UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 96-4051
AUDLEY CASANOVA, a/k/a Robert
King,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
Frank W. Bullock, Jr., Chief District Judge.
(CR-95-108)

Submitted: November 30, 1998

Decided: January 5, 1999

Before LUTTIG and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Paul Byers, Wyoming, Ohio, for Appellant. Walter C. Holton, Jr.,
United States Attorney, Clifton T. Barrett, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Audley Casanova appeals his conviction by a jury of possession
with the intent to distribute crack cocaine. See 21 U.S.C.
§§ 841(b)(1)(A) & 846 (1994).* In this appeal, Casanova attacks his
conviction on numerous fronts. Casanova first claims that the verdict
was not supported by sufficient evidence. Casanova next contends
that the district court erred in denying his motion to suppress his
arrest and the evidence found in his apartment as a result of an invalid
search warrant and a violation of the "knock and announce" statute.
See 18 U.S.C. § 3109 (1994). Casanova also suggests that the Gov-
ernment failed to prove that the controlled substance found in his
apartment was crack cocaine as opposed to merely some other form
of cocaine base. Finally, Casanova argues that the district court erred
in enhancing his sentence for the possession of a firearm. See U. S.
Sentencing Guidelines Manual § 2D1.1 (Nov. 1994). Because we find
no merit to these contentions, we affirm Casanova's conviction and
sentence.

Casanova was arrested following the execution of a search warrant
that yielded more than 210 grams of crack cocaine hidden in various
places in the apartment where he and his co-defendant, Mitchell
Washington King, were sleeping. In addition to the crack cocaine,
investigating officers found significant quantities of cash, numerous
firearms, packaging materials, powdered cocaine, scales, and a pager.
Notwithstanding this evidence, Casanova suggests that he was
"merely present where cocaine was found" because the Government
presented no other evidence to link Casanova to narcotics trafficking.
_________________________________________________________________
*Although Casanova was charged with use of a firearm during the
commission of a drug trafficking offense, see 18 U.S.C. § 924(c) (1994),
the district court dismissed Casanova's conviction in light of the
Supreme Court's decision in Bailey v. United States, 516 U.S. 137
(1995).

                    2
"To sustain a conviction[,] the evidence, when viewed in the light
most favorable to the government, must be sufficient for a rational
trier of fact to have found the essential elements of the crime beyond
a reasonable doubt." United States v. Brewer , 1 F.3d 1430, 1437 (4th
Cir. 1993); see also Glasser v. United States , 315 U.S. 60, 80 (1942).
Circumstantial as well as direct evidence is considered, and the gov-
ernment is given the benefit of all reasonable inferences from the
facts proven to those sought to be established. See United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982)."[A]n appellate
court's reversal of a conviction on grounds of insufficient evidence
should be `confined to cases where the prosecution's failure is clear.'"
United States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984) (quoting
Burks v. United States, 437 U.S. 1, 17 (1978)). During this inquiry,
this court neither weighs evidence nor reviews witness credibility. See
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

To support Casanova's conviction, the Government was required
to present evidence of Casanova's possession of the crack cocaine
found in the apartment and his intent to distribute the narcotics. Pos-
session may be actual or constructive. See United States v. Wright,
991 F.2d 1182, 1187 (4th Cir. 1993). Constructive possession requires
that the defendant knows of the contraband's presence and exercises,
or has the potential to exercise, dominion and control over the contra-
band. See United States v. Schocket, 753 F.2d 336, 340 (4th Cir.
1985). Moreover, possession is not necessarily exclusive, but may be
"shared." See United States v. Laughman , 618 F.2d 1067, 1077 (4th
Cir. 1980). The intent to distribute need not be proven by direct evi-
dence, but may be inferred from quantities too large for personal con-
sumption. See United States v. Lamarr, 75 F.3d 964, 973 (4th Cir.
1996).

Given Casanova's report that he resided on the premises, see
United States v. Morrison, 991 F.2d 112, 114-15 (4th Cir. 1993), the
quantity of crack found therein, see Lamarr, 75 F.3d at 973, the pres-
ence of the pager, the firearms, the scales, the packaging materials,
and amounts of cash secreted in various locations in the apartment,
see United States v. Fisher, 912 F.2d 728, 731 (4th Cir. 1990) (noting
presence of paraphernalia and cash relevant to intent to distribute),
there was no clear failure of evidence on the part of the Government.
When a defendant resides in a home where drugs and drug parapher-

                    3
nalia are found in common and accessible areas, there is sufficient
evidence to convict the resident of possession with intent to distribute.
See Morrison, 991 F.2d at 114-15. The jury was entitled to "give
weight to the circumstances surrounding appellant['s] apprehension
and arrest" in finding that Casanova knew of the presence of the drugs
hidden in the apartment. United States v. Grubbs , 773 F.2d 599, 602
(4th Cir. 1985). The jury could, and in fact did, reasonably find that
Casanova had constructive possession of and the intent to distribute
the crack cocaine in the apartment.

Casanova next contends that there was no probable cause to issue
the warrant which supported the entry and search of the apartment
and lead to his arrest. Despite the fact that the affidavit underlying the
warrant in this case included two references to informants' controlled
buys of drugs in the apartment, Casanova suggests that the affidavit
was lacking in that it contained only unsworn hearsay statements of
informants whose reliability is attested to in the most conclusory of
statements. Ordinarily, an informant's controlled buy may constitute
probable cause sufficient for a magistrate judge to issue a warrant. See
United States v. Clyburn, 24 F.3d 613, 618 (4th Cir. 1994). Casanova
nonetheless attempts to distinguish Clyburn factually by noting that
the informant in that case wore a body wire and was under visual sur-
veillance during the entire buy. According to Casanova, because these
assurances of reliability are not present in this case, probable cause
to issue the warrant was lacking.

"Because of the [F]ourth [A]mendment's strong preference for
searches conducted pursuant to warrants, reviewing courts must resist
the temptation to `invalidate warrant[s] by interpreting affidavit[s] in
a hypertechnical, rather than a commonsense, manner.'" United States
v. Blackwood, 913 F.2d 139, 142 (4th Cir. 1990) (quoting Illinois v.
Gates, 462 U.S. 213, 236 (1983)). Casanova's argument invites the
court to employ a hypertechnical analysis by assigning a lengthy and
specific definition to the concept of a "controlled buy." The common
sense approach is rather simple. For each controlled buy referenced
in the affidavits, police in this case provided the informant with cash,
made certain that their informant was not carrying contraband when
he/she entered the apartment building, and waited a short period of
time. Both times, when the informant returned, she/he was in posses-
sion of crack cocaine and reported obtaining the cocaine in the apart-

                     4
ment for which the warrant was obtained. This amounts to sufficient
police corroboration of an informant's information based on the con-
trolled buy. The magistrate judge had ample probable cause to issue
the warrant and the district court did not err in denying the motion to
suppress.

Even assuming probable cause was lacking, the evidence seized in
this case would be admissible so long as the warrant was issued by
a neutral and detached magistrate judge and the executing officers'
reliance on the warrant was objectively reasonable. See United States
v. Leon, 468 U.S. 897, 926 (1984); United States v. Edwards, 798
F.2d 686, 690 (4th Cir. 1986). Rarely will searches pursuant to a war-
rant require a deep inquiry into reasonableness because a warrant
issued by a magistrate judge normally suffices to establish that a law
enforcement officer has acted in good faith. See Leon, 468 U.S. at
922.

There are four situations in which an officer's reliance on a search
warrant would not be reasonable: 1) the magistrate judge was misled
by information in the affidavit that the officer"knew was false or
would have known was false except for his reckless disregard for the
truth;" 2) the magistrate judge "wholly abandoned his judicial role;"
3) the affidavit was "so lacking in indicia of probable cause as to ren-
der official belief in its existence entirely unreasonable;" and 4) "de-
pending on the circumstances of the particular case, a warrant may be
so facially deficient . . . that the officers cannot reasonably presume
it to be valid." Id. at 923; see United States v. Clutchette, 24 F.3d 577,
581 (4th Cir. 1994).

In his brief, Casanova relies on United States v. Wilhelm, 80 F.3d
116, 123 (4th Cir. 1996), to show that the officer's reliance on the
warrant was unreasonable. Casanova suggests that under the third
Leon exception, the affidavit here "did not provide the magistrate with
a substantial basis for determining the existence of probable cause."
In Wilhelm, we held that the Leon exception did not apply to a mere
"bare bones" affidavit. See id. at 122-23. The affidavit in this case
contained far more valuable information than the affidavit in Wilhelm.
The affidavit gives directions to the residence and notes that the infor-
mant has seen drugs and firearms in the residence. Further, the affida-
vit describes the persons allegedly living there, information which

                     5
was corroborated by the officers through monitored"controlled buys."
Therefore, the affidavit "provide[d] the magistrate with a substantial
basis for determining the existence of probable cause," and Leon's
third exception is applicable. The officers did not act unreasonably in
executing the warrant.

Neither was there error in denying the motion to suppress as a
result of a technical violation of the "knock and announce" statute. In
executing the search warrant, officers neither were refused entrance
nor allowed a significant lapse of time to occur. See United States v.
Kennedy, 32 F.3d 876, 882 (4th Cir. 1994). However, the possibility
of danger to the officers executing the warrant may justify noncompli-
ance with the "knock and announce" requirement. See id. There is no
suggestion of clear error in the district court's finding that the poten-
tially dangerous situation provided the officers with an exigent cir-
cumstance excusing their noncompliance with the statute. See United
States v. Taylor, 90 F.3d 903, 909-10 (4th Cir. 1996).

The officers had reason to believe that there were as many as four
men inside the apartment in the possession of numerous firearms; the
"tools of the trade" of drug trafficking. See United States v. Hinds,
856 F.2d 438, 443 (1st Cir. 1988). Moreover, the search team would
have been easily visible from the apartment for twenty-five yards
before they reached the apartment door. Finally, the team was in an
awkward tactical position because only two members of the team
could stand on the landing close to the door of the apartment at any
one time. These facts do not leave us with a "definite and firm convic-
tion" that the district court erred in finding exigent circumstances
existed for the officers' violation of the "knock and announce" statute.
See United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948); see also Richards v. Wisconsin, ___ U.S. ___, 65 U.S.L.W.
4283 (U.S. Apr. 28, 1997) (No. 96-5955).

Casanova's final two assignments of error need not detain us for
long. First, Casanova asserts that the Government failed to prove, by
a preponderance of the evidence, that the substance seized was crack
cocaine. This issue was not raised at the district court level, and as a
result, we review for plain error. See Fed. R. Crim. P. 52(b). The plain
error doctrine is applied only where the error is"particularly egre-
gious" and in "those circumstances in which a miscarriage of justice

                     6
would otherwise result." United States v. Mitchell, 1 F.3d 235, 239
(4th Cir. 1993) (quoting United States v. Young , 470 U.S. 1, 15
(1985)). "To establish plain error, [a defendant] must demonstrate that
(1) the asserted defect in the trial was, in fact, error; (2) the error was
plain; and (3) the error affected his substantial rights." United States
v. Jackson, 124 F.3d 607, 614 (4th Cir. 1997) (citing United States v.
Olano, 507 U.S. 725, 732 (1993)), cert. denied, ___ U.S. ___, 66
U.S.L.W. 3457 (U.S. Jan. 12, 1998) (No. 97-6989). Contrary to coun-
sel's suggestion on appeal, virtually every government witness identi-
fied the substance as crack. The testimony of trained narcotics agents
was sufficient to establish the identity of the controlled substance. See
United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976). Finally,
in challenging his sentence calculation, Casanova contends he should
not have received an enhancement for possession of a firearm. See
U. S. Sentencing Guidelines Manual § 2D1.1 (Nov. 1994). We have
no difficulty concluding that the enhancement was proper because it
was not "clearly improbable" that the gun found at the foot of Casano-
va's bed, within his easy reach, was connected with the offense. See
United States v. Hunter, 19 F.3d 895, 896 (4th Cir. 1994) (citing
Stinson v. United States, 508 U.S. 36, 45 (1993)).

Finding no merit to any of the Appellant's contentions, we affirm
the conviction and sentence. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

AFFIRMED

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