FILED

United States Court of Appeals

Tenth Circuit

September 1, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL ALBERT,

Defendant - Appellant.

No. 07-4193

Appeal from the United States District Court

for the District of Utah

(D.Ct. No. 2:06-CR-00761-DS)

Submitted on the Briefs:

Stephen J. Sorenson, Assistant United States Attorney (Brett L. Tolman, United

States Attorney, with him on the briefs), Salt Lake City, Utah, for PlaintiffAppellee.

Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack,

Federal Public Defender, with him on the briefs) for Defendant-Appellant.

Before KELLY, EBEL, and O’BRIEN, Circuit Judges.

O’BRIEN, Circuit Judge.

Michael Albert was convicted of being a felon in possession of a firearm

following the discovery of a shotgun and shells (later determined to be his) during
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a search of the vehicle in which he was traveling. He moved to suppress the

weapon and ammunition as well as statements he made to police, arguing he was

illegally arrested and the evidence was the fruit of a constitutional violation. The

district court denied his motion. We affirm.

I. BACKGROUND

At approximately 1:30 p.m. on August 22, 2006, Sandy City Police Officer

Amy DeNeff conducted a traffic stop of a white Oldsmobile Alero after observing

it make an illegal lane change. DeNeff approached the vehicle when it came to a

stop and asked the driver, Rachel Sermon, for her license, registration and proof

of insurance. Sermon provided a temporary registration but stated she did not

have identification and the vehicle was not insured because it had been recently

purchased and she was still shopping around for insurance. DeNeff also

requested identification from the passenger, Michael Albert, whom she observed

was not wearing a seatbelt. Albert produced a temporary Utah identification card. 

DeNeff asked Sermon and Albert to wait in the vehicle while she verified their

information. 

Through her initial computer check, DeNeff located two outstanding

warrants for Sermon. She also discovered both Sermon and Albert’s driver’s

licenses had been suspended. After the arrival of two back-up officers, Sermon

was arrested because of the outstanding warrants and placed in the backseat of a

patrol car. Albert was asked to step out of the vehicle and stand next to one of
1

 Officer DeNeff testified at the suppression hearing that the methamphetamine

was a user quantity.

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the back-up officers, away from the Oldsmobile, while DeNeff searched the

vehicle’s interior incident to Sermon’s arrest.

After approximately five to ten minutes of searching, Officer DeNeff

located a black gym bag in the back passenger seat which contained a crystalline

substance, later determined to be methamphetamine, along with a scale, a

marijuana pipe and multiple syringes.1

 Following the discovery of the drugs,

DeNeff radioed to Brent Webb, one of the back-up officers, and requested he

place Albert into custody. Webb handcuffed Albert and searched his person,

discovering a rubber tourniquet in his front pocket.

At that point, DeNeff began to inventory the vehicle’s contents in

preparation for it to be impounded pursuant to Sandy City Police Department

policy. She made the decision to impound the vehicle prior to the discovery of

the methamphetamine because the vehicle was located on private property and the

owners of the business on the property requested it be removed. At the

suppression hearing, DeNeff testified she did not consider turning the car over to

Albert because his license had been suspended and the car was not insured. She

could not recall who owned the Oldsmobile, though she was “sure [she] knew” at

the time. (R. Vol. II at 23.)

During the inventory of the trunk, DeNeff discovered a shotgun wrapped in
2 Miranda v. Arizona, 384 U.S. 436 (1966).

3

 Albert was indicted under the name “Grady Dean Brasher.” In February 1998,

Albert legally changed his name from Grady Dean Brasher to Michael Subastien Albert.

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a blanket. The blanket was tied by a sock with seven shotgun shells inside. After

discovering the weapon, she ran a criminal history check on both Sermon and

Albert to determine whether either was restricted from possessing a weapon. The

criminal history check indicated Albert was a convicted felon. At that point,

approximately twenty minutes after he was handcuffed, DeNeff advised Albert of

his Miranda2

 rights. He waived his rights and, in response to questioning,

admitted he knew the shotgun was in the trunk. He explained the shotgun

belonged to his mother’s boyfriend and he was merely transporting it for him. He

knew he could not shoot firearms, but believed he could possess them. In

separate questioning, Sermon admitted to possessing the drugs.

Sermon was arrested for possessing the drugs and Albert was arrested for

possessing the shotgun and drug paraphernalia found on his person. Sermon and

Albert were transported to the police station where they were interviewed by

Sergeant Troy Arnold after again being advised of their Miranda rights. During

his interview, Albert again admitted to possessing the shotgun. Sermon initially

claimed the shotgun was hers, but recanted when she was told Albert admitted it

belonged to him.

Albert was charged by indictment with one count of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1).3

 He filed a motion
4

 Albert testified he had taken methamphetamine approximately one hour before

the traffic stop and was thus impaired during the stop and the subsequent questioning. 

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to suppress the shotgun and shells seized from the car and the statements he made

to police arguing: (1) the evidence and statements were the “fruit of an illegal

arrest;” and (2) his Miranda waiver was “not knowing and voluntary.” (R. Vol. I,

Doc. 18 at 2.) The court held a suppression hearing, at which Officer DeNeff,

Officer Arnold, and Albert testified. Albert’s testimony was limited to his mental

and physical state at the time of his arrest.4

 Following the suppression hearing,

Albert and the government submitted briefs in support of their respective

positions. Albert conceded his Miranda argument, leaving only the alleged

Fourth Amendment violation. 

The district court denied Albert’s motion, concluding the officers’

detention of Albert following the discovery of methamphetamine in the vehicle

was reasonable under Terry v. Ohio, 392 U.S. 1 (1968), and the use of handcuffs

did not transform the detention into an illegal arrest. The court reasoned the

officers were entitled to preserve the status quo and take reasonable steps to 

ensure their safety. The court did not specifically address the search of Albert’s

person. Because the court determined Albert was not illegally arrested, it did not

consider whether the evidence seized from the vehicle and the statements he made

to the police should be suppressed for that reason.

Following the denial of his motion to suppress, Albert filed a written
5

 Albert does not challenge Officer DeNeff’s search of the vehicle’s passenger

compartment incident to Sermon’s arrest. In Arizona v. Gant, the Supreme Court held a

search of a vehicle’s passenger compartment incident to the arrest of a recent occupant is

only lawful “when the arrestee is unsecured and within reaching distance of the passenger

compartment at the time of the search” or “when it is reasonable to believe evidence

relevant to the crime of arrest might be found in the vehicle.” – U.S. –, 129 S. Ct. 1710,

1719 (2009) (quotations omitted). It appears neither of those circumstances are present

here but the propriety of the search is not presented for our review. In any event, we

recently held “it would be proper for this court to apply the good-faith exception [to the

exclusionary rule] to a search justified under the settled case law of a United States Court

of Appeals, but later rendered unconstitutional by a Supreme Court decision.” United

States v. McCane, No. 08-6235, 2009 WL 2231658, at *6 (10th Cir. July 28, 2009)

(discussing effect of Gant). Albert concedes “[t]he effect of McCane is . . . that searches

conducted prior to the decision in Gant are analyzed under the pre-Gant ‘settled case law’

of this Circuit, since this Court will uphold the validity of a search incident to arrest

conducted in good-faith reliance on those standards.” (Appellant’s Resp. to Gov’t Mot.

for Leave to File a Supp. Br. at 4.) 

Moreover, it appears Albert lacks standing to challenge the search of the vehicle. 

“[I]n order for a defendant to show [a subjective expectation of privacy in an automobile

which society is prepared to recognize as objectively reasonable], the defendant bears the

burden at the suppression hearing to show a legitimate interest in or a lawful control over

the car.” United States v. Eckhart, 569 F.3d 1263, 1274 (10th Cir. 2009). No evidence

suggested Albert had ownership or possessory rights to the vehicle.

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stipulation admitting the facts necessary for a conviction but preserving his right

to appeal. The court found Albert guilty after a bench trial and sentenced him to

94 months imprisonment, just below the advisory guideline range. Albert filed a

timely notice of appeal. 

Albert maintains the officers’ handcuffing and searching him amounted to

an illegal arrest.5

 The government contends the district court correctly concluded

Albert was detained, not arrested, prior to the discovery of the shotgun and

ammunition and his incriminating statements. The government also argues that,
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regardless of whether Albert was lawfully detained or illegally arrested, the

shotgun and ammunition should not be suppressed because: (1) they were

discovered in the trunk, which the officers had probable cause to search following

the discovery of drugs in the passenger compartment; and (2) they were

discovered pursuant to a valid inventory search. Albert contends we should not

consider whether the discovery of the methamphetamine provided the police with

probable cause to search the trunk because the government raises this issue for the

first time on appeal. As for the inventory search, Albert argues it cannot provide

a basis for denying his motion to suppress because DeNeff lacked justification for

impounding the vehicle. 

II. DISCUSSION

“In reviewing the denial of a motion to suppress, we accept the factual

findings of the district court unless they are clearly erroneous. The ultimate

determination of reasonableness under the Fourth Amendment is a question of

law, which we review de novo.” United States v. Contreras, 506 F.3d 1031, 1035

(10th Cir. 2007) (citation omitted).

A. Fourth Amendment Analysis

In Terry v. Ohio, the Supreme Court held a police officer can temporarily

detain an individual suspected of criminal activity if the officer can point to

“specific and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant that intrusion.” 392 U.S. at 21. “Since police
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officers should not be required to take unnecessary risks in performing their

duties, they are ‘authorized to take such steps as [are] reasonably necessary to

protect their personal safety and to maintain the status quo during the course of [a

Terry] stop.’” United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993)

(quoting United States v. Hensley, 469 U.S. 221, 235 (1985)). “An encounter

between police and an individual which goes beyond the limits of a Terry stop,

however, may be constitutionally justified only by probable cause or consent.” 

Id.

The government does not contend the officers had probable cause to arrest

Albert following the discovery of the drugs. Instead, it argues the detention was

not an arrest and thus, need not have been supported by probable cause. The

question presented on appeal is whether the handcuffing of Albert, search of his

person and subsequent detention were permissible under Terry. “There is no

bright-line rule to determine whether the scope of police conduct was reasonably

related to the goals of the stop; rather our evaluation is guided by common sense

and ordinary human experience.” United States v. Melendez-Garcia, 28 F.3d

1046, 1052 (10th Cir. 1994) (quotations omitted). We avoid “unrealistic secondguessing of police officers’ decisions in this regard and thus do not require them

to use the least intrusive means in the course of a detention, only reasonable

ones.” Id. (quotations omitted). “In measuring the actions of a police officer

under the Fourth Amendment . . . we look at the objective facts, not the officer’s
6

 The situation was even more dangerous than Officer DeNeff was aware, as

Albert had used methamphetamine approximately one hour prior to the traffic stop. 

However, the fact there were two additional officers on-scene reduced somewhat the

potential danger faced by DeNeff. 

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state of mind.” United States v. Neff, 300 F.3d 1217, 1222 (10th Cir. 2002). The

government has the burden of demonstrating the officers’ conduct satisfies Terry. 

See Perdue, 8 F.3d at 1462. 

1. Use of Handcuffs

“[A] Terry stop does not become unreasonable just because police officers

use handcuffs on a subject . . . .” Neff, 300 F.3d at 1220. However, the use of

handcuffs is greater than a de minimus intrusion and thus “requires the

government to demonstrate that the facts available to the officer would warrant a

man of reasonable caution in the belief that the action taken was appropriate.” 

Melendez-Garcia, 28 F.3d at 1052 (quotations omitted).

The facts available to the officers here satisfy that test. Even at the early

stages of the stop, Officer DeNeff had reason for caution—she encountered a

driver with a suspended driver’s license and two outstanding warrants—driving an

uninsured vehicle and accompanied by an unlicensed adult passenger.6

 In United

States v. Holt, we recognized:

An officer in today’s reality has an objective, reasonable basis to fear

for his or her life every time a motorist is stopped. Every traffic

stop, after all, is a confrontation. The motorist must suspend his or

her plans and anticipates receiving a fine and perhaps even a jail

term. That expectation becomes even more real when the motorist or

a passenger knows there are outstanding arrest warrants or current
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criminal activity that may be discovered during the course of the

stop.

264 F.3d 1215, 1223 (10th Cir. 2001) (en banc); see also Maryland v. Wilson, 519

U.S. 408, 413 (1997) (“[T]he fact that there is more than one occupant of the

vehicle increases the possible sources of harm to the officer.”). 

After arresting Sermon (but before Albert was handcuffed), DeNeff

discovered evidence of a new crime—drug possession—further elevating the

danger of the encounter. See United States v. Garcia, 459 F.3d 1059, 1064 (10th

Cir. 2006) (“[A] connection with drug transactions can support a reasonable

suspicion that a suspect is armed and dangerous.”); United States v. Johnson, 364

F.3d 1185, 1194-95 (10th Cir. 2004) (recognizing drug dealing is a crime

“typically associated with some sort of weapon, often guns”); United States v.

Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005) (“Because weapons and

violence are frequently associated with drug transactions, it is reasonable for an

officer to believe a person may be armed and dangerous when the person is

suspected of being involved in a drug transaction”). Despite being justifiably

cautious, the officers did not draw their weapons, force Albert to the ground or

employ restraints other than the handcuffs. 

Though we have not confronted a materially indistinguishable case, we

have approved the use of handcuffs in the context of a Terry stop. See Neff, 300

F.3d at 1221 (use of handcuffs during a brief investigative detention reasonable
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where the police encountered a suspect believed to be carrying a dangerous

concealable weapon); Perdue, 8 F.3d at 1463 (use of firearms and handcuffs

reasonable where police encountered a suspect believed to be armed and

dangerous); United States v. Merkley, 988 F.2d 1062, 1064 (10th Cir. 1993) (use

of firearms and handcuffs reasonable where police encountered a suspect who had

threatened to kill someone and was acting violently); United States v. Merritt, 695

F.2d 1263, 1274 (10th Cir. 1982) (use of firearms and handcuffs reasonable where

police encountered a murder suspect believed to be heavily armed accompanied

by others who could possibly lend support). 

Albert relies on Melendez-Garcia, but that case is inapposite. In MelendezGarcia, the police conducted a “felony stop” of two vehicles believed to be

transporting drugs. 

The officers pulled out their weapons and trained them on the

vehicles. The occupants were told to throw their keys out the

window and put their hands out. They were then told to exit the

vehicles one at a time and walk backwards towards the officers. The

officers then handcuffed and frisked them. The three were placed in

separate vehicles and strapped in with seatbelts.

28 F.3d at 1050. We held “the government ha[d] not met its burden of showing

that, under the totality of the circumstances, the intrusiveness of this seizure was

reasonably necessary for officer safety.” Id. at 1053. Significantly, “the

government [did] not try to elaborate why it believe[d] the quantum of force used

to secure [the three individuals] was reasonable.” Id. at 1052. The district court
7

 The court did note Officer DeNeff’s characterization of the search as a search

incident to Albert’s arrest was not determinative on the question of whether Albert was

arrested.

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distinguished Melendez-Garcia on the basis that “no guns were brandished

[against Albert] and the presence of drugs in the vehicle [here] was confirmed,

not just suspected . . . .” (R. Vol. I, Doc. 31 at 8.)

We agree with the government and the district court—the use of handcuffs

was reasonable under these circumstances, coming as it did after the discovery of

a controlled substance (and with knowledge of two outstanding warrants for the

unlicensed driver). The use of handcuffs did not elevate this detention into an

arrest.

2. Search of Albert’s Person

The next question is whether the search of Albert’s person was reasonable

under the circumstances. The district court did not evaluate the reasonableness of

the search.7

 “During an investigative detention, police officers are authorized to

take reasonable steps necessary to secure their safety and maintain the status quo. 

In some circumstances, these safety measures may include a pat-down search for

weapons.” Garcia, 459 F.3d at 1063; see also Adams v. Williams, 407 U.S. 143,

146 (1972) (“When an officer is justified in believing that the individual whose

suspicious behavior he is investigating at close range is armed and presently

dangerous to the officer or to others, he may conduct a limited protective search

for concealed weapons.”) (quotations omitted). 
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“[A]n individual’s known connection with drug transactions is a factor

supporting reasonable suspicion to frisk that individual for weapons.” Garcia,

459 F.3d at 1065; see, e.g., Johnson, 364 F.3d at 1194-95 (concluding a frisk was

permissible “[b]ecause [the officer] reasonably suspected that Johnson might be

involved in drug dealing, kidnapping, or prostitution,” which are crimes

“typically associated with some sort of weapon, often guns”); United States v.

$109,179 in United States Currency, 228 F.3d 1080, 1086 (9th Cir. 2000) (finding

a frisk justified and asserting “[b]ecause the police reasonably suspected [the

defendant] of dealing in narcotics, it was not unreasonable to believe that he

might be armed”). 

However, even in the context of a known drug transaction, a Terry frisk is

only valid if it is confined to a search for weapons because “[t]he purpose of the

limited pat-down search is not to discover evidence of a crime, but to allow the

officer to pursue his investigation without fear of violence.” Garcia, 459 F.3d at

1063 (quotations omitted); see, e.g., Johnson, 364 F.3d at 1195 (holding an

officer’s pat down search was permissible where he “confined his search strictly

to what was minimally necessary to ensure Johnson was not armed,” and “did not

threaten Johnson in any way, use force, or handcuff him”) (quotations omitted). 

Where, in the context of a limited pat-down, an officer continues to explore a

defendant’s pocket after concluding it does not contain a weapon, the search

“amount[s] to the sort of evidentiary search that Terry expressly refused to
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authorize and that [the Supreme Court] ha[s] condemned in subsequent cases.” 

Minnesota v. Dickerson, 508 U.S. 366, 378 (1993) (citation omitted). 

In United States v. Harris, we rejected the defendant’s argument that he

was subjected to an overly intrusive frisk. 313 F.3d 1228, 1233 (10th Cir. 2002). 

In that case: 

[The officer] felt a hard object, approximately three inches wide by

four to five inches long, in the inner part of Defendant’s left cowboy

boot. Thinking that the object might be a gun, [the officer] lifted up

Defendant’s pant leg and saw a tightly wrapped Saran Wrap package

in the boot. Still unsure of what the object was, [the officer] reached

inside Defendant’s boot to retrieve it. At that point, Defendant

kicked [the officer] in the shoulder and started to run. [The officer]

was left holding the Saran Wrap package, which was later found to

contain cocaine base, or “crack” cocaine.

Id. at 1232. 

We held: “If the officer discovers what he believes to be a weapon, he may

reach inside the suspect’s clothing and remove it.” Id. We noted the officer

testified he thought the bulge in the defendant’s boot “might be a gun” and, even

after lifting the defendant’s pantleg “he was still not sure exactly what the object

was” and “never testified that he ruled out that the object was a weapon.” Id. We

explained: “Even if, in retrospect, it would have been more reasonable to think

the hard object was drugs rather than a gun, that does not mean he would have

been unreasonable to conclude that it was a gun and not drugs.” Id. (quotations

omitted).

Here, the officer who searched Albert did not testify at the suppression
8

 The government does not contend the officer had probable cause to search Albert

once it felt the tourniquet in his pocket.

 9

 The tourniquet and any other evidence subsequently found on Albert’s person

could be subject to suppression. Albert was not charged with illegal possession of the

tourniquet and, while it is unclear whether the government tried to offer the tourniquet (or

other evidence obtained from Albert’s person), Albert did not seek to suppress such

items.

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hearing. But he must have reasonably believed the tourniquet was a weapon in

order for its seizure or a further search to be permissible.8

 Unlike in Harris, the

record here contains no basis for us to conclude the officer strictly confined his

search to what was minimally necessary to ensure Albert was not armed. While

the pat-down was reasonable at its inception, it became an impermissible frisk

when the tourniquet was seized.

9

 But that alone (or in combination with the

handcuffing) does not transform the detention into an illegal arrest.

3. Continued Detention Following Discovery of Drugs

Albert was detained for a period of approximately twenty minutes and

ultimately subjected to an overly-broad frisk. But the detention was not the

product of the frisk. It came as a result of DeNeff’s decision to impound the

vehicle and conduct an inventory search. “Investigative detentions . . . are

reasonable if they are supported by a reasonable suspicion that the detained

individual is engaged in criminal activity.” Novitsky v. City of Aurora, 491 F.3d

1244, 1253 (10th Cir. 2007). These officers had good reason to detain Albert

pending further investigation.
10 DeNeff testified she was “sure [she] knew [who the owner was] at the time” of

the incident, but could not recall the name during the suppression hearing. Supra at 4; (R.

Vol II at 23).

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The officers knew Albert had a suspended driver’s license and was a

passenger in an uninsured vehicle which was being driven by an unlicensed driver

with two outstanding warrants. They detained him after discovering a gym bag in

the backseat of the vehicle which contained methamphetamine. Under both

federal and Utah law, it is a crime to possess methamphetamine. 21 U.S.C.

§ 844(a); Utah Stat. Ann. § 58-37-8(2)(a)(i). The officers did not have probable

cause to believe Albert was guilty of possessing a controlled substance because

they did not know whether the gym bag belonged to Albert, Sermon or someone

else; it was unclear who owned the vehicle.10 They did, however, have reasonable

suspicion, “a lesser standard than probable cause.” United States v. QuezadaEnriquez, 567 F.3d 1228, 1233 (10th Cir. 2009). “A determination that

reasonable suspicion exists . . . need not rule out the possibility of innocent

conduct.” United States v. Arvizu, 534 U.S. 266, 277 (2002). “[A]s long as [the

officer] has a particularized and objective basis for suspecting an individual may

be involved in criminal activity, he may initiate an investigatory detention even if

it is more likely than not that the individual is not involved in any illegality.” 

Johnson, 364 F.3d at 1194. All reasonable suspicion requires is “some minimal

level of objective justification.” United States v. Sokolow, 490 U.S. 1, 7 (1989)

(quotations omitted). The officers had reason to suspect Albert had some
11 We have “recognize[d] that this requirement has been criticized as forcing the

defendant essentially to disprove that the evidence would have been inevitably

discovered, contrary to the general rule that the government bears the burden of proving

that unconstitutionally obtained evidence is nonetheless admissible under the inevitable

discovery doctrine.” United States v. Ladeaux, 454 F.3d 1107, 1111 n.4 (10th Cir. 2006). 

“However meritorious these criticisms may be, we are bound by the precedent of prior

panels absent en banc reconsideration or a superseding contrary decision by the Supreme

Court.” Id. (quotations omitted). 

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connection with the illegal drugs and it was not unreasonable for them to detain

him until they could sort out the details.

B. Suppression of the Shotgun and Shells and the Statements Albert Made to

the Police

Because Albert was not illegally arrested, there is no basis for suppressing

the shotgun and shells seized from the vehicle or the statements he made to the

police. But even if he had been illegally arrested, he is not entitled to relief. Any

evidence obtained subsequent to his arrest should have been suppressed as “fruit

of the poisonous tree,” but only if he established “a factual nexus between the

illegality and the challenged evidence.” United States v. Nava-Ramirez, 210 F.3d

1128, 1131 (10th Cir. 2000) (quotations omitted). “At a minimum, a defendant

must adduce evidence at the suppression hearing showing the evidence sought to

be suppressed would not have come to light but for the government’s

unconstitutional conduct.”11 Id. If the defendant meets this burden, the

government must prove the “evidence sought to be suppressed is not ‘fruit of the

poisonous tree,’ either by demonstrating the evidence would have been inevitably
12 This Court has applied this test to a defendant’s statements as well as physical

evidence. See United States v. Torres-Castro, 470 F.3d 992, 999-1000 (10th Cir. 2006). 

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discovered, was discovered through independent means, or was so attenuated

from the illegality as to dissipate the taint of the unlawful conduct.”12 Id. 

Albert adduced no evidence at the suppression hearing showing his being

detained, handcuffed or frisked was the “but for” cause of DeNeff’s discovery of

the shotgun and shells. In fact, the record demonstrates DeNeff planned to

impound the vehicle and conduct an inventory search even before Albert was

handcuffed or frisked. The inventory search, not Albert’s detention or the search

of his person, led to the discovery of the shotgun and shells. And it appears the

inventory search and criminal history check revealing Albert to be a convicted

felon were the “but for” cause of Albert’s incriminating statements. 

We AFFIRM the district court’s denial of Albert’s motion to suppress. We

DENY as moot the government’s opposed motion for leave to file a supplemental

brief relating to Arizona v. Gant, – U.S. –, 129 S. Ct. 1710 (2009), and United

States v. McCane, No. 08-6235, 2009 WL 2231658 (10th Cir. July 28, 2009).