### The Honorab le Carol E. Jackson, United States District Court 1 

### Judge for the Eastern District of Missouri. The Honorable David D. Noce, United States Magistrate Judge 2 

### for the Eastern District of Missouri.

Barry does not appeal his conviction for possession o f 3 

### methamphetamine. ___________ No. 96-1941

___________ United States of America, * * Plaintiff-Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Paul Richard Barry, * * Defendant-Appellant. *

___________ Submitted: September 13, 1996 Filed: October 17, 1996

___________ Before FAGG, LAY, and MURPHY, Circuit Judges.

___________ LAY, Circuit Judge.
Paul Richard Barry was convicted of various drug and firearm of fenses under 18 U.S.C. §§ 92 2(g)(1) and 924(c)(1), 21 U.S.C. §§ 841 and 844, and 26 U.S.C. §§ 5861(d) and 5871. Prior to trial, the district court, based 1 on the magistrate judge's recommendation, denied Barry's motio n to dismiss 2 the indictment and to suppress certain evidence. The district cour t ente red judgment pursuant to the jury verdict and sentenced Barry t o impr isonment for an aggregate term of 190 months. Barry appeals hi s conviction as it relates to all but one count. We affirm. 3

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FACTS
Counts I and II stem from a traffic stop occurring on March 15, 1995, af ter a Leadington, Missouri police officer observed Barry’s vehicl e vio late a red light. The officer arrested Barry for operating with a suspended driver's license, and arranged to have Barry's vehicle impounded
. The officer performed a pat-down search of Barry, uncovering .05 gram of methamphetamine, and he performed an inventory search of Barry's vehicle, uncovering a loaded . 25 caliber semiautomatic pistol under the front seat armrest. Barry was a previously convicted felon at the time of the arrest
.

Counts II I through VII arise from a traffic stop occurring at three o'clock in the morning on May 5, 1995, after a d ifferent Leadington police officer observed Barry's vehicle operating erratically.

Officer Darrell Bennett recognized Barry from a prior cour t appearance for driving with a suspended license, and asked Barry to presen t his driver’s license. While Barry fumbled for his license, Officer Bennet t not iced three packets containing white powder in Barry's wallet. Barr y admitt ed he had been drinking, and complied with Officer Bennett' s directive to exit the vehicle to perform sobriety tests. Barry failed fou r sobriety tests.
After Barry failed the tests, Officer Bennett examined Barry’s wallet
more closely. Officer Bennett testified that on prior occasions he ha d seen packets of white powder similar to those in Barry's wallet, and that on those occasions the powder turned out to be m ethamphetamine or cocaine. Officer Bennett arrested Barry for driving while intoxicated ("DWI") and possession of illegal drugs.
Officer Bennett then performed an inventory search of Barry's

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ve hicle as part of his department’s customary impoundment procedure
. Bennett found two vials of cocaine and a loaded, unregistered, sawed-off shotgun in the unlocked glove compartment. The officer also found scales, containers of marijua na and cocaine, spoons, a pipe, a hypodermic needle, and a mir ror with white, powdery residue. The cumulative weight of th e cocaine in Barry’s ve hicle was 459 grams and the weight of marijuana was about 710 grams. The packets in Barry’s wallet contained 1.05 grams o f cocain e. Officer Bennett transported Barry to the Leadington Polic e Department, where Bar ry provided a breath sample revealing that his blood alcohol content was .022%.
At various points in the proceedings below, Barry moved the district court to suppress evidence seized during the May 5 inventory search of his vehicle, to dismiss the charges of possession as a felon, and for judgment of acquittal as to carrying a firearm in relation to drug trafficking.

SUPPRESSION OF EVIDENCE

Barry challenges the district court’s failure to suppress th e evid ence seized after the May 5 traffic stop, asserting the stop an d subsequent arrest were merely a pretext for the vehicle search. We review de novo whether an officer's stop is based upon reasonable suspicion and whether the arrest is based upon probable cause. Ornelas v. United States , 116 S.Ct. 1657, 1663 (1996). We review the district court's finding s conc erning the underlying historical facts under the clearly erroneou s standard. Id.

It is undisputed that Officer Bennett observed Barry operating hi s veh icle erratically and crossing the centerline at three o'clock in th e morn ing on May 5. Officer Bennett's uncontradicted testimony at th e suppression hearing amply supports the magistrate

### Officer Bennett testified in relevant part as follows: 4


### I noticed him coming off the highway, he was a littl e wobbly, but I couldn't see how he was driving so, I couldn't make any judgments right there. So, I wen t ahead and stayed in my position, he came on around o n Hig hway32, headed west, passed me; the one lane turn s into divided lanes; he crossed the center line a couple of times, went ahead, was gonna make a right turn, made it a little early, hit the shoulder and proceeded on. Tr. of Evidentiary Hr'g, at 31. -4- judge's finding. 4
Failing to operate one’s vehicle within a single lane violate s Missouri law. Mo. Rev. Stat. § 304.015. Driving while intoxicated also viol ates Missouri law. Mo. Rev. Stat. § 577.010.1. Officer Bennet t witnessed Barry violate the former and had reasonable suspicion based on Barry’s driving to be lieve Barry may also have been violating the latter. We recently observed "[i]t is well established that a traffic violation-- how ever minor--creates probable cause to stop the driver of a vehicle. " United States v. Barahona , 990 F.2d 412, 416 (8th Cir. 1993); see als o United States v. Rehkop , No. 95-3446, 1996 WL 526239, at *4 (8th Cir. Sept
. 18, 1996 ) (holding officer had reasonable belief that a driver wa s intoxicated where the driver remained at a traffic light through thre e rotations and weaved several times within his ow n lane). We conclude that Officer Bennett lawfully stopped Barry's vehicle.
Barry con tends his DWI arrest was mere pretext to allow Office r Benne tt to search his vehicle without a warrant. This argument fails
. While pretextual traffic stops or arrests may violate the Fourth Amendment , as long as a police officer does no more than he or she is legall y permitted and objectively authorized to do, the officer’s stop or arrest is constitutional. U nited States v. Cummins , 920 F.2d 498, 501 (8th Cir. 1990), cert. denied , 502 U.S. 962 (1991).

### That Barry's breath test after the arrest at the polic e 5 

### depart ment revealed a blood alcohol content of only .022% i s inapposite to whether there was probable cause immediately before the arrest to conclude Barry was driving while intoxicated. Additionally, intoxication with drugs other than alcohol, or a combination of drugs and alcohol, also would support conviction under Mi ssouri's DWI law. See Mo. Rev. Stat. § 577.001.2. ("[A ] person is in an 'intoxicated condition' when he is under th e inf luence of alcohol, a controlled substance, or drug, or an y com bination thereof."). In this vein Barry supports his pretex t argument by asserting that officers "neglected or declined t o obtain a blood sample" to establish whether any other drug was in his system. Appellant's Br., at 22. However, the court not es with disfa vor Barry's failure also to disclose Officer Bennett' s unco ntested testimony that Barry was several times offered, bu t refused, a urine test, which also would have established whe ther he had ingested other drugs. See Tr. of Evidentiary Hr'g, at 43-44; Tr. of Trial, vol. I, at 105. -5- The question then turns on whether probable cause existed for B arry's
ar rest. "In determining whether probable cause exists to make a warrantless arrest, the court looks to the totality of the circumstances to see whether a prudent person would believe th e individual had committed
or was committing a crime." United States v. Segars , 31 F.3d 655, 659 (8t h Cir. 1994 ), cert. denied , 115 S. Ct. 772 (1995). Here, Barry drov e erratically, admittedto Officer Bennett he had been drinking, and failed multiple sobriety tests. A reasonable person could conclude Barry wa s driving while intoxicated; under the circumstances, we find Officer Bennet t lawfully arrested Barry. Because w e conclude there was probable cause to 5 arrest Barry for DWI without regard to any cocaine in Barry's wallet, we need no t reach Barry's argument that the magistrate judge should hav e discredited Officer B ennett's testimony that Bennett observed the cocaine packets in Barry's wallet before arresting him.

A police officer may conduct a warrantless inventory search of a vehicle the officer is lawfully impounding. Col orado v. Bertine , 479 U.S. 367, 370-74 (1987). Officer Bennett conducted such a search of Barry' s vehicle and in doing so discovered the shotgun

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and drug s. We find no error in the district court's denial of Barry' s motion to suppress this evidence.

CARRYING FIREARM IN RELATION TO DRUG TRAFFICKING
Barrychallenges his conviction of violating 18 U.S.C. § 924(c)(1 ) based on the Supreme Court's decision in Bailey v. United States , 116 S.Ct
. 501 (1995). Reviewing de novo the district cour t's conclusion that Bailey affords Barry no relief, we agree Baileyis inapplicable here.
Baileynarrowly defines "use" under § 924(c)(1) as requiring proo f that the defendant "actively employed the firearm during and in relation to the predicate crime." 116 S.Ct. at 509. However, Barry was indicted fo r carrying a firearm, not for using a firearm, and Bailey did not address th e alternate "carry" pro ng of § 924(c)(1). Barry nevertheless contends that because he did not ha ve the shotgun on his person, he did not "carry" the shotgun. We disagree.

Before Bailey , we recognized that "the common usage of 'carries ' include[s] 'carries in a vehicle.'" United Stat es v. Freisinger , 937 F.2d 383, 387 (8th Cir. 1991). Notwithstanding Barry's argument, Baileydoes not require us to abandon Freisinger . Indeed, a fter the parties submitted their arguments in this matter, we decided United States v. Willis , 89 F.3 d 1371 (8th Cir.), cert. denied , No. 96-5793, 1996 WL 514275 (1996). Willis held the Freisinger standard survived Bailey
. Id. at 1379. Barry' s transpo rtation of the shotgun in his glove compartment satisfies th e "carry" prong of § 924(c)(1).
Barry als o challenges the district court's denial of his motion for acquittal based on sufficiency of the evidence regarding whether he carrie d the firearm "in relat ion to" drug trafficking. We will narrowly review a district court's denial of a motion for

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acquittal, viewing the evidence in the light most favorable to the verdic t and giving the government the benefit of reasonable inferences drawn from the evidence. United States v. Cunningham , 83 F.3d 218, 222 (8th Cir
. 1996).
The phrase "in relation to" in § 924 (c)(1) is "expansive," req uiring that the firearm have some purpose or effect regarding drug trafficking an d that it facilitate or have the potential to facilitate drug trafficking,
as oppo sed to being present merely as the result of accident o r coincidence. Smith v. United States , 113 S.Ct. 2050, 2058-59 (1993).
Here, the jury could reasonably infe r that Barry's sawed-off shotgun had the potential to facilitate Barry's possession and intended sale o f cocaine and marijuana. The shotgun was loaded, unregistered, and conceale d with two vials of cocaine in Barry's unlocked glove compartment. H e transpo rted the shotgun in the same passenger compartment in which h e transported nearly $50,000 in illegal drugs. There was ample evidenc e supporting the jury's verdict that Barry carried the shotgun "in relation to" drug dealing.

COMMERCE CLAUSE
Finally, Barry assigns error to the district court's denial of hi s motion t o dismiss the two counts of possession of a firearm as a felo n under 18 U.S.C. § 922(g)(1). He relies on United States v. Lopez , 11 5 S.Ct. 1624 (1995), fo r the proposition that the Commerce Clause precludes application of § 922(g)(1) to his firearm possession. We reject Barry's argument. In 

### United States v. Bates , we held that § 922(g)(1) wa s cons titutionallyapplied to a defendant who possessed a shotgu n that had traveled in interstate commerce. 77 F.3d 1101 (8th Cir.), cert. denied , No. 96-5184, 1996 WL 411183 (1996). Here, th e par ties stipulated that the firearms at issue traveled i n interstate commerce. For the reasons

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articulated in Bates , "we find the application of section 92 2(g)(1) to [Barry's] conduct eminently constitutional." Id. at 1104.
We affirm the district court's judgment against Barry.

A true copy.

Attest:

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