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A federal appeals court ruled Wednesday that law enforcement can legally scan or swipe a seized credit card—in fact, it is not a Fourth Amendment search at all, so it doesn’t require a warrant.
In the 8th Circuit Court of Appeals’ 15-page opinion, swiping a card does not constitute a physical search, as the magnetic stripe simply contains the same information obviously visible on the front of the card. Plus, the defendant, Eric-Arnaud Benjamin Briere De L'Isle, couldn’t have had a reasonable privacy interest in the card, the court concluded, because he would have tried to use it when he tried to buy something, thereby giving up privacy interests to a third party (the issuing bank).
According to court records in United States v. De L’Isle, the case began in June 2014 when Eric-Arnaud Benjamin Briere De L'Isle was driving westbound on I-80 and was pulled over by a Seward County, Nebraska, sheriff’s deputy.
The deputy, Sgt. Michael Vance, pulled over De L’Isle (also known as “Briere”) for following too close to a tractor-trailer. As Sgt. Vance approached the car, he noticed the distinct “odor of burnt marijuana” coming from within the car, and he observed three air fresheners hanging from the rear-view mirror. After questioning De L’Isle, Sgt. Vance suspected that the driver might have drugs, so he deployed his drug-sniffing dog.
While no drugs were located, the law enforcement agent found and seized:
…51 credit, gift, and debit cards in a duffel bag located in the vehicle’s trunk. Ten of the cards were American Express credit cards, all bearing Briere’s name, with different account numbers embossed on the fronts of the cards. A number of the debit and gift cards also had account numbers embossed on them, but none bore Briere’s name. Some of the cards were in wrapping utilized by the issuing company to display the cards in retail stores.
Later, upon further investigation by the Secret Service and the Department of Homeland Security, “The agents discovered the magnetic strips on the back of the 10 American Express credit cards in Briere’s name contained no account holder identification or account information which exists on legitimate American Express cards when they are issued.”
(Score: 2) by jmorris on Wednesday June 15 2016, @11:00PM
Seriously, what was the purpose of the article being discussed? Police make a routine stop, cop's 'spidey sense' goes off and he does what we train cops to do and he makes a bust. Somebody explain the problem here? Somebody have the balls to step up to the mic and formalize the subtext and come out and say that cop should have looked in that bag, saw a stack of obviously fake credit cards and said, "Well I was looking for dope so I can't use this. Carry on. Have a nice day!"
Then I am going to point at you and laugh.
(Score: 0) by Anonymous Coward on Wednesday June 15 2016, @11:11PM
The subtext is bitcoin and this guy was doing oldschool fraud with physical cards like an idiot.
(Score: 2, Insightful) by kurenai.tsubasa on Thursday June 16 2016, @12:08AM
Very well.
As I said up there. Problem #1: dubious reason for the stop. Problem #2: dubious reason for the drug dog.
I'll concede that the chain of evidence works as the law is currently right up until the issue in question, provided that the cop had a very lucky day and was 100% honest. However, the data on the magnetic stripes was not representative of what was stamped on the credit cards. Therefore, I would argue that it was not in plain view, as this opinion seems to assert. However, the suspicious nature of the find would have constituted probable cause for a warrant for further search of the magstripe data after a five minute phone call to the on call judge.
Why didn't they make that five minute phone call in accordance with the fucking law?
(Score: 5, Informative) by quintessence on Thursday June 16 2016, @12:23AM
The subtext is that a cop can't do a search without a warrant without probable case. Except if this case it is the proceeds from the search that is giving him them probable case. Cart before the horse. And then there's the whole reasonable expectation of privacy that somehow becomes "concerning" when you are videotaping a cop in public. Yeah.
AND THEN there the whole information divulged to a third party not requiring a warrant, as if the judge is unaware of HIPAA ($50,000 per violation). Apparently your medical records do and don't require a warrant under this line of thought.
"Well I was looking for dope so I can't use this. Carry on. Have a nice day!"
Actually, even with a warrant, that doesn't give cops cart blanch to go on a fishing expedition, and any evidence derived of another crime beyond what is specified on the original will get thrown out with a reasonably competent defense lawyer.
The sensibility is that police can't get involved with your personal business without justification, and that justification must be re-evaluated at every escalation. Otherwise it is just harassment.
(Score: 2) by jmorris on Thursday June 16 2016, @01:24AM
So you admit, you would rather the cop see a clear and present danger to the public, obvious credit card fraud and identity theft occurring, and just wave the criminal on. You do know you guys are doomed, right? We were once a wealthy and secure enough country we could afford to allow rabbits (Ask Google about r/K selection) like you to exist, but as things go bad you and your ideas are so doomed.
(Score: 4, Insightful) by quintessence on Thursday June 16 2016, @02:03AM
Gee, as if the only options the cop has is to let him go or arrest him on the spot.
I guess detaining the individual and then asking for a warrant is too much of a burden.
"...that justification must be re-evaluated at every escalation."
Keep rereading it until the point sticks.
You do know you guys are doomed, right?
No actually the only thing that has been doomed is due process. This isn't an episode of 24. The police have more than enough tools available at their disposal, and for the most part time is on their side. They just need to follow the law like the rest of us.
It's not too much to ask.