Suppression Win; Officer Lacked Reasonable Suspicion to Look at Packet of Cards in Bag

US v. Saulsberry, 2017 WL 6614468 (10th Cir. 12/28/17): A defense win; the court holds that there was insufficient probable cause to expand the search of Defendant's car. Defendant pled guilty to possessing 15 or more unauthorized credit cards with intent to defraud. He reserved the right to appeal the denial of his motion to suppress cards seized from his car. An anonymous caller reported someone smoking marijuana in a black Honda with Texas plates in an Arby's parking lot. The caller said he was an Arby's employee (for convenience, the court says it will treat the caller as male). Officer Eastwood went to the Arby's and saw a dark green Honda with Texas plates. He went up to the car and tapped on the window to get the driver's attention. Defendant opened the door and Eastwood smelled burnt marijuana. Eastwood asked defendant for his license and insurance registration. Defendant gave his name but did not provide the documents or explain why he could not do so. Eastwood testified that during the conversation, the defendant was not "listening real well" and kept reaching in a bag on the floor of the car. Fortunately for Mr. Saulsberry, Eastwood did not shoot him. Rather, Eastwood told defendant to keep his hands in his lap. Another officer arrived, and Eastwood asked defendant to get out of the car and asked for permission to search the car. Defendant granted consent to search for marijuana. Eastwood found a joint and arrested Mr. Saulsberry. Eastwood then began to search the car. The court observes that the chronology of the subsequent events is not clear from the record. However, inside the bag, Eastwood found a stack of credit cards, "a lot," not a "normal amount." There was also a machine in the passenger seat that looked similar to one Eastwood had seen in a recent credit card-fraud investigation. Eastwood looked at the cards and saw they were all Capital One cards and did not have defendant's name on them. The officers then searched for more evidence of credit-card fraud. First, the caller sufficiently identified himself to be considered a citizen informant and thus, absent special circumstances, his veracity was presumed. The tip provided sufficient detail to uniquely identify the suspect car, the information was contemporaneous and firsthand, the information was corroborated, and the caller's implicit motive was the public interest, absent reason to believe otherwise. Thus, the information was sufficient to provide reasonable suspicion to investigate. However, the government failed to convince the court that probable cause supported the expanded search for credit card fraud, mainly because (for some reason) the government did not argue that Eastwood's observation of the "machine" that looked like a machine he had previously seen used for credit card fraud supported probable cause. In fact, the government admitted at oral argument that it did not rely on that observation because it was not clear when it occurred. Instead, the government relied on the number of cards. Unfortunately, the record did not support an inference that Eastwood could tell the cards in the bag were credit cards when he first saw them because he testified that he saw a "stack of cards." The government did not explain how Eastwood could know the cards were credit cards before he handled them. Mere possession of a number of cards does not provide probable cause to suspect a crime is being committed. Defendant's reaching for the bag was not sufficient to create probable cause because there was no gun in the bag, as Eastwood could immediately tell when he looked in it. Moreover, the court reiterates its concern about giving too much weight to alleged nervousness in assessing probable cause. Accordingly, the denial of the motion to suppress is reversed.