                                                                               FILED
                            NOT FOR PUBLICATION                                AUG 30 2011

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-10351

              Plaintiff - Appellee,              DC No. 2:09-cr-00207-RLH-PAL

  v.
                                                 MEMORANDUM*
 MICHAEL PAUL PALUMBO,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Roger L. Hunt, District Judge, Presiding

                        Argued and Submitted July 19, 2011
                            San Francisco, California

Before:       TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior
              District Judge.**

       Defendant Michael Paul Palumbo (“Palumbo”) appeals his jury conviction

for being a felon in possession of a firearm, in violation of 19 U.S.C. §§ 922(g) and

924(a); possessing with intent to distribute a controlled substance, in violation of

       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       * **
            The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(viii); and possession of a firearm in

relation to or in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §

924(c)(1)(A). Palumbo contends that (1) the district court erred in denying the

motion to suppress evidence resulting from his arrest because the officers did not

have probable cause to arrest him, and (2) the district court committed plain error

in finding that the search of Palumbo’s vehicle was a legitimate inventory search

pursuant to an arrest. For the reasons stated herein, we affirm.

      Turning first to the denial of the motion to suppress, we review a district

court’s denial of a motion to suppress evidence de novo, but review its underlying

factual findings for clear error. United States v. Summers, 268 F.3d 683, 686 (9th

Cir. 2001). Palumbo contends that the district court erred in denying the motion to

suppress evidence obtained in connection with his arrest because the officers did

not have probable cause to arrest him. Without reaching whether the officers had

probable cause to arrest Palumbo before seeing his handgun, we conclude that the

officers had reasonable suspicion to justify a investigatory stop pursuant to Terry v.

Ohio, 392 U.S. 1, 8-10 (1968), and that the officers’ initial approach of Palumbo

constituted a Terry stop, rather than an arrest. After agreeing to meet an

undercover officer who had expressed interest in purchasing a “teener” -- street

slang for 1/16 ounce of methamphetamine -- officers observed Palumbo circling


                                          2
the parking lot of the agreed-upon meeting place and one officer observed Palumbo

engaging in hand-to-hand transactions that he suspected were narcotics

transactions. Given these circumstances, we conclude that the officers had

reasonable suspicion to believe Palumbo was engaged in the distribution of illegal

narcotics.

      With respect to whether the initial stop was an investigatory stop or an

arrest, “[t]here is no bright-line rule to determine when an investigatory stop

becomes an arrest” and “in determining whether stops have turned into arrests,

courts consider the totality of the circumstances.” Washington v. Lambert, 98 F.3d

1181, 1185 (9th Cir. 1996) (citations and internal quotations omitted). “The

standard for determining whether a person is under arrest is not simply whether a

person believes that he is free to leave.” United States v. Bravo, 295 F.3d 1002,

1009 (9th Cir. 2002) (citation omitted). “[I]ntrusive measures may convert a stop

into an arrest if the measures would cause a reasonable person to feel that he or she

will not be free to leave after brief questioning—i.e., that indefinite custodial

detention is inevitable.” United States v. Guzman-Padilla, 573 F.3d 865, 884 (9th

Cir. 2009) (citation omitted). Here, while more than one police officer approached

Palumbo and ordered him to step out of his vehicle, these measures would not

cause a reasonable person to believe that “indefinite custodial detention was


                                           3
inevitable.” Since Officer Bourque did not draw his handgun until after seeing a

gun in Palumbo’s pocket, we conclude that Palumbo was not put under arrest until

after the officers saw a handgun in Palumbo’s pocket. Once the officers observed

Palumbo’s gun, they clearly had probable cause to arrest him. We thus conclude

that the evidence derived from Palumbo’s arrest was properly admitted at trial.

      Turning to the argument that the district court committed plain error in

concluding that the search of Palumbo’s vehicle was a legitimate inventory search,

we conclude that Palumbo waived his right to challenge the inventory search and is

thus not entitled to have this issue reviewed at all, not even for plain error. See

United States v. Wright, 215 F.3d 1020, 1026 (9th Cir. 2000) (“By failing to

comply with Rule 12, [the defendant] waived any dispute ... and placed the issue

beyond this court’s ability to review for plain error.”). In any case, we conclude

that the district court did not commit plain error because there is nothing to suggest

that the impoundment of Palumbo’s rental vehicle was improper or contrary to

police policy.

      We have considered the appellant’s additional arguments and find them to

be without merit.

      AFFIRMED.




                                           4
