The Honorab le Russell G. Clark, United States District Judge 1 for the Western District of Missouri. ____________ 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

____________ Before McMILLIAN, BEAM and HANSEN, Circuit Judges.

____________ 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 jur y 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 o f possession with intent to distribute methamphetamine, in violation of 18 U.S.C. § 924(c). The district court sentenced Rehkop under the federa l sentencing guidelines to 248 months imprisonment, five years supervise d release and a special assessment of $100.00. For reversal, Rehkop argues the district court erred in (1) denying his motion to suppress evidenc e seized from his vehicle and (2) improperly instructing the jury on-2-

the law applicable to 18 U.S.C. § 924(c). For the reasons discussed below , we affi rm in part, reverse in part, and remand the case to the distric t court for further proceedings consistent with this opinion.

I. Background

The underlying facts are not in dispute. On August 8, 1994, a t 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 Kear ney Street in Springfield. After observing the vehicle remain stationary through three cycles of an electric traffic ligh t, Officer Roth approached the vehicle, directed his spotlight into the pa ssenger’s side window, and observed Rehkop asleep at the wheel. The spotlight awoke Rehkop. Rehkop looked at Roth, becam e startled, looked down at the seat, and drove off through a red light.

Offic er Roth followed the vehicle after it ran the red light an d contacted a dispatcher with the message that he was following a possible DWI and requested ass istance. He then followed the vehicle southbound on Kansas Expressway and observed it swerving withi n its own lane four times. Having observed Rehko p sleep through several cycles of the traffic light,
run a red light, and swerve within his lane, Officer Roth believed tha t Rehkop was driving while intoxicated. He activa ted 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 testifi ed that after Rehkop stopped he observed Rehkop make a motion in whic h his head and shoulders bowed forward and downward. At the time, Roth thought Rehkop was hiding an-3-

alcoholic beverage and instructed him to remain in the car. Roth the n asked to see Rehkop’s driver’s license. When Rehkop replied that he did not have one, Roth as ked 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 hi m. Rehkop responded that he did not but that there
was an unloaded weapon on the back seat of the car. Officer Roth the n handcuffed Rehkop, and another police officer, O fficer Pulliam, arrived to assist. While Pulliam watched Rehkop, Roth look ed into the passenger side of the vehicle at the back seat and observed a .45 caliber handgun laying
on the fl oorboard behind the passenger’s seat. When Roth picked up th e firearm, it was in the “cocked and locked position,” meaning that th e hammer was back and the thumb safety was in position. Although the firear m did not contain a mag azine, Officer Roth observed a bullet in the chamber of the pistol.

Officer Roth also testified that Rehkop appeared lethargic and unabl e to focus his attentio n. There was no odor of alcoholic beverages. Roth, how ever, believed Rehkop was under the influence of a narcotic, becaus e Rehkop’s eyes were bl oodshot and glassy and he appeared to have a delayed reaction to the statements made to him.
After finding the fi rearm, 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, an d Rehkop replied that he understood these rights. After placing Rehkop unde r arrest, Roth decided that the vehicle Rehkop hadbeen operating would have to be subjected to a custody tow and impounded pursuant to Springfield’s Manual of Administrat ive Policy. The manual provides that, when a person is arrested and the v ehicle 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.-4- Dur ing the inventory search, Officer Roth found .45 calibe r 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 th e 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 pou nd; Rehkop looked up and replied, “No, five.” At that point, Rot h 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 c ontained three extra clips of ammunition. After finding the items in the box, Roth placed Rehko p under arrest for possession of narcotics.

Officer Roth also is sued three traffic violation tickets to Rehkop, for careless and imprudent driving, failing to have a driver’s license, an d 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 tha t the re were drugs in the vehicle when he began the inventory. Anothe r poli ce officer who assisted in the inventory search discovered a .4 5 caliber magazine under the driver’s seat.
A subsequent analysi s of the soggy, tan substance found in Rehkop’s
car re vealed that the substance was ninety-two percent pure d

methamphetamine. The weight of the materials, e xclusive of the packaging, was 1,819.67 grams or 4.01 pounds. Moreover, a special agent for the DEA testified that the va lue 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 specia l agent testified that the quantity seized was therefore no t consistent with personal use.

On August 10, 1994, a federal grand jury returned a two-coun t 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 se t forth in his motion to suppress. The district court overrule d Rehkop’s objection. The instruc tion tendered by Rehkop, which the district court 3 refused to give, provided as follows:

In order to prove the Defendan t guilty beyond a reasonable doubt of the cri me charged in Count II of th e indictment, the government must prov e more than mere possession of a firearm. Rat her, there must be some relation o r connection between the firearm and th e underlying crime of possession o f methamphetamine with intent t o distribute.
-5- Missou ri, charging Rehkop with (1) possession with intent to distribut e methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (2) use of a firearm during and inrelation to a drug trafficking offense in violation of 18 U.S.C. § 924(c).
On April 14, 1995, R ehkop moved to suppress all the evidence seized from his vehicle on the ground that there was no probable cause to support the warran tless search in violation of the Fourth Amendment. After a hearing held on May 1 0, 1995, the district court issued oral findings and denied the motion to suppress. 2

After evi dence was submitted to the jury on May 11, 1995, th e district court instructed the jury on the law of the case. In instructing the jury, the district court refused Rehkop’s proposed instruction on Coun t II fo r the alleged violation of 18 U.S.C. § 924(c). Over the specifi c 3 objection of Rehkop, the districtJury Instruction Number 17 provided: 4
The crime of using a firear m during and in relation to dru g trafficking, as charged in Count Two of the indictment, has two essentia l elements, which are:
One , the defendant committed th e crime of possession with intent t o distribute methamphetamine; and,
Two , during and in relatio n to the commission of t hat crime, the defendant knowingly used a firearm.
The phrase “used a firearm” means having a firearm available to aid in th e commission of the crime of possessio n with intent to distribut e methamphetamine.
For you to find the defendan t guilty of the c rime charged under Count Two , the government must prove all o f these essential elements beyond a reasonable doubt; otherwise, you mus t fin d the defendant not guilty of thi s crime. -6- 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, 199 5, following a sentencing hearing, the district
co urt sentenced Rehkop under the federal sentencing guidelines t o 248 mo nths imprisonment, five years supervised release and a special assessment of $100.00. This appeal followed.

II. Discussion
For reversal, Rehkop first argues the dis trict court erred in denyin g his motion to suppress evidence seized from his vehicl e-7-

because the warrantless search violated the Fourth Amendment

. Spec ifically, Rehkop contends that Officer Roth lacked probabl e cause to make the initial traf fic stop of the vehicle and that the stop was merely pretextual. Rehkop recognizes that a traffic-8-

violation, no matter how minor , creates probable cause to stop the driver of a vehicle. United S tates v. Barahona , 990 F.2d 412, 416 (8t h Cir. 1993) ( Barahona ) (citing United States v. Cummins , 92 0 F.2d 498, 500 (8th Cir. 1990), cert. denied , 502 U.S. 962 (1991)). He argues, however, that weavi ng within one’s lane of traffic does not constitute a traffic violation. Rehkop therefore maintain s that b ecause he was not lawfully in custody at the time of th e inventory search of his automo bile, 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. Ornela s v. United States , 116 S. Ct. 1657, 1662-63 (1996 ) (de termination 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 state d that, in determining whether probable cause existed, “a reviewing court should . . . give due weight to inferences drawn from those [his torical] facts by resident judges and local law enforcemen t officers.” Id. at 1663.
In the present case, the district court f ound 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 findin g. See Brief for Appellant at 8; I Trans. 6. The district court co ncluded that Officer Roth had probable cause to stop Rehkop becaus e (1) Rehkop appeared to be under the influence of an intoxicatin g substance and (2) Rehkop’s driving posed a hazard to the public

. See I Trans. 63. In addition, the district court determined that-9-

Officer Roth had acted properl y in impounding the vehicle, because Roth, who had no driver’s lice nse and who appeared to be under theAlthough, as noted above, there is ample evidence in th e 5 record to support a finding th at Rehkop drove through a red light, Officer Roth would have had pr obable cause to stop him even in the absence of this fact. -10- inf luence of narcotics, could not have lawfully driven away fro m the scene.

Upon de novo review, giving due weight to the district court’ s historical findings and infere nces, we agree that Officer Roth had pro bable cause to stop Rehkop, based upon the traffic violation s
com mitted by Rehkop and Roth’s reasonable belief that Rehkop wa s 5 driving while intoxicated. See Barahona , 990 F.2d at 416; s ee 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, wher e police officer testified that he had observed defendant’ s vehicle make a swerving lane change and drift momentarily off the
roa d). We also conclude that Officer Roth properly impounde d 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 vali d inventory search. It is well- settled that a police officer, after lawfully taking custody of an automobile, may conduct a warr antless inventory search of the property to secure and protect vehic les and their contents within police custody. Colorado v. Bertine , 47 9 U.S. 367, 372 (1987); Illinois v. Lafayette , 462 U.S. 640, 64 6 (1983)

. In the present case, Officer Roth discovered th e methamphetamine in Rehkop’s vehicle while conducting a lawfu l inventory search of the vehicle. Therefore, we hold that th e district court did not err in denying Rehkop’s motion to suppress.-11-

Rehkop next argues that the district court erred in refusing to instruct the jury that, in order to convict Rehkop under 1 8 U.S.C. § 924(c), the governmen t would have to prove more than mere18 U.S.C. § 924(c)(1) requires the imposition of specifie d 6 penalties if the defendant “du ring and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm.”
-12- possession of a firearm. The district judge informed the ju ry 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 th e Suprem e 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 Bai ley , 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 th e predi cate offense.” 116 S. Ct. at 505. The Court specificall y deter mined that the mere storage of a weapon near drugs or dru g proceeds does not constitute active use. Id. at 508. In th e present case, the district court’s § 924(c) instruction did not set forth the standard for “use” now required under Bailey . Th e inst ruction, therefore, now constitutes error. See U.S. v
. Webster , 84 F.3d 1056, 1067 (8th Cir. 1996) (“in deciding whether
an err or is clear under current law, the proper focus is the la w applicable on appeal rather than at trial"). Moreover, beca use 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) convictionshould be vacated and remanded. We therefore hold that the distric t court's instructional error “affected the outcome of the district court proceedings.” United States v. Olano , 507 U.S. 725, 73 4 (1993). Accordingly, we reverse the § 924(c) conviction unde rW e note that the government may, but need not, seek a ne w 7 trial on this count. -13- Count II, vacate the sentence, and remand the case to the district court. 7-14-

The government requests that we also vacate the sentence a s to Cou nt I, possession of methamphetamine with intent t o distribute, in violation of 21 U.S.C. § 841(a)(1). The government correctly observes that a reve rsal of Rehkop’s § 924(c) conviction may render appropriate a two-l evel enhancement under § 2D1.1(b)(1) of the federal sentencing guidelines. Section 2D1.1(b)(1) p rovides that it is a specific offense characteristic “[i]f a dangerou s weapon (including a firearm) was possessed,” warranting a tw o-level sentence increase. U.S.S.G. § 2D1.1(b)(1).

The di strict court did not consider § 2D1.1(b)(1) becaus e Rehkop ’s conviction on the § 924(c) charge precluded th e appli cation 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) i n conjunction with a sentence for an underlying offense, any s pecific offense characteristic for exp losive or firearm discharge, use, or possession is not applicable). Because we have vacated Rehkop’s § 924(c) conviction, however, “this double counting concern i s eliminated and it is appropriate to remand to the district c ourt to allow it to resentence” Rehkop. United States v. Thomas , 1996 WL 47133 6, at *8 (8th Cir. Aug. 21, 1996) (citing United States v

. Roulette , 75 F.3d 418, 426 (8t h Cir. 1996)). Therefore, we vacate Rehkop’s sentence under Count I to provide the district court a n opp ortunity to consider whether a sentence enhancement unde r U.S.S.G. § 2D1.1(b)(1) is warranted.

III. Conclusion

For the foregoing reasons, we hold that the district cour t proper ly denied Rehkop’s motion to suppress evidence seized fro m his vehicle but erred in giving the jury instruction on 18 U.S.C.-15-

§ 924(c). Accordingly, we aff irm Rehkop’s § 841(a)(1) conviction, reverse his § 924(c) conviction, vacate his sentence, and remand-16-

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.