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No. 96-2457WA

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Western

* District of Arkansas.

Jonathan Harold Peyton, *

*

Appellant. *

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Submitted: December 10, 1996

 Filed: March 12, 1997

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Before FAGG, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

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FAGG, Circuit Judge.

After Jonathan Harold Peyton acknowledged there was a gun in the

vehicle he was driving, police found the gun, arrested Peyton, searched his

vehicle, and discovered methamphetamine and thousands in cash. A jury

convicted Peyton of possession of methamphetamine with intent to distribute

and carrying a firearm in relation to a drug trafficking crime. On appeal,

Peyton challenges the validity of the search, the denial of his motion for

a mistrial, and the sufficiency of the evidence. We affirm.

Hot Springs, Arkansas police stopped Peyton and a passenger because

the El Camino Peyton was driving had no license plates. Shining a

flashlight into the vehicle, the officer spotted a pistol holster under the

driver's seat. Peyton admitted there was a gun in the car. The officer

retrieved a loaded pistol from under the passenger seat and arrested Peyton

for carrying a weapon. Deciding to have the El Camino towed, the officer

conducted an inventory
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search and discovered 38.57 grams of methamphetamine in an Arkansas Bank

and Trust bag behind the driver’s seat and $6,650 in currency underneath

the seat. A search of Peyton himself turned up $4,350 more.

The district court denied Peyton's pretrial motion to suppress the

drugs and cash. The district court also ruled that, to prove intent, the

Government could introduce evidence police had stopped Peyton on a second

occasion and had again found drugs, cash, and a gun. See Fed. R. Evid.

404(b). In its opening statement, the Government referred to the second

stop and the incriminating items then found. After the officer who had

stopped Peyton the second time began to testify, but before he named Peyton

as the driver, it became clear the second stop was illegal. The district

court promptly ordered the officer’s testimony stricken and told the jury

to disregard it, but denied Peyton's motion for a mistrial. Having

generally instructed the jury opening statements are not evidence, the

district court offered to give the jury a specific curative instruction on

the Government's opening statement. Peyton declined the offer.

We take up first the district court's denial of Peyton's motion to

suppress. Peyton failed to show the inventory search of his El Camino was

unlawful. See United States v. Cummins, 920 F.2d 498, 503 (8th Cir. 1990).

Furthermore, if the presence of a loaded gun in Peyton’s vehicle authorized

police to arrest Peyton, the search of the El Camino’s passenger

compartment was also proper as a search incident to arrest. See United

States v. Maza, 93 F.3d 1390, 1396-97 (8th Cir. 1996), cert. denied, 65

U.S.L.W. 3570 (1997). In Arkansas, it is illegal to carry a handgun as a

weapon, see Ark. Code Ann. § 5-73-120 (Michie 1993), and a loaded pistol

found under the front seat of a vehicle is presumed to be carried as a

weapon, see Clark v. State, 486 S.W.2d 677, 678 (Ark. 1972). Because a

reasonable person in the officer’s position could have believed Peyton was

breaking the law, see United States v. Kalter,
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5 F.3d 1166, 1168 (8th Cir. 1993), Peyton’s arrest was supported by

probable cause. The district court correctly denied Peyton's motion to

suppress.

Next, the district court did not abuse its discretion when it denied

Peyton's motion for a mistrial. See United States v. Hernandez, 779 F.2d

456, 458 (8th Cir. 1985). While the Government should have made sure

Peyton’s second stop was lawful before telling the jury about the stop in

its opening statement and putting the arresting officer on the stand, the

district court remedied any potential prejudice. See United States v.

Dunlap, 28 F.3d 823, 825 (8th Cir. 1994) (prejudice erased when jury told

attorneys’ statements are not evidence); United States v. Nelson, 984 F.2d

894, 897 (8th Cir. 1993) (instructing jury to disregard testimony dispels

prejudice). Besides, the evidence of Peyton’s guilt was compelling, see

Nelson, 984 F.2d at 897, and Peyton refused an offered curative

instruction.

We also reject Peyton's contention he was not carrying a firearm in

a drug trafficking crime. See United States v. Rhodenizer, No. 96-2343,

1997 WL 43234, at *2 (8th Cir. Feb. 5, 1997) (transporting firearm in

passenger compartment of vehicle that contains drugs is carrying firearm

within meaning of 18 U.S.C. § 924(c)(1)); United States v. Willis, 89 F.3d

1371, 1378-79 (8th Cir.) (same), cert. denied, 117 S. Ct. 273 (1996).

Finally, the evidence was sufficient to show Peyton knowingly possessed the

methamphetamine because a reasonable jury could find Peyton "had knowledge

of, and control over, the drugs." See Willis, 89 F.3d at 1377. Peyton was

driving a vehicle that contained drugs. Police found the methamphetamine

behind the driver’s seat in an Arkansas Bank and Trust bag, Peyton had a

business account at that bank, and Peyton’s wallet contained two deposit

slips from that bank.

We affirm Peyton's conviction.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.