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                                 No. 96-2457WA
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United States of America,              *
                                       *
                 Appellee,             *
                                       *   Appeal from the United States
     v.                                *   District Court for the Western
                                       *   District of Arkansas.
Jonathan Harold Peyton,                *
                                       *
                 Appellant.            *
                                 _____________

                         Submitted:   December 10, 1996

                           Filed: March 12, 1997
                                 _____________

Before FAGG, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
                              _____________


FAGG, Circuit Judge.


     After Jonathan Harold Peyton acknowledged there was a gun in the
vehicle he was driving, police found the gun, arrested Peyton, searched his
vehicle, and discovered methamphetamine and thousands in cash.         A jury
convicted Peyton of possession of methamphetamine with intent to distribute
and carrying a firearm in relation to a drug trafficking crime.     On appeal,
Peyton challenges the validity of the search, the denial of his motion for
a mistrial, and the sufficiency of the evidence.      We affirm.


     Hot Springs, Arkansas police stopped Peyton and a passenger because
the El Camino Peyton was driving had no license plates.             Shining a
flashlight into the vehicle, the officer spotted a pistol holster under the
driver's seat.   Peyton admitted there was a gun in the car.       The officer
retrieved a loaded pistol from under the passenger seat and arrested Peyton
for carrying a weapon.    Deciding to have the El Camino towed, the officer
conducted an inventory
search and discovered 38.57 grams of methamphetamine in an Arkansas Bank
and Trust bag behind the driver’s seat and $6,650 in currency underneath
the seat.      A search of Peyton himself turned up $4,350 more.


     The district court denied Peyton's pretrial motion to suppress the
drugs and cash.      The district court also ruled that, to prove intent, the
Government could introduce evidence police had stopped Peyton on a second
occasion and had again found drugs, cash, and a gun.               See Fed. R. Evid.
404(b).     In its opening statement, the Government referred to the second
stop and the incriminating items then found.             After the officer who had
stopped Peyton the second time began to testify, but before he named Peyton
as the driver, it became clear the second stop was illegal.             The district
court promptly ordered the officer’s testimony stricken and told the jury
to disregard it, but denied Peyton's motion for a mistrial.                      Having
generally instructed the jury opening statements are not evidence, the
district court offered to give the jury a specific curative instruction on
the Government's opening statement.         Peyton declined the offer.


     We take up first the district court's denial of Peyton's motion to
suppress.      Peyton failed to show the inventory search of his El Camino was
unlawful.      See United States v. Cummins, 

, 503 (8th Cir. 1990).
Furthermore, if the presence of a loaded gun in Peyton’s vehicle authorized
police    to    arrest   Peyton,   the   search   of   the   El   Camino’s    passenger
compartment was also proper as a search incident to arrest.                  See United
States v. Maza, 

, 1396-97 (8th Cir. 1996), cert. denied, 

(1997).      In Arkansas, it is illegal to carry a handgun as a
weapon, see Ark. Code Ann. § 5-73-120 (Michie 1993), and a loaded pistol
found under the front seat of a vehicle is presumed to be carried as a
weapon, see Clark v. State, 

, 678 (Ark. 1972).                 Because a
reasonable person in the officer’s position could have believed Peyton was
breaking the law, see United States v. Kalter,




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, 1168 (8th Cir. 1993), Peyton’s arrest was supported by
probable cause.       The district court correctly denied Peyton's motion to
suppress.


     Next, the district court did not abuse its discretion when it denied
Peyton's motion for a mistrial.          See United States v. Hernandez, 

, 458 (8th Cir. 1985).             While the Government should have made sure
Peyton’s second stop was lawful before telling the jury about the stop in
its opening statement and putting the arresting officer on the stand, the
district court remedied any potential prejudice.                 See United States v.
Dunlap, 

, 825 (8th Cir. 1994) (prejudice erased when jury told
attorneys’ statements are not evidence); United States v. Nelson, 

, 897 (8th Cir. 1993) (instructing jury to disregard testimony dispels
prejudice).       Besides, the evidence of Peyton’s guilt was compelling, see

,    and    Peyton   refused   an   offered    curative
instruction.


     We also reject Peyton's contention he was not carrying a firearm in
a drug trafficking crime.         See United States v. Rhodenizer, No. 96-2343,

, at *2 (8th Cir. Feb. 5, 1997) (transporting firearm in
passenger compartment of vehicle that contains drugs is carrying firearm
within meaning of 18 U.S.C. § 924(c)(1)); United States v. Willis, 

, 1378-79 (8th Cir.) (same), cert. denied, 

(1996).
Finally, the evidence was sufficient to show Peyton knowingly possessed the
methamphetamine because a reasonable jury could find Peyton "had knowledge
of, and control over, the drugs."            See 

.       Peyton was
driving a vehicle that contained drugs.            Police found the methamphetamine
behind the driver’s seat in an Arkansas Bank and Trust bag, Peyton had a
business account at that bank, and Peyton’s wallet contained two deposit
slips from that bank.


     We affirm Peyton's conviction.




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A true copy.


     Attest:


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




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