Swiping a Credit Card Was Not an Unconstitutional Search

by | July 28, 2016

An officer stopped DE L’Isle for following too closely to a large truck. The officer smelled burnt marijuana and saw air fresheners inside DE L’Isle’s car. The officer had a drug detector dog partner. He deployed the dog around the car and the dog gave a positive final response to the odors of controlled substances. When the officer began searching the vehicle, DE L’Isle protested. After a brief struggle, DE L’Isle was handcuffed and placed in the police car.

The search yielded no drugs, but officers did find a large stack of credit, debit and gift cards in the trunk of DE L’Isle’s car. Officers scanned the seized cards and discovered that the magnetic strips on the back of the cards either contained no account information or contained stolen American Express credit card information. Several of the American Express credit cards were in DE L’Isle’s name, but had no data encoded on the magnetic strip.

DE L’Isle was charged with possession of counterfeit and unauthorized access devices. DE L’Isle filed a motion to suppress, arguing that the scanning of the information in the magnetic strips of the cards was an unconstitutional search. The court rejected DE L’Isle’s claim.

First, the court held that sliding the cards through a scanner does not physically intrude into a constitutionally protected space. The magnetic strip on the back of a debit or credit card is external electronic storage media “designed simply to record the same information that is embossed on the front of the card.” Second, DE L’Isle did not have a reasonable expectation of privacy in the cards and card information. The information on a non-counterfeit card magnetic strip is typically “identical to the information in plain view on the front of the cards.”

The majority opinion acknowledged that different facts in another case might lead to a conclusion that a person could hold a subjectively and an objectively reasonable expectation of privacy in information on a magnetic strip.

One judge dissented, stating that the case should have been remanded for additional fact-finding. The dissent observed that a person may wish to rewrite information on a magnetic card for perfectly innocent reasons. Moreover, the fact that the search results showed blank magnetic strips—implicating DE L’Isle in counterfeiting—did not justify the search at the outset. The search results, the dissent claimed, could not justify the search means.

The question of privacy on magnetic strips will indubitably arise again. As the court noted, future technology could well result in larger amounts of personal information encoded on magnetic strips: “Although the stakes may appear small at this stage, technological progress has a way of ensuring that they do not remain so.”

United States v. DE L’Isle, 2016 WL 3184475 (8th Cir. 2016)

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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