrest for trespassing. Because Johnson became very defensive and
aggressive when McClaren attempted to handcuff Johnson, who con-
tinued to yell that he had rights, McClaren frisked him for weapons,
finding none. McClaren advised Johnson of his Miranda rights and
proceeded to take him to the rental office.

A search of Johnson incident to arrest revealed a brown paper bag
consisting of a plastic baggie filled with chunks of crack cocaine and
a blue wax paper pouch containing five individually wrapped hits of
heroin. Subsequent tests revealed that the total amount of drugs was
9.217 grams of cocaine and .262 grams of heroin. McClaren also
recovered fifty-five dollars cash from Johnson's wallet, and a pager.
He did not find any other drug paraphernalia in Johnson's possession.
After receiving his Miranda rights a second time, Johnson made sev-
eral incriminating statements. He voluntarily identified the drugs in
the bag as crack cocaine and heroin and upon questioning stated that
each packet of heroin would sell for ten dollars. Although he first
stated that the drugs were for personal use, he later stated that he did
not use the "stuff." Johnson was then taken to the police station. The

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officers observed no signs that Johnson personally used the drugs,
such as burn marks or withdrawal. Johnson subsequently pleaded
guilty in state court to trespassing.

Following federal indictment on separate counts for possession
with intent to distribute crack cocaine and heroin, Johnson filed a pre-
trial motion to suppress the evidence claiming that it was the result
of an unconstitutional seizure. At the pre-trial hearing on the motion,
Yolanda Carter testified that Johnson was visiting her at the Midlo-
thian Village Apartments on December 1, 1997 and that her apart-
ment was "around the back on the corner." The district court denied
the motion. A jury ultimately convicted Johnson on both counts and
he was sentenced to 360 months' imprisonment.

We first address whether Detectives McClaren and Allen con-
ducted a legal Terry stop of Johnson. See Terry v. Ohio, 392 U.S. 1
(1968). The Fourth Amendment permits limited investigative stops by
law enforcement officers when they are justified"by a reasonable and
articulable suspicion that the person seized is engaged in criminal
activity." Reid v. Georgia, 448 U.S. 438, 440 (1980) (per curiam).
Thus, an officer who stops and detains a person for investigative
questioning "must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts, rea-
sonably warrant that intrusion." Terry, 392 U.S. at 21 (footnote
deleted). While such a detention does not require probable cause, it
does require something more than an "inchoate and unparticularized
suspicion or `hunch.'" Id. at 27.

While we review de novo the ultimate question of reasonable sus-
picion, we review findings of historical fact only for clear error and
"`give due weight to inferences drawn from those facts by resident
judges and local law enforcement officers.'" United States v. Sprinkle,
106 F.3d 613, 616-17 (4th Cir. 1997) (quoting Ornelas v. United
States, 517 U.S. 690, 699 (1996)). We consider the "totality of the cir-
cumstances" surrounding the stop to assess its constitutionality. See
United States v. Cortez, 449 U.S. 411, 417 (1981). "Based upon that
whole picture the detaining officers must have a particularized and
objective basis for suspecting the particular stopped of criminal activ-
ity." Id. at 417-18.

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In light of these principles, we believe that the facts set forth above,
when taken as a whole, justified the initial stop of Johnson. Given the
high crime nature of the apartment complex, Johnson's behavior, and
his apparent violation of the complex's policies, the police had rea-
sonable articulable suspicion that Johnson was guilty of trespassing.
Because the police conducted a legitimate Terry stop, the investiga-
tive detention did not constitute an unconstitutional seizure. Johnson's
continued evasive conduct and agitated behavior upon questioning
during the investigative detention then gave rise to probable cause to
arrest. The drugs recovered from his person were thus admissible
because they were obtained pursuant to the valid search incident to
arrest. Furthermore, the validity of the arrest precludes any challenge
to the admission into evidence of his incriminating statements.

We next address Johnson's challenge to the sufficiency of the evi-
dence supporting the jury's finding that he possessed the crack
cocaine and heroin with the intent to distribute the substances. The
jury's verdict "must be sustained if there is substantial evidence, tak-
ing the view most favorable to the government, to support it." Glasser
v. United States, 315 U.S. 60, 80 (1942). Thus, we may reverse a jury
verdict only if the record demonstrates a lack of evidence from which
a jury could find guilt beyond a reasonable doubt. See United States
v. Lowe, 65 F.3d 1137, 1142 (4th Cir. 1995).

In this case, there was sufficient evidence from which the jury
could find beyond a reasonable doubt that Johnson knowingly pos-
sessed the crack cocaine and heroin with intent to distribute them. At
trial, Detective Mark Dunn testified as an expert that drug distributors
use pagers to facilitate distribution and paper bags for packaging
drugs. Police recovered 9.2 grams of crack cocaine from Johnson's
person. Dunn testified that the typical crack user ingests approxi-
mately 1/10 of a gram per "hit." See United States v. LaMarr, 75 F.3d
964, 973 (4th Cir. 1996) (finding 5.72 grams of crack consistent with
distribution). He further stated that it was customary for distributors
to carry a large chunk of the drug, and cut off pieces for individual
buyers. Johnson carried the equivalent of ninety hits. Additionally,
Dunn maintained that crack users usually smoke as much as they have
and they typically have burned and scarred fingers or burned lips.

Regarding the heroin, Dunn stated that Johnson possessed the
equivalent of five individual hits of heroin. Although the quantity of

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heroin was relatively small, Dunn testified that it would be unusual
for a user to possess that much heroin at one time. Furthermore, the
heroin was packaged into smaller packages, containing individual
dosages, for ready distribution.

Moreover, there is little evidence that Johnson actually used the
drugs. The officers noticed no such indication in his physical condi-
tion. They also recovered no drug paraphernalia on his person sugges-
tive of personal use. Last, the woman he visited in the apartment
complex testified that she had never witnessed Johnson using drugs.
This statement is buttressed by Johnson's own admission to the police
after arrest that he did not use that "stuff." We therefore find sufficient
evidence from which the jury could have inferred Johnson's intent to
distribute cocaine base and heroin.

Accordingly, we affirm Johnson's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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