                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                           December 18, 2014

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                            No. 13-3301
                                                    (D.C. No. 6:13-CR-10004-MLB-1)
 TROY A. BONG,                                                 (D. Kansas)

        Defendant - Appellant.


                                ORDER AND JUDGMENT*


Before McHUGH, McKAY and BALDOCK, Circuit Judges.




       Defendant-appellant Troy Bong appeals from his conviction on one count of being

a felon in possession of a handgun in violation of 18 U.S.C. §§ 922(g), 924(e). Mr. Bong

challenges the denial of his pretrial motion to suppress evidence allegedly obtained in

violation of his Fourth Amendment rights and the admission of certain testimony at his

subsequent trial. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.




       *This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                     I.     BACKGROUND

       On December 22, 2012, Officers Thatcher and Springob of the Wichita Police

Department were parked outside a house that was the subject of a drug investigation.1

The officers observed a car leave the target house and followed the vehicle. The driver of

the vehicle failed to activate the car’s turn signal 100 feet before an intersection. Based

on this traffic violation, the officers initiated a traffic stop. Officer Springob2 approached

the driver’s side of the car, while Officer Thatcher approached the passenger side. A

woman, later identified as Mr. Bong’s wife, was driving the car. Mr. Bong was in the

front passenger seat.

       Officer Thatcher used his flashlight to look into the passenger side of the vehicle

as he approached. Officer Thatcher testified Mr. Bong refused to make eye contact,

instead staring straight ahead. Officer Thatcher thought Mr. Bong looked familiar,

prompting him to ask for Mr. Bong’s identification. Mr. Bong opened the passenger door

to hand Officer Thatcher his identification. As Mr. Bong opened the door, Officer

       1
          This recitation of the facts is drawn from the evidence adduced at the pretrial
hearing on Mr. Bong’s motion to suppress. Though Mr. Bong’s briefing on appeal relies
in part on testimony elicited at trial, we will only consider the evidence known to the
district court at the suppression hearing. See United States v. Bass, 661 F.3d 1299, 1303
(10th Cir. 2011). “Because the district court should have the first opportunity to correct
its mistake, we ordinarily will not consider trial evidence which undermines a district
court decision rendered at a pretrial suppression hearing,” absent a renewed suppression
motion at trial. Id. (internal quotation marks omitted). Mr. Bong did not renew his motion
to suppress at trial. Thus, we will not look to the evidence adduced at trial to determine if
the prior ruling should stand.
       2
           Officer Springob did not testify at the suppression hearing.

                                              -2-
Thatcher noticed a cigarette pack between the passenger seat and the door. Officer

Thatcher found this suspicious because in his experience people attempting to hide illegal

substances often drop them between the seat and door.

       After examining Mr. Bong’s identification, Officer Thatcher recalled he had

previously arrested Mr. Bong on drug, firearms, and parole violation charges. Officer

Thatcher asked Mr. Bong if he was still on parole, but Mr. Bong refused to respond.

According to Officer Thatcher, Mr. Bong began to exhibit signs of nervousness—heavy

breathing, sweating, and refusal to acknowledge the officer. Because Officer Thatcher’s

prior arrest of Mr. Bong had involved a firearm, the officer became concerned for his and

Officer Springob’s safety. Officer Thatcher then asked Mr. Bong to exit the vehicle.

Mr. Bong initially refused to respond, but he eventually exited the vehicle after Officer

Thatcher repeated his order several times.

       When Mr. Bong stepped out of the vehicle, Officer Thatcher noticed he was

standing so that the right side of his body was turned away. Officer Thatcher also

observed a knife clipped into one of the front pockets of Mr. Bong’s jacket. Officer

Thatcher removed the knife from Mr. Bong’s pocket and told him to put his hands on top

of the car. He then informed Mr. Bong that he was going to perform a patdown for

weapons. According to Officer Thatcher, Mr. Bong hesitated, but eventually put his

hands on the top of the car.

       Officer Thatcher reached up to place his hands on top of Mr. Bong’s hands on the

car roof. As he did so, Mr. Bong attempted to back away from the car and evade Officer
                                             -3-
Thatcher. Because he feared Mr. Bong might have a weapon, Officer Thatcher attempted

to maintain control of Mr. Bong’s hands. The two struggled briefly, at which point

Officer Thatcher tried to throw Mr. Bong to the ground while keeping control of his

hands. Both men fell to the ground, still struggling. As Mr. Bong attempted to rise,

Officer Thatcher kicked him approximately three times in the abdomen in an attempt to

knock him back down. At that point, Officer Thatcher observed a black object resembling

a firearm fall to the ground. He immediately yelled “gun, gun!” Aplt. Appx. at 93.

       In response to Officer Thatcher’s shout, Officer Springob entered the fray and

knocked Mr. Bong to the ground. The officers were able to subdue Mr. Bong and place

him in handcuffs. After the officers restrained Mr. Bong, they found a firearm on the

ground beneath him.

       Mr. Bong moved to suppress the evidence obtained during the traffic stop and his

arrest, arguing it was obtained in violation of his Fourth Amendment rights. Though he

acknowledged the officers had reasonable suspicion to initiate an investigative traffic

stop on the basis of the observed traffic violation, Mr. Bong argued the scope of the

detention following the traffic stop and the force used by the officers was unreasonable,

ultimately transforming the contact into an arrest without probable cause. The district

court expressed concern about the level of force used by the officers, but it ultimately

concluded Officer Thatcher’s actions were justified under the circumstances. The court

therefore denied Mr. Bong’s motion to suppress.


                                            -4-
       The case proceeded to trial, during which the Government presented evidence

establishing essentially the same facts as in the pretrial suppression hearing. The

Government advanced the theory that Mr. Bong dropped the gun during the scuffle with

the officers and, by virtue of his status as a felon, was guilty of being a felon in

possession of a firearm. Mr. Bong’s defense was that another man, Jeremy Fisher, had

dropped the gun where it was found and the traffic stop and subsequent scuffle only

coincidentally occurred at the same location Mr. Fisher had dropped the gun.

       Ms. Bong testified for the defense, stating that although Mr. Fisher was with the

Bongs when they traveled to the house under surveillance by the officers, he was nervous

about entering. They therefore agreed to drop Mr. Fisher off near the house and to pick

him up at a nearby Quik Trip after leaving the house. Mr. Fisher also testified. He

claimed the gun was his, but he dropped it and “took off” when he saw the police officers

initiate the traffic stop of the Bongs. Aplt. Appx. at 414–15. Mr. Bong testified on his

own behalf, corroborating Ms. Bong’s and Mr. Fisher’s accounts.

       The jury convicted Mr. Bong of one count of being a felon in possession of a

handgun in violation of 18 U.S.C. §§ 922(g), 924(e), and the district court sentenced him

to a term of 293 months in prison. Mr. Bong appeals.

                                     II.     DISCUSSION

       Mr. Bong challenges the denial of his pretrial motion to suppress. He also

challenges two sets of statements admitted during his trial—portions of Officer

Thatcher’s testimony related to Mr. Bong’s body language on the night in question and
                                              -5-
statements made by the prosecutor that allegedly bolstered the credibility of the

prosecution’s witnesses. We address each argument in turn.

                                  A. The Motion to Suppress

       “In reviewing a district court’s order granting or denying a motion to suppress, this

court accepts the district court’s factual findings unless clearly erroneous and considers

the evidence in the light most favorable to the district court’s determination.” United

States v. Augustine, 742 F.3d 1258, 1264–65 (10th Cir.), cert. denied, 134 S. Ct. 2155

(2014) (internal quotation marks omitted). “The ultimate determination of reasonableness

under the Fourth Amendment, however, is a question of law reviewed de novo.” United

States v. Cash, 733 F.3d 1264, 1273 (10th Cir. 2013), cert. denied, 134 S. Ct. 1569

(2014).

       A routine traffic stop, like the one at issue here, “is analogous to an investigative

detention.” United States v. Caro, 248 F.3d 1240, 1244 (10th Cir. 2001). That is, it

constitutes a seizure within the meaning of the Fourth Amendment and must be supported

by reasonable suspicion. See id.; Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000).

We engage in a twofold inquiry to determine the reasonableness of a traffic stop. Caro,

248 F.3d at 1244. “First, the officer’s action must be justified at its inception.” United

States v. Fonseca, 744 F.3d 674, 680 (10th Cir. 2004) (internal quotation marks omitted).

Second, an officer’s action must be “reasonably related in scope to the circumstances

which justified the interference in the first place.” Id. (internal quotation marks omitted).

Further detention may be justified if the officer discovers facts that give rise to a
                                              -6-
reasonable suspicion of criminal activity. United States v. Soto-Cervantes, 138 F.3d 1319,

1322 (10th Cir. 1998). “In other words, reasonable suspicion must exist at all stages of

the detention, although it need not be based on the same facts throughout.” Id.

       “An officer can stop and briefly detain a person for investigative purposes if the

officer has a reasonable suspicion supported by articulable facts that criminal activity

may be afoot, even if the officer lacks probable cause.” Cortez v. McCauley, 478 F.3d

1108, 1115 (10th Cir. 2007) (internal quotation marks omitted). “An officer must be able

to point to specific and articulable facts to support a finding of reasonable suspicion; an

inchoate and unparticularized suspicion or hunch is insufficient.” Soto-Cervantes, 138

F.3d at 1322 (internal quotation marks omitted). Whether an objectively reasonable

suspicion of illegal activity supports an investigative detention “does not depend on any

one factor but on the totality of the circumstances.” Id.

       Moreover, when an officer initiates a traffic stop, he seizes all occupants of the

vehicle. See Brendlin v. California, 551 U.S. 249, 255–57 (2007). Officers are entitled to

order the driver and any passengers to exit the vehicle for the duration of the stop in order

to ensure the officers’ safety. United States v. Dennison, 410 F.3d 1203, 1211 (10th Cir.

2005); see also Maryland v. Wilson, 519 U.S. 408, 413 (1997) (recognizing “the fact that

there is more than one occupant of the vehicle increases the possible sources of harm to

the officer”). An officer “may also perform a patdown of a driver and any passengers

upon reasonable suspicion that they may be armed and dangerous.” Dennison, 410 F.3d

at 1211 (internal quotation marks omitted). “The purpose of the limited [patdown] search
                                             -7-
is not to discover evidence of a crime, but to allow the officer to pursue his investigation

without fear of violence.” United States v. Sanchez, 519 F.3d 1208, 1216 (10th Cir. 2008)

(internal quotation marks omitted).

       In this case, Mr. Bong concedes Officers Springob and Thatcher had reasonable

suspicion to initiate an investigative traffic stop on the basis of the observed traffic

violation. He further concedes Officer Thatcher was entitled to order him to exit the

vehicle. However, Mr. Bong argues Officer Thatcher lacked reasonable suspicion to

conduct a patdown for weapons. Mr. Bong further argues the encounter escalated to an

illegal arrest when the officers used excessive force during the scuffle.

1. The Patdown

       We have previously identified a number of factors relevant to whether an officer

had reasonable suspicion a subject was armed, which are present in this case. For

example, an officer’s knowledge that a subject is presently armed is sufficient standing

alone to justify a protective frisk. See United States v. Brakeman, 475 F.3d 1206, 1212–

13 (10th Cir. 2007). And an officer need not confine his search to the weapon he already

knows the subject possesses. Id.at 1213. Rather, he is entitled to determine whether the

subject is carrying any other weapons. Id. In this case, Officer Thatcher testified he

observed a knife clipped to Mr. Bong’s jacket pocket. Once the officer had certain

knowledge Mr. Bong possessed a weapon, he was entitled to conduct a protective frisk to

ensure no other weapons were present.


                                              -8-
       Moreover, “[a]n officer’s knowledge of past criminal conduct is probative of

whether the defendant is armed and dangerous, especially if a weapon was involved.”

United States v. Garcia, 751 F.3d 1139, 1145 (10th Cir. 2014). Officer Thatcher testified

he had previously arrested Mr. Bong for drug and weapons charges. This previous

interaction, in which Mr. Bong illegally possessed a firearm, supports an inference that

Mr. Bong was armed and dangerous on the night in question.

       Also, “an individual’s known connection with drug transactions is a factor

supporting reasonable suspicion to frisk that individual for weapons” because drug

crimes are frequently associated with weapons. United States v. Garcia, 459 F.3d 1059,

1064–65 (10th Cir. 2006). Officer Thatcher’s prior arrest of Mr. Bong involved the

possession of methamphetamine. And the officers observed Mr. Bong and his wife drive

away from a house under observation on suspicion of drug trafficking. Taken together,

these facts support a finding of reasonable suspicion.

       Finally, a subject’s evasive body positioning can be a relevant factor in

establishing reasonable suspicion. See United States v. Oglesby, 597 F.3d 891, 894–96

(7th Cir. 2010); United States v. Raymond, 152 F.3d 309, 312 (4th Cir. 1998); United

States v. Lazos, 314 F. App’x 127, 133 (10th Cir. 2009) (unpublished).3 In Oglesby,

officers approached a group of men standing at a bus stop in a high-crime area because


       3
        Though not precedential, we find the reasoning of this court’s unpublished
opinions instructive. See 10th Cir. R. 32.1 (“Unpublished opinions are not precedential,
but may be cited for their persuasive value.”).

                                            -9-
the men were obstructing the sidewalk in violation of a city ordinance. 597 F.3d at 892.

As the officers approached, the defendant angled his body away from the officers such

that the right side of his body was obscured from their view. Id. at 894. The officers

testified during the defendant’s pretrial suppression hearing that they suspected such an

angled stance was being used to conceal a weapon. Id. at 894–95. On appeal, the Seventh

Circuit held this evasive body positioning was a valid factor in the officer’s calculation of

reasonable suspicion. Id. at 895. In this case, Officer Thatcher testified Mr. Bong exited

the car while keeping the right side of his body away from the officer. This type of

evasive body positioning is a factor that supports a finding of reasonable suspicion.

       In summary, the totality of the circumstances supporting the patdown includes

Officer Thatcher’s observation that Mr. Bong was presently armed with a knife, the

officer’s prior arrest of Mr. Bong while he was in possession of a firearm, Mr. Bong’s

prior known and current suspected involvement with drug transactions, and Mr. Bong’s

suspicious body positioning.4 Based on the totality of the circumstances and viewing the


       4
         In his briefing to this court, Mr. Bong admits these circumstances, stating, “The
officer [Officer Thatcher] testified that he believed Mr. Bong was acting nervous, that he
knew that Mr. Bong had possessed a gun—in a locked glovebox—on a previous
occasion, that Mr. Bong had a folded up pocket knife clipped to an exterior pocket of his
jacket, and that Mr. Bong was positioned with his hip away from the car.” Aplt. Br. at 19.
Although Mr. Bong disputes the legal significance of these factual circumstances, he has
conceded their existence. We also note Mr. Bong’s recitation of the factual circumstances
surrounding the patdown includes one allegation that is not supported by the evidence
presented to the district court. At the suppression hearing, defense counsel asked Officer
Thatcher if the gun was in the locked glove compartment of the vehicle during his
previous encounter with Mr. Bong, but Officer Thatcher could not recall if that was the
                                                                              Continued . . .
                                            -10-
evidence in the light most favorable to the district court’s determination, we conclude

Officer Thatcher had reasonable suspicion to justify frisking Mr. Bong for weapons.

Because we conclude the patdown was proper, we next turn our attention to the officers’

use of force.

2. The Officers’ Use of Force

       “[O]fficers may use force during a Terry-type detention to the extent that such

steps are reasonably necessary to protect their personal safety and to maintain the status

quo during the course of the stop.” United States v. Mosley, 743 F.3d 1317, 1328–29

(10th Cir.), cert. denied, 135 S. Ct. 184 (2014) (alteration in original) (internal quotation

marks omitted). “Under certain circumstances, the steps officers may permissibly take to

protect their safety include drawing their weapons, placing a suspect in handcuffs, or

forcing a suspect to the ground.” Id. at 1329. But a greater use of force can transform an

investigative detention into an arrest requiring probable cause. See United States v.

Melendez-Garcia, 28 F.3d 1046, 1051 (10th Cir. 1994) (“[I]f police officers’ actions

exceed what is reasonably necessary under the totality of the circumstances, the stop may

only be justified by probable cause or consent.”). As we recently explained:

       “Determining whether the force used to effect a particular seizure is
       reasonable under the Fourth Amendment requires a careful balancing of the
       nature and quality of the intrusion on the individual’s Fourth Amendment
       interests against the countervailing governmental interests at stake.” This
       test “requires careful attention to the facts and circumstances of each

case. Statements of counsel are not evidence. See Mason v. United States, 408 F.2d 903,
907 (10th Cir. 1969).

                                             -11-
       particular case, including the severity of the crime at issue, whether the
       suspect poses an immediate threat to the safety of the officers or others, and
       whether he is actively resisting arrest or attempting to evade arrest by
       flight.” Further, “[t]he ‘reasonableness’ of a particular use of force must be
       judged from the perspective of a reasonable officer on the scene, rather than
       with the 20/20 vision of hindsight.” Moreover, “[t]he calculus of
       reasonableness must embody allowance for the fact that police officers are
       often forced to make split-second judgments—in circumstances that are
       tense, uncertain, and rapidly evolving—about the amount of force that is
       necessary in a particular situation.”

Mosley, 743 F.3d at 1329 (quoting Graham v. Connor, 490 U.S. 386, 396–97 (1989)

(citations omitted)).

       Here, the decision to frisk Mr. Bong for weapons was justified. But when Officer

Thatcher began the patdown, Mr. Bong resisted by attempting to back away from the car

on which Officer Thatcher had ordered Mr. Bong to place his hands. Fearing Mr. Bong

had another weapon, Officer Thatcher sought to maintain control of Mr. Bong’s hands.

As the two struggled, Officer Thatcher used a “hip toss” to bring Mr. Bong to the ground.

Aplt. Appx. at 92. While the two were on the ground, Officer Thatcher continued to hold

onto Mr. Bong’s hands. Only when it appeared Mr. Bong was about to stand did Officer

Thatcher kick him several times in the abdomen, thereby dislodging a black object.

According to Officer Thatcher, he believed the object to be a gun and alerted Officer

Springob to the danger. At that point, Officer Springob entered the fray, and the officers

were able to restrain Mr. Bong.




                                            -12-
       Under these circumstances, we agree with the district court that the degree of force

used by the officers was reasonable and justified.5 Accordingly, we affirm the denial of

Mr. Bong’s motion to suppress.

                              B. Challenged Statements at Trial

       We next turn our attention to Mr. Bong’s challenge to two sets of statements

introduced by the Government at trial. First, Mr. Bong takes issue with portions of

Officer Thatcher’s testimony in which the officer referenced Mr. Bong’s body language

on the night in question. Specifically, Mr. Bong argues this testimony constituted expert

testimony that should not have been allowed because Officer Thatcher had not been

properly qualified as an expert. Second, Mr. Bong objects to statements made by the

prosecutor that allegedly bolstered the credibility of the prosecution’s witnesses. But, as

Mr. Bong concedes, no objection was raised at trial to either set of statements. As such,

we review the admission of these statements for plain error.

       “We find plain error only when there is (1) error, (2) that is plain, (3) which affects

substantial rights, and (4) which seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Smalls, 752 F.3d 1227, 1236 (10th


       5
          In his briefing on appeal, Mr. Bong alleges Officer Springob intentionally kneed
him in the groin. Relying on Johnson v. District of Columbia, 528 F.3d 969 (D.C. Cir.
2008), Mr. Bong argues this constituted a violation of the Fourth Amendment. Although
Mr. Bong testified during trial that Officer Springob kneed him in the groin, this evidence
was not introduced during the pretrial suppression hearing. Because Mr. Bong did not
renew his motion to suppress at trial, our review is limited to the facts known to the
district court when it ruled on the motion to suppress. See supra note 1.

                                             -13-
Cir. 2014). “The plain error standard presents a heavy burden for an appellant” and is to

be used sparingly. United States v. Romero, 491 F.3d 1173, 1178–79 (10th Cir. 2007).

Moreover, the “defendant has the burden of establishing all four elements of plain error.”

United States v. Ventura-Perez, 666 F.3d 670, 674 (10th Cir. 2012).

       In this case, Mr. Bong has failed to argue, let alone establish, the third and fourth

prongs of plain error. In order to demonstrate an error affected substantial rights, a

defendant must show the error was prejudicial. That is, the defendant must demonstrate

that, but for the error, there was a reasonable probability that the outcome of the trial

would have been different. United States v. Bader, 678 F.3d 858, 868 (10th Cir. 2012).

As to the fourth prong, “an error that does not affect the jury’s verdict . . . does not

significantly impugn the fairness, integrity, or public reputation of the judicial process.”

Id. (internal quotation marks omitted). Aside from a conclusory allegation that the

statements were “prejudicial,” Mr. Bong has made no attempt to demonstrate that the

outcome of his trial would have been different if the statements had not been admitted.

See Aplt. Br. at 22, 34. He has further failed to show how the admission of the statements

undermined the public reputation or integrity of the judicial process.

       We have long refused to consider arguments not adequately briefed. Adler v. Wal-

Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998); see also Fed. R. App. P. 28(a)(8)

(requiring appellant to establish his contentions on appeal with citations to relevant

authority); Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144, 1151–52 (10th

Cir. 2012) (refusing to consider appellant’s inadequately briefed plain error argument).
                                             -14-
Because Mr. Bong failed to argue two of the four elements of plain error, we decline to

consider his challenge further.6

                                     III.   CONCLUSION
       For the reasons discussed above, we AFFIRM Mr. Bong’s conviction.

                                            ENTERED FOR THE COURT


                                            Carolyn B. McHugh
                                            Circuit Judge




       6
           Mr. Bong’s cumulative error challenge fails for the same reason.

                                             -15-
