UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

ROBERT HAYES WILLIAMS, a/k/a
                                                          No. 97-4346
Rashawn Johnson, a/k/a Russell
Corley, a/k/a Robert Hayes, a/k/a
Shean Street, a/k/a Rumble,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                          No. 97-4349
SH'DELL NICHOLAS, a/k/a Sh'Del
Nickoles, a/k/a Sh'Dell Nicholes,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                          No. 97-4351
WAKING HARRELL, a/k/a Walking
Harrell, a/k/a Tony Goodwin, a/k/a
Waking Goodwin, a/k/a Sugar Bear,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, Chief District Judge.
(CR-96-202)
Argued: April 10, 1998

Decided: November 2, 1998

Before WILKINSON, Chief Judge, WIDENER, Circuit Judge, and
WILLIAMS, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: George Howard Lancaster, Jr., Assistant Federal Public
Defender, Charleston, West Virginia; Gregory Marshall Courtright,
Charleston, West Virginia, for Appellants. John Lanier File, Assistant
United States Attorney, Charleston, West Virginia, for Appellee. ON
BRIEF: Richard M. Gunnoe, Hinton, West Virginia, for Appellant
Nicholas. Rebecca A. Betts, United States Attorney, Charleston, West
Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Following conditional pleas of guilt to conspiracy to distribute and
possess with intent to distribute cocaine base in violation of 21 U.S.C.
§§ 841(a)(1) and 846, defendants Waking Harrell, Sh'Dell Nicholas,
and Robert Hayes Williams appeal their convictions. The error
claimed is the denial by the district court of their motion to suppress
evidence of crack cocaine found in their motel room. We affirm.

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Briefly, the facts are as follows. On November 14, 1996, a Raleigh
county deputy sheriff also serving on the Regional Unified Drug Task
Force received a call from the manager of a motel in Beckley, West
Virginia who reported suspicions of possible drug dealing by the
occupants of room 106. The manager reported that there were many
visitors to the room, that Defendant Harrell had rented the room a day
at a time on consecutive days paying with cash, and that the occu-
pants had refused maid service until the third day at which time hotel
policy required rooms to be entered. Harrell had used a non-driver's
license form of identification and had not registered with an automo-
bile even though the occupants were using a car. Officers of the
Regional Unified Drug Task Force set up surveillance in another
room of the motel with an unrestricted view of room 106. The license
plate of the car being used by the occupants showed that it was regis-
tered to Amerita Barringer and Henry Burton. Burton was the subject
of three outstanding arrest warrants for bad check charges. At this
stage of the matter, a state court magistrate, by telephone, determined
that the facts thus far did not establish probable cause sufficient to
issue a warrant to search the motel room.

Later, and shortly before 4 p.m. on the same day, the car used by
the defendants arrived in the parking lot of the motel. The driver of
the car parked some distance away from room 106 despite the avail-
ability of parking spaces close to the room. Three men got out of the
car and entered room 106. About 5:45 p.m. two men left the room,
departed in the car and returned about 15 minutes later. The officers
decided that they would continue surveillance until about 7 p.m. and
if there was no further activity they would approach the room, attempt
to speak with the occupants about the complaint regarding drug activ-
ity, and attempt to serve the warrants on Burton.

At 7:00 p.m. five officers approached the room. The district court
found that the officers knocked or beat (as alleged by defendants) on
the door and stated or hollered (as alleged by defendants) "[i]t's the
police." One of the occupants, Nicholas, opened the curtain near the
door and an officer pressed a badge to the window and repeated "[i]t's
the police." Through the opening in the curtain, one of the officers
saw Nicholas turn and speak to another occupant, Harrell, who
grabbed unidentified items from a counter near the window and ran
in the direction of the bathroom. The officer called out that "[t]hey're

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flushing the stuff," which prompted the officers to attempt to kick
open the door. The attempt was unsuccessful, but a few seconds later
Nicholas opened the door and two officers ran to the bathroom and
found water running in the toilet and Harrell standing nearby.

On entering the room, other officers told the defendants to get
down on the floor or beds, frisked them, and asked them to identify
themselves. Harrell and Nicholas gave true names, but Williams iden-
tified himself as Rashawn Johnson. The room was registered to Har-
rell, and he was asked to step outside. Harrell was then asked, in a
conversation that was tape recorded, if he had a problem with the offi-
cers searching the room to which he replied "[n]o - why?" He was
then asked if he had drugs or guns in the room. Harrell admitted the
presence of a gun. He was asked why he ran to the bathroom when
he saw the police at the window to which he replied he wanted to
flush marijuana he and the others had been smoking. Upon a search
of the room, the officers found a gun which was claimed by Nicholas,
and two duffle bags containing a total of 91 grams of crack cocaine.
None of the defendants admitted to the ownership or knowledge of
the presence of the crack cocaine in the room.

On appeal, the defendants contend that the officers' illegal conduct
of beating on the door and hollering "[i]t's the police" coerced them
into both drawing back the curtain and opening the door in violation
of the Fourth Amendment. The district court correctly rejected this
argument on the reasoning that "[t]he officers had a right to be outside
the front door and window of Room 106, and what they observed
there was clearly visible from that spot." It cited United States v.
Taylor, 90 F.3d 903, 908 (4th Cir. 1996), and United States v. Bellina,
665 F.2d 1335, 1341-42 (4th Cir. 1981).

The defendants next contend that the officers did not have probable
cause or exigent circumstances to justify entering the room without
a warrant. The district court found that probable cause and exigent
circumstances arose sufficient to justify the warrantless entry when,
in addition to the suspicious activity reported to the officers by the
motel manager, the officers identified themselves and saw through the
opened curtain one of the occupants grabbing items from a counter
and running towards the bathroom. It relied upon United States v.
Turner, 650 F.2d 526, 528 (4th Cir. 1981) (warrantless entry may be

                    4
justified when officers have probable cause to believe contraband is
present and they reasonably believe evidence may be destroyed or
removed before they can secure a search warrant). We agree with the
district court that this behavior in response to the arrival of the police
is sufficient to support a finding of probable cause and that the offi-
cers reasonably believed that evidence was being destroyed. The
defendants rely on United States v. McCraw, 920 F.2d 224 (4th Cir.
1990), to support their argument of no probable cause or exigent cir-
cumstances. In McCraw, however, the police had not observed the
defendant destroying evidence prior to entering the room and, the
police not having announced themselves, the defendant was unaware
that it was the police who were knocking at the door when he opened
it. In the present case, the officers identified themselves and witnessed
the probable destruction of evidence prior to the door being opened
and prior to entering the room.

The defendants also claim that Harrell was illegally seized and that
his consent to search the room was involuntary because no reasonable
person would have felt free to leave. Again, we agree with the district
court that the officers were justified in briefly detaining and question-
ing Harrell because they had reasonable suspicion based on the
articulable facts and circumstances before them that Harrell was
engaged in criminal activity. Further, the assumption that one is not
free to leave or the fact that an officer's gun may be drawn is not suf-
ficient to convert a brief investigative encounter to an arrest. The dis-
trict court cited United States v. Sokolow, 490 U.S. 1, 7 (1989),
United States v. Leshuk, 65 F.3d 1105, 1109-10 (4th Cir. 1995), and
United States v. Sinclair, 983 F.2d 598 (4th Cir. 1993). As to whether
Harrell's consent to search was voluntary, we agree that there was no
evidence that the officers verbally or physically attacked or threatened
Harrell, nor were the officers required to advise Harrell that he had
a right to refuse consent. There is nothing to upset the finding of the
district court that Harrell's consent was voluntary.

Finally, Williams argues that the district court erred in increasing
his offense level by two points on account of the finding that the gun
was present in the motel room. Williams argues that because Nicholas
admitted that the gun was his, the two points should not have been
added to Williams' offense level. The district court found that it was
reasonable to foresee that each one of the three defendants had a full

                     5
knowledge of what the other two were doing, and this gun did bear
a direct relationship to the drug trafficking crime. We are of opinion
that the finding is not clearly erroneous. Commentary 3 to Sentencing
Guideline 2D1.1 provides that: "[t]he adjustment should be applied if
the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense."

In view of the finding of fact of the district court just related and
Commentary 3 to the Sentencing Guidelines, we are of opinion that
this claim is without merit.

Accordingly, Williams' sentence and the judgments of conviction
are

AFFIRMED.

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