By Ken Wallentine
Turner was a passenger in a car stopped for a traffic violation. The officer discovered an arrest warrant for Turner. The officer told Turner to get out of the car. As Turner got out, the officer saw a plastic bag that appeared to have been shoved under Turner’s seat.
The officer arrested Turner and placed him in the police car. The officer then approached the driver and asked him what was in the plastic bag. The driver told the officer that he and Turner had purchased some gift cards. The officer examined the bag and estimated that it contained at least 100 gift cards. Suspecting that the cards were stolen or evidence of some crime, the officer seized the cards (there were actually 143 cards).
The officer swiped some of the cards on his in-car computer and found no usable data. He turned the cards over to a Secret Service agent, who discovered that nearly a third of them had been altered. Turner was charged with aiding and abetting the possession of unauthorized access devices. He asked the court to suppress evidence of the gift cards, challenging both the seizure of the cards and the swiping of the magnetic stripes.
The court ruled that the cards were properly seized. The number of the cards and the meager attempt to hide them, coupled with the lack of any receipt and the driver’s admission that they bought the cards second-hand, led to probable cause to believe that they were evidence of a crime. The court also held that the swiping of the magnetic data stripes was not a search, joining two other courts to consider this novel question (see United States v. DE L’Isle, 825 F.3d 426 (8th Cir. 2016), discussed here). The court compared the data swipe to using an ultraviolet light to detect special ink on suspected counterfeit currency.
Notwithstanding the court’s holding in this case, the court observed the probable temporal limitation of its holding. “The technology of today will not, however, be the technology of tomorrow.” Citing the Supreme Court’s instruction “to take account of rapidly evolving capabilities when applying the Fourth Amendment to other Information Age technologies,” the court cautioned that future developments in magnetic recording media on such cards might lead to a different outcome.
United States v. Turner, 2016 WL 5947247 (5th Cir. 2016)