                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-4244



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

           versus


KELVIN LORENZO SPEARMAN,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:05-cr-00060-RLW)


Argued:   September 26, 2007             Decided:    November 15, 2007


Before WILLIAMS, Chief Judge, SHEDD, Circuit Judge, and Joseph F.
ANDERSON, Jr., United States District Judge for the District of
South Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: John Bertram Mann, CANFIELD, BAER, HELLER & JOHNSTON,
L.L.P., Richmond, Virginia, for Appellant. Charles Everett James,
Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.       ON BRIEF: Chuck
Rosenberg, United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Appellant Kelvin Spearman (“defendant”) was charged in a four-

count superseding indictment for conspiracy to possess with intent

to distribute cocaine base (“crack cocaine”), in violation of 21

U.S.C. § 846 (“Count One”), possession with intent to distribute

cocaine   base,    in    violation    of   21   U.S.C.   §§   841(a)(1),

841(b)(1)(B)(iii) and 860 (“Count Two”), as well as two other

counts not at issue on appeal.       Following the denial of his motion

to suppress evidence of crack cocaine discovered during the course

of a search of defendant’s vehicle, a jury convicted defendant on

all four counts.        Defendant timely appeals his convictions on

Counts One and Two, arguing that the district court erred when it

denied the suppression motion and that the evidence did not support

his conviction on the conspiracy count.          For the reasons that

follow, we affirm.

                                     I.

     Defendant first raises a Fourth Amendment challenge to the

traffic stop1 that preceded the seizure of crack cocaine from

underneath the driver’s seat of the vehicle that he was driving.

Defendant contends that the police officer who initiated the



     1
      This opinion uses the term “traffic stop” because the
parties’ briefs refer to the subject event as a traffic stop.
However, the parties conceded at oral argument that the police did
not effect a traffic stop, but that the defendant stopped his car
and the police pulled in behind him after he stopped, as described
more fully infra at page 4.

                                     2
traffic stop lacked probable cause or reasonable suspicion to stop

the vehicle and, therefore, any evidence derived from that stop

should have been suppressed.

                                          A.

       At a hearing on the suppression motion, Richmond City Police

Detective    Rahmel    Logan     testified       that,     with    the   use    of    a

confidential source, he and other officers conducted an undercover

buy operation on July 15, 2004 in the West Moore Street area of

Richmond, Virginia.        Detective Logan testified that he observed

defendant’s maroon Cadillac slowly cruise through the block and

stop   in   the   middle   of    the   street.         Detective    Logan      saw   an

individual    approach     the     vehicle       and   engage     the    driver      in

conversation through the car window.

       The confidential source milled around the area and returned to

Detective    Logan’s   car      without       making   a   drug   purchase.          The

confidential source informed Detective Logan that he attempted to

purchase drugs from an individual who did not have any to sell, but

who told him that he could get some from the maroon Cadillac.                        The

confidential source stated that he did not feel comfortable going

to the maroon Cadillac to buy drugs, so he left the area and was

picked up by Detective Logan at the other end of the block.

       Detective Logan testified that he put the information from the

confidential source over the police radio.                  Richmond City Police

Detective Chris Salyer testified that he and Detective Michael


                                          3
McCray    were   in   their     vehicle       when   they    received    the    radio

transmission from Detective Logan about drugs being available from

the maroon Cadillac.            Upon receiving the radio transmission,

Detective Salyer’s unmarked vehicle and the maroon Cadillac passed

one   another    going    in    opposite        directions.          While   passing

defendant’s maroon Cadillac, Detective Salyer observed that the

driver was a black male whom Detective Salyer believed was another

individual known to be an armed drug dealer with a suspended

license.

      Approximately      half    a   block      separated     the    vehicles    when

Detective Salyer turned to follow defendant.                        After traveling

through a stop sign, defendant pulled to the shoulder of the curb

and parked within a row of parked vehicles.                 Detective Salyer also

drove through the stop sign, and, unable to observe the tag of

defendant’s vehicle, pulled to the shoulder and parked immediately

behind defendant.        Detective Salyer did not activate his blue

lights.    Both Detective Salyer and Detective McCray then observed

defendant looking in his rear-view mirror toward the detective’s

unmarked vehicle.        As Detective Salyer exited the vehicle, he

pulled his badge from under his shirt and, at that point, observed

defendant’s left shoulder make a downward motion, as if defendant

were reaching under the seat with his left hand.                       As Detective

Salyer approached the driver’s side door, defendant still was

reaching under his seat and looking in his rear-view mirror, which


                                          4
showed Detective McCray approaching from the defendant’s passenger

side.

     Detective Salyer tapped on defendant’s driver-side window and

identified himself as a Richmond Police officer.              Defendant then

pulled his hand out from under the seat.            Detective Salyer asked

what defendant was doing under the seat, and defendant stated that

he dropped his cell phone and made a motion like he was going to

reach back under the seat.       Detective Salyer, however, observed

that a cell phone was already in defendant’s lap and testified that

he believed defendant might be reaching for a weapon.                Detective

Salyer asked defendant to step out of the vehicle and conducted a

pat-down search that did not reveal any contraband.                  Detective

Salyer guided defendant to the rear of the vehicle where defendant

produced identification.     Detective Salyer returned to the vehicle

and, during a protective sweep under the driver’s seat, found a

plastic bag of individually-bagged rocks totaling 5.6 grams of

crack   cocaine.    Meanwhile,      Detective   McCray      ran   defendant’s

information,    which   revealed     an    outstanding      arrest     warrant.

Defendant was arrested for conspiracy to distribute, as well as for

a subsequently-discovered outstanding arrest warrant.

     Defendant subsequently moved to suppress the admission of the

crack cocaine found under the driver’s seat.              The district court

denied defendant’s motion.       The court found that, based on the

information    transmitted   over    the    radio    by    Detective    Logan,


                                     5
Detective Salyer had information that the maroon Cadillac was a

vehicle in which drug transactions could take place.           Therefore,

given the totality of the circumstances, a reasonable officer had

probable cause to stop and search the vehicle.

                                   B.

     “The Supreme Court has recognized three distinct types of

police-citizen interactions: (1) arrest, which must be supported by

probable cause; (2) brief investigatory stops, which must be

supported   by   reasonable   articulable   suspicion;   and   (3)   brief

encounters between police and citizens, which require no objective

justification.” United States v. Weaver, 282 F.3d 302, 309 (4th

Cir. 2002) (citations omitted). In reviewing a denial of a motion

to suppress, “we review the factual findings of the district court

for clear error and its legal conclusions de novo.” See United

States v. Brown, 401 F.3d 588, 592 (4th Cir. 2005) (internal

quotation marks omitted).

     The Fourth Amendment requires that a brief, investigatory stop

of an individual be supported by reasonable, articulable suspicion

that criminal activity is afoot.       Terry v. Ohio, 392 U.S. 1, 30, 88

S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The reasonable suspicion

standard “is a less demanding standard than probable cause and

requires a showing considerably less than a preponderance of the

evidence.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673,

145 L. Ed. 2d 570 (2000).


                                   6
       In deciding whether an officer had the requisite reasonable

suspicion to conduct an investigatory traffic stop, courts apply an

objective test rather than examining the subjective beliefs of the

investigating officer.       Id.    The “reasonable suspicion standard is

a commonsensical proposition.         Courts are not remiss in crediting

the practical experience of officers who observe on a daily basis

what transpires on the street.”         United States v. Lender, 985 F.2d

151, 154 (4th Cir. 1993).          The Supreme Court has recognized that

individual factors consistent with innocent travel can, when taken

together, give rise to reasonable suspicion.              United States v.

Sokolow, 490 U.S. 1, 9, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).

       Here,   Detective   Salyer    initially   approached   defendant   in

response to a radio transmission that drugs were available from the

maroon Cadillac defendant was driving.           Even if Detective Salyer

did not have reasonable suspicion for a Terry stop at that time,

cf. Florida v. J.L., 529 U.S. 266, 271-72, 120 S. Ct. 1375, 146 L.

Ed. 2d 254 (2000), the circumstances evolved to present a more

suspicious and dangerous climate when the detectives saw defendant

observing them approach his vehicle and ducking his left shoulder,

apparently reaching under his driver’s seat.         Detective Salyer had

received a report over the police radio that drugs were available

from    defendant’s   car,    and    Detective   Salyer   thought,   though

mistakenly, that defendant was another individual whose license had

been suspended, who was involved in drug trafficking, and who was


                                       7
known to carry weapons.         Defendant’s fixation in his rear-view

mirror on the detectives while reaching under his car seat created

heightened tension in an already-known high-crime area.               When

defendant engaged in activity which Detective Salyer reasonably

perceived to be potentially dangerous in nature—-seeing                the

detectives approach, unarmed, while reaching for a weapon under the

seat—-the totality of the facts known to Detective Salyer combined

to create a reasonable, articulable suspicion that he and Detective

McCray were in danger and that defendant was armed and dangerous.

        As we have previously stated, “the very point of Terry was to

permit officers to take preventive action and conduct investigative

stops before crimes are committed, based on what they view as

suspicious-albeit even legal-activity.” United States v. Perkins,

363 F.3d 317, 326 (4th Cir. 2004)(emphasis in original). “We cannot

afford to read the Fourth Amendment to require officers to wait

until     criminal   activity   occurs,   and   perhaps   until   innocent

bystanders     are   physically   harmed,   before   taking   reasonable,

preventive measures.” Id. at 328; see Adams v. Williams, 407 U.S.

143, 145, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972) (“The Fourth

Amendment does not require a policeman who lacks the precise level

of information necessary for probable cause to arrest to simply

shrug his shoulders and allow a crime to occur or a criminal to

escape. On the contrary, Terry recognizes that it may be the

essence of good police work to adopt an intermediate response.”).


                                     8
     Given the totality of the circumstances, we agree with the

district court that Detective Salyer was justified in seizing

defendant, and conducting a pat-down search and protective sweep

for weapons.      We conclude that an officer in Detective Salyer’s

position would have had an objectively reasonable suspicion that

the maroon Cadillac that defendant was driving was connected with

illicit drug activities. The radio transmission had occurred only

minutes earlier. Independently, Detective Salyer thought the driver

was a known drug dealer who carried weapons and whose license had

been suspended.        Finally, defendant made furtive movements under

the driver’s seat when he saw the detectives approaching his

vehicle and provided a unlikely excuse for his movements.                           We

conclude   that    these       factors,      taken   together,      give    rise    to

reasonable suspicion sufficient to justify the stop and search

under Terry.

     Further,     we    find    that   the    search      under    the    defendant’s

driver’s seat for weapons was permissible as an extension of the

legitimate   Terry      stop.    See   Michigan      v.    Long,    463    U.S.    1032

(1983)(search     of    the    passenger      compartment     of    an    automobile,

limited to those areas in which a weapon may be placed or hidden,

is permissible if the police officer possesses a reasonable belief

based on specific and articulable facts which, taken together with

the rational inferences from those facts, reasonably warrant the

officers in believing that the suspect is dangerous and the suspect


                                          9
may gain immediate control of weapons). We find the district court

did not err in admitting evidence of the crack cocaine discovered

during Detective Salyer’s search for weapons under the seat.                  Id.

at 1050 (if while conducting a legitimate Terry search of the

interior of the automobile, the officer should discover contraband

other than weapons, he clearly cannot be required to ignore the

contraband,       and   the   Fourth   Amendment      does    not   require   its

suppression in such circumstances).

     For the foregoing reasons, we affirm defendant’s conviction on

Count Two.

                                       II.

     Defendant next challenges the sufficiency of the evidence

underlying his conviction on the conspiracy charged in Count One.

The evidence at trial as to the conspiracy count included testimony

by a confidential informant named Chris Cox (“Cox”) who testified

that he purchased crack cocaine from defendant 60 to 70 times in

varying amounts, including amounts as large as one quarter ounce or

approximately seven (7) grams.            Cox testified that when he bought

an amount that large, he and a group of people would pool their

money to purchase the crack.              Cox also attempted two recorded

controlled crack cocaine buys of $200 each for law enforcement,

resulting    in    actual     purchases    of   $80   and    $150   worth.    The




                                          10
government expert testified that 5.6 grams2 of crack cocaine was

not a typical personal use amount, and that based on his training

and experience, such an amount of crack would be packaged for

resale.   Cox testified that he met defendant through defendant’s

uncle, Sonny, who served as Cox’s former supplier.   Cox testified

that the three of them met together at a Fourth of July block

party, where Sonny told Cox that defendant would “take care of him

if he needed anything” while Sonny was in Las Vegas for the week.

(J.A. 141).

     A defendant challenging the sufficiency of the evidence to

support his conviction “bears a heavy burden.”    United States v.

Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).   Where, as here, the

motion was based on a claim of insufficient evidence, “[t]he

verdict of a jury must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

support it.”   Glasser v. United States, 315 U.S. 60, 80 (1942).

This court “ha[s] defined ‘substantial evidence’ as ‘evidence that

a reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant's guilt beyond a reasonable

doubt.’” Alerre, 430 F.3d at 693 (quoting United States v. Burgos,

94 F.3d 849, 862 (4th Cir. 1996) (en banc)). In evaluating the


     2
      The amount of crack found under defendant’s driver’s seat was
5.6 grams. The proof of the conspiracy did not involve the crack
seized from the car, but the expert testimony that 5.6 grams of
crack is not for personal use likewise supports the inference of
distribution for the 7 gram sale.

                                11
presence of substantial evidence, we “consider circumstantial as

well as direct evidence, and allow the government the benefit of

all reasonable inferences from the facts proven to those sought to

be established.” United States v. Tresvant, 677 F.2d 1018, 1021

(4th Cir. 1982). This court “may not weigh the evidence or review

the credibility of the witnesses.” United States v. Wilson, 118

F.3d 228, 234 (4th Cir. 1997).

                                         A.

     To   prove    conspiracy      to    possess       cocaine       with    intent     to

distribute    in   violation      of    21    U.S.C.    §§   841(a)(1),        846,    the

government “must establish that: (1) an agreement to possess

cocaine with intent to distribute existed between two or more

persons; (2) the defendant knew of the conspiracy; and (3) the

defendant    knowingly      and    voluntarily         became    a    part     of     this

conspiracy.” Burgos, 94 F.3d at 857.

     Defendant contends that the evidence showed only that he and

Cox shared a buyer-seller relationship, not “an agreement to

possess   cocaine    with    intent      to    distribute.”      Id.        Viewing    the

evidence in the light most favorable to the government, we find

substantial    evidence      to    support      a   finding      that       defendant's

involvement went beyond that of a buyer-seller. Cox specifically

testified as to his and defendant's involvement with defendant’s

uncle Sonny, including the three of them meeting to orchestrate the

details of who would be available when to distribute cocaine to


                                         12
Cox.3           See United States v. Brown, 332 F.3d 363, 373 (6th Cir.

2003) (“[E]vidence of repeat purchases provides evidence of more

than        a    mere   buyer-seller   relationship.”);   United   States   v.

Bourjaily, 781 F.2d 539, 545 (6th Cir. 1986) (“A large volume of

narcotics creates an inference of a conspiracy.”).

        The court finds a conspiracy was established because (a) Cox’s

purchases were of an amount too great to be for only personal use,

even if the drugs were to be shared with friends (whose money was

pooled to make the purchase), thereby sufficiently establishing

intent to distribute; and (b) testimony that Cox purchased from

both defendant and his uncle, Sonny, and testimony that all three

of them met together at a Fourth of July block party and discussed

purchasing drugs from defendant establishes the existence of an

agreement.

        For the foregoing reasons, the court finds no error in the

district court’s denial of defendant’s suppression motion and finds

that the evidence supports defendant’s conviction on the conspiracy

count.          Accordingly, the judgment is affirmed.

                                                                     AFFIRMED




        3
      Defendant also attacks on appeal the credibility of Cox.
However, “[t]he jury, not the reviewing court, weighs the
credibility of the evidence and resolves any conflicts in the
evidence presented.” United States v. Murphy, 35 F.3d 143, 148
(4th Cir. 1994).     We find no reason to disturb the jury's
credibility determinations here.

                                         13
