U.S. v. Kitchell

• Decision Date: 09 August 2011
• Docket Number: 09–6206.,Nos. 09–6176,s. 09–6176
• Citation: 653 F.3d 1206
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.John E. KITCHELL, Defendant–Appellant.United States of America, Plaintiff–Appellee,v.Edward Katsuaki Shigemura, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

653 F.3d 1206

UNITED STATES of America, Plaintiff–Appellee,

v.John E. KITCHELL, Defendant–Appellant.United States of America, Plaintiff–Appellee,

v.Edward Katsuaki Shigemura, Defendant–Appellant.

Nos. 09–6176

09–6206.

United States Court of Appeals, Tenth Circuit.

Aug. 9, 2011.

William H. Campbell, Oklahoma City, OK, for Defendant–Appellant John E. Kitchell.William D. Lunn, Tulsa, OK, 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, OK, for Plaintiff–Appellee.Before GORSUCH and EBEL, Circuit Judges, and ARGUELLO, District Judge.¹EBEL, 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 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 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.

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.

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 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 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...