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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."
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.
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,
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.
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.
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.
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.