UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4482

RODERICK EUGENE HARRIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., Chief District Judge.
(CR-98-16)

Submitted: January 29, 1999

Decided: March 12, 1999

Before NIEMEYER and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Romallus O. Murphy, James A. Dickens, Greensboro, North Carolina,
for Appellant. Walter C. Holton, Jr., United States Attorney, Michael
P. Joseph, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Roderick Eugene Harris appeals his jury trial conviction for pos-
session with intent to distribute cocaine base (crack). On appeal, he
alleges (1) that the cocaine seized from his vehicle should have been
suppressed, and (2) that the district court should have granted his
motion for judgment of acquittal. Because we find both issues lack
merit, we affirm.

Regarding the first issue, we review legal conclusions made pursu-
ant to a district court's suppression determination de novo, but review
the underlying factual findings for clear error. See United States v.
McDonald, 61 F.3d 248, 254 (4th Cir. 1995). We construe the evi-
dence in the light most favorable to the Government, the prevailing
party below. See United States v. Elie, 111 F.3d 1135, 1140 (4th Cir.
1997).

The facts, as adduced at the suppression hearing, reveal the follow-
ing. High Point Police Officer Herb Sampson received a call from the
dispatcher that an anonymous caller had alleged that Harris had two
ounces of cocaine in his Toyota Land Cruiser parked at "T.J.'s Tav-
ern," a bar. To prevent Harris from possibly fleeing and thus preclude
a car chase, Sampson, with the assistance of other officers, drove into
T.J's parking lot and immediately blocked in Harris' Toyota Land
Cruiser with their patrol cars.1 The officers entered T.J.'s and asked
Harris to come outside. While in the parking lot, Sampson told Harris
of the tip and sought his consent to search his vehicle. Harris declined
stating, "I know my rights. Unless I give you consent, you cannot
search my vehicle."2 Sampson responded, "Yes, you are correct and
_________________________________________________________________
1 Sampson knew which vehicle was Harris' because he had seen him
drive it on numerous prior occasions.
2 Joint appendix ("J.A.") at 18.

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you are free to leave."3 Harris then walked back inside the bar. Samp-
son instructed a K-9 officer, who was on the scene, to have his
specially-trained dog sniff the vehicle; the dog positively alerted for
the presence of drugs.

Sampson then left to obtain a search warrant based upon the dog's
alert and his perception that Harris appeared nervous to him when
confronted with the allegation that his vehicle contained cocaine.
After Officer Sampson had left, but before he returned with the search
warrant, officers refused to move their patrol cars and allow Harris to
drive away in his vehicle--although they told Harris that he was per-
sonally free to go. After a search warrant for the vehicle was issued,
officers searched the vehicle and found a loaded pistol and crack
cocaine in the console.

In denying Harris' motion to suppress, the district court assumed,
for purposes of its ruling, that the officers' initial blocking of the
Toyota Land Cruiser was an illegal seizure. Nonetheless, the court
found that the subsequent dog sniff, which properly provided the
basis for the search warrant, was independent of the illegal seizure.
The seizure, the court reasoned, did not lead in any way to the evi-
dence forming the basis for the probable cause to search. Rather, the
dog sniff was an independent source from the presumed illegal sei-
zure of the vehicle.

On appeal, Harris argues that because the initial seizure of the vehi-
cle was illegal and because the cocaine was found after such seizure,
the cocaine must be suppressed as "fruit of the poisonous tree."
Nardone v. United States, 308 U.S. 338, 341 (1939). Evidence
obtained as a direct result of an unconstitutional search or seizure is
subject to exclusion. See Segura v. United States, 468 U.S. 796, 804
(1984). Exclusion is also required if the subsequently obtained evi-
dence was derived by the exploitation of the initial illegality or "fruit
of the poisonous tree." Id. Evidence is not to be excluded, however,
if the connection between the illegal police conduct and the discovery
and seizure of the evidence is "so attenuated as to dissipate the taint."
Nardone, 308 U.S. at 341. That is, if police discover the evidence
_________________________________________________________________

3 Id.

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from an source independent from the illegal conduct, the evidence
need not be excluded. See Segura, 468 U.S. at 805.

We agree with the district court that the canine sniff provided the
requisite probable cause to obtain the search warrant and was an inde-
pendent source from the assumed illegal seizure of the vehicle. See
Segura, 468 U.S. at 814-15 (evidence will not be excluded as "fruit
of the poisonous tree" unless the illegality is at least the "but for"
cause of the discovery of the evidence; suppression is not justified
unless the challenged evidence is in some sense the product of illegal
governmental activity). Harris does not seriously contest that police
could legitimately have had the dog sniff his vehicle prior to blocking
in his vehicle, see generally United States v. Jeffus, 22 F.3d 554, 557
(4th Cir. 1994) (having a trained dog sniff the perimeter of the vehicle
in a public place does not constitute a search), or that the police
gained no advantage by blocking in his vehicle. See Segura, 468 U.S.
at 814-15.

In his second claim, Harris alleges that there was insufficient evi-
dence to show that he knew the vehicle contained cocaine and, there-
fore, the Government failed to show an essential element of the crime.
See United States v. Nelson, 6 F.3d 1049, 1053 (4th Cir. 1993) (know-
ing and intentional possession is an essential element of the crime).
Harris alleges the Government failed to show that he had constructive
possession of the cocaine because the Toyota Land Cruiser was titled
in another person's name and because police did not catch him physi-
cally in the vehicle. Thus, he argues, the district court should have
granted his motion for acquittal.

We review the denial of a motion for acquittal under a sufficiency
of the evidence standard. See Fed. R. Crim. P. 29; United States v.
Romer, 148 F.3d 359, 364 (4th Cir. 1998), petition for cert. filed, 67
U.S.L.W. 3376 (U.S. Nov. 19, 1998) (No. 98-852). In deciding
whether the evidence was sufficient, the relevant question is not
whether the court is convinced of guilt beyond a reasonable doubt, but
rather whether the evidence, when viewed in the light most favorable
to the government, was sufficient for a rational trier of fact to have
found the essential elements of the crime beyond a reasonable doubt.
See Glasser v. United States, 315 U.S. 60, 80 (1942); United States
v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en banc), cert. denied,

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117 S. Ct. 1087 (1997). If substantial evidence exists to support a ver-
dict, the verdict must be sustained. See Glasser , 315 U.S. at 80.

Viewing the facts as we are required, we find that any rational trier
of fact could have found Harris had constructive possession of the
cocaine because Harris regularly drove the Toyota Land Cruiser as if
it was his own car. The evidence shows that a police officer who lived
at the same apartment complex as Harris saw the vehicle parked in
front of Harris' apartment four or five times a week. Also, when offi-
cers asked for Harris' consent to search his vehicle, he did not dis-
avow ownership; indeed, he later asked officers to move their cars so
that he could drive the vehicle away. Finally, the vehicle contained
documents addressed to Harris: a retail sales warranty in Harris'
name, a check from Hecht's to him, a confirmation for lodging reser-
vations at Myrtle Beach, and a bill from a business called Tread-
works. When viewed in the light most favorable to the government,
we find that the evidence was sufficient for a rational trier of fact to
have found that Harris had constructive possession of the cocaine. See
Burgos, 94 F.3d at 862; Nelson, 6 F.3d at 1053.

Accordingly, we affirm Harris' conviction. We dispense with oral
argument because the facts and legal contentions made by the parties
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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