Wednesday, February 11, 2015

Magnetic Strips, Credit Cards and Inevitable Discovery

This post examines a rdecision from the U.S. Court of Appeals for the 10th Circuit.  U.S. v. Alabi, 2015 WL 307068 (2015).   The court begins the opinion by explaining that
[a]fter the U.S. District Court for the District of New Mexico denied his motions to suppress, Oladipo Alabi entered conditional pleas of guilty to one count each of access device fraud under 18 U.S. Code § 1029(a)(3) and aggravated identity theft under 18 U.S. Code § 1028A(a)(1), retaining his right to appeal the district court's denial of his motions to suppress. The district court imposed a twenty-eight-month prison sentence, and Alabi appealed. 
U.S. v. Alabi, supra.
The Court of Appeals then explains how the prosecution arose:
On April 6, 2011, New Mexico State Police Officer Chester Bobbitt was standing outside his patrol vehicle, which was parked alongside I–40 in eastern New Mexico, when he heard a noise and noticed a vehicle speeding by him. According to the vehicle's passenger, Oladipo Alabi, Bobbitt made eye contact with Alabi, who is black, before running and jumping into his car to pursue the vehicle Alabi was riding in. Bobbitt then initiated a traffic stop based on the vehicle's expired tags. Although Bobbitt suggested at a later hearing that he initially pursued the vehicle because it was speeding, he did not note the alleged speeding violation in his report, and he gave the vehicle's driver, Kehinde Oguntoyinbo, a warning only for the expired tags. Oguntoyinbo also is black.

After giving Oguntoyinbo the warning and telling him he was free to leave, Bobbitt secured Oguntoyinbo's permission to search the vehicle. The ensuing search yielded a list containing the names, addresses, telephone numbers, birthdates, and social security numbers of hundreds of people; multiple laptop computers and cellular telephones; and more than $1,500 in Wal–Mart gift cards. Bobbitt arrested both men on suspicion of identity theft, searched their wallets, and discovered thirty-one credit and debit cards. While the majority of the cards appeared to belong to Alabi or Oguntoyinbo, five of the cards bore the names of other individuals.
U.S. v. Alabi, supra.
It goes on to explain what happened next, which gave rise to the motion to suppress:
The next morning, Secret Service agents used a Model 5607 Card Verifier to obtain information from the magnetic strips on the backs of the seized credit and debit cards. The agents discovered that the magnetic strips on seven of the thirty-one cards had been re-encoded, i.e., the names and account numbers embossed on the cards did not match the names and account numbers stored on their magnetic strips. The agents concluded someone had re-encoded the cards with the intent to defraud the issuing financial institutions and the individuals whose account information now appeared on the magnetic strips.

Based on the information gleaned from the cards and the physical evidence Bobbitt discovered during his search of the vehicle, the government obtained a search warrant to examine the cell phones and laptops seized during that search.
U.S. v. Alabi, supra.
Alabi then moved to suppress
all the fruits of the encounter, alleging Bobbitt's racially motivated pursuit of the vehicle violated his equal protection rights under the 5th and 14th Amendments to the United States Constitution. Alabi also joined in Oguntoyinbo's Motion to Suppress, wherein Oguntoyinbo argued (1) the agents' use of the card reader to obtain information from the credit and debit cards' magnetic strips constituted an illegal search in violation of the 4th Amendment; and (2) the inclusion of that information in the application for search warrant rendered the warrant invalid.
U.S. v. Alabi, supra.
The U.S. District Court Judge denied Alabi’s motion to suppress on equal protection grounds because the judge found “showing of discriminatory purpose insufficient”, i.e., he did not produce facts and other evidence to establish that the stop was racially motivated.  U.S. v. Alabi, supra.
The judge also denied
Alabi and Oguntoyinbo's motion to suppress on 4th Amendment grounds, finding (1) the agents' examination of the magnetic strips on the credit and debit cards did not constitute a search for 4th Amendment purposes; (2) even if it was a search, it was reasonable under the circumstances; and (3) alternatively, the evidence gleaned from the cards was admissible under the inevitable discovery doctrine

Finally, the district court concluded the inclusion of the information obtained from the cards in the government's application for the search warrant did not invalidate the warrant, and even if it did, the good-faith exception applied to save the warrant.
U.S. v. Alabi, supra.
The Court of Appeals affirmed the U.S. District Court Judge’s denying Alabi’s motion to dismiss on an alleged violation of equal protection because it, too, found that he had “failed to demonstrate an equal protection violation”.  U.S. v. Alabi, supra.
It then took up Alabi’s “two related 4th Amendment challenges.”  U.S. v. Alabi, supra.  The Court of Appeals began by explaining that
First, he argues the district court erred in denying his motion to suppress the information contained on the cards' magnetic strips because the agents' examination of those strips constituted an illegal search, and the evidence was not admissible under the inevitable discovery doctrine. Second, citing the government's reliance on that illegally obtained information in securing a search warrant, he argues the district court erred in refusing to suppress the evidence obtained from the computers and cellphones. Because resolution of the latter issue is helpful in analyzing the former, we address Alabi's claims in reverse order.
U.S. v. Alabi, supra.
The court then explained that
[e]ven if we assume the agents' act of scanning the cards violated Alabi's 4th Amendment rights, the government's partial reliance on that information in obtaining a warrant for the devices found in the vehicle is not necessarily fatal. See U.S. v. Snow, 919 F.2d 1458 (U.S. Court of Appeals for the 10th Circuit 1990) (acknowledging warrant is valid as long as supporting affidavit contains sufficient untainted evidence to establish probable cause, even if affidavit also contains unconstitutionally obtained information).

Standing alone, Alabi and Oguntoyinbo's possession of multiple credit cards embossed with names other than their own and a list containing the names and social security numbers of hundreds of individuals would have caused a reasonably prudent person to believe evidence of a crime, such as the source of this personal information, would be found on the computers and cell phones. See U.S. v. Romero, 749 F.3d 900 (U.S. Court of Appeals for the 10th Circuit 2014) (explaining probable cause exists when facts would warrant person of reasonable caution to believe evidence of crime will be found at place to be searched); see also 18 U.S. Code §§ 1028(a)(7), (d)(7)(A) (possession of name, social security number, or date of birth in connection with unlawful activity constitutes identity theft).
U.S. v. Alabi, supra.
Finally, it took up Alibi’s argument that
his 4th Amendment rights were violated when the agents extracted the contents of the credit cards' magnetic strips without a warrant. Alabi contends the district court should have granted his motion to suppress because the information the agents obtained would not have been discovered absent the unlawful search.
U.S. v. Alabi, supra.
The Court of Appeals began its analysis of Alabi’s argument by noting that
assuming the officers' actions constituted an illegal search, any evidence obtained from the strips nevertheless was admissible under the inevitable discovery doctrine as long as the government demonstrates, by a preponderance of the evidence, that a lawful police investigation would have inevitably discovered the information. U.S. v. Cunningham, 413 F.3d 1199 (U.S. Court of Appeals for the 10th Circuit 2005).
U.S. v. Alabi, supra.
The court went on to explain that in this case, the applicability of the
inevitable discovery exception depends on the likelihood law enforcement ultimately would have discovered the evidence on the magnetic strips pursuant to a valid search warrant. See U.S. v. Christy, 739 F.3d 534 (U.S. Court of Appeals for the 10th Circuit 2014). . . . In U.S. v. Souza, 223 F.3d 1197 (U.S. Court of Appeals for the 10th Circuit 2000), this court adopted a four-factor test to aid in this determination:

1) `the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search’; 2) the strength of the showing of probable cause at the time the search occurred; 3) whether a warrant ultimately was obtained, albeit after the illegal [search]; and 4) `evidence that law enforcement agents “jumped the gun” because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli.’

U.S. v. Souza, supra (quoting U.S. v. Cabassa, 62 F.3d 470 (U.S. Court of Appeals for the 2d Circuit 1995)). . . .
U.S. v. Alabi, supra.
It then applied the above factors to the facts in this case, noting, first, that the
government concedes law enforcement had not yet begun the process of obtaining a warrant when agents examined the magnetic strips on the thirty-one credit cards found in Alabi and Oguntoyinbo's possession. Critically, however, the first Souza factor is relevant, in part, because it informs the determination of whether the evidence at issue would have remained in place and intact while law enforcement secured the warrant, thus increasing the likelihood of its discovery. U.S. v. Souza,supra.

Because the credit cards were safely in police custody when agents examined them, even if the first factor weighs against application of the inevitable discovery doctrine in this case, it does so only slightly. See U.S. v. Souza, supra (treating probability as key issue in determining applicability of inevitable discovery exception and characterizing probability of discovery as high when police had already secured item to be searched, guaranteeing access until warrant issued).
U.S. v. Alabi, supra.
As to the second Souza factor, the Court of Appeals found that
the strength of the probable cause showing at the time of the search, weighs in favor of applying the inevitable discovery exception here. As discussed above, Bobbitt's search of the vehicle and the men's wallets turned up more than thirty credit and debit cards, some of which bore the names of other individuals, as well as a list containing the personal identifiers of hundreds of people. Such evidence would cause a person of reasonable caution to believe it likely the magnetic strips on the seized cards contained evidence of a crime or crimes, such as the account numbers of other individuals. See18 U.S. Code §§ 1029(a)(3), (e)(1) (possession, with intent to defraud, of fifteen or more cards or account numbers that could be used to obtain something of value constitutes access device fraud). This showing of probable cause is strong enough to convince us not just that a magistrate could have issued a warrant, but that a magistrate would have issued one. . . .
U.S. v. Alabi, supra (emphasis in the original).
And it went on to point out that the prosecution
also argues the third factor weighs in favor of applying the inevitable discovery exception because the agents ultimately obtained a warrant, albeit for the electronics rather than for the cards' magnetic strips. But the government provides no authority suggesting the third factor is satisfied if law enforcement simply obtains any warrant, rather than a warrant for the evidence it argues would have been inevitably discovered.

On the other hand, the fact the agents ultimately sought and obtained a search warrant for closely related items suggests they would have included the cards in their application had they not already examined them. Thus, while this factor does not weigh fully in favor of the government, the agents' act of procuring a warrant to search other items found during the same traffic stop makes it likely the agents would have procured a warrant to search the cards, as well.
U.S. v. Alabi, supra.
Finally, the court found that the “fourth factor also weighs in favor of the government, as there is no evidence the agents' decision to swipe the cards' magnetic strips was based on a lack of confidence in their probable-cause showing, i.e., was an attempt to `jump the gun.’”  U.S. v. Alabi, supra.  It found that, “[o]n balance, we conclude the Souza factors weigh in favor of applying the inevitable discovery exception.”  U.S. v. Alabi, supra.  The Court of Appeals therefore affirmed
the district court's denial of Alabi's motion to suppress the evidence obtained from the cards without addressing the parties' remaining 4th Amendment arguments, e.g., whether the scan of the strips constituted a search for 4th Amendment purposes, and, if so, whether that search was reasonable.
U.S. v. Alabi, supra. 

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