UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.                             No. 00-4779
ERIC ATKINS,
                Defendant-Appellee.
                                        
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
            Richard L. Williams, Senior District Judge.
                           (CR-00-279)

                      Argued: May 10, 2001

                      Decided: July 31, 2001

     Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.



Reversed and remanded by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Stephen Wiley Miller, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellant. Isaac
Scott Pickus, JACKSON, PICKUS & ASSOCIATES, P.C., Rich-
mond, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United
States Attorney, David Lassiter, Jr., Special United States Attorney,
Richmond, Virginia, for Appellant.
2                      UNITED STATES v. ATKINS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Pursuant to 18 U.S.C.A. § 3731 (West 2000), the Government
appeals a decision of the district court suppressing a handgun and
other evidence seized by police in connection with the arrest of Eric
Atkins. We reverse and remand for further proceedings.

                                  I.

  Around midnight on June 15, 2000, four Richmond police officers
were riding in a marked patrol car in an area of town known for its
drug traffic. The officers observed a white Cadillac drive by and dis-
covered the car was registered to Tiny Porter, a suspected drug dealer.
Atkins was driving and a man later identified as Queen sat in the pas-
senger seat.

   Atkins parked the Cadillac at a street corner and remained inside
the car with Queen. The marked patrol car stopped nearby, and two
of the officers, Detectives John O’Connor and Michael Musselwhite,
approached the car on foot. As Detectives O’Connor and Michael
neared the vehicle, Atkins pulled away, drove approximately 200 feet
down the street, and parked again. Atkins and Queen got out of the
car, and began walking toward an apartment building. According to
Atkins, he locked the doors to the vehicle when he got out. Detectives
O’Connor and Musselwhite, still on foot, reached Atkins and Queen
when they were ten or fifteen feet away from the car. Atkins and
Queen consented to speak with the officers.

   While Atkins and Queen were talking to Detectives O’Connor and
Musselwhite, the two remaining officers, Lieutenant Michael Shamus
and Sergeant John O’Kleasky, approached the Cadillac and looked
through the windows. With the aid of a flashlight, Lieutenant Shamus
and Sergeant O’Kleasky noticed a portion of a handgun on the floor-
                       UNITED STATES v. ATKINS                        3
board of the car, protruding from underneath the passenger’s seat.
Sergeant O’Kleasky testified that "a firearm . . . was sticking out from
underneath the passenger seat of that vehicle. Obviously the interior
was dark, it was nighttime. I had to illuminate the interior with my
flashlight, looked down under the seat," J.A. 67-68, and observed that
"[p]art was sticking out from under the seat." J.A. 68. Sergeant
O’Kleasky stated that it was readily apparent that the object sticking
out from under the passenger’s seat was a handgun.

   At that point, Sergeant O’Kleasky used a non-verbal signal to alert
Detective O’Connor that O’Kleasky intended to handcuff Queen and
that O’Connor should be prepared to handcuff Atkins. Sergeant
O’Kleasky then placed handcuffs on Queen, and Detective O’Connor
handcuffed Atkins. After he handcuffed Queen, O’Kleasky asked
Queen whether he was a convicted felon and Queen answered affir-
matively. O’Kleasky and O’Connor testified that Queen was placed
under arrest only after he acknowledged his felony status.

   The Cadillac was then searched following the arrest of Queen.
Atkins testified that the officers took the keys from his jacket pocket
without his permission when he was handcuffed. The officers located
a second firearm completely hidden underneath the driver’s seat.
Atkins and Queen denied knowledge that the weapons were in the
Cadillac. Atkins, still in handcuffs, was placed under arrest and
searched. The search of Atkins’ person yielded cocaine base, mari-
juana, $3,000 in cash, a pager, and a cellular telephone.

   Atkins was indicted on two possession charges, two charges of
possession with intent to distribute, and one charge of possession of
a firearm in furtherance of a drug trafficking crime in violation of 18
U.S.C.A. § 924(c). Additionally, the Government sought the forfei-
ture of the approximately $3,000 in cash.

   Atkins moved to suppress all of the items seized from Atkins and
the Cadillac during the officers’ search. The district court found as a
fact that Queen was arrested before he revealed that he was a con-
victed felon. Thus, the district court concluded that there was no prob-
able cause to arrest Queen and that any evidence seized during the
search of the Cadillac after Queen’s arrest had to be suppressed.
Moreover, the district court concluded that the officers did not have
4                       UNITED STATES v. ATKINS
probable cause to arrest Atkins or even reasonable suspicion to detain
him under Terry v. Ohio, 

(1968). Accordingly, the district
court determined that the search of Atkins’s person was impermissi-
ble and suppressed all of the evidence recovered from that search as
well.

                                    II.

                                    A.

   The Government contends that the officers had probable cause to
arrest Queen and Atkins as a result of the partially concealed firearm
under the passenger seat of the Cadillac. Virginia law provides that
"[i]f any person carries about his person, hidden from common obser-
vation, . . . any pistol, revolver, or other weapon . . . he shall be guilty
of a Class 1 misdemeanor." Va. Code Ann. § 18.2-308(A). A weapon
is carried "about the person" if "it is so connected with the person as
to be readily accessible for use or surprise if desired." Schaaf v. Com-
monwealth, 

, 575 (Va. 1979). A pistol that is trans-
ported in a locked console or under the floormat of a car qualifies as
one that is carried about the person. See Leith v. Commonwealth, 

, 153-54 (Va. Ct. App. 1994); Watson v. Commonwealth,

, 429-30 (Va. Ct. App. 1993).

   Atkins argues that the officers could not have had probable cause
under § 18.2-308(A) of the Virginia Code because the weapon was
not concealed. In support, Atkins relies primarily on the statement of
Sergeant O’Kleasky that the portion of the weapon protruding from
under the passenger’s seat was "in plain view" such that the nature of
the object was readily apparent to the officers. Indeed, as Atkins
points out, openly carrying a firearm is not illegal per se in Virginia.
See Christian v. Commonwealth, 

, 484 (Va. Ct. App.
2000) (en banc) (Benton, J., dissenting) ("[I]f a person desires to
transport a firearm from his automobile to his residence, the firearm
must be openly displayed.").

   Here, however, the weapon observed by the officers was not
openly displayed. Rather, only a portion of the firearm was visible
from under the passenger’s seat, i.e., only part of the handgun was "in
plain view." The statute requires that the weapon be "hidden from
                       UNITED STATES v. ATKINS                        5
common observation." Va. Code Ann. § 18.2-308(A). A firearm is
hidden from common observation if it is "hidden from all except
those with an unusual or exceptional opportunity to view it." Main v.
Commonwealth, 

, 402 (Va. Ct. App. 1995) (en banc).
That O’Kleasky was positioned so that he saw part of the weapon pro-
truding from underneath the seat did not make the firearm exposed to
common observation.

   We agree with the Government that the facts in this case amounted
to probable cause to arrest Queen and Atkins for violating Va. Code
Ann. § 18.2-308(A). The probable cause requirement for a warrant-
less arrest is satisfied when there are "‘facts and circumstances within
the officer’s knowledge that are sufficient to warrant a prudent per-
son, or one of reasonable caution, in believing, in the circumstances
shown, that the suspect has committed, is committing, or is about to
commit an offense.’" United States v. Gray, 

, 769 (4th
Cir. 1998) (en banc) (quoting Michigan v. DeFillippo, 

,
37 (1979)). "While probable cause requires more than ‘bare suspi-
cion,’ it requires less than that evidence necessary to convict." 

of this case, an officer could have reason-
ably believed that Atkins, who was driving and exercising control
over the Cadillac, or Queen, who was sitting in the front passenger’s
seat, was carrying a concealed weapon in violation of Virginia law.
The weapon protruding from under the front passenger seat was not
visible except to those who, like Sergeant O’Kleasky, had an excep-
tional opportunity to view it.

   In concluding that the partially obscured handgun gave the officers
probable cause to arrest Atkins and Queen, we are persuaded by the
reasoning of the Ninth Circuit Court of Appeals in United States v.
Thornton, 

(9th Cir. 1983). Thornton held that an officer
had probable cause to arrest the driver of a vehicle for violating an
Idaho concealed weapons law when the officer observed eight inches
of the stock of a sawed-off shotgun jutting from under the front seat.
See 

in Virginia, a weapon qualified as concealed
under Idaho law "if not discernable by ordinary observation." 

Ninth Circuit found that "[a]n officer . . . reasonably could
conclude that a gun carried with only its stock visible was in violation
of [the concealed weapon law]." 

v. ATKINS
   We, too, conclude that the officers could reasonably believe that a
firearm resting partially underneath the front seat of an automobile
constituted a violation of Virginia’s concealed weapon law. Thus, we
hold that there was probable cause to arrest Atkins and Queen for vio-
lating Va. Code Ann. § 18.2-308(A).

                                   B.

   The Government contends that because the officers had probable
cause to arrest Queen and Atkins, they were also within their author-
ity to search the vehicle incident to that arrest. See New York v. Bel-
ton, 

, 460 (1981) ("[W]hen a policeman has made a
lawful custodial arrest of the occupant of an automobile, he may, as
a contemporaneous incident of that arrest, search the passenger com-
partment of that automobile."); see also United States v. McCraw, 

, 228 (4th Cir. 1990) ("Incident to an automobile occupant’s
lawful arrest, police may search the passenger compartment of the
vehicle and examine the contents of any containers found within the
passenger compartment."). "A search incident to an arrest may not
stray beyond the area within the immediate control of the arrestee,"

, because this exception to the warrant require-
ment is based on "the need to remove any weapons that [the arrestee]
might seek to use in order to resist arrest . . . and the need to prevent
the concealment or destruction of evidence," 

quo-
tation marks omitted) (alteration in original).

   Even if the passenger compartment of the Cadillac was not within
the "immediate control" of Atkins and Queen at the time of the arrest
— given that they had vacated the automobile, locked it, and walked
at least ten feet before they encountered the officers — the search was
nevertheless valid under the automobile exception to the warrant
requirement. The partially obscured handgun supplied the officers not
only with probable cause to arrest Atkins and Queen but also "proba-
ble cause to believe contraband or evidence" of criminal activity was
contained in the passenger compartment of the automobile. California
v. Acevedo, 

, 580 (1991).

   Moreover, the search of Atkins’ person incident to his arrest was
permissible. See 

("[A] lawful custodial arrest
creates a situation which justifies the contemporaneous search without
                        UNITED STATES v. ATKINS                           7
a warrant of the person arrested and of the immediately surrounding
area."); United States v. Robinson, 

, 235 (1973) ("It is
the fact of the lawful arrest which establishes the authority to search,
and . . . in the case of a lawful custodial arrest a full search of the per-
son is not only an exception to the warrant requirement of the Fourth
Amendment, but is also a ‘reasonable’ search under that Amend-
ment."). The fact that Atkins was not formally arrested before the
officers took his keys from him and searched the vehicle does not
invalidate the search. A search incident to arrest may precede the for-
mal arrest, provided that "the formal arrest quickly follows the chal-
lenged search" and there is probable cause to arrest at the time of the
search. United States v. Miller, 

, 698 (4th Cir. 1991).

                                    III.

  For the foregoing reasons, we reverse the decision below and
remand for further proceedings.

                                           REVERSED AND REMANDED