United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 9, 2011
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
v. No. 09-6176
JOHN E. KITCHELL,
UNITED STATES OF AMERICA,
v. No. 09-6206
EDWARD KATSUAKI SHIGEMURA,
Appeal from the United States District Court for the Western District of Oklahoma
(D.C. No. 5:09-CR-00091-C)
William H. Campbell, Oklahoma City, Oklahoma, for Defendant-Appellant John E.
William D. Lunn, Tulsa, Oklahoma, for Defendant-Appellant Edward Katsuaki
Chris M. Stephens, Assistant United States Attorney (Sanford C. Coats, United States
Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee. Before GORSUCH and EBEL, Circuit Judges, and ARGUELLO, District Judge.1
EBEL, Circuit Judge.
Defendants-Appellants Edward Katsuaki Shigemura and John Kitchell were
arrested and charged with possessing firearms following a prior felony conviction after
highway patrol officers stopped and searched their rental vehicle and found six firearms
in the trunk. The district court denied the appellants' joint motion to suppress evidence
seized during the stop, and they were convicted after a jury trial. In sentencing Mr.
Shigemura, the court applied a sentencing enhancement under U.S.S.G. § 2K2.1(b)(6) for
possession of a firearm in connection with another felony offense.
On appeal, Mr. Shigemura challenges the district court's denial of the motion to
suppress on a number of grounds. He also challenges the district court's application of
the sentencing enhancement. Mr. Kitchell too challenges the denial of the motion to
suppress, and further contends that the government did not present sufficient evidence to
The Honorable Christine M. Arguello, United States District Judge for the
District of Colorado, sitting by designation.
[End Page 2]
support the jury's verdict. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a), we affirm. I. BACKGROUND
A. Factual Background
On February 24, 2009, Oklahoma Highway Patrol ("OHP") Trooper Cody Hyde
was parked on Interstate 44 near the turnpike toll plaza in Stroud, Oklahoma. As part of
Trooper Hyde's work with the Special Operations Division, he and other troopers were
conducting "special emphasis" in the area, intended to enforce general Oklahoma traffic,
public health, and criminal statutes. At some point between 11 p.m. and midnight,
Trooper Hyde believed he saw a red passenger car fail to activate its turn signal as it
exited the two main lanes of the turnpike in order to enter into the cash lanes of the toll
plaza. Trooper Hyde believed that the driver of the car, Mr. Shigemura, again failed to
use a turn signal as he crossed over at least two more lanes approaching the toll plaza.
Mr. Shigemura needed to cross these toll plaza lanes because each of the four cash toll
booths was closed except for the last one on the very right side of the roadway.
Based on Trooper Hyde's belief that Mr. Shigemura had violated Oklahoma traffic
laws by making an "unsafe lane change," Trooper Hyde pulled over the vehicle after it
exited the toll plaza. (United States v. Shigemura, Record on Appeal ("SROA"), vol. iii,
pt. i at 22:21-24.) Once Trooper Hyde activated his emergency lights, a dashboard
[End Page 3]
camera on his patrol car activated and recorded the subsequent traffic stop, including both
the exterior and interior of the car.
[End Page 1. Trooper Hyde's Initial Interaction with Mr. Shigemura (Supp.]
SROA, vol. iii ("Video") at 0:27-1:39.)2
After Trooper Hyde pulled over the vehicle, he approached the passenger side.
Mr. Kitchell was in the back seat of the car, and a third occupant, John Sprous, was in the
front passenger seat. Trooper Hyde asked Mr. Shigemura for his driver's license and
proof of insurance. Mr. Shigemura told Trooper Hyde that the car was a rental, so Hyde
asked for a copy of the rental agreement. Mr. Shigemura produced his driver's license
and a copy of the rental agreement. Trooper Hyde explained why he had stopped the car,
and asked Mr. Shigemura to come back to the patrol car so that Hyde could issue Mr.
Shigemura a warning.
[End Page 2. Trooper Hyde's First Interaction with Mr. Shigemura in the Patrol]
Car (Video at 1:40-7:24.)
Once inside the patrol car, Trooper Hyde explained that he pulled Mr. Shigemura
over because Mr. Shigemura did not use his signal when he pulled in to pay the toll and
when he crossed over additional lanes to reach the open toll booth. Mr. Shigemura
replied, "You're right. I didn't do it." Trooper Hyde then explained that he was going to
write Mr. Shigemura a warning, and that there would be no fine.
The approximate duration of each interaction of the detention is provided for the
purposes of assessing Mr. Shigemura's contention that the duration and scope of the
detention was unreasonable under the Fourth Amendment. See infra Part II.A.3.
[End Page 4]
As he was writing the warning notice, Trooper Hyde asked Mr. Shigemura where
Mr. Shigemura was headed. Mr. Shigemura replied, "Oklahoma City." When Trooper
Hyde asked what was in Oklahoma City, Mr. Shigemura responded, "Some friends, that's
all." Trooper Hyde then asked more specifically, "Who are you going to see down
there?" After a pause, Mr. Shigemura replied, "Well . . . they live in Oklahoma City."
Trooper Hyde followed up by asking, "Who is it?" At that point, Mr. Shigemura stated,
"Just an old friend of mine, old girlfriend." When Trooper Hyde asked if Mr. Shigemura
was going to stay with his friend, Mr. Shigemura replied that he was, and when Hyde
followed up by asking what his two passengers were going to do (i.e., where they were
going to stay), Mr. Shigemura replied, "I don't know. They're just riding."
Trooper Hyde then asked who was riding with Mr. Shigemura, and Mr. Shigemura
identified Mr. Kitchell and Mr. Sprous by name. Later, Mr. Shigemura volunteered that
Mr. Sprous used to live in Oklahoma City and that Mr. Sprous was coming out to look
for work there. Trooper Hyde then examined the car rental agreement and noticed that
the vehicle was leased to Mr. Kitchell, and that Mr. Shigemura was not listed as an
authorized driver. Mr. Shigemura assured Trooper Hyde that both he and Mr. Kitchell
had adequate insurance. Trooper Hyde and Mr. Shigemura next discussed this issue for
approximately two and a half minutes.
[End Page 5]
(Video at 7:30-10:02.)
Trooper Hyde next approached the rental car and spoke with Mr. Kitchell and Mr.
Sprous through the driver's side door. He requested their driver's licenses, which they
produced. He asked about their travel plans, and testified that Mr. Kitchell told him that
they were travelling to Texas to visit Mr. Shigemura's family, although Mr. Kitchell did
not know where Mr. Shigemura's family lived. Trooper Hyde testified that Mr. Sprous
told him that he (Mr. Sprous) did not know where the three of them were going, and that
he was just along for the ride and might go to some casinos.
[End Page 4. Trooper Hyde's Second Interaction with Mr. Shigemura (Video at]
After Trooper Hyde returned to the patrol car, he requested from "dispatch"
criminal history checks and warrant checks on Mr. Shigemura, Mr. Kitchell, and Mr.
Sprous. Still filling out the warning ticket, Trooper Hyde next asked Mr. Shigemura for
his home phone number. Mr. Shigemura responded by pulling his cell phone out of his
pocket, saying, "I've got to look it up." Trooper Hyde again asked Mr. Shigemura what
Mr. Kitchell and Mr. Sprous planned to do in Oklahoma City, and Mr. Shigemura replied
that Mr. Sprous used to work with his uncle "out there" years ago, and that Mr. Sprous
was now looking for work. Trooper Hyde asked if Mr. Shigemura had ever faced any
weapons, guns or drug charges, to which Mr. Shigemura replied that he had not.
Shortly thereafter, Trooper Hyde asked if they were going anywhere other than
Oklahoma City, and Mr. Shigemura said that they were not. Trooper Hyde asked why
[End Page 6]
Mr. Kitchell had rented the car, and after a pause, Mr. Shigemura stated that Mr. Kitchell
had "a deal" from a company, although Mr. Shigemura could not name the company. At
that point, dispatch informed Trooper Hyde that the three individuals were clear on the
[End Page 5. Trooper Hyde's Second Interaction with Mr. Kitchell and Mr.]
Sprous (Video at 20:43-21:00.)
Trooper Hyde then went back to the rental car, returned Mr. Kitchell's and Mr.
Sprous's driver's licenses, and questioned Mr. Sprous about his travel plans in light of
what Mr. Shigemura had told Hyde in the patrol car. Trooper Hyde testified that Mr.
Sprous told him that Mr. Sprous did not have any relatives in Oklahoma City, and he and
Mr. Kitchell were not going anywhere other than Texas.
[End Page 6. Trooper Hyde's Completion and Provision of the Warning Notice to]
Mr. Shigemura (Video at 21:11-21:55)
Back in the patrol car, Trooper Hyde asked Mr. Shigemura to sign the warning
notice, and Mr. Shigemura complied. Trooper Hyde then returned Mr. Shigemura's
license and gave him a copy of the warning notice. Trooper Hyde then asked if Mr.
Shigemura had any questions, and when Mr. Shigemura said that he did not, Trooper
Hyde said, "You all be careful."
[End Page 7. Trooper Hyde's Final Conversation with Mr. Shigemura (Video at]
As Mr. Shigemura was stepping out of the car, however, Trooper Hyde asked him
if he could ask him a couple questions, and Mr. Shigemura agreed. Trooper Hyde asked
[End Page 7]
if Mr. Shigemura was carrying weapons, drugs, large amounts of currency, or anything
illegal in the car, to which Mr. Shigemura said, "No," and, "We're not into that."
Trooper Hyde then asked if he could search the car, to which Mr. Shigemura responded,
"It's not my car. No. You're harassing us, I think." Trooper Hyde denied trying to
harass them, but asked Mr. Shigemura to close the door of the patrol car. Trooper Hyde
then told Mr. Shigemura that he would ask Mr. Kitchell for permission to search the car.
[End Page 8. Canine Sniff of the Rental Car (Video at 22:57-27:45.)]
Trooper Hyde then returned to the rental car and asked Mr. Kitchell for permission
to search the car. Mr. Kitchell refused to give permission for a search. Trooper Hyde
then asked if he could walk his narcotics dog around the car to conduct a free-air sniff of
the exterior. Mr. Kitchell again refused to give permission. Trooper Hyde told him that
he was going to conduct the canine sniff anyway.
Trooper Hyde then brought his narcotics dog, Meco, out of his kennel in the back
seat of the patrol car, and walked Meco around the rental car twice""the first as a
"quick," "free scan," and the second as a "detailed" scan. On the second pass, Meco
"indicated" the scent of narcotics3 by scratching at the seams of the driver's side and
passenger's side doors, and on the trunk seam.
Meco was certified to detect four odors: marijuana, cocaine, methamphetamine,
[End Page 8]
Kitchell (Video at 27:46-41:10.)
Trooper Hyde then returned Meco to the kennel in the patrol car, and asked Mr.
Kitchell and Mr. Sprous to step out of the rental car. He searched both of them for
weapons and found none on their persons; however, he did find a large amount of
currency in Mr. Kitchell's pocket, later determined to total $17,504.36. By then, two
other OHP Troopers had arrived on the scene, and one searched Mr. Shigemura for
weapons. This search again was negative. The troopers then placed Mr. Shigemura and
Mr. Kitchell in the front and back seats, respectively, of Trooper Hyde's patrol car, and
placed Mr. Sprous in another patrol car.
The troopers then began a search of the rental car. In the trunk, they found a
backpack containing a loaded revolver and cash totaling $41,983, a portion of which was
arranged into fourteen separate bundles, each with a $100 dollar bill on top and $1 bills
underneath. The search also ultimately uncovered five additional firearms,4 duct tape,
leather gloves, latex gloves, pocket knives, flex cuffs, a police scanner, a hat with the
words ""˜FBI" on it, another hat with the word "NARC" on it, and a map of the
Dallas/Fort Worth area, with the DFW airport circled in black ink.
The guns found in the car include (1) a Browning Model 9mm; (2) a H&R Model
#686 .22 caliber revolver; (3) a Rossi Model .38 special; (4) a Highpoint Model #995
Rifle, 9 mm; (5) a Davis Model # P380, .380 caliber; and (6) a Smith & Wesson Model
#36, .38 caliber.
[End Page 9]
During the search, the video camera in Trooper Hyde's patrol car recorded several
conversations between Mr. Shigemura and Mr. Kitchell. At one point, upon seeing one
of the troopers bring something out of the interior of the car, Mr. Shigemura said, "They
found that f****** gun," while Mr. Kitchell stated, "They went through the trunk."
Once the troopers opened the trunk from the outside, Mr. Shigemura stated, "Oh f***,
we're f*****. We're going to be here, you know that?" Shortly thereafter, Trooper
Hyde returned to the patrol car, asked Mr. Kitchell and Mr. Shigemura to step out, and
Once Mr. Shigemura and Mr. Kitchell were placed back in the patrol car and the
search resumed, Mr. Shigemura told Mr. Kitchell that the troopers were looking at "all
that other sh** in the trunk. John's sh**. Now they're looking at that bag. You know
what's in that bag""bullsh**, gloves and sh**. You know what I mean?" Mr. Kitchell
responded, "Mmm, they know what time it is." Mr. Shigemura responded, "Yeah, they
know what time it is." After some additional conversation, Mr. Shigemura then said to
Mr. Kitchell, "They ain't got to yours yet, you know what I mean?"
Later, the following conversation took place as Mr. Shigemura and Mr. Kitchell
watched the officers search the trunk:
Mr. Shigemura: We've got some weapons charges, you dig what I'm
Mr. Kitchell: You ain't lying.
Mr. Shigemura: Where was that other f****** nine?
Mr. Kitchell: In the trunk.
Mr. Shigemura: I know, where at?
Mr. Kitchell: In the bag.[End Page 10]
Mr. Shigemura: It was in the bag?
Mr. Kitchell: Yeah, they're going to get it out now.
Mr. Shigemura: Hmm?
Mr. Kitchell: They're getting it now.
Mr. Shigemura: What? The bag?
Mr. Kitchell: Yeah, they got the bag on top [of the car], I think. Or
that's your bag.
Mr. Shigemura: That's my bag.
Mr. Shigemura: Uh oh, more sh**. John.
Mr. Kitchell: My bag?
Mr. Shigemura: Yup.
Still later, Mr. Kitchell asked Mr. Shigemura, "Oh, they're getting down to the
pistols now?" Mr. Shigemura responded, "Mmm hmm." Mr. Shigemura then stated to
Mr. Kitchell, "Well, you know it could have been worse. They could have busted us on
the way back. You know what I'm saying?"
After the search, Mr. Shigemura, Mr. Kitchell, and Mr. Sprous were transported to
a nearby OHP warehouse in Stroud, where Trooper Hyde placed the backpack containing
the $41,983 in a large bay area. Trooper Hyde had Meco do a scan of the warehouse, and
Meco alerted and indicated to the backpack. Later tests by OHP using an "ion scan"
indicated detectable amounts of cocaine and methamphetamine on the currency in the
backpack, although no other drugs were found in the rental car. The $17,504 found on
Mr. Kitchell did not test positive for drug residue.
B. Procedural Background
On March 18, 2009, Mr. Shigemura, Mr. Kitchell, and Mr. Sprous were each
indicted on one count of possessing firearms in or affecting interstate commerce
[End Page 11]
subsequent to a prior felony conviction, in violation of 18 U.S.C. § 922(g)(1) and 18
U.S.C. § 2. On April 23, 2009, the defendants filed a joint motion to suppress the
evidence seized during the traffic stop, contending, inter alia, that (1) the stop was not
supported by reasonable suspicion of a traffic violation; (2) the detention of the
defendants during the stop was unlawfully excessive; and (3) Trooper Hyde did not have
probable cause to search the vehicle.
After a hearing on May 20, 2009, which included testimony by Trooper Hyde
regarding the stop and search of the vehicle, the district court denied the motion to
suppress. On May 27, 2009, Mr. Shigemura and Mr. Kitchell were found guilty after a
one-day jury trial.5 On August 26, 2009, Mr. Kitchell was sentenced to 188 months in
prison, and on September 23, 2009, Mr. Shigemura was sentenced to 78 months in
prison. Mr. Kitchell and Mr. Shigemura each filed a timely notice of appeal. II. DISCUSSION
In this appeal, Mr. Shigemura contends that the district court erred in two ways""
first, by denying the motion to suppress, and second, by applying the sentencing
enhancement under U.S.S.G. § 2K2.1(b)(6). Mr. Kitchell also argues that the district
court erred by denying the motion to suppress, and further argues that the government did
Mr. Sprous pled guilty instead of proceeding to trial, and on August 26, 2009,
was sentenced to 180 months' imprisonment. See United States v. Sprous, 389 F. App'x
826, 826 (10th Cir. July 29, 2010) (unpublished).
[End Page 12]
not provide sufficient evidence for a reasonable jury to find that he possessed a firearm
for the purposes of 18 U.S.C. § 922(g)(1). None of these arguments have merit, and
therefore we affirm.
A. Mr. Shigemura's Appeal of the Denial of the Motion to Suppress
Mr. Shigemura argues that the district court should have granted the motion to
suppress because the traffic stop and search of the vehicle violated his Fourth
Amendment rights in a number of ways. Specifically, Mr. Shigemura argues that (1) the
traffic stop was not justified at its inception; (2) the ensuing detention was not reasonably
related in scope to the circumstances of the traffic stop; (3) Meco's drug sniff constituted
an "unreasonable general search" in light of the widespread contamination of currency
with cocaine residue; and (4) Meco was not a sufficiently reliable narcotics dog. As
discussed below, each of these contentions fails.
[End Page 1. Standard of Review]
"In assessing a denial of a motion to suppress, this court accepts the factual
findings of the district court, and its determination of witness credibility, unless they are
clearly erroneous." United States v. Chavez, 534 F.3d 1338
, 1343 (10th Cir. 2008)
(internal alteration and quotation marks and omitted). Moreover, this court must "view
the evidence presented at the suppression hearing in the light most favorable to the
Government." United States v. White, 584 F.3d 935
, 941 (10th Cir. 2009). "Judging the
credibility of the witnesses, determining the weight to be given to evidence, and drawing
[End Page 13]
reasonable inferences and conclusions from the evidence are within the province of the
district court." United States v. Hunnicutt, 135 F.3d 1345
, 1348 (10th Cir. 1998).
"Ultimately, however, this court must review de novo the reasonableness of the
government's action under the Fourth Amendment." Chavez, 534 F.3d at 1343. We also
keep in mind that the government bears the burden of proving the reasonableness of a
search or seizure. Id.
[End Page 2. The Traffic Stop Was Justified at Its Inception.]
In applying the Fourth Amendment protections against unreasonable searches and
seizures, the Supreme Court has recognized three types of police-citizen encounters:
consensual encounters, investigative detentions, and arrests. White, 584 F.3d at 944-45.
Because a routine traffic stop is "more analogous to an investigative detention than a
custodial arrest," the principles set forth in Terry v. Ohio, 392 U.S. 1
(1968), guide this
Court's determination as to the reasonableness of a traffic stop. Hunnicutt, 135 F.3d at
1348. Specifically, we examine whether the traffic stop was (1) "justified at its
inception," and (2) "reasonably related in scope to the circumstances which justified the
interference in the first place." Terry, 392 U.S. at 20.
"A traffic stop is justified at its inception if an officer has (1) probable cause to
believe a traffic violation has occurred, or (2) a reasonable articulable suspicion that a
particular motorist has violated any of the traffic or equipment regulations of the
jurisdiction." United States v. Winder, 557 F.3d 1129
, 1134 (10th Cir. 2009). Thus, "the
government need not show a violation actually occurred to justify an initial traffic stop."[End Page 14]
Hunnicutt, 135 F.3d at 1348. We look "only at whether the stop was objectively
justified; the officer's subjective motives are irrelevant." Chavez, 534 F.3d at 1344
(internal quotation marks omitted).
At the suppression hearing in this case, Trooper Hyde testified that he pulled Mr.
Shigemura over because he observed Mr. Shigemura make at least two unsafe lane
changes. Specifically, Trooper Hyde testified that Mr. Shigemura failed to signal when
he left the right lane of the two main traffic lanes of I-44 to enter into the toll-plaza area,
and again, once inside the toll-plaza area, when he crossed over to reach the open toll
booth on the far right side of the toll plaza. On appeal, Mr. Shigemura does not contest
the fact that he failed to use a turn signal; rather, he argues that he committed no traffic
violation because he was not legally required to use a turn signal under the
circumstances. Mr. Shigemura is incorrect.
Under Oklahoma law, a motorist crossing a traffic lane is required to use a turn
signal. Section 11-309 of Title 47 of the Oklahoma Statutes states as follows:
Whenever any roadway has been divided into two or more clearly
marked lanes for traffic, the following requirements in addition to all others
consistent herewith shall apply.
....[End Page 2. A vehicle shall not be moved from the lane until the driver has]
first ascertained that the movement can be made with safety and then given
a signal, not less than the last one hundred (100) feet traveled by the
vehicle, of his intention to change lanes.
Okla. Stat. tit. 47, § 11-309. In an effort to get around this statute, Mr. Shigemura argues
that because signs on I-44 designated the right lane of the turnpike as the "cash lane" for
[End Page 15]
the toll plaza well before the turnpike branched off, no separate "lane" formed between
this right lane and the toll-plaza area, and thus no signal was required.6 However, the
Tenth Circuit, applying Oklahoma law, has squarely addressed this issue, and has
concluded that a turn signal is always required when entering a toll-booth area from the
main turnpike. See United States v. Manjarrez, 348 F.3d 881
, 885 (10th Cir. 2003)
(considering similar argument involving Stroud toll plaza (the same toll plaza involved in
our case), and agreeing with district court that "leaving the turnpike to go on to the toll
plaza is leaving a lane as contemplated by Oklahoma statutes and therefore, precipitates
an obligation to signal" (internal quotation marks omitted)).
Accordingly, Mr. Shigemura's failure to signal as he exited the turnpike and
entered into the toll-plaza area constituted a violation of Oklahoma law, and thus the
traffic stop was justified at its inception. We therefore need not reach the second issue of
whether Mr. Shigemura was required to signal again once he was in the toll-plaza area.
On appeal, Mr. Shigemura also argues that Section 11-604 of Title 47, which
requires a signal before turning a vehicle "in the event any other traffic may be affected
by such movement," Okla. Stat. tit. 47, § 11-604(A), is inconsistent with Section 11-309,
and that this inconsistency should be resolved in his favor. However, Mr. Shigemura did
not make this argument below, and therefore has waived it. See Fed. R. Crim. P.
12(b)(3)(C), (e); White, 584 F.3d at 948 ("Th[e] waiver rule applies not only when a
defendant fails to file any pretrial motion to suppress, but also when a defendant fails to
assert a particular argument in a pretrial suppression motion that he did file.")
[End Page 16]
Circumstances of the Traffic Stop.
In addition to being justified at its inception, a lawful traffic stop must be
"reasonably related in scope to the circumstances which justified the interference in the
first place." Terry, 392 U.S. at 20. That is, "[t]he investigative detention usually must
last no longer than is necessary to effectuate the purpose of the stop, and the scope of the
detention must be carefully tailored to its underlying justification." Hunnicutt, 135 F.3d
at 1349 (internal quotation marks omitted). In accordance with these principles, we have
held that a law enforcement officer conducting a traffic stop "may generally request a
driver's license, registration, and other required papers, run requisite computer checks,
and issue citations or warnings as appropriate." United States v. Rosborough, 366 F.3d 1145
, 1148 (10th Cir. 2004). In addition, "an officer may ask questions, whether or not
related to the purpose of a traffic stop, if they do not excessively prolong the stop."
United States v. Simpson, 609 F.3d 1140
, 1146 n.1 (10th Cir. 2010). However, "[o]nce
an officer returns the driver's license and registration, the traffic stop has ended and
questioning must cease; at that point, the driver must be free to leave." United States v.
Villa, 589 F.3d 1334
, 1339 (10th Cir. 2009). Thus, "[a] seizure that is justified solely by
the interest in issuing a warning ticket to the driver can become unlawful if it is
prolonged beyond the time reasonably required to complete that mission." Illinois v.
Caballes, 543 U.S. 405
, 407 (2005).
[End Page 17]
Nonetheless, a "traffic stop may be expanded beyond its original purpose if during
the initial stop the detaining officer acquires reasonable suspicion of criminal activity,
that is to say the officer must acquire a particularized and objective basis for suspecting
the particular person stopped of criminal activity." White, 584 F.3d at 949 (internal
quotation marks omitted). In addition, "further questioning unrelated to the initial stop is
permissible if the initial detention has become a consensual encounter." Hunnicutt, 135
F.3d at 1349.
Mr. Shigemura argues that the detention in this case violated his Fourth
Amendment rights because (1) the time it took Trooper Hyde to issue a warning ticket for
a lane infraction""21 minutes and 45 seconds""was unreasonable, (2) Mr. Shigemura did
not consent to additional questions after Trooper Hyde returned his license, and
(3) Trooper Hyde did not have reasonable suspicion to detain Mr. Shigemura further once
he had returned Mr. Shigemura's license. As discussed below, Mr. Shigemura's
arguments are unavailing because (1) the duration of the stop was reasonable under the
circumstances and (2) Trooper Hyde had reasonable suspicion to prolong the detention by
the time he returned Mr. Shigemura's license and gave him a copy of the warning notice.
(a) The duration of the stop was not unreasonable under the
Based on the evidence presented at the suppression hearing, the district court
found that Trooper Hyde "diligently obtained the information he needed in order to
accomplish the lawful purpose for which he stopped [Mr. Shigemura and Mr. Kitchell],
[End Page 18]
which was issuing a warning for a traffic violation," and that "any delay that occurred
was due to [Trooper Hyde's] need to move back and forth between his patrol car and
Defendants' vehicle in order to question all three men." (SROA, vol. i at 153.) The court
further found that Trooper Hyde finished writing the warning ticket and informed Mr.
Shigemura that he was free to go shortly after performing the other permissible aspects of
the stop, including obtaining the defendants' information, performing criminal-history
checks, and confirming that none of the defendants had outstanding warrants.
These findings by the district court were not clearly erroneous. A review of the
traffic stop, broken down by the tasks Trooper Hyde completed, indicates that the overall
duration of the stop was not unreasonable under the circumstances. See supra Part I.A.
In the course of the stop, Trooper Hyde performed such reasonable tasks as
(1) explaining the reason for the stop, (2) obtaining information from all three occupants
of the vehicle, (3) examining the car rental agreement and inquiring as to why Mr.
Shigemura was driving when the car was leased to Mr. Kitchell, and (4) requesting and
waiting for a warrant check to be performed on all three individuals. Indeed, the warrant
check alone took almost nine minutes to complete. And, as the district court correctly
noted, Trooper Hyde had to walk back and forth between cars more than once to obtain
and confirm information. Under these circumstances, we cannot say that the twenty-two
minute interval from the beginning of the stop to the point at which Trooper Hyde
returned Mr. Shigemura's driver's license was unreasonable.
[End Page 19]
(b) Trooper Hyde had reasonable suspicion to prolong the
detention by the time he returned Mr. Shigemura's license
and gave him a copy of the warning notice.
"To determine whether an officer has a reasonable suspicion to detain beyond the
scope of the traffic stop, we must look at the totality of the circumstances of each case to
see whether the detaining officer has a particularized and objective basis for suspecting
legal wrongdoing." United States v. Davis, 636 F.3d 1281
, 1290-91 (10th Cir. 2011)
(internal quotation marks omitted). Although the government bears the burden of
proving the reasonableness of an officer's suspicion, Simpson, 609 F.3d at 1146,
"[r]easonable suspicion is not, and is not meant to be, an onerous standard," id. at 1153.
"While reasonable suspicion cannot be based upon a mere hunch, it also need not rise to
the level required for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard." Davis, 636 F.3d at 1291 (internal quotation
marks omitted). Indeed, "[a] factor may raise objectively reasonable suspicions even if it
is not by itself proof of any illegal conduct and is quite consistent with innocent travel."
White, 584 F.3d at 950 (internal quotation marks omitted).
"In deciding whether the government has met its burden of showing reasonable
suspicion, we judge the officer's conduct in light of common sense and ordinary human
experience, and we accord deference to an officer's ability to distinguish between
innocent and suspicious actions." Simpson, 609 F.3d at 1146 (citation and internal
quotation marks omitted). Moreover, "we must view the evidence presented at the
suppression hearing in the light most favorable to the government" and defer to the[End Page 20]
district court's finding of facts "even when, as here, there is video tape of the stop and
In this case, Trooper Hyde testified that during the detention he suspected that Mr.
Shigemura, Mr. Kitchell, and Mr. Sprous may have been involved in some type of
criminal activity based on the inconsistencies in their stated travel plans, their extreme
nervousness, and the fact that they were in a rental car. As discussed below, the totality
of these factors""particularly the stark inconsistencies in the defendants' travel plans""
formed a sufficient basis for Trooper Hyde reasonably to suspect criminal activity, and
justified his continued detention of the defendants after he returned Mr. Shigemura's
driver's license and gave him a copy of the warning notice.
(i) Inconsistent travel plans
We have repeatedly stated that "as part of a legitimate traffic stop" an officer may
ask a motorist about his or her travel plans. United States v. Santos, 403 F.3d 1120
n.6 (10th Cir. 2005). The motorist's or his passengers' inconsistent statements in
response to such questions can give rise to reasonable suspicion of criminal activity.
Davis, 636 F.3d at 1291; Simpson, 609 F.3d at 1150.
At the suppression hearing, Trooper Hyde testified that the defendants'
inconsistent travel plans caused him to suspect potential criminal activity. In particular,
he described the following inconsistencies as contributing to his suspicion: (1) Mr.
Shigemura's differing explanations as to why he was going to Oklahoma City; (2) Mr.
Shigemura's statement that he did not know where his passengers""Mr. Kitchell and Mr.[End Page 21]
Sprous""would be staying once they got to Oklahoma City; (3) Mr. Kitchell's statement
that they were going to Texas to see Mr. Shigemura's family, which was inconsistent
with Mr. Shigemura's statement that they were only going to Oklahoma City; (4) Mr.
Sprous's statements that he was just "along for the ride," that he would perhaps "go to
some casinos," and that he did not have any family in Oklahoma City, which were
inconsistent with Mr. Shigemura's statement that Mr. Sprous was going to visit an uncle
in Oklahoma City to ask about work.
Faced with these inconsistencies, it is reasonable that Trooper Hyde would suspect
potential criminal activity. Accordingly, this factor strongly supports a finding that
Trooper Hyde acted reasonably in further detaining the defendants for additional
investigation after completing the warning notice and returning Mr. Shigemura's license.
"An individual's nervousness during a traffic stop is another fact that may
contribute marginally to a reasonable suspicion of illegal activity." Davis, 636 F.3d at
1291. However, we have recognized that nervousness is a common and natural reaction
to an interaction with a police officer, whether one is innocent or guilty. Simpson, 609
F.3d at 1147. Therefore, unless an individual's display of nervousness "is unusually
severe or persistent, or accompanied by other, more probative, grounds for reasonable
suspicion, it is of limited significance in determining whether reasonable suspicion
exists." Santos, 403 F.3d at 1127 (internal quotation marks omitted). Nonetheless, "[i]n
undertaking this analysis, we bear in mind that the officer (and not the court) was present[End Page 22]
at the encounter, and the officer (and not the court) has the training and experience to
evaluate and compare the reactions of motorists to questioning." Id. at 1128.
At the suppression hearing, Trooper Hyde testified that Mr. Shigemura appeared
to be very nervous during their conversation in the patrol car:
As I talked with him about the nature of the trip, he became very
anxious, very nervous. Like I said, he was hesitant as he would answer the
questions, became animated on several different occasions as far as giving
me the answer to simple detail questions. . . . He was very animated. He
pulled his glasses off and put them back on several times.
. . . He'd move his hands, I mean as he was answering questions.
There wasn't any just "yes" or "no" answers, very seldom. As far as
getting detailed about the trip, he would seem to be searching for the
answers. He'd move his hands and shift his weight back and forth in the
seat, fumble with his glasses, things of that nature.
(SROA, vol. iii, pt. i at 31:19-32:12.) Trooper Hyde further testified that Mr. Kitchell
and Mr. Sprous "both too appeared to be very nervous":
I noticed that as I was talking to them, Mr. Kitchell, he was very
hesitant on giving me answers to detailed question[s]""any detailed
answers to the questions I was asking. . . . He was sweating, just profusely
sweating from his face. As he gave his ID to me, I noticed his hand was
visibly trembling as he gave his ID""when I took it from him out of his
hand. And Mr. Sprous's hand was also trembling, visibly trembling when I
took his ID from him as well.
(Id. at 32:24, 33:1-10.) Based on this testimony, the district court found that the
defendants displayed "visible nervousness," which contributed to Trooper Hyde's
"articulable and reasonable suspicion to detain Defendants in order to determine whether
the vehicle might contain contraband." (SROA, vol. i at 155.)
[End Page 23]
On appeal, Mr. Shigemura argues that Trooper Hyde's testimony is not credible
and that a review of the videotaped footage of Mr. Shigemura's demeanor during the stop
belies any notion that he was sufficiently nervous during the stop to warrant reasonable
suspicion. Thus, Mr. Shigemura argues that any alleged nervousness on his part should
not be considered in this case, especially in light of the limited significance of this factor
and this Court's concern over its abuse. A review of the videotape of Mr. Shigemura's
interaction with Trooper Hyde lends some credence to Mr. Shigemura's argument that
any nervousness he displayed was not unusual. However, the district court was entitled
to rely on Trooper Hyde's testimony. See Santos, 403 F.3d at 1128 ("In addition to
viewing the video tape, the district court heard the testimony of Trooper Peech and [the
defendant], and it is in the best position to assess the credibility of that testimony."). In
this case, the district court's factual finding that the defendants displayed "visible
nervousness" was not clearly erroneous. Thus, this Court concludes that this factor
reasonably""albeit marginally""contributed to Trooper Hyde's suspicion of criminal
(iii) Use of a rental car
This Court has suggested that the use of a rental car can potentially contribute to
an officer's reasonable suspicion of drug trafficking. See Davis, 636 F.3d at 1291;
United States v. Williams, 271 F.3d 1262
, 1270 (10th Cir. 2001). However, at the
suppression hearing Trooper Hyde acknowledged that it was not unusual for people to
drive rental cars on the turnpike system, and his suspicion regarding the rental car[End Page 24]
apparently stemmed from its inconsistency with the defendants' purported travel plans.
Accordingly, the fact that the defendants drove a rental car is entitled to little weight,
except to the extent it further evidences inconsistencies in the defendants' purported
(iv) Totality of the circumstances
As discussed above, in determining whether an officer had reasonable suspicion to
prolong a detention, we look to the "totality of the circumstances" surrounding the traffic
stop. Davis, 636 F.3d at 1290-91. In this case, we conclude that the totality of the
circumstances""particularly the inconsistencies in the defendants' purported travel plans
as relayed to Trooper Hyde""gave rise to reasonable suspicion of criminal activity well
before Trooper Hyde provided Mr. Shigemura with a copy of the warning notice and
returned his driver's license. We therefore see no Fourth Amendment violation in
Trooper Hyde's continued detention of the appellants past this point.7
[End Page 4. Meco's Positive Alert Provided Probable Cause to Search the]
Vehicle, Notwithstanding Any Potential Contamination of Currency
Inside the Vehicle.
Mr. Shigemura next argues that the canine "sniff" and subsequent search of the
rental car was unconstitutional in light of the alleged widespread contamination of
Our conclusion forecloses Mr. Shigemura's remaining argument on appeal that
the continued detention violated his Fourth Amendment rights because he did not consent
to additional questions after Trooper Hyde returned his license. Whether or not Mr.
Shigemura consented, the continued detention was permissible in light of Trooper Hyde's
reasonable suspicion of criminal activity.
[End Page 25]
currency with trace amounts of cocaine. Specifically, Mr. Shigemura argues that where a
canine sniff is conducted around an occupied car, this contamination can lead a narcotics-
detection dog to alert or indicate to the currency on the person in the car, which then
allows officers to search the car even though the car does not contain any narcotics.
Thus, Mr. Shigemura argues, a canine sniff of an occupied car effectively permits general
searches of vehicles in violation of the underlying rationales of Caballes, 543 U.S. 405
and United States v. Place, 462 U.S. 696
Mr. Shigemura's argument, while perhaps novel, is unavailing. As discussed
below, although some courts have expressed concern over the reliability of canine sniffs
in light of research finding that a large percentage of circulated currency is tainted with
trace amounts of cocaine, Mr. Shigemura points to no authority undermining the well-
established principle that a positive alert from a reliable narcotics-detection dog gives rise
to probable cause to search a vehicle. Moreover, in this case Meco was specifically
trained to differentiate between narcotics and circulated currency, and thus there is no
reason to doubt the reliability of his alert on this basis.
In Place, the Supreme Court held that a canine sniff of luggage is not a "search"
under the Fourth Amendment because it "does not expose noncontraband items that
otherwise would remain hidden from public view," but rather "discloses only the
presence or absence of narcotics, a contraband item." 462 U.S. at 707. In Caballes, the
Supreme Court applied this rationale in holding that "the use of a well-trained narcotics-
detection dog . . . generally does not implicate legitimate privacy interests," 543 U.S. at
409, and thus that an officer need not have reasonable, articulable suspicion of drug
activity to conduct a canine sniff during a lawful traffic stop, id. at 407, 409.
[End Page 26]
Mr. Shigemura is correct that numerous studies have determined that a substantial
percentage of United States currency in circulation contains traces of cocaine, and that
several courts accordingly have expressed concern that this contamination may result in
false alerts or indications by narcotics-detection dogs. See Caballes, 543 U.S. at 411-12
(Souter, J., dissenting) (arguing that the assumption that narcotics-detection dogs are
infallible is "belied by judicial opinions describing well-trained animals sniffing and
alerting with less than perfect accuracy, whether owing to errors by their handlers, the
limitations of the dogs themselves, or even the pervasive contamination of currency by
cocaine"); United States v. $10,700.00 in U.S. Currency, 258 F.3d 215
, 230 (3d Cir.
2001) (noting that "several of our sister circuits recently have called into question the
evidentiary significance of a positive reaction to currency in determining whether there is
probable cause to forfeit the money in light of studies indicating that a large percentage
of United States currency is contaminated with sufficient traces of drug residue to cause a
canine to "˜alert' to it"); United States v. Buchanan, 213 F.3d 302
, 311 (6th Cir. 2000)
("Prior cases support the proposition that because a high percentage of currency in
circulation is tainted with a scent or residue of narcotics, evidence of a positive indication
by a drug-sniffing dog may have minimal evidentiary value."); United States v. $5,000 in
U.S. Currency, 40 F.3d 846
, 849 (6th Cir. 1994) (finding "the evidentiary value of the
narcotics dog's alert to be minimal" in light of evidence regarding narcotics
contamination of currency); United States v. U.S. Currency, $30,060.00, 39 F.3d 1039
1043 (9th Cir. 1994) (finding that in light of currency contamination, "the continued[End Page 27]
reliance of courts and law enforcement officers on [a dog alert] to separate "˜legitimate'
currency from "˜drug-connected' currency is logically indefensible." (alteration in
original) (internal quotation marks omitted)).9
However, Mr. Shigemura points to no binding authority for the proposition that
potential currency contamination renders a canine sniff by a certified narcotics-detection
dog unreliable, and we decline to adopt this view.10 Probable cause to search a vehicle
requires only "a fair probability that contraband or evidence of a crime will be found in
[the vehicle]." Illinois v. Gates, 462 U.S. 213
, 238 (1983). This Court has repeatedly
Most of the cases addressing this issue do so in the context of forfeiture
proceedings, which look to whether there is probable cause that the currency "was used
in connection with or was derived from a drug transaction." United States v. $149,442.43
in U.S. Currency, 965 F.2d 868
, 877 n.5 (10th Cir. 1992). Nonetheless, the rationale
underlying courts' concern in those cases is potentially instructive in the car-search
context; that is, if a dog's alert to currency is not probative of whether that currency has a
connection to a drug transaction because the currency could just as easily be "innocently"
tainted, then arguably a dog's alert to a car is not probative of whether the car contains
more than microscopic amounts of narcotics, because the dog could also be alerting to
innocently-tainted currency. See id. at 876 ("The test for determining probable cause for
forfeiture purposes is the same as applies in arrests, searches and seizures.").
We note that a number of our sister circuits have expressed skepticism as to
whether the contamination of currency undermines the reliability of canine sniffs. See
United States v. Funds in the Amount of $30,670.00, 403 F.3d 448
, 457-60 (7th Cir.
2005) (noting criticism of "the currency contamination theory and its uncritical adoption
by courts" and concluding that "dog alerts to currency should be entitled to probative
weight"); United States v. $242,484.00 in U.S. Currency, 389 F.3d 1149
, 1165-66 (11th
Cir. 2004) (noting the differing views reached by other courts about the "global
contamination theory" and declining "to write the theory into the law of this circuit");
Buchanan, 213 F.3d at 311-12 (6th Cir.) (citing cases concluding that a positive dog sniff
may retain probative weight despite widespread contamination of currency and noting
"the uncertainty of this issue").
[End Page 28]
recognized that a reliable narcotics-detection dog's alert to a vehicle suffices to establish
this "fair probability." See United States v. Parada, 577 F.3d 1275
, 1282 (10th Cir. 2009)
("A trained narcotic dog's detection of the odor of an illegal substance emanating from a
vehicle creates a "˜fair probability' that there is contraband in that vehicle."); United States
v. Ludwig, 10 F.3d 1523
, 1527 (10th Cir. 1993) ("[A] dog alert usually is at least as
reliable as many other sources of probable cause and is certainly reliable enough to create
a "˜fair probability' that there is contraband."). Accordingly, "it is well-established that a
dog sniff provides the requisite probable cause to search a vehicle for drugs." Villa, 589
F.3d at 1341. Mr. Shigemura has not shown that potential currency contamination has
undermined the significance of a positive dog alert in indicating a fair probability of the
presence of contraband, and thus probable cause to search.
Moreover, in this case Trooper Hyde specifically testified that Meco was trained
to distinguish the scent of narcotics from the scent of other items, including circulated
currency. (See SROA, vol. iii, pt. i at 66:2-8 ("During different training scenarios we'll
have""we'll go get uncirculated bills, brand new bills from a bank that [haven't] been in
circulation, train on those, and randomly we'll train on circulated currency as well as just
working on the side of the road; you run your dog around the vehicle, if there's a wallet
or something laying on the seat, just see if he'll alert or indicate to it."); see also id. at
66:9-11 (testifying that Meco is not trained to alert and indicate to the smell of currency);
104:10-12 ("We place currency in the training scenario to make sure that he is proofing""
what we call proofing on an odor."); 109:5-7 ("As I explained earlier, [we proof] off the[End Page 29]
different odors, whether it be uncirculated currency, circulated currency . . . .").) This
evidence undercuts any argument that Meco's alert was unreliable based on the potential
contamination of currency present in the vehicle at the time. Accordingly, we reject Mr.
Shigemura's contention that potential currency contamination rendered the sniff and
subsequent search of the rental car in this case unconstitutional.
[End Page 5. The District Court Did Not Clearly Err In Finding Meco to Be a]
Reliable Narcotics-Detection Dog.
Mr. Shigemura next argues that Meco's alert could not give rise to probable cause
to search the vehicle because Meco was not a reliable narcotics-detection dog.
Specifically, Mr. Shigemura argues that at the time of the stop, the Oklahoma
Administrative Code provided that narcotics-detection canine teams "shall be certified
only in the detection of controlled dangerous substances for which the dog scores an
eighty per cent (80%) higher [sic] "˜find' rate, and not more than a twenty per cent (20%)
"˜false response' rate." Okla. Admin. Code § 390:30-1-5(d) (2004).11 Mr. Shigemura
argues that the government failed to produce any records showing that Meco satisfied the
80%/20% regulatory requirement as part of his certification. Mr. Shigemura further
argues that the records that the government did produce""including OHP Utilization
Reports tracking Meco's performance in the field""show that out of Meco's twenty-
This regulation was amended in July 2009, and the applicable subsection now
provides that canine teams "shall be certified only in the detection of controlled
dangerous substances for which the dog passes the certification test." Okla. Admin. Code
§ 390:30-1-5(d) (effective July 11, 2009) (emphasis added).
[End Page 30]
seven alerts, only eighteen of those revealed the presence of narcotics. Mr. Shigemura
asserts that this indicates a false-response rate of 33.3%, well in excess of the regulatory
20% limit. Mr. Shigemura also contends that none of the training records show that
Meco was trained or tested on his ability to distinguish tainted from non-tainted currency.
As discussed below, Mr. Shigemura has not satisfied his burden of showing Meco to be
"[A] drug dog's alert establishes probable cause only if that dog is reliable."
United States v. Ludwig, 641 F.3d 1243
, 1251 (10th Cir. 2011); see also United States v.
Clarkson, 551 F.3d 1196
, 1203 (10th Cir. 2009) (describing this Court's precedent as
indicating that a narcotics-detection dog "must be "˜reliable' or "˜trained' in order for an
alert to support probable cause"). A party seeking to suppress evidence found during a
search after a positive dog alert bears the burden of proving that the dog is unqualified.
Clarkson, 551 F.3d at 1203. In this case, the district court heard evidence on Meco's
qualifications and found him to be a reliable narcotics-detection dog. We review the
district court's finding for clear error. See Parada, 577 F.3d at 1283.
We recently addressed the issue of a narcotics-detection dog's reliability in
Ludwig. In that case, we rejected the notion that a court considering a challenge to a
narcotics dog's reliability must "mount a full-scale statistical inquisition into [the] dog's
history." 641 F.3d at 1251. Rather, because "canine professionals are better equipped
than judges to say whether an individual dog is up to snuff," we held that "the judicial
task" is limited "to assessing the reliability of the credentialing organization, not[End Page 31]
individual dogs." Id. If a challenger shows that the credentialing organization is "a
sham," then "its certification . . . no longer serve[s] as proof of reliability." Id.
In this case, there is no dispute that at the time of the stop Meco was certified by
the applicable credentialing organization, the Oklahoma Council on Law Enforcement,
Education and Training ("CLEET"). While Mr. Shigemura does not allege that CLEET
is "a sham," he does contend that the government's failure to produce documentation of
Meco's satisfaction of the specific statutory requirements for certification undermines the
probative value of CLEET certification in establishing Meco's reliability. He further
argues that relying solely on Meco's certification in cases such as this would sanction
"the right hand of one police agency . . . facilitat[ing] searches of automobiles or luggage
by the left hand of the same police agency using dogs whose reliability cannot be
verified." (S. Aplt. R. Br. at 18.) Accordingly, we construe Mr. Shigemura's argument
as challenging CLEET as a credentialing organization in this case.
Nonetheless, Mr. Shigemura has not met his burden of showing that Meco was
unreliable. Even though the government did not produce specific records of Meco's
testing during certification, the government did produce copies of Meco's "Canine Team
Certification Test," showing that Meco was tested on and passed certification tests for
each of the four drugs. In other words, the appropriate "canine professionals" deemed
Meco to be reliable, and Mr. Shigemura points to no evidence that CLEET is unfit to
make this determination.
[End Page 32]
Moreover, we have recognized that in certain situations, a narcotics-detection
dog's reliability can be established by means other than proof of certification. See
Ludwig, 641 F.3d at 1251 n.3 ("An uncertified dog's accuracy could still, in theory at
least, be established by examining its training history and record for reliability.");
Clarkson, 551 F.3d at 1204 ("While successful completion of a training course and a
current certification would be satisfactory, we do not exclude the possibility that
reliability can be established by other evidence."). At the suppression hearing in this
case, Trooper Hyde described the training that he and Meco performed, including training
on differentiating narcotics from circulated currency and training involving "blank"
(narcotics free) vehicles. Trooper Hyde testified that he tried to train Meco for a
minimum of sixteen hours per month. The government also produced approximately
seventy-three pages of OHP Police Service Dog Training Reports reflecting Meco's
training sessions, as well as thirty-two pages of Utilization Reports reflecting Meco's
training and experience in the field. The lack of further documentation concerning
Meco's certification process does not suffice to meet Mr. Shigemura's burden of
establishing Meco as unreliable. Under these circumstances, the district court did not
clearly err in finding Meco to be a reliable narcotics-detection dog.12
We also reject Mr. Shigemura's suggestions in his brief and at oral argument
that in United States v. Kennedy, 131 F.3d 1371
(10th Cir. 1997), we established a
bright-line 70% success rate as the dividing line of whether a narcotics dog is sufficiently
reliable. Rather, we simply concluded in that case that a success rate of 70-80% met "the
Continued . . .
[End Page 33]
B. Mr. Shigemura's Appeal of the District Court's Application of the
Four-Point Sentencing Enhancement Under U.S.S.G. § 2K2.1(b)(6) for
Possession of a Firearm in Connection with Another Felony Offense
Mr. Shigemura argues that the district court erred in calculating his Sentencing
Guidelines range by applying a four-point enhancement under Section 2K2.1(b)(6),
which provides for such an enhancement where, inter alia, a defendant possesses a
firearm in connection with another felony offense. The district court applied the
enhancement to Mr. Shigemura's Guidelines calculation based on evidence that at the
time of his arrest, Mr. Shigemura possessed firearms in connection with the state-law
offense of transporting funds intended for use in a drug transaction. As discussed below,
based on the significant evidence presented by the government that the money found in
the vehicle's trunk constituted either drug proceeds or funds to be used in a drug
transaction, the district court did not clearly err in applying the enhancement.
liberal standard for probable cause." Id. at 1378. We did not prescribe this rate as a
minimum threshold. Indeed, in Ludwig we made clear that "[m]ore than percentages,
precedent and common sense rules (like reliance on certification processes) ought to
inform the probable cause analysis." 641 F.3d at 1252.
We note, however, that in Ludwig we indicated that if "pushed to do so" we would
recognize the 58% success-rate by the dog in that case to be sufficient to give rise to
probable cause. Id. Here, the records cited by Mr. Shigemura reflect that Meco successfully alerted to drugs 18 out of 27 times, yielding a percentage (66.7%) even
higher than that in Ludwig.
[End Page 34]
"When reviewing the district court's application of the sentencing guidelines, this
Court reviews the district court's findings of fact for clear error and legal conclusions de
novo." United States v. Beltran, 571 F.3d 1013
, 1020 (10th Cir. 2009). Under this
standard of review, we will not disturb a factual finding of the district court "unless it has
no basis in the record," and "we view the evidence and inferences therefrom in the light
most favorable to the district court's determination." United States v. Mozee, 405 F.3d 1082
, 1088 (10th Cir. 2005).
[End Page 2. The Government Presented Sufficient Evidence to Establish That the]
Section 2K2.1(b)(6) applies where a defendant "used or possessed any firearm or
ammunition in connection with another felony offense; or possessed or transferred any
firearm or ammunition with knowledge, intent, or reason to believe that it would be used
or possessed in connection with another felony offense." U.S.S.G. § 2K2.1(b)(6).
Application Note 14 to this section defines "in connection with" as mandating that the
enhancement applies "if the firearm or ammunition facilitated, or had the potential of
facilitating, another felony offense." Id. cmt. n.14(A). The government has the burden of
proving, by a preponderance of the evidence, that Section 2K2.1(b)(6) applies. See
United States v. Pantelakis, 58 F.3d 567
, 568 (10th Cir. 1995).
In this case, the government argued that Section 2K2.1(b)(6) applied because Mr.
Shigemura possessed firearms in connection with the state-law felony offense of
[End Page 35]
concealing or transporting drug proceeds or funds intended for use in a drug transaction,
as proscribed by Section 2-503.1 of Title 63 of the Oklahoma Statutes.13 Specifically, the
government contended that the firearms found in the rental car "facilitated or had the
potential to facilitate [Mr. Shigemura's] concealment and transportation of the $41,983"
found in the backpack, and that these funds constituted "either drug proceeds or money
soon to be used in a drug transaction." (SROA, vol. i at 243.)
The government cited extensive evidence to support its argument, including
evidence that (1) one of the handguns was found in the same backpack as the $41,983;
(2) the other five handguns were also found in the trunk in which the backpack was
found; (3) an "Ionscan" of the $41,983 indicated traces of cocaine and methamphetamine
This statute provides that it is a felony for a person to do one or more of the
A. . . . knowingly or intentionally to receive or acquire proceeds
and to conceal such proceeds, or engage in transactions involving proceeds,
known to be derived from any violation of [controlled dangerous
substances statutes] . . . [;]
B. . . . knowingly or intentionally to give, sell, transfer, trade,
invest, conceal, transport, or maintain an interest in or otherwise make
available anything of value which that person knows is intended to be used
for the purpose of committing or furthering the commission of any
violation of [controlled dangerous substances statutes; or]
C. . . . knowingly or intentionally to direct, plan, organize,
initiate, finance, manage, supervise, or facilitate the transportation or
transfer of proceeds known to be derived from any violation of [controlled
dangerous substances statutes].
Okla. Stat. tit. 63 § 2-503.1(A)-(C). Before he was indicted on felony charges, Mr.
Shigemura was charged in state court with violating Section 2-503.1.
[End Page 36]
residue on the currency; (4) a portion of the $41,983 was packaged so as to appear to
consist of stacks of $100 bills; (5) while Mr. Shigemura was incarcerated, he engaged in
several telephone conversations indicative of narcotics activity; (6) Mr. Shigemura
received a text message from an area code in Texas on January 19, 2009, which stated,
"if u cant find come across [sic] anything the price is still 400 tomorrow anytime";
(7) Mr. Kitchell received voice mail messages on his cell phone indicative of narcotics
activity; and (8) Mr. Shigemura averred that he was the sole owner of the $41,983 in
separate civil forfeiture proceedings, belying any argument that he had no knowledge of
the money. (Id. at 238-42.) The district court concluded that this evidence, together with
Mr. Shigemura's statement to Mr. Kitchell in the back of the patrol car that it would have
been worse if the police had busted them "on the way back," was sufficient to establish
that the money was being transported in connection with a drug felony, and thus that the
government had established the underlying felony supporting the enhancement.
On appeal, Mr. Shigemura argues that the government failed to meet its burden of
establishing that the currency found in the car was connected with drug activity, and thus
that the district court erred by applying the enhancement on nothing more than
"suspicion[s] of general criminality." (S. Aplt. Br. at 55.) We disagree. Taken together,
the evidence presented by the government was more than sufficient to show that the
firearms possessed by Mr. Shigemura had the potential to facilitate another felony
offense; in this case, transportation or concealment of drug proceeds or funds intended to
[End Page 37]
be used in a drug transaction. The district court's application of the four-point
enhancement under Section 2K2.1(b)(6) was therefore not clearly erroneous.
C. Mr. Kitchell's Appeal of the Denial of the Motion to Suppress
Mr. Kitchell challenges the district court's denial of the motion to suppress on
three bases. He argues that (1) the traffic stop and search violated the Fourth
Amendment; (2) the canine sniff violated the Fourth Amendment; and (3) the video of the
conversation between Mr. Shigemura and Mr. Kitchell should not have been admitted
because they had a reasonable expectation of privacy in the patrol car. As to Mr.
Kitchell's first two arguments, we have already determined that neither the stop nor the
canine sniff violated the appellants' Fourth Amendment rights, and so these arguments
are unavailing.14 With respect to his final argument, Mr. Kitchell did not raise this issue
below, and thus has waived it. See Fed. R. Crim. P. 12(b)(3)(C), (e); White, 584 F.3d at
948-49. In any event, Mr. Kitchell himself concedes that "all of the Circuits have held
there is no expectation of privacy to a conversation held by parties in the backseat of a
police car," (K. Aplt. Br. at 26), and that this Court reached this same conclusion under
In addition to the arguments raised by Mr. Shigemura, Mr. Kitchell argues that
the traffic stop was unconstitutional because the "special emphasis" program of the
Special Operations Division was akin to a "roving checkpoint" and "roving search," in
that it effectively allowed troopers to pull over any car they wished for a minor infraction
and then employ a "cookie cutter" approach towards building probable cause to search
the vehicle. (Kitchell Aplt. Br. ("K. Aplt. Br.") at 13-19.) However, Mr. Kitchell did not
raise this issue in the joint motion to suppress, nor has he shown good cause for
considering the argument here. Therefore, he has waived this argument. See Fed. R.
Crim. P. 12(b)(3)(C), (e); White, 584 F.3d at 948-49.
[End Page 38]
the facts of a case involving a stop and search like the one here, see United States v.
Turner, 209 F.3d 1198
, 1200-01 (10th Cir. 2000). For these reasons, we affirm the
district court's denial of the joint motion to suppress.
D. Mr. Kitchell's Challenge to the Sufficiency of the Evidence
Finally, Mr. Kitchell argues that there was insufficient evidence to support his
conviction. Specifically, Mr. Kitchell contends that a reasonable jury could not have
found that he had possession of the firearms found in the trunk of the rental car based on
the evidence introduced at trial. Because this evidence was more than sufficient for a
reasonable jury to find that Mr. Kitchell had constructive possession of the firearms in
question, we affirm.
[End Page 1. Standard of Review]
"We review the sufficiency of the evidence to support a jury verdict de novo and
examine only whether taking the evidence, both direct and circumstantial, in the light
most favorable to the government, a reasonable jury could find the defendant guilty
beyond a reasonable doubt." United States v. Phillips, 583 F.3d 1261
, 1264 (10th Cir.
2009) (internal quotation marks omitted). "Therefore, the evidence supporting a jury
verdict must be substantial, but it need not conclusively exclude every other reasonable
hypothesis and it need not negate all possibilities except guilt." Id. (internal quotation
marks omitted). "We reverse a conviction only if no reasonable jury could have reached
the challenged verdict." United States v. Hooks, 551 F.3d 1205
, 1212 (10th Cir. 2009). [End Page 39]
Jury to Find That Mr. Kitchell Had Constructive Possession of the
Firearms Found in the Trunk of the Rental Car.
18 U.S.C. § 922(g)(1) provides that it is unlawful for any person "who has been
convicted in any court of, a crime punishable by imprisonment for a term exceeding one
year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign commerce." To obtain a
conviction under this statute, "the government must establish three elements beyond a
reasonable doubt: (1) the defendant was previously convicted of a felony; (2) the
defendant thereafter knowingly possessed a firearm; and (3) the possession was in or
affecting interstate commerce." United States v. Taylor, 113 F.3d 1136
, 1144 (10th Cir.
1997). At trial, Mr. Kitchell stipulated that the first and third prongs of this inquiry were
met. Thus, the only issue on appeal is whether the government presented sufficient
evidence that Mr. Kitchell knowingly possessed a firearm.
"As we have repeatedly held, possession can be actual or constructive." United
States v. Jameson, 478 F.3d 1204
, 1209 (10th Cir. 2007). "Constructive possession exists
when a person knowingly holds the power and ability to exercise dominion and control
over [a firearm]." Id. (alteration in original) (internal quotation marks omitted). "Stated
another way, the government must show that the defendant had knowledge of and access
to the firearm." Hooks, 551 F.3d at 1212. In cases in which two or more people occupy
the same vehicle, a defendant's knowledge of and access to a firearm can be inferred[End Page 40]
from circumstantial evidence, as long as this evidence includes something other than
mere proximity. Id. "The government must demonstrate some connection or nexus
between the defendant and the firearm, which leads to at least a plausible inference that
the defendant had knowledge of and access to the weapon or contraband." Id. at 1212-
13 (citations and internal quotation marks omitted).
At trial, the government introduced excerpts of the video of the stop, including the
following conversations between Mr. Shigemura and Mr. Kitchell in the patrol car:
Mr. Shigemura (upon seeing one of the troopers pull a gun from the
interior of the car): They found that f****** gun.
Mr. Kitchell: They went through the trunk.
Mr. Shigemura: We've got some weapons charges, you dig what I'm
Mr. Kitchell: You ain't lying.
Mr. Shigemura: Where was that other f****** nine?
Mr. Kitchell: In the trunk.
Mr. Shigemura: I know, where at?
Mr. Kitchell: In the bag.
Mr. Shigemura: It was in the bag?
Mr. Kitchell: Yeah, they're going to get it out now.
Mr. Shigemura: Hmm?
Mr. Kitchell: They're getting it now.
Mr. Shigemura: What? The bag?
Mr. Kitchell: Yeah, they got the bag on top [of the car], I think. Or
that's your bag.
Mr. Shigemura: That's my bag.
Mr. Shigemura: Uh oh, more sh**. John.
Mr. Kitchell: My bag?
Mr. Shigemura: Yup.
Mr. Kitchell: Oh, they're getting down to the pistols now?
Mr. Shigemura: Mmm hmm.
[End Page 41]
(United States v. Kitchell, Supp. Record on Appeal, vol. v at 32:05-32:20; 37:35-41:00.)
Viewing this evidence in the light most favorable to the government, a reasonable
jury could find that the government sufficiently demonstrated a connection or nexus
between Mr. Kitchell and the firearms, leading to a plausible inference that Mr. Kitchell
had knowledge of and access to the weapons.15 Indeed, in light of Mr. Kitchell's
unambiguous statements, this is certainly not a case where "no reasonable jury could
have reached the challenged verdict." Hooks, 551 F.3d at 1212. We therefore affirm the
jury's verdict. III. CONCLUSION
For the reasons discussed above, we affirm (1) the district court's denial of the
appellants' joint motion to suppress, (2) the district court's application of the sentencing
enhancement under U.S.S.G. § 2K2.1(b)(6) to Mr. Shigemura's sentence, and (3) the
Mr. Kitchell also argues that the district court erred in admitting the firearms
into evidence and in not precluding the government from referring to the rental vehicle as
"the defendant's car" at trial. However, Mr. Kitchell concedes that he did not object to
the admission of the firearms or to the references to "the defendant's car" at trial, and
thus that these challenges are reviewed for plain error. In light of the evidence described
above, the uncontested fact that the firearms were found in the vehicle, and the
uncontested fact that Mr. Kitchell had rented the vehicle, the district court did not plainly
err by admitting the firearms or by failing to preclude, sua sponte, the government from
referring to "the defendant's car."
[End Page 42]
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[End Page 1. Standard of Review]
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