United States of America, Plaintiff-appellee, v. Albert Bruce Neal, Defendant-appellant, 92 F.3d 1194 (9th Cir. 1996)

MEMORANDUM^* 

On April 12, 1996 we remanded this case for a "factual determination whether Neal voluntarily exited the car prior to any contact with the police, as he claims in his affidavit or whether, as the officer asserted in his testimony, the officer had turned on his lights and sirens prior to the entry of Neal's car into the parking lot, thus signaling Neal to pull over." On remand, the judge determined that the "defendant pulled over into the apartment complex parking lot in response to Officer Bernasconi's direction when the officer, who was immediately behind the defendant's car, activated his siren and overhead emergency lights."

We conclude that the judge's factual finding is not clearly erroneous.¹  In light of the judge's factual finding, we now affirm his decision not to suppress the evidence seized from Neal's car because the evidence was seized as part of a legitimate search incident to arrest. We also conclude, for reasons we explained in our April 12th disposition, that the district court did not violate Neal's Fifth Amendment rights in declaring that he was ineligible for sentencing under the safety valve legislation, 18 U.S.C. § 3553(f). Accordingly, we also affirm Neal's sentence.

AFFIRMED.