from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:15-CR-00256-C-1)
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.
HARTZ, PHILLIPS, and MORITZ, Circuit Judges.
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.
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.
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.
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
[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.
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
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 ...