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It's Entirely Reasonable For Police To Swipe a Suspicious Gift Card, Says Court (arstechnica.com)
An anonymous reader quotes Ars Technica: A U.S. federal appeals court has found that law enforcement can, without a warrant, swipe credit cards and gift cards to reveal the information encoded on the magnetic stripe. It's the third such federal appellate court to reach this conclusion. Last week, the 5th U.S. Circuit Court of Appeals found in favor of the government in United States v. Turner, establishing that it was entirely reasonable for Texas police officers to scan approximately 100 gift cards found in a car that was pulled over at a traffic stop. Like the previous similar 8th Circuit case that Ars covered in June 2016, the defendants challenged the search of the gift cards as being unreasonable. (The second case was from the 3rd Circuit in July 2015, in a case known as U.S. v. Bah.) In this case, after pulling over the car and running the IDs of both men, police found that there was an outstanding warrant for the passenger, Courtland Turner. When Turner was told to get out of the car and was placed in the patrol car, the officer returned to the stopped car and noticed an "opaque plastic bag partially protruding from the front passenger seat," as if someone had tried to push it under the seat to keep it hidden. The cop then asked the driver, Broderick Henderson, what was in the bag. Henderson replied that they had bought gift cards. When the officer then asked if he had receipts for them, Henderson replied that they had "bought the gift cards from another individual who sells them to make money." Turner's lawyers later challenged the scanning, arguing that this "search" of these gift cards went against their client's "reasonable expectation of privacy," an argument that neither the district court nor the appellate court found convincing. The 5th Circuit summarized: "After conferring with other officers about past experiences with stolen gift cards, the officer seized the gift cards as evidence of suspected criminal activity. Henderson was ticketed for failing to display a driver's license and signed an inventory sheet that had an entry for 143 gift cards. Turner was arrested pursuant to his warrant. The officer, without obtaining a search warrant, swiped the gift cards with his in-car computer. Unable to make use of the information shown, the officer turned the gift cards over to the Secret Service. A subsequent scan of the gift cards revealed that at least forty-three were altered, meaning the numbers encoded in the card did not match the numbers printed on the card. The investigating officer also contacted the stores where the gift cards were purchased -- a grocery store and a Walmart in Bryan, Texas provided photos of Henderson and Turner purchasing gift cards."
dumb criminal made the mistake of driving illegally with an outstanding warrant and had a bag of over 100 gift cards. nothing suspicious
They caught a bad guy. What is the problem here? It is entirely correct to be suspicious of a guy who has $100k in gift cards.
Is it a crime to be in possession of credit cards / gift cards? (No)
Is the information contained in a credit card / gift card in plain view? (No).
Does a LEO, without a warrant or probable cause, have the legal authority to open a container to peruse it's contents? (No)
So why then can a LEO seize and search the contents of a CC / Gift Card without probable cause or a warrant, when they can't legally open closed (but unlocked) containers on a person's person and possession thereof are in-of-themselves perfectly legal?
This is yet another bad case precedent eroding the very core of the 4th Amendment. There isn't even an attempt to reconcile it with constitutional law.
Personal property is only exempt from routine law enforcement procedures when it's a *phone* (preferably an iphone).
why do cops have a Credit Card reader in their squad car? I'd heard stories of some cops taking payment for tickets when they pull you over and threatening jail time if you don't pay then and there...
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Is the officer very well connected or does the Secret Service widely offer the service to scan gift cards?
I'm surprised the Secret Service just takes these requests as part of their duties..
Gift cards use such a bad hash algorithm that you can guess the numbers to rewrite them with, and have them actually work? Seems like 99% of the time you'd be guessing a number that had never been activated or had already been used up, unless these things are much stupider than I think they are.
I've abandoned my search for truth; now I'm just looking for some useful delusions.
But did the Appeals court consider if they have the right to *drain* them and take all the money left on their balances?
https://www.techdirt.com/artic...
Americans are losing more privacy and freedom. Saddening.
Prof. Orin Kerr, a noted expert on the 4th Amendment and on computer crime law posted his negative reaction to this ruling; he has a longer commentary on this issue here
According to Prof. Kerr this is the third court of appeals to rule that that reading the stripes is "not a search", and that this runs counter to Supreme Court precedent such as Arizona v. Hicks .
Well that's suspicious after saying the bought them from an individual.
What's not reasonable is purchasing one of these gift cards. Who the hell wants to lock their money into a specific company?
This gift card is one I just purchased to pay the IRS. They called me and said I'd be arrested if I didn't!
Once the chips become prolific enough might as well just use a magnet to wipe the strips and stick to using the chips. That is until the cops get chip readers in their vehicles as well.
A credit card is 85.60 x 53.98 mm x 0.76 mm = 3.51 cm^3, so 143 gift cards will basically entirely fill a ~0.5L sandwich bag.
A standard 3.8L (1 gallon) plastic bag can hold over 1,000 credit cards.
A typical backpack or briefcase can hold about 25L, or over 7,000 credit cards.
A well-dressed man carrying a briefcase is not suspicious, and anyone else with a backpack isn't suspicious, even though the backpack or briefcase could be carrying 48x as many cards.
tl;dr: This wouldn't be a story if the guy had carried a backpack.
[Disclaimer: I don't think there's any legit reason why anyone would need to carry that many cards -- especially packaged that way, but I also don't think it should be up to the police to decide how many credit cards is "suspicious." What if someone bought a few dozen assorted gift cards to give out at Christmas? That's totally legit, and I've done it many times. But at some point you cross the line from "I have a lot of friends" to "Am I being detained? I do not consent to searches. I want to speak to a lawyer." I don't like the precedent this sets, because the next story will involve fewer cards. How many fewer? Who knows. And that's what worries me.]
... There isn't even an attempt to reconcile it with constitutional law.
Judges simply don't work that way. We may disagree with them, but by and large they are struggling to figure out the right answer according to constitutional precedent. The fact that multiple circuits of federal appeals judges have held that way emphasizes the fact that this is not some court going off the rails and neglecting the Constitution. Federal judges are much nicer, more thoughtful, and more considerate of the right result than the vast majority of people you meet in your everyday life.
I haven't read the case, but could easily construct a Fourth Amendment argument here that favors the police ability to scan the card and contact the vendors. Most obviously, the pen register case (Maryland v. Smith, IIRC) and the thermal sensor case (Kylo, maybe?) apply. You are transmitting information about the gift card to a third party without privilege (the store), so obviously you are not expecting that its contents will be private and you do not have a reasonable expectation in privacy in it under Smith. Personally I might be willing to revisit Smith on the other side, because it was passed in an age when Supreme Court Justices grew up with party lines and no actual expectation of privacy on the phone, but there is still a strong chain of well-established precedent that is respected in a common-law system like ours and will convince most judges--even ones who disagree with it.
Similarly, under the thermal sensor case, the fact that the tech for card reading is widely available in the civilian market means that the mere fact that you have to use tech doesn't help you.
Also, your description fails to capture the fact that the guy was under arrest because of an open warrant. I could construct arguments on his behalf that would give him some chance of winning, but the precedent clearly disfavors him. Just because we disagree with the decision of a court doesn't mean it was wrong, or that the judges were not trying to follow precedent. Case law is reasoning by analogy. It's not engineering, and it's not neat. It gives you a probability distribution that good arguments can shift one way or the other as a series of people try to figure out what the best answer is.
Real lawyers write in C++
in law enforcement and government and start over with a constitutional form of government ruled by laws for and by the people
Everyone likes to claim that the Slippery Slope is an invalidation fallacy when in fact it's a warning of a potential outcome. If a person has in their possession a quantity of cards the Police suspects criminal, they are fully within their rights to request a warrant and detain the person until a Judge grants or denies the request. Courts in general do not take weeks or even days to file a warrant, and the detaining officer does not have to appear before the judge.
There is a reason we have a codified due process in this country. Stop giving away your rights!
-The wise argue that there are few absolutes, the fool argues that there are no probabilities.
Alice and Bob are driving down the road when they're pulled over by cops. Alice is driving. Bob gets arrested on an outstanding warrant. As Bob's getting out of the car, the cops see a black plastic bag underneath Bob's seat. They ask Alice about the bag. She says, "This? Oh, it's just oregano, officers. A lot of oregano. No, we don't have receipts for it, and, uh, we bought it at ... err, from some guy. But it's just oregano. See?", and gives it to the cop. The cop, upon opening the baggie, sees what looks like oregano. But the volume of the oregano is much more than you'd need for a pizza, so the cop figures it might be marijuana and decides to run a field test on it. Ultimately this field test is turned over to the State Police, which are able to conclusively say it's marijuana. Bob is now facing marijuana possession charges and complains his Fourth Amendment rights were violated.
That's exactly what happened here. The defendant was arrested on an outstanding warrant, the arresting officer asked what was in the bag, the driver gave the bag over and said he and the defendant bought 143 gift cards from "someone", but couldn't identify whom, nor provide any receipts, and their business plan was to "resell" these cards for a profit. Put all that together and it's on the same level as telling the cop your weed is oregano -- it's a lie that's completely transparent.
Since the cops were given the evidence, they did not seize it illegally. Since the cops had an incriminating statement from one of the participants, they had probable cause to check for illegality. Legal seizure plus probable cause equals go directly to jail, do not collect a $200 gift card.
This Slashdot headline is misleading to the point of being journalistic malpractice.
I typically have 0 of these cards. After Christmas I've had as many as 6. So, what's the threshold for letting the cops scan my gift cards without a warrant? 1? 5? 99?
IMHO this is the slippery slope argument. I'll agree 99+ is questionable as hell, but if you let them do a warrantless search for 99 cards they'll cite that case to let them do a warrantless search for 1.
Reminds me of a decade or two back when they decided anyone carrying more than $10k in cash was a drug dealer and could confiscate it with no hope of you getting it back. Then it became $1k, now it's probably $250 or so. I typically hit the ATM when my cash gets below $100, this could hit me at some time.
As an abstract matter of law, I would take issue with it if the officer removed and opened the bag without consent. AFTER he saw there were over a hundred gift cards in there, I think that's reasonable suspicion.
In this case,after arresting Turner on the outstanding warrant, the officer asked Henderson "what's in that bag?". Henderson responded by handing the bag to the officer. No Constitutional violation there, IMHO. n fact I'll ask you right now "what's in your pocket, Matful?" I don't think asking violates your rights.
Also, the name Broderick Henderson rings a bell with me, because it just so happens I used to be a private investigator in Bryan, TX. As a factual matter, ANY time you see Broderick Henderson, you are most likely seeing him doing something illegal, if it's the person I'm thinking of. Rap sheet a mile long. When Broderick Henderson and Courtland Turner have 143 gift cards, it's nearly certain they are committing a crime. Any Texas cop who had run their names would know that. That does NOT mean I think that *any* prior arrest is grounds to suspect criminal activity at some point in the future. Clearly that's not true, in general. The suspicious presence of 143 gift cards by a habitual offender - it's pretty obvious he's up to no good, as a practical issue.
The problem here is we're reliant on liars to determine whether or not a crime might have occurred without any evidence that a crime even had occurred. Someone's feeling aren't suppose to be used to determine whether or not there is articulate suspicion of a crime. For the police officers to have articulable suspicion of a crime they should have needed knowledgeable that a gift-card-related crime was committed in the area and most likely that a description of the car and person. The lack of these means they were doing little more than going on a fishing expedition. My boyfriend collects gift cards and based on the logic of these officers and court ruling that would be sufficient to search him without even a warrant! Christ. What kind of society do we live in where the police don't even need to get warrants or establish articulable (specifics) knowledge that a crime has likely occurred for which is connectible to the persons being searched. Simply being weird, unusual, or often connected to a crime in these officers experience should never be enough. Based on that logic I could search any black person based on statistics that black people commit more crime.
My above post covered looking inside the bag (Henderson handed the bag to the officer) and taking possession of the cards (143 gift cards in the possession of a habitual criminal is suspicious). The defendant didn't even argue the first point, because the bad guy did hand the bag to the officer. The defendant questioned the cops reading the stripes on the cards. The court's reasoning is interesting.
In order for a fourth amendment l right of privacy to apply, the person must have a reasonable expectation of privacy in the item. That's two tests - an expectation of privacy must exist, and it must be *reasonable* to expect that the information will remain private. The court pointed out that people often store a lot of personal information on cell phones and computers and are often protect them with a password, so there is a reasonable expectation of privacy. On the other hand, the mag stripe on a Best Buy gift card has a small amount of information put there by Best Buy, so that Best Buy can read it back later. A consumer wouldn't store any personal information, or any information at all, on a Best Buy gift card, and they would fully expect Best Buy to read the mag stripe information. So there's no expectation of privacy - they intended to have the clerk at Best Buy read those cards and for Best Buy to store the info, and there was no personal information, the court ruled. No reasonable expectation of privacy means to fourth amendment violation.
I bet you will change your tune if YOU are arrested
as the old joke goes, a civil libertarian is a Repubican who has been arrested
And they'll dump the data out as keyboard output, if you like. We used to use them at the university I work at to do pay for printing. You'd swipe your student ID which would feed the info to the print program that could then contact the card office database and look up your account. Same idea as a credit card terminal, but just for printing (Pharos, if you are wondering).
We also used them just to let students register for events. When they'd come to an open house they'd sign in, which in the past meant writing their name and e-mail on a sheet, which got entered manually later. Now instead they could just swipe their student ID and the data dumped in to a text file. That could later be fed in to the student information database to get an e-mail address (the whole point of signing in was because you wanted your e-mail on the list for contact with job recruiters). Made it much easier for the students.
The actual data on the card was nothing more than your name and the card number (both printed on the front) and a checksum to validate. Credit cards tend to be the same, just name and number matching what is embossed on the card, plus checksum. There's no security or special hidden information, mag stripes were developed WAAAAY back in the day and it just stores identifying information. Hence the push to move to chip cards.
If the purpose was just to verify that the information on the mag stripe matched the information on the card, one would need little more than the reader hardware and text editor of your choice.
This is equivalent to getting out a blacklight and looking for bloodstains. As far as I'm aware it does not require a warrant to check an individuals belongings for marks invisible to the naked eye.
While I am, in general, against the significant overreach of police powers without a corresponding increase in their accountability, I don't think this is an example of that. This is simple application of existing laws in a new context. I don't think playing a CD or cassette tape counts as 'search' either.
"I will trust Google to 'do no evil' until the founders no longer run it." Hello Alphabet.
Most stores have maximum numbers of cards you can apply in a transaction. It's usually about 5-6. They set themselves up to be seen as white collar criminals. All they had to say was "we bought these a while ago on various gift card sites like raise.com and got them like 10-15% off, we're off to best buy to blow them on video games." Chances are good that the guy with the warrant would have been booked and the other guy let go. Cops were looking for a reasonable explanation for why they had such an unusual number of gift cards and they chose a reason that they couldn't back up.
And let's be realistic here, even as opponents of civil asset forfeiture. If you just bought 143 gift cards and didn't have a receipt or even a single activation slip for one of them, that looks pretty damn suspicious. Let's say the average balance was $25 on face value. Who buys $3,575 of gift cards at Walmart, spread over that many cards and doesn't have even the activation slips so they can go back to customer service when inevitably one of them wasn't activated correctly in such a large transaction?
So what happens when I order 1000 custom branded gift cards from a providor for my business client, and then deliver them to their retail outlets? Is that a crime now?
http://web.givex.com/
http://egiftsolutions.com/
Retailers have to offer easy to use gift cards now to be competitive. Customers demand it. So as a point of sales solutions providor I now have to worry about random unconstitutional roadside searches crippling my business?
Looks like the slippery slope towards the coming police state has gotten a few degrees steeper....
Yes, if you hand me a Best Buy gift card, I know the magnetic stripe contains a Best Buy gift card number, placed there by Best Buy, for Best Buy to read back.
An SD card may contain far more information, placed there by anyone (most likely whoever has it), and may well contain personal information. The court in this case pointed out the difference.
Then you should be able to provide evidence (receipt) that you bought those branded gift cards from a website instead of telling the police you bought it off from someone else?
If I was a cop and had pulled over someone under those circumstances, I would have thought it suspicious too. And it is reasonable. So what would be so difficult about getting a warrant to read the cards? Then there is no question or doubt it is being done right.
I've read good comments on this article already. Like what is the threshold for the number of cards where it becomes OK for letting Cops just look at cards? Or, where were these cards? Were they scattered all over the back seat in plain view? Or did the officer have to, "Open a bag" to get to them? In that case, isn't that illegal search? It seems to me like an illegal search on top of an illegal search. And no, a person doesn't have to have a law degree or be a judge to understand the meaning behind the law on this.
I've executed arrest warrants in the same town this occurred, I think I even arrested Broderick Henderson, the driver in this case. My understanding in the same - a warrant to arrest the person necessarily implies a "search incident to arrest" can be made. Having seen Broderick and Turner's criminal history, you damn sure better search them before you have them riding in the back seat of your car! However, search incident to arrest no longer allows you to search the car they were riding in, generally. Before 1950, police could search the car, then several supreme court decisions limited that quite a bit.
However, in this instance looking in the bag doesn't require "search incident to arrest". The defendant does not dispute the following facts:
The cop asked him "what's in that bag?"
Broderick than *handed the bag to the officer* and said "we bought a bunch of gift cards".
By handing the bag to the officer, he implied consent to look in the bag. So looking in the bag was consensual. After seeing there were over 100 gift cards in there, considering the totality of the circumstances, there was reasonable suspicion. If you add the fact that it was a pair of habitual criminals, there was probable cause.
On a side note, the general culture of the Bryan police department is pretty good - they aren't likely to search without any reason. When they see something suspicious, they will ask questions like "what's in the (suspicious) bag?", and the person who is asked can say "some private stuff" or "I'd rather not say". There was a judge in Bryan, also named Turner, who for many years reminded the cops when they got too close to the line.
They should need to provide evidence that your gift cards were obtained illegally or were involved in the commission of a crime. You shouldn't need to prove your innocence to avoid being assumed guilty.
If you want a vision of the future, imagine a youtube comments section scrolling - forever.
Pretty big logical leap, there. Using the power of common sense and your brain, you would understand we are talking about a guy with a criminal history caught with a suspiciously large bag of cards.
What sibling said.
It is not up to you to prove your innocence, it is up to the police to prove (or at least show reasonable evidence of) your guilt.
Now in this case,yes a dude with an outstanding warrant is going to raise suspicion, but honestly, it wouldn't have taken too much effort to, oh I dunno, hold the cards for 72 hours and then get a fucking court order. The cards can be returned after 72 hours if no order comes forth.
Quo usque tandem abutere, Nimbus, patientia nostra?
I have several gift cards (5 or 6) in my wallet. I do NOT have the receipts for them. I'm not even sure I got receipts when I got them as gifts (other than a little case/cover with the amount). In my case, you are saying they should be confiscated. I'm close to positive my parents did NOT steal these cards. I'm close to positive my gf's parents did not steal these cards. I'm even closer to positive that you haven't thought your opinion through.
The presence of a wanted criminal in a vehicle is reasonable suspicion to search the vehicle even without the owner's approval. The visibility of the plastic bag beneath the seat is reasonable suspicion to search said bag, the presence of 100+ gift cards in a single bag that is in the possession of a wanted criminal is reasonable suspicion that the cards may be stolen or counterfeit. You really don't know shit about laws and police procedures in the USA.
They should need to provide evidence that your gift cards were obtained illegally or were involved in the commission of a crime. You shouldn't need to prove your innocence to avoid being assumed guilty.
Well, you need to READ the court documents before simplify whatever you see at face value...
As stated by an earlier poster, the legal limit (18 USC 1029) where it becomes suspicious is 15.
Presumably, they would be boxed, from the printer, or in individual envelopes or something "neat and tidy" as a business transaction. Compare that to a random bag of different gift cards that have been concealed.
I don't fully understand the significance of the police officer scanning the a card in his cruiser; I would have thought that would show a mis-match between the two credit card numbers at least, even if it couldn't get extended information.
OK, I think we've all seen the advice you should never talk to cops. Additionally, no matter what they tell you, never ever sing ANYTHING without your lawyer's advice. Signing the inventory sheet was an excellent admission of ownership of the illegally hacked cards. If the guy hadn't signed that, the cops would have had a tougher time proving who they belonged to.
There is no God, and Dirac is his prophet.
"So, by using the card with an incompatible device, the officer may have accidentally altered the cards?"
Because whenever I buy stuff online, my laptop's built in receipt printer prints one out to prove to cops I actually own what I have bought.
If I have been able to see further than others, it is because I bought a pair of binoculars.
What could the police do? Assuming you warn them by saying "I wouldn't scan that card if I were you." you should be able to avoid hacking charges.
No, the stripe just contains a number. Unless the manufacturer of the card reader did something very VERY stupid when designing it, there is no chance of any code being executed.
You have just made me a very rich man.
I think it's a lot more interesting that he was granted access to see whatever's inside the bag. That's a much bigger leap, and more invasive than reading the magstrip.
The car has clear glass windows. Everyone in public can see what's inside. But when you went through the opaque plastic (cop's own words), you were crossing the boundary between public and private. Any random passerby (e.g. you or I) can see that the bag exists. A passerby cannot see what's inside the bag. To gain that information, you have to get some kind of special access. Owning the bag is one way, warrants are another, and crime is a third.
But it happened. (And it kind of sounds like maybe the suspect consented, so I forgot: the owner telling/showing you what's in the bag is a fourth way!)
Once a judge has already ruled that he's allowed to see what's inside the bag, take things (such as cards) out of it, etc, then it doesn't seem like a stretch for the same judge to also rule it's ok to recursively look inside the nested objects. "We've already established what kind of woman you are, madam. Now we're just haggling over the price."
(BTW, the question about receipts is hysterical. If I'm going to be suspected of a crime for not having receipts, then damn near everything I own is presumed stolen. I bet the same goes for you too, as well as the cop. Got a reciept for that donut? For your $400 smartphone? For your socks?)
"Believe me!" -- Donald Trump
I had a colleague who had this 6% cash back credit card at grocery stores. He'd buy up gift cards in volume, effectively getting 6% back whereever he went. He must have had MANY gift cards.
"If you click the link at the bottom of my post that's labeled 'Parent', you can actually READ the thread that you're replying to without jumping to the assumption that other people are idiots," is what I'd say if you weren't the exact person that I was replying to.
Seriously, did you forget the thread of the conversation? I was replying to your statement:
Then you should be able to provide evidence (receipt) that you bought those branded gift cards from a website instead of telling the police you bought it off from someone else?
In this case, the guy blabbed too much about his stupid scheme, but the AC upthread shouldn't have to provide any evidence at all if the police have no evidence that his hypothetical cards were involved in a crime.
If you want a vision of the future, imagine a youtube comments section scrolling - forever.
Might be asking a lot. If you RTFA, it said they were able to confirm they bought those cards.
Having RTFA, it also said that they numbers on the front didn't match what the strip said. There's a lot of evidence that they were doing bad stuff.
I think this is ok. What isn't OK is where the police dept seizes the money just because they can. No charges filed, they just wanted the money and harass citizens for it, not even resorting to a ticket anymore. They're nothing more than armed thugs. Pirates really. Those guys should be hung along with the people that told them to do it.
back in the days of communist russia ... i think the issue here is the precedent set of "not needing a warrant" which means next time you drive by they wont need one either
... is there anything positive on xept for china putting ppl in space or is liking that caniving with the commies ?
today is worrisome to say the least
Free speech was meant to be free for all... how can anyone grow up in a nanny state ?