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United States v. Saulsberry

United States Court of Appeals, Tenth Circuit

December 28, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
WALTER EARL SAULSBERRY, Defendant-Appellant.

         Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:15-CR-00256-C-1)

          Kyle Edward Wackenheim, Assistant Federal Public Defender, Oklahoma City, Oklahoma (William P. Earley, First Assistant Federal Public Defender, Oklahoma City, Oklahoma, on the briefs) for Defendant-Appellant.

          Timothy W. Ogilvie, Assistant U.S. Attorney, Oklahoma City, Oklahoma for Plaintiff-Appellee.

          Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges.

          HARTZ, CIRCUIT JUDGE.

         Defendant Walter Saulsberry pleaded guilty in the United States District Court for the Western District of Oklahoma to possession of 15 or more unauthorized credit cards with intent to defraud. See 18 U.S.C. § 1029(a)(3). But his plea agreement reserved his right to appeal the district court's denial of his motion to suppress the cards seized from his car. On appeal he argues that he was unlawfully detained after an anonymous informant reported that he was smoking marijuana in his car and that the search of his car was unlawfully expanded beyond a search for marijuana to include inspection of credit cards found in a bag within the car. We have jurisdiction under 28 U.S.C. § 1291. Although we hold that there was reasonable suspicion to detain Defendant, we reverse because the arguments presented by the government do not persuade us that there was probable cause to expand the search.

         I. BACKGROUND

         About 10:30 P.M. on August 15, 2015, a dispatcher informed Sergeant Christopher Eastwood of the Oklahoma City Police Department that a caller had reported someone smoking marijuana in a black Honda with Texas license plates parked at an Arby's. Although the caller did not identify himself (for convenience we will treat the caller as a male), he said he was an employee at the Arby's.

         Within two minutes of receiving this information, Eastwood drove into the Arby's parking lot. He was familiar with the location and knew the employees generally parked in the west end of the lot, where he saw several cars. There was only one vehicle on the north end, a dark green Honda with Texas license plates. Eastwood parked his vehicle behind the Honda and approached it. During his approach he noticed that Defendant was "doing something in the center console area." R., Vol. II at 12. He went up to the driver's window and tapped on it to get Defendant's attention. Defendant opened the car door, and Eastwood immediately detected the scent of burnt marijuana.

         Eastwood asked Defendant for his license and insurance information. Defendant gave his name but did not provide the requested documentation or explain why he could not provide it. Eastwood testified at the suppression hearing that during this exchange:

[Defendant] wasn't listening real well. He kept reaching over. There was a bag in the passenger floorboard area. He kept reaching over there, reaching in the bag, which, again, is just extremely uncomfortable for me. I mean, I don't know what's in the bag and I don't know who he is, we've never met before. So I kept telling him, just kind of keep your hands in your lap, if you would.

Id. at 14-15. Eastwood could not provide a description of the bag. He thought there may have been a laptop in the bag but said, "I don't even remember if it was a duffel bag or a backpack or what kind of bag it was." Id. at 43.

         Eastwood called for assistance. After another officer arrived, Eastwood asked Defendant to step out of the Honda and requested permission to search the car. Defendant granted consent to check the vehicle for marijuana. Eastwood found a marijuana cigarette in the car's center console and arrested Defendant.

         While another officer searched Defendant's person, Eastwood began a search of the car. He first looked in the bag that Defendant had been reaching into. Inside the bag Eastwood saw a stack of cards. The chronology of events is not clear from the record, so we cannot be certain when Eastwood acquired this information, but at some point (1) he determined that there were "a lot of credit cards, " not a "normal amount, " id. at 19, and (2) on the front passenger seat of Defendant's car was a device that looked similar to a machine used in credit-card fraud that he had seen in a recent investigation. Eastwood took the cards from the bag to examine them more closely. He ...


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