UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                 No. 96-4453

GERALD COLEMAN TYLER,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                 No. 96-4487

DERRICK HAILSTOCK,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CR-95-233-WMN)

Submitted: March 31, 1997

Decided: September 5, 1997

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James K. Bredar, Federal Public Defender, Beth M. Farber, Branch
Chief, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Green-
belt, Maryland; David Louis Cohen, Kew Gardens, New York, for
Appellants. Lynne A. Battaglia, United States Attorney, Tarra
DeShields-Minnis, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Gerald Coleman Tyler pled guilty to one count of possession of
cocaine with intent to distribute. He appeals the denial of his motion
to suppress cocaine recovered from his automobile and statements he
later made to authorities. Co-defendant Derrick Hailstock appeals his
sentence and his conviction by a jury of one count of possession of
cocaine with intent to distribute and conspiracy to possess cocaine
with intent to distribute. We affirm.

Determinations of reasonable suspicion to conduct an investigatory
stop and probable cause to perform warrantless searches are subject
to de novo review on appeal. Ornelas v. United States, ___ U.S. ___,
64 U.S.L.W. 4373, 4375-76 (May 28, 1996) (No. 95-5257). We
review findings of fact for clear error and give due weight to infer-
ences drawn from those facts by the district court judge and local law
enforcement officers. Id.

Tyler contends that while the initial stop of his Oldsmobile for
speeding by Maryland State Police Officer Corporal Quill was valid,
Quill soon exceeded the proper scope of a traffic stop in that he (1)
deviated from standard police procedure when he placed Tyler in the
patrol car instead of allowing him to wait in his own car, and (2) con-
ducted a patdown search of Tyler before placing him in the police car.

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According to Tyler, once he presented a facially valid driver's
license and proper vehicle registration to Quill, Quill should have
issued the citation right away and permitted him to proceed on his
way. We have held, however, that a fifteen-minute traffic stop such
as this one is reasonable where the time between the stop and the
search of the vehicle revealing contraband was occupied with traffic
stop procedures. See United States v. Jeffus, 22 F.3d 554 (4th Cir.
1994). Moreover, as Tyler failed to object to the contested patdown
search at the suppression hearing, he may not contest it now on
appeal. Fed. R. Crim. P. 12(b)(3). Accordingly, we find that the dis-
trict court properly declined to suppress the evidence of the cocaine
recovered from Tyler's vehicle. Statements Tyler later made to
authorities were therefore not fruit of the poisonous tree.

Hailstock contends that the evidence was insufficient to support his
convictions. To support 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). Circumstantial as well as direct evidence is con-
sidered, and the government is given 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).

Hailstock first contends that the evidence of conspiracy to possess
cocaine with intent to distribute was insufficient because the govern-
ment failed to prove the existence of an illegal agreement between
Hailstock and Tyler. A criminal conspiracy consists of the combina-
tion of two or more persons to accomplish some unlawful purpose, or
to accomplish a lawful purpose by unlawful means. United States v.
Clark, 928 F.2d 639, 641-42 (4th Cir. 1991). The unlawful agreement
need not be formal and may be proved by circumstantial evidence.
United States v. Meredith, 824 F.2d 1418, 1428 (4th Cir. 1987). The
government must produce facts permitting the trier of fact to infer that
the parties tacitly agreed to commit an unlawful act. Id.

Our review of the record discloses sufficient evidence of Hail-
stock's participation in the illegal agreement to sustain his conspiracy
conviction. At trial, the fingerprint expert testified that two of Hail-
stock's fingerprints were lifted from the plastic wrapping packaging

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two of the four cocaine bricks recovered from Tyler's vehicle. The
expert further specified that Hailstock must have touched the plastic
wrapping after it had already been wrapped around the brick because
of the particular alignment of the prints.

There was also evidence of the recorded phone call placed to "D"
by Tyler after he was in custody to a pager number found in Tyler's
possession. While Tyler made no explicit reference in the conversa-
tion to the cocaine, the nature of the conversation permitted the jury
to infer that Tyler was expected to contact "D" at a certain time and
that he was late. Moreover, Tyler's unexpected revelation to "D" that
he had been locked up certainly permitted the inference that he was
communicating his arrest due to the discovery of the cocaine in his
possession.

It was established at trial that Tyler was merely a"mule" transport-
ing cocaine from New York to the Baltimore area for someone else.
Finally, the special agent's conclusion that Hailstock was "D" because
the voices were one and the same provided strong evidence of Hail-
stock's connection to the transport of cocaine from New York to Bal-
timore. Hailstock's first challenge is therefore without merit.

Hailstock next maintains that the evidence was insufficient to
prove that he constructively possessed the cocaine with intent to dis-
tribute. Possession may be actual or constructive. 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. Id. Hailstock asserts
that the government failed to show that he exercised control over the
bricks of cocaine or that he intended their distribution.

This contention also lacks merit because the evidence of the tele-
phone conversation with Tyler, including the identification of Hail-
stock's voice as that of "D," sufficiently supplemented the fingerprint
evidence on the bricks to sustain Hailstock's conviction of possession
with intent to distribute. From the evidence, the jury could have rea-
sonably inferred that Hailstock assisted in the packaging or placing of
the bricks in the Oldsmobile which Tyler, who was established to be
a drug courier, drove south from New York to Baltimore. The
recorded conversation provided ample proof from which to infer that

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Hailstock was waiting in Baltimore for the shipment and intended to
meet Tyler to relieve him of the drugs. Accordingly, this contention
is also meritless.

Finally, Hailstock contends that the court erroneously increased his
base offense level at sentencing by two levels upon finding that he
had a supervisory role in the offense. The district court's factual
determination concerning Hailstock's role in the offense should only
be reversed if it was clearly erroneous. United States v. Johnson, 943
F.2d 383, 387 (4th Cir. 1991).

Hailstock maintains that the district court's finding that he had a
supervisory role in the criminal activity was "apparently" based upon
Tyler's initial claim to authorities that he transported the bricks of
cocaine from New York to Baltimore at Hailstock's request. Accord-
ing to Hailstock, Tyler then recanted that claim.

Our review of the record discloses that the trial judge explicitly
found that the evidence at trial sufficiently established that Tyler was
a "mule" transporting the drugs for Hailstock. Hailstock's assertion
concerning the court's reliance on the allegedly recanted testimony in
the presentence report is therefore unfounded.

However, even if the judge had relied on that information in the
presentence report, Hailstock's challenge is little more than a mere
objection to the report and therefore insufficient to warrant appellate
relief. Hailstock has "an affirmative duty to make a showing that the
information in the presentence report is unreliable, and articulate the
reasons why the facts contained therein are untrue or inaccurate."
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). Absent an
affirmative showing that the information is inaccurate, the district
court was free to adopt the findings of the presentence report without
more specific inquiry or explanation. Id. We conclude that Hail-
stock's mere assertion that Tyler's statement was recanted and there-
fore unreliable, without more, is insufficient.

Accordingly, we affirm the denial of Tyler's motion to suppress
and affirm Hailstock's convictions and sentence. We deny Tyler's
request for oral argument because the facts and legal contentions are

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adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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