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

                                     TENTH CIRCUIT                             July 23, 2013

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

             Plaintiff - Appellee,
                                                             No. 11-3236
v.                                                 (D.C. No. 6:10-CR-10136-EFM-1)
                                                               (D. Kan.)
ERNESTO HERNANDEZ-LIZARDI,

             Defendant - Appellant.




                             ORDER AND JUDGMENT*


Before O'BRIEN, TYMKOVICH, and MATHESON, Circuit Judges.


      Ernesto Hernandez-Lizardi appeals from his conviction for being an unlawful

alien in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(5). He

contends his motion to suppress evidence from an encounter with Kansas Highway Patrol

(KHP) troopers should have been granted. The encounter began as a traffic stop, but

expanded into extended roadside questioning and a cursory roadside search of his pickup.



      *
         This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
When the search uncovered a large sum of cash, troopers escorted him to a KHP office

for further interrogation in which he admitted to being illegally in the United States.

Concurrent with the questioning, troopers further searched the pickup and discovered

firearms and ammunition.

       The district judge correctly concluded the searches and seizures were reasonable

because they were appropriately justified at each stage. He also correctly concluded the

evidence was sufficient to support Hernandez-Lizardi’s conviction. We affirm.



                                     BACKGROUND

       Because each phase of the encounter between Hernandez-Lizardi and KHP

troopers must be reasonable under the Fourth Amendment, we divide our recitation of the

factual background into three stages: (A) the initial traffic stop; (B) the continuation of

the traffic stop after issuing a speeding ticket; and (C) the seizure of Hernandez-Lizardi’s

cash and his escort to the KHP office.



       A. Initial Traffic Stop

       On August 15, 2010, KHP Trooper Shawn Summers clocked Hernandez-Lizardi’s

pickup at 83 miles-per-hour in a 70 miles-per-hour zone.1 Summers initiated a traffic

stop. He approached the pickup, which displayed a Missouri dealer’s license plate, and

asked Hernandez-Lizardi for his driver’s license and proof of insurance. Summers also

asked the pickup’s passenger, Raul Manzanarez-Rivera, for identification. Hernandez-



       1
        As Summers pulled the pickup over, his videotape recorder automatically
activated.


                                             -2-
Lizardi tendered a California driver’s license with an Anaheim, California address.

Manzanarez-Rivera, avoiding eye contact, produced a Mexican identification card.

       In response to Summers’s request for proof of insurance, Hernandez-Lizardi

explained he had recently purchased the truck in Kansas City, Missouri, and did not have

proof of insurance. He gave Summers a bill of sale, showing his residential address as

Prospect Avenue in Kansas City, Missouri, not Anaheim, California. From experience,

Summers knew Prospect Avenue to be an area of Kansas City known for criminal

activity. Moreover, Summers noticed the bill of sale stated an implausibly low $1,000

sale price for the pickup. Summers also noticed three cell phones in the pickup’s center

console.

       Summers asked the men where they were traveling. Hernandez-Lizardi said he

had been in Kansas City visiting friends for two weeks. He was taking Manzanarez-

Rivera to Denver to fix a friend’s vehicle, after which he would take Manzanarez-Rivera

back to Kansas City before returning to his home in California.

       Summers’s record check revealed Hernandez-Lizardi’s license to be valid and did

not reveal any warrants for his arrest. The record check also returned no information on

the pickup; usually the case when vehicles bear a Missouri dealer’s license plate,

Summers explained. Summers returned to the pickup, gave Hernandez-Lizardi a citation,

and said: “That’s all I have for ya. Have a safe trip, okay?” (R. Vol. 1 at 133.)



       B. Continuation of Traffic Stop

       Troubled by the implausibility of the details on the bill of sale and Hernandez-

Lizardi’s travel plans, Summers turned around and told Hernandez-Lizardi he had a

“couple of questions to ask.” (R. Vol. 1 at 133.) Summers again questioned the men’s


                                           -3-
travel plans. He also asked if they had any drugs, guns, or cash; the men said no. (R.

Vol. 1 at 234.) Summers then asked if he could take a “quick look” inside the truck cab.

(R. Vol. 1 at 133.) The men agreed. For his safety, Summers asked both occupants to

exit the pickup. He inquired again if there was money in the truck; Hernandez-Lizardi

said “No, no money in truck.” (R. Vol. 1 at 133.)

       Summers then patted both occupants down for weapons and instructed them to

stand in front of the pickup. As Summers walked back to the pickup to inspect the cab,

Hernandez-Lizardi volunteered: “I do have some money in the truck.” (R. Vol. 1 at 134.)

When Summers asked where the money was, Hernandez-Lizardi retrieved a small purse

from the center console. It contained cash bundled in denominations with colored rubber

bands. When Summers asked him how much money there was, Hernandez-Lizardi did

not know exactly, but stated he thought he had about $20,000. Summers inquired why

Hernandez-Lizardi had not told him about the money. Hernandez-Lizardi answered:

“well, I don’t know, I forgot about it” and explained that his sister had given him the cash

to buy a car for her. (R. Vol. 1 at 134.)

       At the evidentiary hearing on Hernandez-Lizardi’s motion to suppress, KHP

Trooper John D. (“Doug”) Rule (who later interviewed Hernandez-Lizardi) explained

bundling is consistent with how drug traffickers handle their cash. Moreover,

Hernandez-Lizardi’s estimate of the amount of cash was incorrect; when investigators

later counted the cash, they found only $14,400.



       C. Seizure of Cash and Escort to KHP Offices

       When Summers discovered the cash, he requested backup; two additional KHP

troopers soon arrived in separate cars. Summers also called Trooper Rule, who was


                                            -4-
assigned to the Drug Enforcement Administration Task Force in Hays, Kansas. Rule

instructed the troopers to secure the cash and to bring the men to the nearby KHP office

in Hays so he could talk with them. Summers told Hernandez-Lizardi and Manzanarez-

Rivera that a person at the KHP office wanted to talk to them about the money and

instructed Hernandez-Lizardi to follow him there. The men returned to the pickup and

followed Summers—who retained the cash—to the KHP office in Hays (approximately

twelve miles away). Another trooper driving a patrol car followed the pickup.

       At the KHP office, Rule interviewed Hernandez-Lizardi, who said he had taken

the bus from California to Kansas City and had purchased his pickup truck in Kansas

City for $16,000 less than a month ago. He repeated his earlier statement: the money

belonged to his sister, who wanted him to use it to buy a car for her. He also volunteered

that he and his sister were Mexican citizens and unlawfully in the United States.

       While Rule interviewed Hernandez-Lizardi, Summers began to search the pickup

more thoroughly. He found a box containing rifle and pistol ammunition on the back

floorboard. Further searching revealed an SKS assault rifle wrapped in a towel behind

the rear seat of the cab as well as two loaded handguns in the speaker enclosures in the

back-seat area of the cab. A drug-sniffing dog also alerted to the odor of narcotics on the

seized cash.



                              PROCEDURAL HISTORY

       Hernandez-Lizardi was indicted for possession of a firearm and ammunition by an

alien unlawfully present in the United States (or unlawful alien) in violation of 18 U.S.C.

§ 922(g)(5). Following an evidentiary hearing, the judge denied Hernandez-Lizardi’s

motion to suppress the guns and ammunition. Hernandez-Lizardi proceeded to trial. He


                                           -5-
was convicted and later sentenced to 33 months incarceration. His motion for judgment

of acquittal was denied.



                                      DISCUSSION

       Hernandez-Lizardi contends: (1) his motion to suppress should have been granted

and (2) the evidence was insufficient to sustain his conviction. We see no error.



       I. Fourth Amendment Issues

       The suppression motion has three prongs: (A) Summers lacked justification to

continue the traffic stop after issuing the speeding ticket; (B) Summers’s roadside search

of the pickup was unjustified; and (C) the troopers lacked justification for seizing and

transporting Hernandez-Lizardi to the KHP office, interviewing him at the office, and

performing the second search of the vehicle. But each phase of Hernandez-Lizardi’s

encounter with the troopers was justified under the applicable Fourth Amendment

standard.

       The standard of review in suppression cases is abundantly clear. “[W]e view the

evidence in the light most favorable to the government, accept the district court’s findings

of fact and credibility determinations unless clearly erroneous, and review de novo the

ultimate question of reasonableness under the Fourth Amendment.” United States v.

Benard, 680 F.3d 1206, 1209-10 (10th Cir. 2012); see Ornelas v. United States, 517 U.S.

690, 699 (1996).



              A. Extended Investigatory Detention




                                            -6-
       Did Summers have reasonable suspicion to continue his roadside investigatory

detention after citing Hernandez-Lizardi for speeding?2 Certainly.

       We review a traffic stop as an investigatory detention rather than a custodial arrest.

United States v. McGehee, 672 F.3d 860, 866 (10th Cir. 2012). Usually, “once an officer

returns the driver’s license and vehicle registration and issues a warning ticket, he must

allow the driver to proceed without further detention or questioning.” United States v.

Lyons, 510 F.3d 1225, 1237 (10th Cir. 2007). However, an officer may continue a traffic

stop beyond its original justification, if, during the course of the detention, the officer

develops a reasonable suspicion of further criminal activity. McGehee, 672 F.3d at 867;

Lyons, 510 F.3d at 1237. “Reasonable suspicion” refers to “‘a particularized and

objective basis’ for suspecting the person stopped of criminal activity.” Ornelas, 517

U.S. at 696 (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). This means

the officer must have some more objective justification for the detention than “[i]nchoate

suspicions and unparticularized hunches.” United States v. Simpson, 609 F.3d 1140,

1147 (10th Cir. 2010) (quotations omitted). Nevertheless, we defer “to an officer’s

ability to distinguish between innocent and suspicious actions” so long as the officer can

cite “specific, articulable facts” which cannot “be outrightly dismissed as so innocent or

susceptible to varying interpretations as to be innocuous.” Simpson, 609 F.3d at 1146-47

(quotations omitted).

       Here, as the district judge found, there were specific, articulable facts to support

the extended detention. At the time Summers re-initiated his contact with Hernandez-

       2
         The judge concluded the continuation of the traffic stop was also permissible
because Hernandez-Lizardi consented to the continuation of the detention. We need not
determine whether the continued detention was permissible under this alternative
rationale.


                                             -7-
Lizardi (after having returned his papers and telling him to have a safe trip), Summers

knew: (1) Hernandez-Lizardi was using a dealer’s tag even though he claimed to have

purchased the pickup; (2) there were three mobile phones in the vehicle, but only two

passengers;3 (3) the bill of sale stated an implausible $1,000 purchase price for a 2003

Chevrolet extended-cab pickup; (4) the bill of sale showed Hernandez-Lizardi lived at an

address in Kansas City, Missouri, not in Anaheim, California, as Hernandez-Lizardi and

his driver’s license stated; and (5) Manzanarez-Rivera exhibited a nervous demeanor by

avoiding eye contact.4 Moreover, Hernandez-Lizardi’s travel plans were, to use the

district judge’s characterization, “bizarre.” (R. Vol. I at 176.) According to his plan, he

had driven approximately 1600 miles from Anaheim, California, to Kansas City,

Missouri, to pick up Manzanarez-Rivera, planned a 1200-mile round-trip to Denver to

repair a friend’s car, and then intended to make the 1600-mile return trip to Anaheim.5


       3
         As law enforcement officers know, mobile phones are a “recognized tool of the
trade in drug dealing.” See United States v. Slater, 971 F.2d 626, 637 (10th Cir. 1992).
Although mobile phones may not be as strongly associated with the drug trade as they
once were, the presence of more phones than passengers, particularly when combined
with the other specific facts suggesting Hernandez-Lizardi was involved with drug
dealing, cannot be “dismissed as so innocent . . . as to be innocuous.” See Simpson, 609
F.3d at 1147 (quotations omitted).
       4
          As we have explained, “nervousness is a common, natural reaction during a
traffic stop, and thus only extraordinary and prolonged nervousness can weigh
significantly in the assessment of reasonable suspicion.” United States v. Davis, 636 F.3d
1281, 1291 (10th Cir. 2011) (quotations omitted). Nevertheless, nervousness may still
“contribute marginally to a reasonable suspicion of illegal activity” when there are other
factors supporting the officer’s suspicion. See id.
       5
        See, e.g., Simpson, 609 F.3d at 1148 (10th Cir. 2010) (“‘Implausible travel plans
can contribute to reasonable suspicion.’”) (quoting United States v. Santos, 403 F.3d
1120, 1129 (10th Cir. 2005)); United States v. White, 584 F.3d 935, 951 (10th Cir. 2009)
(“We have noted numerous times that implausible travel plans can form a basis for
reasonable suspicion.”) (quotations omitted).


                                            -8-
Any of these facts, taken individually, may have been insufficient to raise a reasonable

suspicion. Collectively, they provided ample reason to suspect Hernandez-Lizardi’s story

was a fabrication to cover up illegal activity. See Lyons, 510 F.3d at 1237 (noting we

consider the factors known to the investigating officer “in their totality”). This

reasonable suspicion rendered Summers’s extended investigative detention reasonable

under the Fourth Amendment. See McGehee, 672 F.3d at 867.



              B. Roadside Search of Truck

       Hernandez-Lizardi next claims he did not consent to Trooper Summers’s cursory

roadside search of his pickup. Rather, in his view, he merely “acquiesce[ed] to the

trooper’s authority.” (Appellant’s Br. at 24.) We think not.

       The voluntariness of a defendant’s consent to search is “a question of fact

determined by the totality of the circumstances,” Lyons, 510 F.3d at 1239, and our review

is for clear error. United States v. Davis, 636 F.3d 1281, 1292 (10th Cir. 2011). The

government bears the burden of demonstrating voluntariness by showing the consent was

unequivocal and non-coerced. Id. Although we may consider whether the defendant

was in the custody of law enforcement officers at the time of consent, the mere fact of

custody does not undermine the voluntariness of the consent. United States v. Watson,

423 U.S. 411, 424 (1976); Davis, 636 F.3d at 1293 (“[A]n individual may voluntarily

consent to a search even though he is detained.”). Custody is merely one factor in

assessing whether law enforcement officers undermined the defendant’s ability to make a

“free and unconstrained choice,” Watson, 423 U.S. at 424 (quotations omitted), through

“physical mistreatment, use of violence or threats of violence, promises or inducements,




                                            -9-
deception, or trickery.” United States v. Glover, 104 F.3d 1570, 1584 (10th Cir. 1997),

overruled on other grounds by Corley v. United States, 556 U.S. 303 (2009).6

       Here, Summers did not use physical mistreatment, violence, promises,

inducements, deception, or trickery to coerce Hernandez-Lizardi into consenting to the

search of his pickup. During the extended investigatory detention, Summers asked

whether he could take a “quick look” inside the truck. (R. Vol. 1 at 133.) Hernandez-

Lizardi acquiesced. [R. Vol. 1 at 234] The roadside videotape confirms Summers’s tone

and demeanor remained pleasant and non-intimidating. See United States v. Ledesma,

447 F.3d 1307, 1314 (10th Cir. 2006).7 Not only did Summers refrain from coercive

tactics, he conducted the detention in plain view on a public highway without the aid of

other officers. See id. (noting these as factors indicating a consensual encounter). Nor

were there any nonverbal or contextual signals of coercion—aside from the mere fact of

extended detention.

       Despite the absence of any detectable coercion, Hernandez-Lizardi points to four

facts in an attempt to show he did not voluntarily consent to the search of his pickup: (1)

Summers “seamless[ly]” transitioned from the initial traffic stop to the extended stop; (2)

Hernandez-Lizardi was not advised he could refuse Summers’s request to search; (3)

Summers’s questions were phrased “in the form of mandates”; and (4) Summers

communicated with Hernandez-Lizardi in English, even though Hernandez-Lizardi

“communicate[s] better in Spanish.” (Appellant’s Br. at 24-25.)


       6
       A court can also consider the “physical and mental condition and capacity of the
defendant” when those factors are probative. Glover, 104 F.3d at 1584.
       7
         An officer’s “pleasant” manner and tone of voice suggest the consensual nature
of the encounter. United States v. McSwain, 29 F.3d 558, 563 (10th Cir. 1994).


                                           - 10 -
       We cannot see how the first two of these facts are significant in our assessment of

the voluntariness of Hernandez-Lizardi’s consent. Although Hernandez-Lizardi

remained under investigatory detention as Summers continued his questioning and

search, “the fact of custody alone has never been enough in itself to demonstrate a

coerced . . . consent to search.” Watson, 423 U.S. at 424. Nor can we accord

“controlling significance” to “the absence of proof that [Hernandez-Lizardi] knew he

could withhold his consent.” Id. In short, the law recognizes an inevitable level of

pressure inherent in being the subject of law enforcement scrutiny and assumes that an

ordinary person can still “exercise a free choice.” Id. at 425; see United States v. Soto,

988 F.2d 1548, 1558 (10th Cir. 1993) (“[A]ny individual being subjected to an

investigative detention will feel some degree of compulsion to acquiesce to an officer’s

request.”).

       As to the third fact—the phrasing of Summers’s requests—the record confirms

many of the “requests” were indeed phrased as directives. Nevertheless, the pertinent

request here was Summers’s request to search the pickup. It was not phrased as a

directive. On the contrary, the record unequivocally reflects Summers asked Hernandez-

Lizardi for permission to take a “quick look” around the pickup. (R. Vol. 1 at 133.)

Summers testified his request was phrased as a question, and the video recording

confirms his testimony. Hernandez-Lizardi acknowledges as much in the factual

recitation in his brief.

       Finally, as to the fourth fact, even if Hernandez-Lizardi was more proficient in

Spanish, the record shows he had no problem understanding Summers. Summers

testified “there was no misunderstanding at all. They understood exactly what I was

asking them.” (R. Vol. I at 234.) After reviewing the video recording of the roadside


                                           - 11 -
encounter, the district judge agreed. He concluded “[Hernandez-Lizardi] understood

Summers’ request.” (R. Vol. I at 179.) As Hernandez-Lizardi does not argue this factual

finding was clearly erroneous, we are bound to follow it. See Benard, 680 F.3d at 1209-

10.

       The district judge’s finding that Hernandez-Lizardi voluntarily consented to the

roadside search of his pickup is not clearly erroneous. See Davis, 636 F.3d at 1292. To

the contrary, it is eminently reasonable.



              C. Transport to KHP Office, Interrogation, and Second Search of Pickup

       Hernandez-Lizardi next challenges his transport to the KHP office and the

subsequent search of his pickup. He claims the encounter turned into a de facto arrest

because the troopers retained the $14,400 found in the pickup and he was “sandwiched

between the vehicles of the troopers” as he was escorted to the KHP office. (Appellant’s

Br. at 10.) Although his de facto arrest argument may have merit, the arrest was justified

by probable cause.8

       “To be lawful, a warrantless arrest must be supported by probable cause to arrest.”

United States v. Vazquez–Pulido, 155 F.3d 1213, 1216 (10th Cir. 1998). “Probable cause

exists where the facts and circumstances within the officers’ knowledge, and of which

they have reasonably trustworthy information, are sufficient in themselves to warrant a

man of reasonable caution in the belief that an offense has been or is being committed.”

United States v. Maher, 919 F.2d 1482, 1485 (10th Cir. 1990); see also United States v.


       8
         Based on its reading of United States v. White, 584 F.3d 935 (10th Cir. 2009), the
government claims no arrest occurred. The district judge apparently agreed. We are not
so sure, but it is unnecessary to decide.


                                            - 12 -
Chavez, 660 F.3d 1215, 1224 (10th Cir. 2011). We must evaluate the existence of

probable cause “in light of circumstances as they would have appeared to a prudent,

cautious, trained police officer.” Maher, 919 F.2d at 1485.

       Similarly, a warrantless vehicle search “is permissible if there is probable cause to

believe that the vehicle contains contraband.” United States v. Edwards, 632 F.3d 633,

645 (10th Cir. 2001). “Probable cause to search a vehicle is established if, under the

totality of the circumstances, there is a fair probability that the car contains contraband or

evidence.” Id. (quotations omitted).

       Here, the facts and circumstances within the KHP troopers’ knowledge provided

probable cause both to arrest Hernandez-Lizardi and to search the pickup. First, as to the

arrest, Summers’s observations, questioning, and brief search revealed ample indications

that “an offense ha[d] been or [was] being committed.” See Maher, 919 F.2d at 1485.

As we previously observed, even before the quick consensual search of the pickup,

Summers was aware of (1) Hernandez-Lizardi’s inexplicable use of a dealer’s tag even

though he claimed to have purchased the pickup; (2) the three mobile phones in the

vehicle; (3) the implausible bill of sale Hernandez-Lizardi produced for the pickup; (4)

the inconsistency between the home address Hernandez-Lizardi provided compared to the

address shown on the bill of sale;9 (5) Manzanarez-Rivera’s nervousness; and (6)

Hernandez-Lizardi’s “bizarre” travel plans.

       Then, as Summers moved to search the pickup, Hernandez-Lizardi suddenly

volunteered he had a huge sum of cash in the vehicle even though he had previously

       9
        Because drug dealers often use their homes as bases for their illicit distribution, a
suspect’s attempt to conceal his home address can be a factor in favor of the existence of
probable cause. United States v. Whitner, 219 F.3d 289, 298-99 (3d Cir. 2000); see
United States v. Cardoza, 713 F.3d 656, 660-61 (D.C. Cir. 2013).


                                            - 13 -
denied having any. The cash was a powerful indicator of illegal activity because it, like

the mobile phone, is a well-known tool of the illegal drug trade. See United States v.

Slater, 971 F.2d 626, 637 (10th Cir. 1992). Although it would be unfair to characterize

small quantities of cash as evidence of illegal activity, large quantities of cash are

strongly probative of participation in drug distribution. See United States v. Mendoza-

Salgado, 964 F.2d 993, 1008 (10th Cir. 1992). That is particularly true when the cash is

conveniently banded by denomination. See United States v. $242,484.00, 389 F.3d 1149,

1161 (11th Cir. 2004) (“A common sense reality of everyday life is that legitimate

businesses do not transport large quantities of cash rubber-banded into bundles . . . .”);

United States v. Twelve Thousand, Three Hundred Ninety Dollars ($12,390.00), 956 F.2d

801, 806 (8th Cir. 1992) (“[T]he money seized . . . was wrapped in rubber bands, which,

according to the unimpeached testimony of a narcotics officer, is characteristic of the way

drug money is stored.”). Moreover, Hernandez-Lizardi’s attempt to conceal the cash

further added to the mounting body of evidence of illegal activity. See United States v.

Reed, 443 F.3d 600, 603-04 (7th Cir. 2006) (concluding a defendant’s dishonesty about

the presence of cash in a vehicle favors a probable cause determination). The

convergence of so many facts suggesting drug trafficking provided Summers with

probable cause for the arrest. In addition, because the facts—particularly the large sum

of banded cash—strongly suggested Hernandez-Lizardi was using the pickup for drug

trafficking, the KHP troopers had probable cause to search the pickup.

       The actions of the KHP troopers were appropriately justified at each stage. The

motion to suppress was, accordingly, properly denied.



       II. Sufficiency of the Evidence


                                            - 14 -
       Hernandez-Lizardi also contends the evidence was insufficient to sustain his

conviction. In particular, he claims the prosecution failed to produce sufficient evidence

to establish he possessed the firearms and ammunition found in the pickup. See 18

U.S.C. § 922(g). He asserts there was “no forensic evidence showing that [he] had ever

handled the firearms or the ammunition,” (Appellant’s Br. at 29-30), and argues the other

evidence of possession was too weak to allow a reasonable jury to infer possession. The

record belies his contention.

       We review sufficiency of the evidence de novo. United States v. Triana, 477 F.3d

1189, 1194 (10th Cir. 2007). In this inquiry, we consider the direct and circumstantial

evidence and any inferences the jury could reasonably draw from it. United States v.

Brooks, 438 F.3d 1231, 1236 (10th Cir. 2006). Viewing the evidence and reasonable

inferences in the light most favorable to the prosecution, we ask whether a reasonable

jury could find the defendant guilty beyond a reasonable doubt. Id. To the extent there

are conflicts in the evidence, we defer to the jury’s resolution of the conflict. Id.

       The prosecution must, of course, prove a defendant’s knowing possession of

contraband. Possession must be either actual or constructive—a defendant’s “power and

ability” to control the contraband items. See United States v. King, 632 F.3d 646, 651

(10th Cir. 2011) (quoting United States v. Lopez, 372 F.3d 1207, 1211 (10th Cir. 2004));

United States v. Al-Rekabi, 454 F.3d 1113, 1120 (10th Cir. 2006). When the contraband

is found in a jointly occupied space the prosecution must also present evidence linking

the defendant to the contraband items. United States v. Mendez, 514 F.3d 1035, 1041

(10th Cir. 2008). A jury may infer such a link when the evidence “‘plausibly supports the

inference that the defendant had knowledge of and access to’” the items. United States v.


                                            - 15 -
Bagby, 696 F.3d 1074, 1081 (10th Cir. 2012) (quoting King, 632 F.3d at 652).

       The district judge concluded the prosecution had produced ample evidence to

show he constructively possessed the guns and ammunition:

       (1) testimony that a cell phone box, which was slightly ajar and contained
       ammunition for at least two of the firearms seized, was discovered on the
       floorboard behind the driver’s seat; (2) testimony that some of the screws
       that held the speakers in the speaker box were missing and that screws
       fitting the speaker box were found in the cubbyhole located in the front
       dash of the pickup; (3) testimony that an electric drill capable of removing
       the speaker screws was found in the backdoor on the driver’s side; (4) a
       receipt, which was found in [Hernandez-Lizardi’s] pickup, indicating that
       two products, one of which was a Chevy box, were purchased from Audio
       Plaza, and electronics store located near [his] home in California,
       approximately two weeks before [he] was stopped by the KHP trooper; (5)
       a receipt from a UPS store located near [his] home in California, which was
       found in [his] pickup, showing that [he] had shipped a package
       approximately ten days before he was stopped; (6) gas receipts from gas
       stations located in various towns between California and Kansas, which
       also were found in [his] pickup; and (7) a bill of sale indicating that [he]
       had purchased the pickup in Kansas City a little over three weeks before he
       was stopped.

(R. Vol. 1 at 498-99.) Based on this evidence, the judge concluded a jury could

reasonably find Hernandez-Lizardi possessed the guns and ammunition:

       Based on the bill of sale and the recovered receipts, a reasonable jury could
       conclude that [Hernandez-Lizardi] had been in continuous control of the
       pickup for nearly a month. Further, based on the Audio Plaza receipt, the
       presence of an electric drill, and the fact that some of the screws were
       missing from the speaker box and screws fitting the box were located in the
       front-dash cubbyhole, a jury could reasonably infer that [Hernandez-
       Lizardi] had knowledge of what was contained in the speaker box. Lastly,
       the Government’s evidence revealing the presence of a slightly ajar cell-
       phone box, which contained ammunition for at least two of the firearms
       discovered, on the floorboard of [Hernandez-Lizardi’s] pickup could
       reasonably lead a jury to conclude that [he] had knowledge of the fact that
       his vehicle contained ammunition and firearms.

(R. Vol. 1 at 499.)



                                           - 16 -
      We agree. The prosecution presented ample evidence of Hernandez-Lizardi’s

knowledge of the firearms and ammunition found in the pickup as well as his

constructive possession of them.

      AFFIRMED.




                                        Entered by the Court:

                                        Terrence L. O’Brien
                                        United States Circuit Judge




                                         - 17 -
