United States of America, Plaintiff-appellee, v. Stephen D. Farmer, Defendant-appellant, 976 F.2d 738 (9th Cir. 1992)

Before KOZINSKI and DAVID R. THOMPSON, Circuit Judges, and RHOADES, District Judge.^* 

MEMORANDUM^** 

Farmer appeals his conviction as a felon in possession of a firearm, 18 U.S.C. § 922(g) (1); he argues that evidence of the gun he carried in his belt should have been suppressed.

The initial encounter between Farmer and the officer was entirely consensual. The officer approached Farmer and a companion in a public place and asked them to answer a few questions. The district court determined that a reasonable person in Farmer's position would have felt free to leave; this finding is not clearly erroneous. See United States v. Erwin, 803 F.2d 1505, 1508 (9th Cir. 1986). The encounter did not implicate the Fourth Amendment. Florida v. Bostick, 111 S. Ct. 2382, 2386 (1991).

The search of Farmer pending confirmation of the arrest warrant has no constitutional dimension because it uncovered no evidence, as the officer terminated the search before finding the gun. The search that revealed the weapon occurred only after the arrest warrant was confirmed. That search was valid as a search incident to arrest. See Chimel v. California, 395 U.S. 752 (1969); see also United States v. Potter, 895 F.2d 1231, 1234 (9th Cir.) (search incident to arrest may precede formal arrest), cert. denied, 110 S. Ct. 3247 (1990). The gun was therefore properly admitted into evidence.

AFFIRMED.