United States v. Saulsberry, 16-6306

• Citation: 878 F.3d 946
• Decision Date: 28 December 2017
• Docket Number: No. 16-6306,16-6306
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter Earl SAULSBERRY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

878 F.3d 946

UNITED STATES of America, Plaintiff-Appellee,

v.Walter Earl SAULSBERRY, Defendant-Appellant.

No. 16-6306

United States Court of Appeals, Tenth Circuit.

Filed December 28, 2017

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 noticed that all were Capital One credit cards and none had Defendant's name on them. The officers then searched the car for further evidence of credit-card fraud.

Defendant was indicted on a single count of possession of 15 or more counterfeit or unauthorized access devices with intent to defraud. See 18 U.S.C. § 1029(a)(3). He moved to suppress evidence discovered during his detention at the parking lot. The district court tentatively excluded statements made by him to officers other than Eastwood but denied the rest of the motion.

II. DISCUSSION

"When reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government, accept the district court's findings of fact unless they are clearly erroneous, and review de novo the ultimate question of reasonableness under the Fourth Amendment." United States v. Lopez , 849 F.3d 921, 925 (10th Cir. 2017) (brackets and internal quotation marks omitted). If the district court failed to make a specific finding in support of a ruling on an issue, we can still uphold the ruling if "there is any reasonable view of the evidence to support it." United States v. Jenkins , 175 F.3d 1208, 1212 (10th Cir. 1999) (district court failed to make specific findings supporting ruling that officers waited reasonable amount of time before entering home after knocking and announcing, but record supported the ruling).

We conclude that Eastwood's initial detention of Defendant in the parking lot was supported by reasonable suspicion. We believe that Eastwood would have had probable cause to examine the credit cards if before doing so he had seen the "machine" on the front seat of Defendant's car and had recognized it as a device used in credit-card fraud. But the extent and timing of Eastwood's knowledge concerning the machine is unclear on this record, and neither in district court nor on appeal has the government pointed to the machine as a factor supporting probable cause. We therefore assess probable cause without considering the machine and hold that probable cause was lacking.

A. Reasonable Suspicion to Initiate Traffic Stop

The parties agree that Eastwood detained Defendant in the Arby's parking lot and needed reasonable suspicion to do so. Thus, we examine whether "specific and articulable facts and rational inferences drawn from those facts [gave] rise to a reasonable suspicion [that Defendant had committed or was] committing a crime." United States v. McHugh , 639 F.3d 1250, 1255 (10th Cir. 2011) (internal quotation marks omitted).

Reasonable suspicion in this case must be based on the report from the anonymous informant and Eastwood's observations at the scene. As we have explained:

Whether a tip provides reasonable suspicion to make a traffic stop is case-specific. Although no single factor is dispositive, relevant factors include: (1) whether the informant lacked "true anonymity" (i.e., whether the police knew some details about the informant or had means to discover them); (2) whether the informant reported contemporaneous, firsthand knowledge; (3) whether the informant provided detailed information about the events observed; (4) the informant's stated motivation for reporting the information; and (5) whether the police were able to corroborate information provided by the informant.

United States v. Chavez , 660 F.3d 1215, 1222 (10th Cir. 2011). These factors support reasonable suspicion here.

To begin with, although the caller did not provide his name, he sufficiently identified himself to establish his status as a citizen informant. "The veracity of identified private citizen informants (as opposed to paid or professional criminal informants) is generally presumed in the absence of special circumstances suggesting that they should not be trusted." United States v. Brown , 496 F.3d 1070, 1075 (10th Cir. 2007) (internal quotation marks omitted); see also id. ("The skepticism and careful scrutiny usually found in cases involving informants from the criminal milieu, is appropriately relaxed if the informant is an identified victim or ordinary citizen witness." (brackets, ellipsis, and internal quotation marks omitted)). As in Chavez , the caller identified himself as an employee of the business where Defendant parked his car. See Chavez , 660 F.3d at 1223 (anonymous caller was "readily identifiable" when he indicated he was an employee at a specific Wal-Mart store). By conveying information about his employment at a particular restaurant, the caller "narrow[ed] the likely class of informants" and distinguished himself from a "truly anonymous" informant who "has not placed his credibility at risk and can lie with impunity." Florida v. J.L , 529 U.S. 266, 275, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (Kennedy, J., concurring).

In addition, the tip provided all the detail necessary to uniquely identify the suspect vehicle, the information was clearly contemporaneous and firsthand (Eastwood found the vehicle within two minutes of the dispatcher's call), the information was corroborated, and the caller's implicit motive was the public interest (at least there is no reason to believe otherwise). Defendant complains that the caller did not provide further information, such as the suspect's race, age, or clothing, or the length of time the suspect had been in the parking lot; but the caller's description narrowed the suspects to one person. All that was left was to confirm what Defendant was doing in the car. To be sure, the corroborated information is not in itself incriminatory. But that is hardly fatal. The Supreme Court has held that probable cause (a higher standard...