UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 97-4676

PATRICK ALLEN BROWN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-96-418-PJM)

Submitted: July 14, 1998

Decided: September 11, 1998

Before WILKINS and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Beth M. Farber, Acting Federal Public Defender for the District of
Maryland, Baltimore, Maryland, for Appellant. Lynne A. Battaglia,
United States Attorney, Sandra Wilkinson, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Patrick Brown appeals his conviction and sentence for aiding and
abetting the possession of a firearm by a convicted felon in violation
of 18 U.S.C. §§ 2, 922(g) (1994), and aiding and abetting the posses-
sion with intent to distribute cocaine base in violation of 18 U.S.C.
§ 2 (1994), and 21 U.S.C. § 841(a)(1) (1994). Finding no error, we
affirm.

In October 1996, a Bureau of Alcohol, Tobacco, and Firearms
("ATF") investigation revealed that Patrick Brown was selling drugs
from 3419 Parkway Terrace Drive, Apartment 9, Suitland, Maryland.
A confidential informant had told ATF agents that Brown was storing
drugs and guns in a closet inside the apartment. On October 29, 1996,
ATF agents followed Brown for several hours until he entered the
apartment. Agents then knocked loudly on the door and announced
that they had a search warrant.1 After waiting six to ten seconds,
agents forcibly opened the apartment door with their firearms drawn.
Brown and Michael Kelley were inside the apartment. Agents imme-
diately handcuffed and searched Brown, and then proceeded to search
the apartment.

While searching the apartment one of the agents asked Brown and
Kelley who owned the set of keys that were inserted in the outside
lock of the living room closet door. Brown responded that the keys
were his. Around the same time another agent, in the course of obtain-
ing routine booking information, asked Brown for consent to search
his car. Brown consented to the search. The agent then got the keys
that had been found in the closet door and Brown informed him which
one was his car key.
_________________________________________________________________
1 The agents had two warrants, one to search the apartment and one to
search Brown. The agents purposely waited for Brown to enter the apart-
ment so that they could execute the warrants simultaneously.

                    2
Agents found 2.75 grams of crack cocaine on Brown. Inside the
closet agents found a locked safe. Using one of the keys on the closet
key ring, the agents opened the safe and found two fully loaded hand-
guns, razor blades, and an envelope addressed to Brown containing
$700. Also in the closet the agents found a digital scale, empty
Ziplock bags, numerous papers containing Brown's name, and over
50 grams of cocaine stashed inside different articles of clothing. The
search of Brown's car uncovered no contraband.

Following the search of the apartment, four agents took Brown into
a back bedroom, told him that he was under arrest, and read him his
Miranda rights. Brown signed a written waiver and agreed to be inter-
viewed. Brown then made statements to the agents that were admitted
as evidence at trial. He made additional statements to agents as they
transported him to the police station. These statements were also
introduced at trial.

Brown first claims that the agents forced entry into the apartment
violated the reasonableness standard of the Fourth Amendment and
the federal "knock and announce" statute, 18 U.S.C. § 3109 (1994).
Fourth Amendment rights are personal, and to challenge the legality
of a search under the Fourth Amendment a defendant must show that
he himself had a "legitimate expectation of privacy" in the area
searched. Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States
v. Salvucci, 448 U.S. 83, 91-92 (1980). If a defendant has no such
expectation then he may not challenge the legality of the search or
have evidence obtained during the search suppressed. A legitimate
expectation of privacy is usually demonstrated by showing that the
defendant had some property or possessory interest in the area
searched. See Rakas, 439 U.S. at 148. Mere possession of the seized
property is insufficient by itself to establish a legitimate expectation
of privacy. Salvucci, 448 U.S. at 92. The proponent of a motion to
suppress bears the burden of showing that he had some interest which
rendered his expectation of privacy legitimate. Rakas, 439 U.S. at 131
n.1.

The apartment in which Brown was arrested was leased to Michael
Kelley. Brown did not live in the apartment. The only evidence sug-
gesting that Brown had a property or possessory interest in the apart-
ment was Brown's testimony that he had been in the apartment before

                    3
and that he stored some of his possessions inside the apartment. We
find this evidence insufficient to demonstrate that Brown had a legiti-
mate expectation of privacy in the apartment. Therefore, he may not
raise a Fourth Amendment challenge to the legality of the search of
the apartment preceding his arrest.2

Brown argues, however, that his mere presence at the apartment at
the time of the search gives him standing to challenge the search as
a violation of 18 U.S.C. § 3109 (1994). While we recognize that some
of our sister circuits have suggested that a defendant may have stand-
ing to challenge a forced entry under § 3109 even if he lacks standing
to raise a Fourth Amendment challenge, see United States v. Lockett,
919 F.2d 585, 588-90 (9th Cir. 1990); United States v. Garcia, 741
F.2d 363, 366 n.2 (11th Cir. 1984), we need not address that issue
here. Assuming Brown had standing to allege a violation of § 3109,
the record shows that the agents adequately complied with the statute
in entering the apartment. The evidence showed that agents knocked,
announced that they had a search warrant, and then waited six to ten
seconds before forcibly entering the apartment. The agents had
observed Brown enter the apartment five minutes prior to executing
the search warrant and heard movement inside the apartment after
they knocked and announced their presence. Further, the agents knew
Brown was a convicted felon known to possess weapons. Accord-
ingly, we are persuaded that the agents acted in accordance with
§ 3109, and the short delay between the knock and the forced entry
was reasonable. See United States v. Kennedy, 32 F.3d 876, 882-83
(4th Cir. 1994).

Brown next claims that statements he made at the time of his arrest
were both involuntary and obtained in violation of his Miranda rights.
He first alleges that his pre-Miranda admission to owning the keys
found in the outside lock of the closet was made under extremely
coercive circumstances. Although the government did not use the
_________________________________________________________________
2 The fact that the agents had a separate search warrant to search Brown
does not somehow confer upon him the right to contest the manner in
which the agents entered the apartment. This argument is essentially the
argument rejected by the Court in Rakas that standing may not be con-
ferred on "one against whom the search was directed." Rakas, 439 U.S.
at 134-35 (quoting Jones v. United States, 362 U.S. 257, 261 (1960)).

                    4
statement as evidence at trial, Brown asserts that the coercive circum-
stances that produced the statement served to taint all statements he
made thereafter. Findings of fact made by a district court in ruling on
a motion to suppress are reviewed for clear error, but the ultimate
refusal to suppress evidence is reviewed de novo. United States v.
Rusher, 966 F.2d 868, 873 (4th Cir. 1992). It is undisputed that an
agent asked Brown whether the keys in the closet were his prior to
reading Brown his Miranda rights. However, a statement obtained in
violation of Miranda will not serve to render any subsequent post-
Miranda statements involuntary under the "fruit of the poisonous
tree" doctrine unless the defendant demonstrates that the unwarned
statement was not voluntary within the meaning of the Due Process
Clause. See United States v. Elie, 111 F.3d 1135, 1141-43 (4th Cir.
1997) (recognizing that "fruit of the poisonous tree" doctrine does not
apply to Miranda violations because failure to deliver Miranda warn-
ings is not itself a constitutional violation). Brown contends that his
unwarned statement about the keys was involuntary because it was
obtained shortly after eight to ten armed agents burst into the apart-
ment, ordered him to the floor, and then searched and handcuffed
him. The record reveals, however, that Brown made the statement
after the agents had holstered their weapons and while Brown was
seated on a couch. Brown offered no evidence suggesting that officers
harmed or threatened him in an effort to get him to make incriminat-
ing statements. Because Brown's statement admitting ownership of
the keys was elicited without the aid of any coercive conduct by the
arresting agents, we find the statement voluntary under the Fifth
Amendment. See id. at 1143-44.

Brown further alleges that his admission to owning the aforemen-
tioned keys made in the course of giving consent to search his vehicle
was also obtained in violation of Miranda and his Due Process rights.3
DEA Agent George Ogilvie testified during a suppression hearing
_________________________________________________________________
3 At trial the government attempted to elicite from Brown on cross-
examination that he showed Agent Ogilvie which key on the key ring
was his car key. Brown denied identifying the key and testified that
Agent Ogilvie picked the key out on his own. Nevertheless, the govern-
ment's mention of Brown's statement on cross-examination requires us
to determine if the statement should have been suppressed as involuntary
or obtained in violation of Miranda.

                    5
that as a routine booking question he asked Brown for permission to
search his car. After Brown consented to the search another agent
handed Agent Ogilvie the keys that had been removed from the closet
door. Agent Ogilvie then asked Brown if those were his keys for the
purpose of searching Brown's car. Brown responded that the keys
were his and pointed to his car key.

Initially, we find nothing suggesting that Brown's identification of
his car key was involuntary and elicited in violation of the Due Pro-
cess Clause. Hence, our analysis turns to whether the "statement" was
obtained in violation of Miranda. Under Miranda, police must advise
a defendant of his right to remain silent and his right to counsel before
each custodial interrogation. Miranda v. Arizona , 384 U.S. 436, 444
(1966). Because Brown was in custody at the time of the questioning,
the issue is whether Agent Ogilvie's questioning constituted interro-
gation for Miranda purposes. In Rhode Island v. Innis, 446 U.S. 291
(1980), the Supreme Court explained that:

          the term "interrogation" under Miranda refers not only to
          express questioning, but also to any words or actions on the
          part of the police (other than those normally attendant to
          arrest and custody) that the police should know are reason-
          ably likely to elicit an incriminating response from the sus-
          pect.

Id. at 301 (footnotes omitted). The focus, however, is not upon police
intent, but on the suspect's perceptions, the nature of the question
asked, and the attendant circumstances. See id. We find that Brown's
identification of his car key in the course of giving consent to search
his car does not support the conclusion that he considered himself
under interrogation at the time. See United States v. Payne, 954 F.2d
199, 202-03 (4th Cir. 1992). Accordingly, we find no error in the dis-
trict court's refusal to suppress Brown's statement identifying his car
key to Agent Ogilvie. Having found that Brown's statements regard-
ing his keys were not involuntary, we reject his claim that his state-
ments following his formal arrest and the administration of Miranda
warnings were the product of prior coercion. In addition, we reject
Brown's claim that agents coerced him into waiving his Miranda
rights by informing him that he was in serious trouble given the evi-
dence seized from his apartment and his prior criminal record. This

                    6
court has repeatedly recognized that "`[t]ruthful statements about [the
defendant's] predicament are not the type of"coercion" that threatens
to render a statement involuntary.'" Elie, 111 F.3d at 1146 (quoting
United States v. Pelton, 835 F.2d 1067, 1072 (4th Cir. 1987)).

We next consider whether the district court erred in allowing the
government to introduce evidence relating to Brown's 1991 convic-
tion for possession with intent to distribute cocaine. A district court's
evidentiary rulings are entitled to substantial deference and will not
be reversed absent a clear abuse of discretion. United States v. Moore,
27 F.3d 969, 974 (4th Cir. 1994). At trial Brown argued that the
cocaine found in the apartment closet was not his. The government
introduced evidence of Brown's prior conviction in an effort to show
that he was in constructive possession of the cocaine. Federal Rule of
Evidence 404(b) provides that evidence of prior"crimes, wrongs, or
acts," when relevant, is admissible unless offered to prove "the char-
acter of a person in order to show action in conformity therewith."
The rule contains a non-exhaustive list of those purposes for which
this evidence may be admitted: "motive, opportunity, intent, prepara-
tion, plan, knowledge, identity, or absence of mistake or accident."
Fed. R. Evid. 404(b). We find that the district court acted within its
discretion in allowing the government to introduce evidence of
Brown's prior conviction under Rule 404(b) to show his intent to
exercise dominion and control over the drugs. See United States v.
Willis, 6 F.3d 257, 262 (5th Cir. 1993). The district court also prop-
erly exercised its discretion in determining that the probative value of
the evidence was not substantially outweighed by its prejudicial
impact on the jury. See Fed. R. Evid. 403.

Brown's final claim is that the district court erred in sentencing
him to life imprisonment under 21 U.S.C. § 841(b)(1)(A) (1994),4
because one of the prior convictions used to support the life sentence
was based on an unknowing and involuntary plea. This court reviews
legal issues related to sentencing de novo. See United States v. Blake,
81 F.3d 498, 503 (4th Cir. 1996). Brown asserts that at his 1991 plea
hearing he never admitted to the conduct that the state proffered as
_________________________________________________________________
4 A defendant convicted of distributing cocaine who has two prior fel-
ony drug convictions is subject to a mandatory term of life imprison-
ment. See 21 U.S.C. § 841(b)(1)(A) (1994).

                     7
the factual basis for his guilty plea. Thus he argues that his failure to
agree with the state's version of the events giving rise to his convic-
tion rendered his guilty plea involuntary. At his state plea hearing
Brown admitted that he gave cocaine to a friend with the intention of
meeting that friend later at a party to use the cocaine. Under Virginia
law this conduct amounts to the distribution of cocaine. See Moreno
v. Baskerville, 452 S.E.2d 653, 655 (Va. 1995); Wood v.
Commonwealth, 197 S.E.2d 200, 202 (Va. 1973) (noting that distribu-
tion encompasses virtually any delivery or transfer of possession of
drugs from one person to another). Because Brown admitted to con-
duct that provided a sufficient factual basis for his plea, any disagree-
ment he may have had with the government's version of the events
giving rise to his conviction did not serve to render his plea involun-
tary. We therefore reject Brown's claim that his 1991 guilty plea was
based on an invalid guilty plea, and find no error in the district court's
consideration of the conviction for sentencing purposes.

Finding no merit to Brown's claims, we affirm his conviction and
sentence. We deny Brown's motion for oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.

AFFIRMED

                     8
