The Honorable Russell G. Clark, United States District Judge 1

for the Western District of Missouri.

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No. 95-3446

____________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri

Marc D. Rehkop, *

*

Appellant. *

____________

 Submitted: March 15, 1996

 Filed: September 18, 1996

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Before McMILLIAN, BEAM and HANSEN, Circuit Judges.

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McMILLIAN, Circuit Judge.

Marc D. Rehkop appeals from a final judgment entered in the United

States District Court for the Western District of Missouri upon a jury

1

verdict finding him guilty of one count of possession of methamphetamine

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and one

count of use of a firearm during and in relation to the offense of

possession with intent to distribute methamphetamine, in violation of 18

U.S.C. § 924(c). The district court sentenced Rehkop under the federal

sentencing guidelines to 248 months imprisonment, five years supervised

release and a special assessment of $100.00. For reversal, Rehkop argues

the district court erred in (1) denying his motion to suppress evidence

seized from his vehicle and (2) improperly instructing the jury on
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the law applicable to 18 U.S.C. § 924(c). For the reasons discussed below,

we affirm in part, reverse in part, and remand the case to the district

court for further proceedings consistent with this opinion.

I. Background

The underlying facts are not in dispute. On August 8, 1994, at

approximately 1:30 a.m., Officer Kelly Roth of the Springfield, Missouri,

Police Department was on a duty as a uniformed patrol officer in a marked

police car. Officer Roth observed a vehicle at rest in an inside driving

lane at the corner of Kansas Expressway and Kearney Street in Springfield.

After observing the vehicle remain stationary through three cycles of an

electric traffic light, Officer Roth approached the vehicle, directed his

spotlight into the passenger’s side window, and observed Rehkop asleep at

the wheel. The spotlight awoke Rehkop. Rehkop looked at Roth, became

startled, looked down at the seat, and drove off through a red light. 

Officer Roth followed the vehicle after it ran the red light and

contacted a dispatcher with the message that he was following a possible

DWI and requested assistance. He then followed the vehicle southbound on

Kansas Expressway and observed it swerving within its own lane four times.

Having observed Rehkop sleep through several cycles of the traffic light,

run a red light, and swerve within his lane, Officer Roth believed that

Rehkop was driving while intoxicated. He activated his red lights to stop

the vehicle, and Rehkop complied by pulling over into the parking lot of

a nearby convenience store. Officer Roth followed and parked his vehicle

so as to block Rehkop’s automobile.

Officer Roth testified that after Rehkop stopped he observed Rehkop

make a motion in which his head and shoulders bowed forward and downward.

At the time, Roth thought Rehkop was hiding an
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alcoholic beverage and instructed him to remain in the car. Roth then

asked to see Rehkop’s driver’s license. When Rehkop replied that he did

not have one, Roth asked Rehkop to exit his vehicle, and Rehkop complied.

At that point, Roth conducted a frisk for weapons and asked Rehkop if he

had any weapons on him. Rehkop responded that he did not but that there

was an unloaded weapon on the back seat of the car. Officer Roth then

handcuffed Rehkop, and another police officer, Officer Pulliam, arrived to

assist. While Pulliam watched Rehkop, Roth looked into the passenger side

of the vehicle at the back seat and observed a .45 caliber handgun laying

on the floorboard behind the passenger’s seat. When Roth picked up the

firearm, it was in the “cocked and locked position,” meaning that the

hammer was back and the thumb safety was in position. Although the firearm

did not contain a magazine, Officer Roth observed a bullet in the chamber

of the pistol. 

Officer Roth also testified that Rehkop appeared lethargic and unable

to focus his attention. There was no odor of alcoholic beverages. Roth,

however, believed Rehkop was under the influence of a narcotic, because

Rehkop’s eyes were bloodshot and glassy and he appeared to have a delayed

reaction to the statements made to him.

After finding the firearm, Officer Roth informed Rehkop that he was

under arrest for suspicion of driving while intoxicated and for unlawful

use of a weapon. Officer Roth advised him of his Miranda rights, and

Rehkop replied that he understood these rights. After placing Rehkop under

arrest, Roth decided that the vehicle Rehkop had been operating would have

to be subjected to a custody tow and impounded pursuant to Springfield’s

Manual of Administrative Policy. The manual provides that, when a person

is arrested and the vehicle is neither on the owner’s property nor in the

custody of the owner, a custody tow will be ordered. Roth testified that

he believed that the manual required a vehicle subjected to a custody tow

to be searched and inventoried.
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During the inventory search, Officer Roth found .45 caliber

ammunition and a sealed box. The sealed box was in the back seat on the

driver’s side. Roth opened the box and discovered several nested plastic

bags and felt something soft and warm. He then emptied the contents of the

bag on the ground and discovered a gallon freezer bag which contained a

soggy, tan substance. Roth asked Rehkop if he thought this bag weighed a

pound; Rehkop looked up and replied, “No, five.” At that point, Roth

resumed his search of the box and found additional gallon bags, which he

seized because he suspected them to contain contraband. He also found a

nylon pouch in the front seat of the car which contained three extra clips

of ammunition. After finding the items in the box, Roth placed Rehkop

under arrest for possession of narcotics. 

Officer Roth also issued three traffic violation tickets to Rehkop,

for careless and imprudent driving, failing to have a driver’s license, and

driving while intoxicated. Roth testified that he did not have Rehkop’s

consent to search the vehicle and that he had no reason to believe that

there were drugs in the vehicle when he began the inventory. Another

police officer who assisted in the inventory search discovered a .45

caliber magazine under the driver’s seat. 

A subsequent analysis of the soggy, tan substance found in Rehkop’s

car revealed that the substance was ninety-two percent pure dmethamphetamine. The weight of the materials, exclusive of the packaging,

was 1,819.67 grams or 4.01 pounds. Moreover, a special agent for the DEA

testified that the value of the methamphetamine would be $108,000 if sold

by pounds, $345,000 if sold by ounces, and $600,000 if sold by grams. The

special agent testified that the quantity seized was therefore not

consistent with personal use.

On August 10, 1994, a federal grand jury returned a two-count

indictment in the United States District Court in Springfield,
 On May 11, 1995, during the jury trial of the present case, 2

Rehkop objected to the admission of evidence on the ground set

forth in his motion to suppress. The district court overruled

Rehkop’s objection.

 The instruction tendered by Rehkop, which the district court 3

refused to give, provided as follows:

In order to prove the Defendant

guilty beyond a reasonable doubt of the

crime charged in Count II of the

indictment, the government must prove

more than mere possession of a firearm.

Rather, there must be some relation or

connection between the firearm and the

underlying crime of possession of

methamphetamine with intent to

distribute.

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Missouri, charging Rehkop with (1) possession with intent to distribute

methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (2) use of a

firearm during and in relation to a drug trafficking offense in violation

of 18 U.S.C. § 924(c).

On April 14, 1995, Rehkop moved to suppress all the evidence seized

from his vehicle on the ground that there was no probable cause to support

the warrantless search in violation of the Fourth Amendment. After a

hearing held on May 10, 1995, the district court issued oral findings and

denied the motion to suppress. 

2

After evidence was submitted to the jury on May 11, 1995, the

district court instructed the jury on the law of the case. In instructing

the jury, the district court refused Rehkop’s proposed instruction on Count

II for the alleged violation of 18 U.S.C. § 924(c). Over the specific

3

objection of Rehkop, the district
 Jury Instruction Number 17 provided: 4

The crime of using a firearm

during and in relation to drug

trafficking, as charged in Count Two of

the indictment, has two essential

elements, which are:

One, the defendant committed the

crime of possession with intent to

distribute methamphetamine; and,

Two, during and in relation to the

commission of that crime, the defendant

knowingly used a firearm.

The phrase “used a firearm” means

having a firearm available to aid in the

commission of the crime of possession

with intent to distribute

methamphetamine. 

For you to find the defendant

guilty of the crime charged under Count

Two, the government must prove all of

these essential elements beyond a

reasonable doubt; otherwise, you must

find the defendant not guilty of this

crime.

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court gave jury instruction number 17 as to Count II. The jury returned 4

guilty verdicts as to both counts of the indictment.

On September 20, 1995, following a sentencing hearing, the district

court sentenced Rehkop under the federal sentencing guidelines to

248 months imprisonment, five years supervised release and a

special assessment of $100.00. This appeal followed.

II. Discussion

For reversal, Rehkop first argues the district court erred in

denying his motion to suppress evidence seized from his vehicle
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because the warrantless search violated the Fourth Amendment.

Specifically, Rehkop contends that Officer Roth lacked probable

cause to make the initial traffic stop of the vehicle and that the

stop was merely pretextual. Rehkop recognizes that a traffic
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violation, no matter how minor, creates probable cause to stop the

driver of a vehicle. United States v. Barahona, 990 F.2d 412, 416

(8th Cir. 1993) (Barahona) (citing United States v. Cummins, 920

F.2d 498, 500 (8th Cir. 1990), cert. denied, 502 U.S. 962 (1991)).

He argues, however, that weaving within one’s lane of traffic does

not constitute a traffic violation. Rehkop therefore maintains

that because he was not lawfully in custody at the time of the

inventory search of his automobile, the district court should have

suppressed the evidence seized from his vehicle.

The Supreme Court has recently clarified that the historical

facts supporting probable cause are reviewed for clear error, while

the determination of probable cause is subject to de novo review.

Ornelas v. United States, 116 S. Ct. 1657, 1662-63 (1996)

(determination of whether probable cause existed for search,

requiring application of facts to law, is mixed question of law and

fact and should be reviewed de novo). The Supreme Court stated

that, in determining whether probable cause existed, “a reviewing

court should . . . give due weight to inferences drawn from those

[historical] facts by resident judges and local law enforcement

officers.” Id. at 1663. 

In the present case, the district court found that Rehkop had

remained stationary through three rotations of traffic lights and

had then weaved within his own lane four times. I Trans. 63.

Although the district court did not address whether or not Rehkop

had driven through a red light, we note that Rehkop concedes this

fact in his brief and that the record supports such a finding. See

Brief for Appellant at 8; I Trans. 6. The district court concluded

that Officer Roth had probable cause to stop Rehkop because

(1) Rehkop appeared to be under the influence of an intoxicating

substance and (2) Rehkop’s driving posed a hazard to the public.

See I Trans. 63. In addition, the district court determined that
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Officer Roth had acted properly in impounding the vehicle, because

Roth, who had no driver’s license and who appeared to be under the
 Although, as noted above, there is ample evidence in the

5

record to support a finding that Rehkop drove through a red light,

Officer Roth would have had probable cause to stop him even in the

absence of this fact.

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influence of narcotics, could not have lawfully driven away from

the scene. 

Upon de novo review, giving due weight to the district court’s

historical findings and inferences, we agree that Officer Roth had

probable cause to stop Rehkop, based upon the traffic violations

committed by Rehkop and Roth’s reasonable belief that Rehkop was

5

driving while intoxicated. See Barahona, 990 F.2d at 416; see also

United States v. Richards, 967 F.2d 1189, 1192 (8th Cir. 1992)

(stop of defendant for traffic violation was not pretextual so as

to render ensuing search of defendant’s vehicle unconstitutional,

where police officer testified that he had observed defendant’s

vehicle make a swerving lane change and drift momentarily off the

road). We also conclude that Officer Roth properly impounded

Rehkop’s vehicle, in light of the fact that Rehkop had no driver’s

license and appeared to be under the influence of narcotics.

We also uphold the search of Rehkop’s automobile as a valid

inventory search. It is well-settled that a police officer, after

lawfully taking custody of an automobile, may conduct a warrantless

inventory search of the property to secure and protect vehicles and

their contents within police custody. Colorado v. Bertine, 479

U.S. 367, 372 (1987); Illinois v. Lafayette, 462 U.S. 640, 646

(1983). In the present case, Officer Roth discovered the

methamphetamine in Rehkop’s vehicle while conducting a lawful

inventory search of the vehicle. Therefore, we hold that the

district court did not err in denying Rehkop’s motion to suppress.
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Rehkop next argues that the district court erred in refusing

to instruct the jury that, in order to convict Rehkop under 18

U.S.C. § 924(c), the government would have to prove more than mere
 18 U.S.C. § 924(c)(1) requires the imposition of specified

6

penalties if the defendant “during and in relation to any crime of

violence or drug trafficking crime . . . uses or carries a

firearm.”

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possession of a firearm. The district judge informed the jury that

a defendant “uses a firearm” whenever he has “a firearm available

to aid in the commission of . . . [a drug trafficking offense].”

Jury Instruction No. 17; Appellee’s Add. at 9. In light of the

Supreme Court’s supervening decision in Bailey v. United States,

116 S. Ct. 501, 505-08 (1995) (Bailey), we hold that the district

court committed error. In Bailey, the Supreme Court held that the

term “use” in 18 U.S.C. § 924(c)(1) “requires evidence sufficient 6

to show an active employment of the firearm by the defendant, a use

that makes the firearm an operative factor in relation to the

predicate offense.” 116 S. Ct. at 505. The Court specifically

determined that the mere storage of a weapon near drugs or drug

proceeds does not constitute active use. Id. at 508. In the

present case, the district court’s § 924(c) instruction did not set

forth the standard for “use” now required under Bailey. The

instruction, therefore, now constitutes error. See U.S. v.

Webster, 84 F.3d 1056, 1067 (8th Cir. 1996) (“in deciding whether

an error is clear under current law, the proper focus is the law

applicable on appeal rather than at trial"). Moreover, because the

indictment only charged Rehkop under the "use" prong of § 924(c),

and not under the "carry" prong, the government has conceded in its

brief and at oral argument that Rehkop's § 924(c) conviction should

be vacated and remanded. We therefore hold that the district

court's instructional error “affected the outcome of the district

court proceedings.” United States v. Olano, 507 U.S. 725, 734

(1993). Accordingly, we reverse the § 924(c) conviction under
 We note that the government may, but need not, seek a new

7

trial on this count.

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Count II, vacate the sentence, and remand the case to the district

court.7
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The government requests that we also vacate the sentence as

to Count I, possession of methamphetamine with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1). The government

correctly observes that a reversal of Rehkop’s § 924(c) conviction

may render appropriate a two-level enhancement under § 2D1.1(b)(1)

of the federal sentencing guidelines. Section 2D1.1(b)(1) provides

that it is a specific offense characteristic “[i]f a dangerous

weapon (including a firearm) was possessed,” warranting a two-level

sentence increase. U.S.S.G. § 2D1.1(b)(1).

The district court did not consider § 2D1.1(b)(1) because

Rehkop’s conviction on the § 924(c) charge precluded the

application of a two-level enhancement under § 2D1.1(b)(1).

See U.S.S.G. 2K2.4, comment. (backg’d.) (in order to avoid double

counting, when a sentence is imposed under 18 U.S.C. § 924(c) in

conjunction with a sentence for an underlying offense, any specific

offense characteristic for explosive or firearm discharge, use, or

possession is not applicable). Because we have vacated Rehkop’s 

§ 924(c) conviction, however, “this double counting concern is

eliminated and it is appropriate to remand to the district court to

allow it to resentence” Rehkop. United States v. Thomas, 1996 WL

471336, at *8 (8th Cir. Aug. 21, 1996) (citing United States v.

Roulette, 75 F.3d 418, 426 (8th Cir. 1996)). Therefore, we vacate

Rehkop’s sentence under Count I to provide the district court an

opportunity to consider whether a sentence enhancement under

U.S.S.G. § 2D1.1(b)(1) is warranted.

III. Conclusion

For the foregoing reasons, we hold that the district court

properly denied Rehkop’s motion to suppress evidence seized from

his vehicle but erred in giving the jury instruction on 18 U.S.C.
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§ 924(c). Accordingly, we affirm Rehkop’s § 841(a)(1) conviction,

reverse his § 924(c) conviction, vacate his sentence, and remand
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the case to the district court for further proceedings consistent

with this opinion.

A true copy.

Attest:

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