981 F.2d 470 (10th Cir. 1992), 92-2006, United States v. Franco

Docket Nº:92-2006.
Citation:981 F.2d 470
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Arnold Ira FRANCO, Defendant-Appellant.
Case Date:December 14, 1992
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 470

981 F.2d 470 (10th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Arnold Ira FRANCO, Defendant-Appellant.

No. 92-2006.

United States Court of Appeals, Tenth Circuit

December 14, 1992

James Tierney, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., Tara C. Neda, Asst. U.S.

Page 471

Atty., with him on the brief), Albuquerque, NM, for plaintiff-appellee.

Kenneth R. Brown, Salt Lake City, UT, for defendant-appellant.

Before BRORBY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and KELLY, Circuit Judge.

BRORBY, Circuit Judge.

Arnold Ira Franco was convicted of three charges: 1) distribution of less than 500 grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); 2) unlawful carrying of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); and 3) possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a). This is an appeal of only the later two convictions which involve a firearm. Mr. Franco claims the firearm was obtained through an illegal search. The United States contends the firearm was obtained by a legal warrantless search incident to the arrest of Mr. Franco. We agree with the United States and affirm.

I.

Mr. Franco attempted to purchase a handgun from a Dr. Egelman, who operated a business called "Sporting Chance," that sold firearms. Dr. Egelman believed the attempted purchase was an illegal "straw purchase" and refused to sell the firearm. He subsequently notified an agent of the Alcohol, Tobacco and Firearms Department of the attempted purchase, and the agent initiated an investigation.

By prior arrangement between Dr. Egelman and the agent, Dr. Egelman introduced the agent (acting in an undercover capacity) to Mr. Franco. In a series of meetings, Mr. Franco and the agent arranged that the agent would provide to Mr. Franco a silenced pistol in exchange for cocaine that Mr. Franco would obtain and deliver to the agent.

Mr. Franco met with the agent in a parking lot. The agent arrived in an undercover Government truck, and Mr. Franco arrived in his vehicle. Mr. Franco parked his vehicle in close proximity to the agent's and entered the agent's truck. In a taped conversation, Mr. Franco informed the agent that he was "very well covered."

Mr. Franco then exited the agent's truck, opened the driver's door of his vehicle, leaned down into the driver's side of the passenger compartment, and then returned to the agent's truck. Mr. Franco handed the agent a plastic bag containing cocaine. After the cocaine was delivered, an unidentified van drove into the parking lot. The van apparently frightened Mr. Franco, and he exited the agent's truck and sat in his vehicle. After the van exited the parking lot, Mr. Franco returned to the agent's truck and the agent gave Mr. Franco a pistol in exchange for the cocaine. The agent gave a...

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