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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
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.
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...
It's not a credit card reader per se, just a magnetic stripe reader. The *vast* majority of magnetic cards of any type have their data encoded in one of only a few different ISO standard formats. Anything can read them, although they may or may not be able to make sense of the data encoded on them.
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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 are a modern way to perform money laundering, which is part of the financial crimes that the Secret Service is in charge of when it's not protecting the President.
Old and Busted: Money Orders
New Hotness: Applebee's Credits
Hire a Linux system administrator, systems engineer,
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...
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 .
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!
... 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++
That's one of my problems with the rules of evidence: the only penalty for unlawfully obtaining evidence is that the evidence is thrown out. That protects only the guilty, innocent people who's rights are violated have zero recourse! I thinks cops should be penalized for violating the rules, but if you got evidence of a crime, unless you have reason to suspect that the cops themselves planted the evidence, it should be admissible in court.
I disagree. I say that it protects the innocent also because the police have to think twice before they perform an unlawful search on anyone. While you may say that an innocent person is unlikely to be unlawfully searched, I say look at New York's Stop and Frisk policy. The only thing you have to do wrong in NYC to be unlawfully searched is to have the wrong skin color.
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.
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.
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.
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.
If cops are personally liable for illegal searches and got prosecuted and jailed, then they would be thinking twice themselves. As it is, they can even jail you on bogus charges without any repercussions - "you may beat the rap but you won't beat the ride". Unfortunately, cops are not even prosecuted for straight-up murder very often, so thinking that prosecutors would bring charges for illegal searches is just fantasy right now.
... The only thing you have to do wrong in NYC to be unlawfully searched is to have the wrong skin color.
I've been stopped and frisked in Chicago an uncountable number of times. They never found anything on me. I'm white. If you walk and are young, you get stopped. There may be a racial element, but, considering my experience, that's not the main issue.
(||) Nehmo (||)
The problem is that cops can scan anyone's cards -- not just gift cards but debit cards as well -- and then drain the accounts, seizing the money by claiming a criminal connection. They don't have to prove a thing -- or even charge the victim with a crime! It's happening today: https://www.google.com/amp/m.h...
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?
I get frisked at airports, its no big deal.
Because they consider you a criminal. You were presumed guilty until they found you innocent.
If you think this is acceptable then you wouldn't have a problem being frisked everywhere you go. Every restaurant, every movie theater, every store you want to enter, they frisk you because they're presuming you're a criminal.
Congratulations. You're another shining example of how the terrorists have won. They've made it so we fear everything and everyone.
We will bankrupt ourselves in the vain search for absolute security. -- Dwight D. Eisenhower
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.