United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
L. Hornsby U.S. Magistrate Judge.
the court are Motions to Suppress (Docs. 39 and
40) filed by defendants Emicel Artigas Garcia
(“Artigas”) and Adalberto Ramos Cuellar
(“Ramos”). Defendants are charged with conspiracy
to commit wire fraud; wire fraud; aggravated identity theft;
and possession of 15 or more counterfeit or unauthorized
access devices. For the reasons that follow, it is
recommended that Defendants' motions to suppress be
evidentiary hearing was held in connection with
Defendants' motions on December 6, 2017. The evidence at
the hearing establishes the following facts. Detective Chad
Sepulvado (“Sepulvado”) of the Bossier City
Police Department testified that he recently had been
inundated with identity theft cases, the majority of which
involved the unauthorized use of credit card numbers at a
Wal-Mart in Bossier City. Tr. 27. Sepulvado testified that
the stolen credit card numbers were usually obtained by the
use of skimming devices installed in gas station pumps.
of the uptick in these types of cases, Sepulvado paid a visit
to the Wal-Mart and spoke to Robert McElroy
(“McElroy”), a Wal-Mart loss prevention
associate. Sepulvado spoke with McElroy regarding identity
theft, and he advised McElroy how to spot perpetrators of
these offenses and to call him if he noticed anything
suspicious. Tr. 7. Later that same day, McElroy noticed a
Hispanic man at a self-checkout station in Wal-Mart swiping
many different credit cards. Tr. 8. McElroy saw the man
balling up his many receipts and hiding them in a nearby
potato chip rack. Tr. 13.
testified that the man had been there for approximately 20
minutes, which McElroy found suspicious, because most
customers make a quick purchase at the self-checkout and
leave. Tr. 23-24. McElroy called Sepulvado and reported what
he had seen. He also described what the man looked like and
what he was wearing. Tr. 10. He advised that a second
Hispanic man, wearing a black baseball cap, was with the man.
and Sepulvado spoke again by telephone just as the suspicious
man was about to leave Wal-Mart. Tr. 14. McElroy informed
Sepulvado that the man was exiting the general merchandise
doors, wearing a green T-shirt and a ball cap, and he was
pushing a buggy containing lawn chairs. Tr. 32. As Sepulvado
arrived near those doors of the Wal-Mart, he saw a man
meeting that description about 20 yards away from the exit
door. McElroy also pointed the man out to Sepulvado. Tr. 15.
Sepulvado made contact with the suspect, who later turned out
to be Artigas, Sepulvado saw multiple gift card sleeves
sticking out of Artigas's front pockets. Based on the
information provided to Sepulvado by McElroy, and then seeing
the multiple gift cards, Sepulvado believed that Artigas was
involved in a credit card skimming operation. Tr. 69.
Sepulvado placed Artigas under arrest. Sepulvado then removed
Artigas's wallet from his pocket and located
Artigas's ID card and numerous credit cards.
removed a key fob from Artigas's pocket and used the
alarm button on the key fob to locate Artigas's vehicle.
Sepulvado testified that credit card skimming is a
complicated process requiring a number of tools and steps to
make it possible. Tr. 39-40. Sepulvado believed that there
would be other evidence associated with Artigas's crimes
in Artigas' vehicle.
fob allowed Sepulvado to locate Artigas's vehicle.
Defendant Ramos was sitting in the passenger front seat of
the vehicle with his legs hanging out of the door. In front
of Ramos was a black baseball cap sitting on the
vehicle's dashboard. Sepulvado removed Ramos from the
vehicle and conducted a Terry pat-down. Sepulvado
suspected that this person was the man that McElroy told him
was with Artigas. Tr. 14.
a pat-down of Ramos, Sepulvado removed Ramos's wallet.
Sepulvado opened the wallet and found numerous credit cards.
Once Defendants were arrested, Artigas' vehicle was
impounded. A search warrant was obtained three days later,
and additional evidence of criminal activity was found in the
vehicle. Tr. 72.
argue that Sepulvado lacked reasonable suspicion or probable
cause to detain them and conduct pat-down searches; that the
searches of their pockets and vehicle were not supported by a
warrant and were per se unreasonable; that using the key fob
to search for Artigas's vehicle went far beyond a
Terry stop and pat-down for ...