Roman

MEMORANDUM ***

John Roman conditionally pled guilty to possession of a firearm by a felon in violation of 18 U.S.C. §§ 922 (g)(1), 924(a)(2). Roman appeals the district court’s denial of his motion to suppress, arguing that the search of his backpack was not justified as a search incident to arrest.

Even if the search was not a proper search incident to arrest, it is not clear how that would require reversal. The magistrate judge, whose findings the district court affirmed, not only held that the search was a valid search incident to arrest, but also (contrary to Roman’s representation to this court) explicitly found that Roman voluntarily consented to the search of his backpack. Roman does not contest the latter finding on appeal and it alone supports the legality of the search. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219, 222 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973); United States v. Lindsey, 877 F.2d 777, 783 (9th Cir.1989) (a person in custody is capable of giving valid consent to search).

*701 In any event, the search was legitimate as a search incident to arrest. Roman argues that the search was not justified by a need to protect officer safety or to preserve…