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10th Circuit: Observation of Stack of 15 Credit Cards Does Not Provide Police With Probable Cause to Examine Name on Cards for Evidence of a Crime

by Christopher Zoukis

The United States Court of Appeals for the Tenth Circuit reversed a lower court’s decision to deny a motion to suppress because the search that led to the discovery of illegal materials lacked probable cause. The December 28, 2017, opinion sent the case back to the district court with instructions to grant the motion to suppress.

On August 15, 2015, Sergeant Christopher Eastwood of the Oklahoma City Police Department was dispatched to investigate a tip that someone was smoking marijuana in a black Honda with Texas tags parked in an Arby’s parking lot. When Eastwood arrived on the scene, he located the vehicle. When he tapped on the window and the driver opened the car door, Eastwood smelled the distinct odor of burnt marijuana.

Eastwood asked the driver of the vehicle, Walter Earl Saulsberry, for his license and insurance information. Saulsberry did not provide this documentation but did provide his name. Eastwood called for assistance, and when backup arrived, he asked Saulsberry for permission to search the car. Saulsberry gave permission to search for marijuana, and Eastwood promptly found a joint. Saulsberry was arrested.

Eastwood then searched the car again. Inside a bag, he saw a stack of cards. When he took the cards out and looked at them, he noticed that they were all Capital One credit cards and that none of them were in Saulsberry’s name. He also saw a machine on the front seat that he recognized as the kind used to create fraudulent credit cards.

Saulsberry was charged in federal court with possession of 15 or more counterfeit or unauthorized access devices with intent to defraud. He moved to suppress the credit cards, arguing that while Eastwood did not need a warrant to search the vehicle, 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.” As such, he would need independent probable cause to search for evidence of credit card fraud, which he did not have.

The district court denied Saulsberry’s motion to suppress, and he pleaded guilty, reserving his right to appeal the denial of his motion. On appeal, the Tenth Circuit found that while there was reasonable suspicion to detain Saulsberry to investigate the marijuana complaint, there was not probable cause to search a stack of 15 cards inside a bag.

“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,” wrote the Court. “And we know of no authority to the contrary.”

To establish probable cause, the government would need to show that “under the totality of the circumstances, there is a fair probability that the car contains contraband or evidence.” The government attempted to satisfy this burden by relying on the quantity of cards observed by Eastwood. The problem with the government’s position was that there was no evidence that Eastwood could tell that they were all credit cards. In fact, Eastwood testified that what he saw was a “stack” of cards. By itself, this could not establish probable cause.

“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,” reasoned the Court. “It would not be uncommon for someone to have 15 plastic, wallet-sized cards.”

Accordingly, the Court reversed the denial of Saulsberry’ motion to suppress and remanded the case for further proceedings. See: United States v. Saulsberry, 878 F.3d 946 (10th Cir. 2017). 

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