United States Court of Appeals for the Tenth Circuit

Case Number: 16-6306

Judge: Harris Hartz

Court: UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

Plaintiff's Attorney: Timothy W. Ogilvie, Assistant U.S. Attorney

Defendant's Attorney: Kyle Edward Wackenheim
Assistant Federal Public Defender

William P. Earley
First Assistant Federal Public Defender

Description: 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.
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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
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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.
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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 casespecific. 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
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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 (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.
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The Supreme Court has held that probable cause (a higher standard than reasonable
suspicion) can be based on an anonymous tip corroborated only by nonincriminatory
information. See Illinois v. Gates, 462 U.S. 213, 243–45 (1983) (officers had sufficiently
corroborated anonymous tip accusing defendants of selling drugs by observing cross
country travel patterns consistent with tip); see also United States v. Madrid, 713 F.3d
1251, 1261 (10th Cir. 2013) (tip adequately corroborated “[a]lthough the caller’s
description of the possible criminal activity . . . was not verified by the officers”).
In our view, Eastwood had reasonable suspicion to detain Defendant to check out
the tip. There was no need for Eastwood to postpone his investigation until he found the
caller, obtained his identity, and inquired about his motivation. Eastwood was
investigating the possibility of ongoing criminal activity. For him to drive to the scene in
a patrol car and then enter the Arby’s to investigate the caller would risk thwarting the
investigation by alerting the suspect to the need to drive away, or at least to conceal any
evidence.
B. Discovery and Inspection of Credit Cards
On appeal, Defendant does not argue that a warrant was required to search his
vehicle. See United States v. Bradford, 423 F.3d 1149, 1159 (10th Cir. 2005) (noting
automobile exception to Fourth Amendment warrant requirement). Nor does he
complain that Eastwood lacked probable cause to search the vehicle for marijuana. His
complaint is that the search for marijuana did not authorize Eastwood to take the credit
cards out of the bag and examine them, since he could see at once that there was no
evidence in the bag relating to marijuana. He argues that Eastwood needed independent
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probable cause to search for evidence of a credit-card offense. See Arizona v. Hicks, 480
U.S. 321, 323, 325 (1987) (Officer could enter apartment to investigate shots fired within
it; but it was unlawful to move stereo equipment within apartment to expose serial
number (used to determine if it was stolen) because “taking action, unrelated to the
objectives of the authorized intrusion, which exposed to view concealed portions of the
apartment or its contents, . . . produce[d] a new invasion of respondent’s privacy
unjustified by the exigent circumstance that validated the entry.”); see also Minnesota v.
Dickerson, 508 U.S. 366, 375 (1993) (even if an object is in an officer’s plain view, the
officer cannot seize it unless its incriminating character is “immediately apparent”– that
is, the officer has probable cause to believe the object is contraband). The government
does not attempt to distinguish Hicks or dispute that Eastwood needed probable cause to
expand the search to include examination of the credit cards. Cf. United States v.
Carbajal-Iriarte, 586 F.3d 795, 803 (10th Cir. 2009) (officer may expand scope of
consensual search of vehicle if expansion is supported by probable cause). We therefore
review whether there was probable cause to examine the cards and conclude that there
was not.
“Probable cause to search a vehicle is established if, under the totality of the
circumstances, there is a fair probability that the car contains contraband or
evidence.” Bradford, 423 F.3d at 1159 (internal quotation marks omitted). “Once the
officer[s]’ suspicions rise to the level of probable cause, they are empowered to search
the entire vehicle, including the trunk and all containers therein that might contain
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contraband.” United States v. Chavez, 534 F.3d 1338, 1345 (10th Cir. 2008) (internal
quotation marks omitted).
To begin with, we note that the government did not argue in district court that
Eastwood’s observation of the “machine” (which apparently resembled one he had
recently seen in a credit-card-fraud investigation) should be considered in the probable
cause calculus. Its brief on appeal does not even mention the object. At oral argument,
counsel for the government explained that he chose not to rely on the observation because
of the uncertainty about whether the observation preceded the inspection of the credit
cards. This omission significantly limits the evidence supporting probable cause.
What the government does rely on is the quantity of credit cards (presumably
about 15) observed by Eastwood. In its view, “the sheer number of cards alone provided
justification for police to examine them.” Aplee. Br. at 16. There are two shortcomings
in this argument – one legal and one factual. As for the legal component of the argument,
the government cites several circuit opinions (all unpublished) to support its position, but
the officers in those cases had significantly more evidence than just the observation of a
number of credit cards. See United States v. Alabi, 597 F. App’x 991, 993 (10th Cir.
2015) (unpublished) (finding probable cause where officer found “a list containing the
names, addresses, telephone numbers, birthdates, and social security numbers of
hundreds of people; multiple laptop computers and cellular telephones; . . . more than
$1,500 in Wal-Mart gift cards”; and 31 credit and debit cards, five of which were in
names other than those of the occupants of the vehicle); United States v. Reeves, 604 F.
App’x 823, 825–28 (11th Cir. 2015) (unpublished) (finding probable cause where officer
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discovered “a laptop computer, a notebook, a plastic bag containing approximately thirty
credit cards, . . . medical records[,] . . . [and] ledgers listing various names and their
corresponding social[-]security numbers and dates of birth” and officer recognized from
special training that these items were often used in “TurboTax fraud”); United States v.
Ahmad, 118 F. App’x 183, 186 (9th Cir. 2004) (unpublished) (finding probable cause
where officers found “bank statements, credit card statements, checks and credit cards—
all in a large variety of names” (internal quotation marks omitted)).
As for the evidentiary predicate of the government’s argument, it assumes that
when Eastwood looked in the bag he saw a number of credit cards. But the record does
not support an inference that Eastwood could tell that the cards in the bag were credit
cards. Although he testified that what he found when he looked in the bag was “a lot of
credit cards,” App. Vol. II at 19, his next comment was that the thing that was unusual
about that was that “[n]one of them belonged to him,” id. – an observation that
undoubtedly had to await his examination of the cards. He was clearly testifying about
what he ultimately found, not what he saw upon opening the bag. And Eastwood later
repeatedly testified that what he saw was a “stack” of cards. See, e.g., id. at 19-20, 35.
Even if the top of the stack – the card visible to Eastwood – was a credit card, he would
need to examine the stack to determine that the other cards were also credit cards, rather
than membership cards, library cards, gift cards, insurance cards, or the like. It would not
be uncommon for someone to have 15 plastic, wallet-sized cards. Further supporting this
inference is that Eastwood acknowledged on cross-examination that “it was only after
[he] pulled [the cards] out of the bag, examined them, that [he] felt that there was
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something . . . shady or something like that.” Id. at 42. The government has failed to
explain how Eastwood could have known that all the cards in the stack were credit cards
before he handled them.
In our view, a police officer’s observation that a suspect possesses a number of
cards (about 15) does not provide probable cause to believe that the suspect has been or is
committing a crime. And we know of no authority to the contrary.
Defendant’s suspicious movements toward the bag while Eastwood was
questioning him are not sufficiently probative to raise the evidence to the level of
probable cause. Even in hindsight it is hard to explain Defendant’s reaching for the bag,
particularly since there was no gun there, as Eastwood could immediately tell upon
looking in the bag. We find it hard to come up with a chain of inference that begins with
Defendant’s reaching into the bag and ends with the conclusion that the cards must be
involved in criminal activity. Perhaps one can view the reaching as a nervous (and
foolish) reaction by a criminal who simply cannot restrain himself from pointing to the
evidence of his own guilt. But this court, recognizing the stress inherent in any
interaction with law enforcement and the ambiguity of nervous reactions, has consistently
expressed concern about giving too much weight to nervous behavior in assessing
probable cause. See, e.g., United States v. Lopez, 849 F.3d 921, 925-26 (10th Cir. 2017).
Such behavior is certainly a factor to be considered, but it cannot do the job that would be
necessary to establish probable cause here.1 In short, we hold that the government did not establish probable cause justifying
Eastwood’s examination of the cards. Evidence obtained from that examination must be
suppressed.

Outcome: We REVERSE the denial of Defendant’s motion to suppress and remand for
further proceedings.

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Defendant's Experts:

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