UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 sen-
tenced 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 rea-
sonable suspicion to stop his vehicle after he moved it to a legal park-
ing 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
_________________________________________________________________
*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 win-
dows. 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 per-
missible. 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 individ-
ual 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 offi-
cers who approached Hurt's vehicle because of the illegally dark win-
dow 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 open-
ing the passenger's door to visually inspect for potential danger. See
id. Accordingly, the district court properly denied the motion to sup-
press.

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 evi-
dence 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 previ-
ously 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 pos-
sessed 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 know-
ingly 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 pro-
tect 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 construc-
tively 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 pres-
ented in the materials before the court, and oral argument would not
aid the decisional process.

AFFIRMED

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