                                   ___________

                                   No. 96-2757
                                   ___________

United States of America,              *
                                       *
             Appellee,                 *    Appeal from the United States
                                       *    District Court for the
     v.                                *    District of Minnesota.
                                       *
Martin Robert Czeck,                   *
                                       *
             Appellant.                *


                                   ___________

                    Submitted:     December 10, 1996

                          Filed:   January 30, 1997
                                   ___________

Before BOWMAN and HEANEY, Circuit Judges, and SMITH,1 District Judge.

                                   ___________

BOWMAN, Circuit Judge.


     Martin Czeck was convicted after a jury trial of six crimes relating
to controlled substances and firearms.       On appeal, he raises two Fourth
Amendment issues, and he challenges the sufficiency of the evidence on two
firearms-related counts.    We affirm.


                                       I.


     Pursuing different leads, Minnesota state and Hennepin County law
enforcement officials began in early 1995 to suspect Czeck of distributing
marijuana.    On February 1 and February 16, state officers listened on a
hidden transmitter as informant Theodore Ohm




     1
      The Honorable Ortrie D. Smith, United States District Judge
for the Western District of Missouri, sitting by designation.
twice    purchased   a   quarter-pound    of   marijuana   from    Czeck   at   Czeck's
residence    on   Eleventh   Avenue   South    in   Minneapolis.     Based      on   this
information, officers obtained a search warrant for Czeck's residence,
automobiles, and person.       Several days later, on February 22, Ohm and an
associate purchased an ounce of cocaine from Czeck at his residence.


        Later in the evening of February 22, Czeck left his residence with
his friend James Flores.       Flores drove to his residence on Fifth Avenue
South.     The two men went into the house, and when they came out a few
minutes later, Czeck was carrying a paper bag.             As Flores and Czeck were
driving back in the direction of Czeck's residence, a state police officer
radioed a county sheriff's deputy to stop the car and arrest Czeck.                  When
officers did so, they discovered a pound of marijuana in the paper bag at
Czeck's feet and a number of keys on Czeck's person.


        One officer then asked Flores to drive to a nearby parking lot.
Because this officer had previously received information that Czeck was
storing drugs at Flores's house, he asked Flores for permission to search
the Fifth Avenue house.      Flores agreed and signed a consent form.            During
the search, Flores directed officers to a locked yellow toolbox that he
said belonged to Czeck.      After obtaining a search warrant, officers opened
the toolbox with one of the keys obtained from Czeck, and they discovered
four pounds of marijuana inside.


        Other officers executed the search warrant for Czeck's residence.
On top of the kitchen cabinets, they discovered a .22 caliber pistol and
a .357 Ruger in a wooden box.            The .357 was loaded with hollow-point
bullets, and a box of matching bullets was found elsewhere in the kitchen.
Also nearby were three additional pounds of marijuana and a triple-beam
scale.




                                         -2-
      Finally, based on information from an informant, officers obtained
a search warrant for Czeck's brother's home.        In the basement, they
discovered two fire safes, which they opened with keys taken from Czeck.
The safes contained approximately $135,000 in cash, plus jewelry and coins.


      Czeck was indicted on two counts of distributing, one count of
possessing with intent to distribute, and one count of conspiring to
distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1),
846 (1994); one count of using or carrying a firearm during and in relation
to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (1994); and
one   count of being an armed career criminal (a five-time felon in
possession of firearms), in violation of 18 U.S.C. §§ 922(g)(1), 924(e)
(1994).


      Prior to trial, Czeck moved to suppress the bulk of the physical
evidence against him, contending that the evidence was the fruit of his
unlawful arrest and the unlawful search of Flores's residence.         The
District Court2 denied the motion.   After a four-day trial, the jury found
Czeck guilty on all counts, and the court sentenced him to a total of 360
months in prison.   The court also ordered Czeck to pay a conditional fine
of $125,000, depending on the outcome of forfeiture proceedings in state
court.


                                     II.


                                     A.


      Czeck's initial Fourth Amendment argument is that because the police
unlawfully arrested him in Flores's car without an arrest warrant, the
fruits of the arrest must be suppressed.    Czeck




          2
       The Honorable James M. Rosenbaum, United States District
Judge for the District of Minnesota, adopting the report and
recommendation of The Honorable Franklin L. Noel, Chief Magistrate
Judge for the District of Minnesota.

                                     -3-
concedes that the officers had probable cause to arrest him on the basis
of the two controlled buys.   The narrow question presented here, then, is
whether an arrest warrant is required when police officers with probable
cause to arrest a suspect do so while the suspect is riding in an
automobile on a public street.    We think no arrest warrant is required in
such a situation.


     A warrantless arrest in a public place is valid if the arresting
officer has probable cause.      See United States v. Watson, 423 U.S. 411,
418, 423-24 (1976); cf. Payton v. New York, 445 U.S. 573, 590 (1980)
(holding that arrest in suspect's home ordinarily requires warrant).
Several courts have upheld, without extensive discussion, arrests of
suspects who were in automobiles located in public places.      See United
States v. DeMasi, 40 F.3d 1306, 1312 (1st Cir. 1994), cert. denied, 115 S.
Ct. 947 (1995); Ford v. United States, 352 F.2d 927, 928-29, 933 (D.C. Cir.
1965) (en banc); cf. United States v. Wixom, 460 F.2d 206, 208-09 (8th Cir.
1972) (concluding warrantless arrest was proper; not clear from facts
whether suspects were in car or preparing to get in car at time of arrest).
Czeck cites no authority for the proposition that a car that is in a public
place is not itself a "public place" for purposes of the Watson exception
to the warrant requirement.       Based on the reasoning of other Fourth
Amendment decisions, we believe the opposite is true:     when a suspect is
in a car that is in a public place (and the suspect is thus at least
partially visible to the public), an officer with probable cause may arrest
the suspect without a warrant.     See California v. Acevedo, 500 U.S. 565,
579-80 (1991) (explaining scope of permissible warrantless searches of
cars); United States v. Chadwick, 433 U.S. 1, 12 (1977) (recognizing "the
diminished expectation of privacy which surrounds the automobile"); United
States v. Santana, 427 U.S. 38, 42 (1976) (holding that suspect standing
in doorway of home is in public place); United States v. Hoyos, 892 F.2d
1387, 1393-94 (9th Cir. 1989) (holding that suspect looking over backyard
fence at police is in public place), cert. denied, 498 U.S. 825 (1990);
United




                                     -4-
States v. Varkonyi, 645 F.2d 453, 457-58 (5th Cir. Unit A May 1981)
(holding that suspect visible through business yard fence is in public
place).     We conclude that the warrantless arrest was proper.


       It then follows that the search of the paper bag at Czeck's feet was
authorized as a search incident to Czeck's arrest.               See New York v. Belton,
453 U.S. 454, 460-61 (1981) (holding that search incident to arrest may
include contents of any container within passenger compartment); United
States v. Arias-Cardenas, 36 F.3d 36, 38 (8th Cir. 1994).


                                            B.


       Czeck also challenges the search of Flores's residence and the
subsequent discovery of the yellow toolbox on two related grounds:                      the
voluntariness of Flores's consent and the authority of Flores to consent
to the search of the particular room at issue here.


       We see no error in the District Court's finding that Flores's consent
to   the    search   was    voluntary.3       The   government     has   the   burden    of
demonstrating voluntariness by a preponderance of the evidence, and we will
reverse only on a showing of clear error.           See United States v. Miller, 20
F.3d   926,   930    (8th    Cir.),   cert.      denied,   115    S.   Ct.   226   (1994).
Voluntariness depends on the totality of the circumstances, see Schneckloth
v. Bustamonte, 412 U.S. 218, 227 (1973), and we have previously identified
eleven factors that inform the inquiry, see United States v. Chaidez, 906
F.2d 377, 381 (8th Cir. 1990).            The essence of Czeck's argument is that
Flores was in custody when he purportedly consented to the




        3
       A more recent case holds that the relevant touchstone is
whether the officer reasonably believed that the consent to search
was voluntary. See United States v. Sanchez, 32 F.3d 1330, 1335
(8th Cir. 1994), cert. denied, 115 S. Ct. 1119 (1995). Because the
evidence at the suppression hearing was not developed along this
line, we will limit our review to the District Court's finding that
the consent was in fact voluntary.

                                           -5-
search and that the presence of multiple police cars and armed officers
caused Flores to acquiesce in the officers' request.           The custodial status
of the consenting party is not determinative, however.          See Miller, 20 F.3d
at 930.       Even if Czeck is correct that Flores was in custody at the time
of his consent--a question we need not determine here--the District Court
did not clearly err in concluding that Flores's consent was voluntary, in
light of Flores's age, sobriety, and experience with the criminal justice
system, as well as the facts that Flores was detained only briefly, did not
rely on any police misrepresentations, was in a public place when he
consented, aided the police in the search, and (most importantly) signed
a consent form clearly explaining that he had the right to refuse consent.
See Chaidez, 906 F.2d at 381; United States v. Hathcock, No. 96-1501, slip
op. at 8-9 (8th Cir. Jan. 9, 1997).


      Nor do we believe that the District Court erred in finding that
Flores       had authority to consent to the search of the Fifth Avenue
residence.      Flores testified at the suppression hearing that he rented a
room to Czeck--the bedroom in which the yellow toolbox was found--and that
he   never     entered   the   room   without   Czeck's   permission.   Czeck   also
introduced evidence that two police officers indicated in search warrant
applications that they had been told by informants that Czeck rented a room
from Flores.      The government countered with evidence that Flores referred
to the room as his own bedroom, that the door to the room was unlocked, and
that all of the contents of the room other than the toolbox appeared to
belong to Flores (utility bills in Flores's name, an address book that
included Czeck's phone number, and clothing that was far too small to fit
Czeck, among other items).4




         4
       Czeck's counsel relied on this evidence at trial when he
changed course and suggested that the toolbox, like the other items
in the room, belonged to Flores, not Czeck.

                                          -6-
       The government may obtain consent for a warrantless search from the
defendant or "from a third party who possesse[s] common authority over or
other sufficient relationship to the premises or effects sought to be
inspected."    United States v. Matlock, 415 U.S. 164, 171 (1974).                The
relevant inquiry is whether the facts available would have justified a
reasonable officer in the belief that the consenting party had authority
over the premises.       See Illinois v. Rodriguez, 497 U.S. 177, 188 (1990).
We review the District Court's determination for clear error.             See Iron
Wing v. United States, 34 F.3d 662, 665 (8th Cir. 1994).


       We note first that the District Court expressly found Flores's
testimony not credible to the extent that Flores suggested he did not have
authority to consent to the search.         Even if we put that finding to one
side, however, we recognize that nothing Flores did or said at the time of
the search would have indicated to a reasonable officer that Flores was
without authority to consent to the search.          In fact, Flores referred to
the room at issue as his own bedroom and led the officers into it.           Czeck
must therefore rely on the fact that several of the officers involved in
the search evidently had information that Czeck rented a room from Flores.
But in the circumstances of this case, where everyone involved believed
that   Czeck   resided    on   Eleventh   Avenue,   the   officers'   knowledge    is
consistent with Flores's having common authority over the premises.                A
reasonable officer could have concluded (correctly, it seems) that Czeck
paid Flores money for the privilege of storing drugs in Flores's house but
that Flores still retained common authority over the whole of the house.
Cf. id. (concluding that it was not unreasonable to believe that consenter
had authority to consent to search of house, even though she had no key and
had to climb in through window); United States v. Brokaw, 985 F.2d 951, 954
(8th Cir.) (holding that it was reasonable to believe that landowner could
consent to search of trailer, even though defendant was inside trailer),
cert. denied, 510 U.S. 913 (1993); United States v. Englebrecht, 917 F.2d
376,




                                          -7-
377-78 (8th Cir. 1990) (holding that it was reasonable to believe that
"cohabitant/employee" of defendant could consent to search of cars parked
near home out of which auto salvage business operated), cert. denied, 499
U.S. 912 (1991).       We conclude that the District Court correctly denied
Czeck's motion to suppress.


                                        III.


                                         A.


     Czeck also challenges the sufficiency of the evidence to show that
he used or carried a firearm during and in relation to a drug trafficking
crime.    We view the evidence in the light most favorable to the jury's
verdict, and we will "reverse for insufficient evidence only if no
reasonable jury could have found the defendant guilty beyond a reasonable
doubt."   United States v. Roach, 28 F.3d 729, 736 (8th Cir. 1994).


     This case went to trial shortly after the Supreme Court decided
Bailey v. United States, 116 S. Ct. 501 (1995).               In Bailey, the Court
restricted the meaning of "use" of a firearm to situations in which the
defendant   actively    employs   a   firearm,      which   includes   "brandishing,
displaying, bartering, striking with, and most obviously, firing or
attempting to fire, a firearm."       Id. at 508.    But the Court also added that
"a reference to a firearm calculated to bring about a change in the
circumstances of the predicate offense is a `use,' just as the silent but
obvious and forceful presence of a gun on a table can be a `use.'"             Id.


     Both officers who listened in on the controlled buy on February 16
testified that they heard Czeck mention that he had a .357 available if his
neighbors did not care for his drug-peddling activities.          Theodore Ohm, the
informant who made the controlled purchase, testified that he did not
recall that Czeck mentioned a gun on February 16, but the jury nevertheless
could have credited




                                        -8-
the testimony of the officers.    Ohm also testified about another occasion
on which he purchased cocaine from Czeck.    When Ohm arrived, a loaded .357
was on a table in Czeck's living room.     Later, Czeck, who had been smoking
crack cocaine, walked around the house with the gun in his hands, looking
out the windows and acting nervous.      On another occasion, Ohm testified,
Czeck mentioned that he was not worried about being robbed of money or
drugs because he had several guns with which to protect himself; Czeck then
took the .357 down from on top of the kitchen cabinets and showed it to
Ohm.   Ohm testified that, after seeing the weapon, he was aware that he was
dealing with an armed individual, and he stated that that knowledge
affected how he dealt with Czeck.   Another informant, Leonard Kahn, related
a similar incident in which Czeck made reference to a firearm during a drug
sale; Kahn also suggested that the reference to the firearm affected his
dealings with Czeck.


       We believe this evidence supports the government's theory that
Czeck's frequent references to his guns during drug transactions were
"calculated to bring about a change in the circumstances" of the underlying
drug offenses.   Id.   By making it plain to his customers that he was armed
and willing to defend his business, Czeck discouraged them from any attempt
to rob him and effectively may have warned them that negotiation over the
price and quality of his wares was not encouraged.        Recent post-Bailey
decisions have confirmed that this type of intimidating reference to a
weapon constitutes "use" of the weapon.       See United States v. Jones, 84
F.3d 1206, 1211 (9th Cir.) (holding that defendant's claim to bank teller
that he had a gun and fact that gun was found in his possession were
sufficient to constitute use), cert. denied, 117 S. Ct. 405 (1996); United
States v. Davis, 76 F.3d 311, 315 (9th Cir. 1996) (holding that showing gun
to accomplice to intimidate him was sufficient to constitute use); Polanco
v. United States, 935 F. Supp. 372, 375 (S.D.N.Y. 1996) (concluding that
presence of nearby co-conspirator with gun in waistband of pants was
sufficient to constitute use); cf. Beal v. United States, 924 F. Supp. 913,
916




                                     -9-
(D. Minn. 1996) (holding that "macho braggadocio" in telephone conversation
with co-conspirator about defendant's willingness to use firearms was
insufficient to constitute use).


                                              B.


     Finally, Czeck challenges the sufficiency of the evidence to show
that he possessed a firearm, a predicate of his conviction as an armed
career    criminal.     We    think    the    evidence   detailed   in    the   foregoing
discussion is sufficient to show that Czeck actually possessed the .357,
but there is also ample evidence of constructive possession.               Czeck argues
that the Eleventh Avenue residence was not his home but the home of his
girlfriend, and the evidence does show that the utilities were in her name.
However, during their search of the home, officers discovered the deed to
the premises in Czeck's name and Czeck's dental records showing the
Eleventh Avenue address.       After his arrest, Czeck had officers take him to
the Eleventh Avenue home so he could retrieve a special breathing apparatus
he needed for sleeping.       Several drug customers indicated that the Eleventh
Avenue house was Czeck's home, and police surveillance indicated that Czeck
was there early in the morning and late at night.                   This evidence is
certainly sufficient to demonstrate that the Eleventh Avenue home was
Czeck's residence and that he had "dominion over the premises."                   United
States v. Boykin, 986 F.2d 270, 274 (8th Cir.), cert. denied, 510 U.S. 888
(1993).     Even aside from the evidence of his actual possession of the
firearms,    then,    there   was     sufficient    evidence   of   his    constructive
possession of them to support the conviction.             See id.


                                             IV.


     Czeck's pro se motion to supplement the record is granted.                   We have
reviewed the arguments in his pro se memorandum and have concluded that
they are meritless.      The judgment of the District Court is affirmed.




                                             -10-
A true copy.


     Attest:


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




                            -11-
