United States v. Kitchell

FILED
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,

Plaintiff-Appellee,

v. No. 09-6176

JOHN E. KITCHELL,

Defendant-Appellant.

------------------------------------
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 09-6206

EDWARD KATSUAKI SHIGEMURA,

Defendant-Appellant.

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.
Kitchell.
William D. Lunn, Tulsa, Oklahoma, for Defendant-Appellant Edward Katsuaki
Shigemura.

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

1
The Honorable Christine M. Arguello, United States District Judge for the
District of Colorado, sitting by designation.

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

3
camera on his patrol car activated and recorded the subsequent traffic stop, including both

the exterior and interior of the car.

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.

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.

2
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.

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.

5
 3. Trooper Hyde’s First Interaction with Mr. Kitchell and Mr. Sprous
(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.

4. Trooper Hyde’s Second Interaction with Mr. Shigemura (Video at
10:34-20:38.)

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

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

warrant check.

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.

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.”

7. Trooper Hyde’s Final Conversation with Mr. Shigemura (Video at
21:56-22:56.)

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

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.

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.

3
Meco was certified to detect four odors: marijuana, cocaine, methamphetamine,
and heroin.

8
 9. Search of the Rental Car and Arrests of Mr. Shigemura and Mr.
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.

4
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.

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

handcuffed them.

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
saying?
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.
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

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

5
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).

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.

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

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.

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.”
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.
....
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

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.

6
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.”)

16
 3. The Detention Was Reasonably Related in Scope to the
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).

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
circumstances.

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],

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.

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
20
district court’s finding of facts “even when, as here, there is video tape of the stop and

detention.” Id.

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, 1132

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.
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.

(ii) Nervousness

“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
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.)

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

activity.

(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
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

travel plans.

(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

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

7
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.

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 (1983).8

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.

8
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.

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
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

9
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.”).
10
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”).

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
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.

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-

11
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).

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

unreliable.

“[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
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.

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

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 . . .

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.

34
 1. Standard of Review

“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).

2. The Government Presented Sufficient Evidence to Establish That the
Enhancement Applies.

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

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

13
This statute provides that it is a felony for a person to do one or more of the
following:

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.

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

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

14
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.

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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.

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).

39
 2. The Government Introduced Sufficient Evidence for a Reasonable
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
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
saying?
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.

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(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

jury’s verdict.

15
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.”

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