United States v. Ludwig

FILED
United States Court of Appeals
Tenth Circuit

April 22, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 10-8009

SERGEI PAUL LUDWIG,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 08-CR-224-D)

Thomas A. Fleener, Fleener & Vang, LLC, Laramie, Wyoming, for Defendant-
Appellant.

Steven K. Sharpe, Assistant United States Attorney (Christopher A. Crofts,
United States Attorney, with him on the brief), Cheyenne, Wyoming, for Plaintiff-
Appellee.

Before MURPHY, TYMKOVICH, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Driving through Wyoming one afternoon in August, Sergei Ludwig was

stopped for speeding. The trooper became suspicious more might be afoot after
Mr. Ludwig offered a strange story about his travel plans. Eventually, the trooper

ran a certified drug dog around the car. The dog soon alerted and in a hidden

compartment the trooper found 11 pounds of drugs. Before us, as before the

district court, Mr. Ludwig argues that the trooper had no lawful basis to stop him,

no reason to detain him, no authority for searching his car. He questions the

dog’s reliability, complaining that the dog successfully identifies “seizable”

quantities of illegal drugs only 58% of the time. He challenges, as well, the

indictment against him and the legality of the sentence he received. In the end,

we affirm.

I

A

Patrolling Interstate 80, Trooper David Chatfield spotted a car traveling at

what he estimated to be ten miles over the speed limit. After his radar gun

confirmed this, the trooper turned on his emergency lights and gave chase. The

car, driven by Mr. Ludwig, pulled onto the shoulder of the highway. But, oddly,

the car didn’t stop. Instead, it continued slowly along the shoulder. Only after

almost a minute did it finally come to rest.

The trooper approached the car and Mr. Ludwig rolled down his window.

A strong waft of cologne “hit [the trooper] in the face” — something the trooper

testified is often used to mask the smell of illegal drugs. Aplt. App. Vol. II at

306. Mr. Ludwig appeared “very, very, very nervous.” Aplt. App. Vol. I at 192.

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So nervous that his hands were trembling and he had difficulty retrieving his

wallet from his pocket.

Eventually, Trooper Chatfield asked Mr. Ludwig to follow him to his patrol

car. As the trooper wrote up the speeding ticket, he asked Mr. Ludwig about his

travel plans. Mr. Ludwig described himself as an “IT administrator.” Aplt. App.

Vol. II at 314. He said he was returning to New Jersey from California. He said

his employer had sent him to California to help a different company with a “server

problem.” Aplt. App. Vol. II at 314. He said he chose to drive, not fly, all the

way out west. Yet, he said, he had stayed in California only four days before

beginning his trek back to New Jersey. Asked where he had spent last night, Mr.

Ludwig said he had slept in his car. During their talk, Trooper Chatfield noticed

that Mr. Ludwig declined to make eye contact and remained very nervous.

Trooper Chatfield also noticed that both the registration and proof of insurance for

Mr. Ludwig’s car were in someone else’s name.

By this time the trooper’s suspicions were aroused. After he finished

writing the ticket, the trooper asked Mr. Ludwig if he would answer a few more

questions. Mr. Ludwig said no. Believing he had reasonable suspicion to detain

Mr. Ludwig for further investigation, the trooper told Mr. Ludwig that he thought

there were drugs in the car. The trooper instructed Mr. Ludwig to stand aside

while he released a drug detection dog from his patrol car. Once released, the dog

quickly alerted to Mr. Ludwig’s vehicle. Trooper Chatfield opened the trunk and

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the dog alerted again. Searching the car, Trooper Chatfield spotted a recently

welded metal patch that seemed to conceal a compartment. At this point, Trooper

Regina Schulmeister arrived at the scene, closely followed by Lieutenant Tom

Adams. Eventually, the officers found 11.3 pounds of ecstasy hidden in the

compartment.

B

Finding himself under indictment for violating 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C), Mr. Ludwig moved to suppress the drugs found in his car, arguing that

his detention and the search of his car violated the Fourth Amendment. The

district court disagreed and held evidence of the drugs admissible.

After this, Mr. Ludwig discovered that all three troopers involved in his

detention had vehicles equipped with video cameras. Yet, to this point, the

government had produced only two videos, from the cars of Trooper Chatfield and

Lieutenant Adams. Mr. Ludwig had nothing from Trooper Schulmeister’s car.

When Mr. Ludwig complained about the missing video, the government replied

that it had been automatically deleted by a program that erases videos after a

certain period of time; the government asserted that its failure to save the video

before deletion was accidental. Learning all this, Mr. Ludwig filed a motion to

dismiss the indictment. He also filed a second motion to suppress.

After entertaining additional evidence and argument, the district court

denied both motions. When it did, Mr. Ludwig entered a conditional guilty plea

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while preserving his right to appeal the disposition of his suppression motion, his

motion to dismiss, as well as the sentence he eventually received. Those remain

the three issues now before us on appeal. We discuss them by turn.

II

First is Mr. Ludwig’s challenge to the disposition of his suppression motion.

Because that motion independently challenges the constitutionality of his initial

stop, his extended detention, and the search of his vehicle, we address each of

these matters separately. In doing so, we review legal questions de novo but view

the facts in the light most favorable to the government as the prevailing party.

Watson v. United States, 485 F.3d 1100, 1103 (10th Cir. 2007). We also accept

the district court’s specific factual findings unless clearly erroneous — no easy

hurdle to clear, requiring the defendant to show that the findings are more than

possibly or even probably wrong but pellucidly so. Id. at 1108.

A

“[T]he decision to stop an automobile is reasonable,” and so consistent with

the Fourth Amendment, “where the police have probable cause to believe that a

traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810 (1996).

Mr. Ludwig says probable cause was lacking in his case because Trooper

Chatfield’s radar gun was unreliable. Unreliable because of the trooper’s

allegedly shoddy maintenance habits. The district court, for its part, found none of

this persuasive and credited the radar gun’s reading. But even overlooking this,

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Mr. Ludwig’s stop was still lawful. It’s long been the case that an officer’s visual

estimation can supply probable cause to support a traffic stop for speeding in

appropriate circumstances. United States v. Vercher, 358 F.3d 1257, 1262-63

(10th Cir. 2004); United States v. Bourassa, 411 F.2d 69, 71 (10th Cir. 1969). In

this case, the district court found the trooper’s visual estimate credible and we are

given no reason to believe otherwise. To be sure, as Mr. Ludwig well notes, the

eyes can deceive and the trooper’s training in speed estimation dates back to his

time in the police academy. But Mr. Ludwig neglects to mention that the trooper

enjoyed a fine view, watching Mr. Ludwig’s car approach as he was parked in the

highway’s median. Mr. Ludwig also fails to note the day was crystal clear and the

trooper possessed 15 years’ experience as a highway patrolman watching cars and

estimating speeds. And Mr. Ludwig offers us no affirmative reason to think that

the trooper forgot his training or that his estimate should be discredited for any

other reason. In these circumstances, the district court’s factual finding about the

reliability of the trooper’s visual estimation remains untouched, must be affirmed,

itself sufficient to support the traffic stop.

B

Even if his stop was lawful, Mr. Ludwig says his continued detention after

the trooper finished writing the ticket was not. For its part, the government

concedes that Trooper Chatfield detained Mr. Ludwig beyond the time it took to

issue a traffic ticket. Neither does (nor can) the government argue that Mr.

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Ludwig consented to this continued detention. So in order to justify Mr. Ludwig’s

continued detention after Trooper Chatfield finished writing the ticket — for that

detention to be “reasonable” for Fourth Amendment purposes — it falls to the

government to show that it had reasonable suspicion to believe criminal activity

may be afoot. Terry v. Ohio, 392 U.S. 1, 30 (1968). In deciding whether this

standard is met, we are told we must examine the “totality of the circumstances.”

United States v. Arvizu, 534 U.S. 266, 273 (2002). Several considerations, in

combination, lead us to hold the reasonable suspicion standard satisfied here.

First, Mr. Ludwig didn’t stop after the trooper signaled him to pull over.

Instead, he moved onto the shoulder of the highway but then, for no reason

compelled by traffic conditions, continued to drive for about “a quarter mile to a

half a mile.” Aplt. App. Vol. II at 303. In all, Mr. Ludwig took 44 seconds to

stop after crossing the shoulder. The trooper testified that he thought this behavior

“unusual.” Id. Recognizing as much ourselves, this court has repeatedly held that

a driver’s failure to stop his vehicle promptly is a factor that can contribute to

reasonable suspicion of criminal activity. See United States v. Villa-Chaparro,

115 F.3d 797, 799, 802 (10th Cir. 1997); United States v. Elkins, 70 F.3d 81, 83

(10th Cir. 1995); United States v. Walraven, 892 F.2d 972, 973, 975 (10th Cir.

1989).

Mr. Ludwig responds that he stopped faster than any of the defendants in

these other cases. And that may be so. But he overlooks this court’s decision in

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United States v. Hunnicutt, where we factored into the reasonable suspicion

analysis the fact that it took “ten to twelve seconds over the course of a half of a

mile” for the defendant to stop his car in response to the officer’s lights — a

shorter period of time than it took Mr. Ludwig to stop. 135 F.3d 1345, 1347,

1349-50 (10th Cir. 1998). Given this precedent, and even assuming that Mr.

Ludwig’s behavior wasn’t enough by itself to justify his prolonged detention, we

can’t say it contributes absolutely nothing to a reasonable suspicion analysis, one

that commands us always to consider the totality of the circumstances.

Second, Trooper Chatfield noticed an overpowering smell of cologne when

Mr. Ludwig rolled down his window. The trooper testified, based on his

experience, that strong masking odors are often used by drug couriers to hide

illegal drugs. And, though the use of cologne or perfume is certainly consistent

with lawful activity, our cases have acknowledged that it is “commonly used to

mask the odor of drugs” and so can contribute to a reasonable suspicion calculus.

United States v. Ortiz-Ortiz, 57 F.3d 892, 895 (10th Cir. 1995); see also United

States v. Salzano, 158 F.3d 1107, 1114 (10th Cir. 1998); United States v. Stone,

866 F.2d 359, 362 (10th Cir. 1989).

Mr. Ludwig contends that Trooper Chatfield simply lied about what he

smelled. As proof, Mr. Ludwig points us to Lieutenant Adams’s statement that he

didn’t smell anything. But this “proof” conflates two very different things from

two very different times. As the district court noted, Lieutenant Adams’s

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statement refers to his failure to detect the smell of marijuana later when he was

shown the secret compartment in Mr. Ludwig’s vehicle. It does not in any way

refer to, much less contradict, Trooper Chatfield’s testimony that he smelled

cologne inside the passenger compartment of Mr. Ludwig’s vehicle when he first

arrived on the scene. 1

Third, Mr. Ludwig was driving a vehicle registered to a third party who

wasn’t present. This is a factor we “have often held” may “indicat[e] a stolen

vehicle or drug trafficking.” United States v. Olivares-Campos, 276 F. App’x 816,

821 (10th Cir. 2008) (unpublished); see also United States v. Turner, 928 F.2d

956, 959 (10th Cir. 1991). Mr. Ludwig asks us to hold that this factor becomes

relevant only when the driver cannot provide details about the owner; and here, he

says, he did supply such details. We decline to — and cannot — adopt Mr.

Ludwig’s rule. In United States v. Turner, we found it enough to contribute to

reasonable suspicion that the “defendant was driving a car that was not registered

to him or to his passenger.” 928 F.2d at 959. That precedent requires us to hold

that this factor is at least relevant to the reasonable suspicion analysis.

1
As a fall back, Mr. Ludwig reads Trooper Chatfield’s testimony as saying
that it wasn’t the mere smell of cologne that made him suspicious, but the fact
that the smell had no obvious source. And this, Mr. Ludwig says, is a lie. A lie
because a photograph of his car clearly shows an air freshener hanging from the
rear view mirror. Whatever the source of the smell, however, it was there and we
cannot say it is irrelevant under our precedents.

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 Fourth, and likewise, Mr. Ludwig’s account of his travel was suspect. He

claimed that he was called out to San Jose — a hub of the computer industry — all

the way from New Jersey to fix a computer server problem. At the least, this

suggested the server problem was no mere glitch but something critical, requiring

specialization. Yet if this were true, it was surely curious that the San Jose

company would be willing to wait for Mr. Ludwig to drive cross-country. And

curiouser still that the company would refuse to pay for lodging or a rental car.

Considering these oddities together, we believe, as the district court did, that

Trooper Chatfield reasonably regarded Mr. Ludwig’s claimed travel plans as

suggesting that all was not as it seemed.

To this Mr. Ludwig answers that, so long as a traveler doesn’t give

contradictory or contradicted descriptions of his travel plans, those plans should

not be factored into the reasonable suspicion calculus. Again, we disagree.

Although contradictory or contradicted travel plans themselves very well may add

something all their own to the reasonable suspicion analysis, we have never

suggested that exposed lies are required. Bizarre travel plans may, by themselves,

contribute to reasonable suspicion that criminal rather than innocent activity is

under way. See United States v. White, 584 F.3d 935, 943, 951 (10th Cir. 2009);

United States v. Sokolow, 490 U.S. 1, 9 (1989) (“While a trip from Honolulu to

Miami, standing alone, is not a cause for any sort of suspicion, . . . surely few

residents of Honolulu travel from that city for 20 hours to spend 48 hours in

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Miami during the month of July.”); United States v. Simpson, 609 F.3d 1140,

1151-52 (10th Cir. 2010) (“That [defendant] chose to drive [two and a half days]

to spend a single night in Reno . . . contributes to a finding of suspiciousness.”).

Fifth, Mr. Ludwig was exceptionally nervous throughout the encounter. Of

course, everyone gets nervous when stopped by a police officer. And for this

reason we have emphasized — repeatedly — that “nervousness is of limited

significance in determining reasonable suspicion.” United States v. Wood, 106

F.3d 942, 948 (10th Cir. 1997) (quoting United States v. Fernandez, 18 F.3d 874,

879 (10th Cir. 1994)). At the same time, this court has just as consistently held

that the fact we all get nervous when stopped supplies “no reason . . . to ignore”

entirely evidence of unusually extreme or prolonged nervousness. United States v.

Williams, 271 F.3d 1262, 1269 (10th Cir. 2001). And that’s what the record here

suggests. Mr. Ludwig’s hands trembled so much that he had difficulty reaching

his wallet in his front pocket. He refused to make eye contact when answering the

trooper’s questions. He took long pauses before each response he offered the

trooper. He never settled down but, as the district court found, remained

exceptionally nervous throughout the stop. 2

2
The trooper said one additional sign of Mr. Ludwig’s unease was the
extra pressure he applied when signing the traffic citation. Mr. Ludwig contends
that the record does not support this particular assertion. But even assuming Mr.
Ludwig is right about this much, there remains plenty of other indications he was
exceptionally nervous for a prolonged period. Along the same lines, Mr. Ludwig
(continued...)

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 Considering all of the above factors together and in light of our precedent,

we hold that a particularized and objective basis existed for suspecting Mr.

Ludwig of drug trafficking — thus permitting officers to detain him while a drug

dog was deployed around the outside of his car. Neither do we think we might

faithfully reach any other conclusion. In United States v. Sanchez-Valderuten, this

court said that an officer had reasonable suspicion to detain the defendant for

questioning based on the masking smell of air freshener in his vehicle, the

defendant’s apparent evasion of the officer’s questions about his point of

departure, and the defendant’s seemingly unusual choice to travel I-70 when

driving from New York to Washington state. 11 F.3d 985, 989 (10th Cir. 1993).

In United States v. Turner, this court affirmed a district court’s finding of

reasonable suspicion based on the defendant’s nervousness, the implausibility of

the defendant’s story to the officer, and the fact that the vehicle was not registered

to the defendant or his passenger. 928 F.2d at 959. We fail to see any convincing

way in which we might distinguish Mr. Ludwig’s case from these or many other

cases where this court has found reasonable suspicion present.

2
(...continued)
makes much of the fact that Trooper Chatfield’s arrest report incorrectly stated
that there was a shirt hanging in the rear window of his vehicle and almost
nothing else in the car suggesting a cross-country trip. But the district court did
not rely on any of this when conducting its Fourth Amendment analysis and
neither do we. Nor do we see any reason why the district court was obliged to
disregard all of the trooper’s testimony on the basis of these claimed errors.

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 C

So the trooper had reasonable suspicion to detain Mr. Ludwig. The question

remains whether and when, during this detention, the trooper gained probable

cause to permit his search of the car consistent with the Fourth Amendment. It is

well settled that a drug dog’s sniff of the outside of a car is not itself a search for

Fourth Amendment purposes and so doesn’t require a showing of probable cause

to justify it. See Illinois v. Caballes, 543 U.S. 405, 409 (2005). But it is equally

well settled that a trooper’s opening of a car trunk is a search and does require

probable cause to make it constitutional. By the time the trooper opened Mr.

Ludwig’s car, of course, the drug dog had alerted to the presence of narcotics.

And a positive alert by a certified drug dog is generally enough, by itself, to give

officers probable cause to search a vehicle. See United States v. Parada, 577 F.3d

1275, 1282 (10th Cir. 2009).

Seeking to defeat this conclusion, Mr. Ludwig says this dog wasn’t reliable.

He says the dog’s records — spanning some 200 pages in the record and covering

7 years’ worth of data — reveal that its alerts have identified a seizable quantity of

drugs only 58% of the time. This, in his view, is not enough to establish probable

cause. And it surely goes without saying that a drug dog’s alert establishes

probable cause only if that dog is reliable. See id. at 1283. But none of this

means we mount a full-scale statistical inquisition into each dog’s history.

Instead, courts typically rely on the dog’s certification as proof of its reliability.

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See id.; United States v. Kennedy, 131 F.3d 1371, 1378 (10th Cir. 1997) (“[W]ith a

canine, the reliability should come from the fact that the dog is trained and

annually certified to perform a physical skill.”) (quotation omitted). After all, it is

safe to assume that canine professionals are better equipped than judges to say

whether an individual dog is up to snuff. And beyond this, a dog’s credentials

provide a bright-line rule for when officers may rely on the dog’s alerts — a far

improvement over requiring them to guess whether the dog’s performance will

survive judicial scrutiny after the fact. Of course, if a credentialing organization

proved to be a sham, its certification would no longer serve as proof of reliability.

But the judicial task, we hold, is so limited: to assessing the reliability of the

credentialing organization, not individual dogs. And in this case there is no

suggestion that the California Narcotic Canine Association, the organization that

credentialed the drug dog in this case, is all smoke and mirrors. 3

Compelling the use of statistics to scrutinize the performance of individual

dogs in every case would raise another problem. It would suggest that probable

cause might be usefully defined by reference to some one-size-fits-all

mathematical equation. And about this, too, we have our doubts. See Brinegar v.

3
This is not to say that a dog’s alerts are necessarily unreliable just
because the dog lacks an acceptable certification. An uncertified dog’s accuracy
could still, in theory at least, be established by examining its training history and
record for reliability. Our point is that this is a needless exercise when, as here,
the dog has been certified by an organization whose bona fides are unchallenged.

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United States, 338 U.S. 160, 176 (1949) (“The rule of probable cause is a

practical, nontechnical conception . . . .”); Orin Kerr, Why Courts Should Not

Quantify Probable Cause 14 (George Washington University Public Law and

Legal Theory Paper No. 543, Mar. 27, 2011). Besides the difficulty of agreeing on

a single number, 4 such an enterprise would, among other things, risk diminishing

the role of “judgment based on . . . situation-sense,” evolved over time and

through case-by-case exposition. Kerr, Why Courts Should Not Quantify Probable

Cause at 14. It would also ignore the fact that many factors relevant to a probable

cause analysis (just like a reasonable suspicion analysis) aren’t subject to easy

quantification. How might one quantify the “suspiciousness” of a travel story, for

example? Or the fact a defendant took an “unusual” amount of time to stop his

car? More than percentages, precedent and common sense rules (like reliance on

certification processes) ought to inform the probable cause analysis.

Mr. Ludwig’s argument fails for still another reason. He admits that, based

on historical performance, this dog’s alert suggested a 58% chance of finding a

4
“In one study, 166 federal judges were asked to quantify probable cause.
Their answers ranged from 10% to 90% certainty, with an average of 44.52%
certainty. See C.M.A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of
Evidence, or Constitutional Guarantees?, 35 Vand. L. Rev. 1293, 1327-28 (1982).
See also Christopher Slobogin, Let’s Not Bury Terry: A Call for Rejuvenation of
the Proportionality Principle, 72 St John’s L. Rev. 1053, 1082-85 (1998)
(estimating probable cause at about 50%).” Kerr, Why Courts Should Not
Quantify Probable Cause at 2 n.6.

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seizable quantity of drugs. 5 While we hesitate to get into the business of affixing

figures on probable cause, if we were pushed to do so we would hold this to be

enough. After all, probable cause doesn’t require an officer’s suspicion about the

presence of contraband to be “more likely true than false.” Texas v. Brown, 460

U.S. 730, 742 (1983); United States v. Padilla, 819 F.2d 952, 962 (10th Cir.

1987); see also United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999) (“[T]he

requisite ‘fair probability’ is something more than a bare suspicion, but need not

reach the fifty percent mark.”); United States v. Limares, 269 F.3d 794, 798 (7th

Cir. 2001) (“‘[P]robable cause’ is something less than a preponderance.”); United

States v. Donnelly, 475 F.3d 946, 954 (8th Cir. 2007) (“Probable cause . . . does

not require . . . evidence demonstrating that it is more likely than not that the

suspect committed a crime.”) (quotations omitted). And several of our sister

circuits have upheld searches involving dogs with track records on par with this

one. See Limares, 269 F.3d at 798 (62% accuracy rate suffices to demonstrate

5
The dog’s accuracy rate may actually be higher than 58%. In fact, the
district court found the number to be between 72% and 80%. Mr. Ludwig arrived
at his 58% figure only by excluding alerts in which police found drug residue or
paraphernalia, but not seizable quantities of drugs. Yet those were instances in
which the dog accurately detected the presence of contraband, so we see no basis
for treating them as errors. See United States v. Bertram, 307 F. App’x 214, 217
(10th Cir. 2009) (unpublished) (“[A]lerts in the field that ultimately reveal no
discernible drugs are not necessarily false alerts.”). After all, the Fourth
Amendment’s probable cause standard requires a showing that there is “a fair
probability that contraband or evidence of a crime will be found.” Illinois v.
Gates, 462 U.S. 213, 238 (1983) (emphasis added). And Mr. Ludwig doesn’t (and
can’t) dispute that drug residue and drug paraphernalia are contraband or
evidence of a crime.

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probable cause); United States v. Anderson, 367 F. App’x 30, 33 (11th Cir. 2010)

(unpublished) (holding dog was reliable with a 55% accuracy rate); United States

v. Koon Chung Wu, 217 F. App’x 240, 246 (4th Cir. 2007) (unpublished) (“[A]n

accuracy rate of 60% is more than reliable enough for [the dog’s] alert to have

established probable cause”). 6

Of course, Mr. Ludwig says that at least one problem still remains. In his

view, the drug dog didn’t actually alert on his own; Trooper Chatfield cued him.

Aplt. App. Vol. I at 215. Before the district court, however, the government

introduced the testimony of Kem Wallentine, an expert in the training and

evaluation of narcotics dogs. He reviewed the traffic stop videos and found “no

evidence of any cueing between [the trooper] and the dog.” Aplt. App. Vol. II at

507. He further testified that the California Narcotic Canine Association had

certified Trooper Chatfield and his dog twice in the twelve months before the

6
Mr. Ludwig rejoins that the drug dog wasn’t specifically trained to detect
the drug ecstasy. But this makes no difference. The dog alerted to the presence
of drugs. Once he did, probable cause existed to search Mr. Ludwig’s vehicle for
drugs and any drugs found in that search became legally admissible. See United
States v. McCranie, 703 F.2d 1213, 1218 (10th Cir. 1983) (alert by
explosives-sniffing dog not trained to detect drugs created reasonable suspicion
that defendant’s suitcase contained contraband); United States v. Outlaw, 319
F.3d 701, 704 (5th Cir. 2003) (“That the suitcase the canine alerted to later turned
out to contain PCP, a drug the dog was not trained to detect, simply does not
vitiate the agent’s reasonable suspicion under these facts.”); United States v.
Robinson, 707 F.2d 811, 815 (4th Cir. 1983) (“[The dog’s] initial detection [ ]
was sufficient to establish probable cause for a search for controlled substances
— the fact that a different controlled substance was actually discovered does not
vitiate the legality of the search.”).

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traffic stop. And that organization, Mr. Wallentine explained, uses tests

specifically designed to reveal whether a dog unconsciously cues to his handler

rather than drugs. Of course, Mr. Ludwig introduced his own competing expert.

And that expert testified that the trooper unintentionally prompted the dog to alert

to Mr. Ludwig’s vehicle. But at the end of this battle of the experts, the district

court chose to credit Mr. Wallentine rather than Mr. Ludwig’s expert. On appeal,

we may not revisit the site of this battle, recreate it in our imaginations, and

resolve it for ourselves anew. Neither is it enough for Mr. Ludwig to ask us (as he

does) simply to credit his expert’s conclusions rather than the government’s.

Instead, it is incumbent on Mr. Ludwig to show that the district court’s resolution

of the experts’ credibility contest was not just wrong but clearly or pellucidly (and

so reversibly) wrong. And this he has not done. 7

7
Whatever the merits of his other arguments, Mr. Ludwig says that, at the
very least, the district court unfairly deprived him of the chance to elicit
testimony refuting the dog’s reliability. But this argument, too, fails. During the
first suppression hearing, the court permitted Mr. Ludwig’s attorney to cross-
examine the government’s drug dog expert on the question of reliability. And he
points to no evidence that he was precluded from doing so. Instead, Mr. Ludwig
complains about the second suppression hearing, as his effort there to proffer an
expert was rejected. But the district court didn’t abuse its discretion by declining
to revisit the reliability issue during that second hearing. See United States v.
Wiseman, 172 F.3d 1196, 1207-08 (10th Cir. 1999). While the court granted Mr.
Ludwig’s request for another suppression hearing, it did so on a limited basis,
expressly excluding further testimony on the drug dog’s reliability. We discern
no abuse in that decision. After all, the court had already provided Mr. Ludwig
with his chance to develop the record. And Mr. Ludwig offers no reason why he
was entitled to have the court reopen and redo the record on this point.

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 III

From Mr. Ludwig’s motion to suppress we turn to his motion to dismiss.

Mr. Ludwig argues that the government acted in bad faith when it destroyed the

video footage from Trooper Schulmeister’s patrol car. On this basis, he says, the

Constitution required the district court to dismiss the indictment against him.

Because the district court failed to do so, he says, we should.

To the extent the Constitution’s due process guarantees impose a duty upon

the government to preserve evidence, the Supreme Court has told us that the “duty

must be limited to evidence that might be expected to play a significant role in the

suspect’s defense.” California v. Trombetta, 467 U.S. 479, 488-89 (1984). To

qualify as constitutionally material in this sense, the evidence must: (1) “possess

an exculpatory value that was apparent [to the police] before the evidence was

destroyed,” and (2) “be of such a nature that the defendant would be unable to

obtain comparable evidence by other reasonably available means.” Id. at 489. In

addition, “if the exculpatory value of the evidence is indeterminate and all that can

be confirmed is that the evidence was ‘potentially useful’ for the defense,” then

the defendant must also show (3) “that the government acted in bad faith in

destroying the evidence.” United States v. Bohl, 25 F.3d 904, 910 (10th Cir. 1994)

(quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).

Mr. Ludwig falters at the second step of this test. He cannot demonstrate

that the deleted videotape is “of such a nature” that he “would be unable to obtain

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comparable evidence by other reasonably available means.” Trombetta, 467 U.S.

at 489. He already possessed two other videos of the traffic stop, videos shot from

the vehicles of Trooper Chatfield and Lieutenant Adams. And presumably the

video from Trooper Chatfield’s vehicle offered the most comprehensive account of

the events that transpired, as he was the only officer present throughout the entire

traffic stop.

To be sure, Mr. Ludwig complains that both recordings he possessed were

inaudible. And we accept his premise that Trooper Schulmeister’s video at least

might have provided missing dialogue. But even assuming all this, it still isn’t

enough to make out a Trombetta claim. It isn’t because Mr. Ludwig enjoyed at

least one other means for obtaining comparable evidence — namely, by calling

and questioning the witnesses to the event at his suppression hearings. In United

States v. Parker, much as here, the defendant complained about a missing portion

of a traffic stop video. 72 F.3d 1444, 1452 (10th Cir. 1995). We rejected the

defendant’s Trombetta claim, reasoning that the defendant “could have called”

witnesses to the event “to adduce what the missing video tape evidence showed.”

Id. Exactly the same holds true here and in these circumstances we see no way we

might allow Mr. Ludwig’s Trombetta claim consistent with our precedent. 8

8
Mr. Ludwig answers this by saying that, at the second suppression
hearing, the district court prevented him from adequately examining Troopers
Chatfield and Schulmeister, as well as Lieutenant Adams, about the conversations
missing from the tapes he received. The problem with this argument is that Mr.
(continued...)

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 IV

Finally, Mr. Ludwig complains about his sentence. He says the district

court should have held him eligible for the “safety valve,” see 18 U.S.C. § 3553(f),

or for a “minor role” adjustment, see U.S.S.G. § 3B1.2. Either way, he says, he

would have and should have received a lesser sentence.

The safety valve permits the district court to grant a two level reduction of a

defendant’s base offense level if the defendant meets five specified criteria. The

only criterion at issue in this case specifies that “not later than the time of the

sentencing hearing,” the defendant must “truthfully provide[] to the Government

all information and evidence the defendant has concerning the offense or offenses

that were part of the same course of conduct or of a common scheme or plan.” 18

U.S.C. § 3553(f)(5). Mr. Ludwig says he provided truthful and complete

8
(...continued)
Ludwig did not raise this specific objection to the district court during the second
hearing or present it as an issue for appeal in his opening brief. Both unpreserved
before the district court and unpresented in an opening appellate brief, it is
deemed waived. Alternatively, Mr. Ludwig complains that the district court
should have at least held a third evidentiary hearing where, he says, he might
have shown the government acted in bad faith when destroying the videotape.
But this wouldn’t have helped him. Bad faith is a necessary but not sufficient
element of Mr. Ludwig’s Trombetta claim. To prevail, Mr. Ludwig must also and
separately show the videotape in question was irreplaceable. Finally, Mr. Ludwig
says he should’ve been allowed to collect and introduce certain impeachment
evidence at the second suppression hearing. This evidence, he suggests, would’ve
shown that the officers’ testimony was unreliable and so not an adequate
replacement for the lost video. But this argument too fails, for it wasn’t
adequately developed in his opening brief. See Prost v. Anderson, No. 08-1455,
2011 WL 590334, at *13 (10th Cir. Feb. 22, 2011).

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disclosure at his sentencing hearing, but the district court expressly disagreed with

this assessment. The district court explained that, at the sentencing hearing, Mr.

Ludwig testified he wasn’t familiar with the last name of his drug source named

“Alex.” Aplt. App. Vol. III at 620. This even though he had known Alex for more

than nine years. And even though he admitted that Alex had trusted him enough to

transport $125,000 in cash. In light of these facts, the district court found Mr.

Ludwig’s testimony that he didn’t know Alex’s true identity “stretch[ed]

credulity.” Aplt. App. Vol. III at 648. For his part, Mr. Ludwig offers us no

reason to hold this finding not just possibly or probably but clearly wrong.

Instead, Mr. Ludwig retreats to the claim that he was at least entitled to a

two-level reduction for being a “minor participant.” But a minor participant

adjustment applies only to “a defendant who plays a part in committing the offense

that makes him substantially less culpable than the average participant.” USSG

§ 3B1.2 cmt. n. 3(A) (emphasis added). The district court said Mr. Ludwig did not

meet this definition because, unlike “average” drug couriers, Mr. Ludwig was fully

aware that he was transporting $125,000 in cash to California to purchase a large

amount of illegal drugs. Once again, we are offered no reason or precedent

suggesting that the court’s factual assessments — about the knowledge possessed

by “average” couriers and Mr. Ludwig — were clearly erroneous.

The judgment of the district court is

Affirmed.

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