This post examines a recent opinion from the U.S. Court of Appeals for the 5th Circuit: U.S. v. Turner, 2016 WL 5947247 (2016).
As courts usually do, the court begins by explaining how, and why, the
prosecution arose:
Courtland Turner was riding in a car
driven by Roderick Henderson that was pulled over for lacking a visible license
plate light. Henderson failed to show the officer a valid driver's license,
providing him instead with a Texas identification card. Turner likewise
provided the officer with an identification card.
The officer retreated to his patrol car
to conduct a records check and verify Turner's and Henderson's identities. In
doing so, he discovered that Turner had an active arrest warrant for possession
of marijuana. As a result, the officer asked Turner to exit the vehicle; he
complied. As Turner exited the vehicle, the officer observed an opaque plastic
bag partially protruding from the front passenger seat. It appeared to the
officer that someone attempted to conceal the bag by pushing it under the seat.
After placing Turner in the patrol car
while dispatch confirmed the warrant, the officer asked Henderson what was
inside the bag. Henderson handed the officer the bag and said that `we’—apparently
referring to Turner and himself—purchased gift cards. The officer opened the
bag and saw approximately 100 gift cards. He then asked Henderson whether he
had any receipts for the gift cards. Henderson responded that he did not and
that `we’ bought the gift cards from another individual who sells them to make
money.
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.
The stores provided photos of Henderson and Turner purchasing gift cards.
U.S. v. Turner, supra.
The opinion goes on to explain that
Turner was charged with aiding and abetting the possession of unauthorized access devices. He moved to suppress evidence of the gift cards, challenging both the roadside seizure of the cards and the subsequent examination of the magnetic stripes. The district court denied Turner's motion, finding that, although Turner had standing to seek suppression, there was no constitutional violation because (1) Henderson provided consent for the seizure of the gift cards and (2) the later examination of the cards did not constitute a search. Turner entered a conditional guilty plea, reserving his right to appeal the suppression ruling.U.S. v. Turner, supra.
The Court of Appeals prefaced its analysis of the issues in the appeal by explaining that
`When examining a district court's ruling on a motion to
suppress, we review questions of law de novo and factual findings for clear
error.’ U.S. v. Hearn, 563 F.3d 95, 101 (5th Circuit 2009). We view the evidence in the light most
favorable to the prevailing party, U.S. v. Hernandez, 279 F.3d 302,
306 (5th Cir. 2002), and may `affirm the district court's ruling ... based on
any rationale supported by the record.’ United States v. Waldrop, 404
F.3d 365, 368 (5th Cir. 2005).
As the party seeking suppression, Turner `has the burden of
proving, by a preponderance of the evidence, that the evidence in question was
obtained in violation of his Fourth Amendment rights.’ U.S. v. Smith,
978 F.2d 171, 176 (5th Cir. 1992) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1, 133–34 (1978)). That burden includes establishing standing
to contest the evidence, U.S. v. Iraheta, 764 F.3d 455, 460–61 (5th
Cir. 2014), and showing that the challenged government conduct constitutes a
Fourth Amendment search or seizure. U.S.
v. Smith, supra.
U.S. v. Turner, supra.
The Court of Appeals then began its analysis of the issues
in the case by explaining that
[w]e agree with the district court that Turner may challenge
the seizure of the gift cards. He jointly possessed the cards with Henderson,
and the bag containing them was found underneath where he was sitting. See U.S.
v. Iraheta, supra (explaining that passengers of a vehicle have standing to
challenge seizure of their luggage); U.S. v. Miller, 608 F.2d 1089,
1101 (5th Cir. 1979) (treating a plastic portfolio as personal luggage
subject to Fourth Amendment search requirements).
Turner agrees that by handing the bag to the officer in
response to his question about its contents, Henderson consented to the
officer's initial seizure of, and look inside, the bag. But he disagrees with
the district court's conclusion that Henderson's consent extended to the
officer's taking permanent possession of the gift cards. We need not resolve
this dispute over the scope of Henderson's consent, because we find another
lawful basis for the seizure of the gift cards.
U.S. v. Turner, supra.
The opinion went on to explain that the
taking of physical items like gift cards is a seizure that
requires either a warrant or some other justification that renders such an
intrusion reasonable under the Fourth Amendment. See U.S. v. Paige,
136 F.3d 1012, 1022 (5th Cir. 1998). One situation in which a warrant may not be
required occurs when police `seize evidence in plain view.’ Arizona v. Hicks, 480 U.S. 321, 326 (1987) (emphasis omitted) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971)). For a plain-view seizure to be
lawful, the officer must have had lawful authority to be in the location from
which he viewed the evidence, and the incriminating nature of the item must be
`immediately apparent.’ Horton v. California, 496 U.S. 128, 136 (1990) (quoting Coolidge v. New Hampshire, supra). As
the officer obviously had authority to be standing on the side of the road when
he observed the gift cards (the lawful authority requirement typically arises
when the police observe the item while inside a home), Turner contests only
whether it was immediately apparent that the cards were instrumentalities of a
crime.
U.S. v. Turner, supra.
The Court of Appeals then explained that the
`[t]he incriminating nature of an item is immediately apparent
if the officers have probable cause to believe that the item is either evidence
of a crime or contraband.’ U.S. v. Buchanan, 70 F.3d 818, 826 (5th Cir.
1996). To have probable cause, `it is not necessary that the officer know that
the discovered res is contraband or evidence of a crime, but
only that there be “a “practical, nontechnical” probability that incriminating
evidence is involved.”’ U.S. v. Espinoza, 826 F.2d 317, 319 (5th
Cir. 1987) (quoting Texas v. Brown, 460 U.S. 730, 742–43 (1983)).
When reviewing probable cause determinations, we `consider the totality of the
circumstances—including the officers' training and experience as well as their
knowledge of the situation at hand.’ U.S.
v. Buchanan, supra.
U.S. v. Turner, supra.
The Court of Appeals then began its analysis of the issue in
this case, explaining that the
circumstances here were as follows: the
plastic bag contained approximately 100 gift cards and appeared to have been
concealed under the front passenger seat. Henderson admitted not having
receipts for the gift cards and further stated that he and Turner purchased the
gift cards from an individual who sells them for a profit. The officer, upon
learning this, conferred with other officers who had experience with large
numbers of gift cards being associated with drug dealing, fraud, and theft. We
conclude that these facts support probable cause to believe the gift cards were
contraband or evidence of a crime. See U.S. v. Watson, 273 F.3d
599, 602 (5th Cir. 2001) (describing probable cause as a `fair probability’
that a crime occurred, which is `more than a “bare suspicion” but less than a
preponderance of the evidence’ (quoting U.S. v. Garcia, 179 F.3d
265, 269 (5th Cir. 1999))).
Turner counters that a finding of
probable cause is at odds with the officer's view that during the stop there
was insufficient evidence to arrest Henderson for a gift card crime. This does
not control our inquiry for a couple reasons. The existence of probable cause
is an objective one that does not turn on the subjective beliefs of an officer.
And even if the officer's view was a reasonable assessment of the evidence, he
could seize the gift cards so long as there was probable cause to believe they
were evidence of a crime, even if that crime could not yet be tied to a
particular suspect.
U.S. v. Turner, supra.
The Court of Appeals then explained that
[h]aving concluded that the gift cards were lawfully seized,
we must decide whether it was lawful for law enforcement to scan the magnetic
stripes on the cards to see the information encoded therein.
U.S. v. Turner, supra.
The opinion then goes on to explain that
[o]nce seized, most items do not give rise to a separate
Fourth Amendment search inquiry. Think of a firearm or a marijuana plant. The
evidentiary value of those items is the object itself, so seizing them is all
law enforcement needs to do. Some items, however, conceal other items. Even
when law enforcement lawfully seizes a suitcase, for example, it still needs a
warrant (or some other recognized justification) to open it. U.S. v.
Place, 462 U.S. 696, 699–700 (1983). That is because, in addition to the
Fourth Amendment possessory interest a person has in a suitcase, there is an
additional Fourth Amendment privacy interest in its contents.
When it comes to technology that allows law enforcement to
obtain information embedded in an item, it can be more difficult to determine
whether there is a separate privacy interest located within an item that
already enjoys constitutional protection from unlawful seizure. Such a privacy
interest exists in the electronic contents of computers and cell phones. See
Riley v. California, 134 S.Ct. 2473 (2014). Yet, other applications of technology that reveal information
not visible to the naked eye—for example, using a special light to detect
ultraviolet ink on currency or examining the metadata located within an
electronic image already in the lawful possession of the government—have not
been thought to constitute a search. See U.S. v. Post,
997 F. Supp.2d 602, 606 (S.D. Tex. 2014); U.S. v. Medina, 2009 WL
3669636, at *10 (U.S. District Court for the Southern District of Florida Oct.
24, 2009), report and recommendation adopted in part, rejected in part
sub nom. United States v. Duarte, No. 09–20717–CR, 2009 WL 3669537
(S.D. Fla. Nov. 4, 2009). What about the information encoded in the magnetic
stripe on the back of gift cards?
U.S. v. Turner, supra.
The court went on to explain that a
Fourth Amendment privacy interest is infringed when the
government physically intrudes on a constitutionally protected area or when the
government violates a person's `reasonable expectation of privacy.’ U.S.v. Jones, 132 S.Ct. 945, 949–50, (2012). Although technology can sometimes
involve the former, see id. at 949 (finding that placement of
a GPS tracking device on a car amounted to an unlawful trespass), it more often
involves the latter. Indeed, the “reasonable expectation of privacy” approach
arose from wiretapping. See Katz v. U.S., 389 U.S. 347 (1967).
U.S. v. Turner, supra.
Turner argues that scanning the gift cards amounted to a
search under the `reasonable expectation of privacy’ inquiry. That requires `first
that a person have exhibited an actual (subjective) expectation of privacy and,
second, that the expectation be one that society is prepared to recognize as “reasonable.”’ Katz
v. U.S., supra (Harlan, J., concurring). The reasonableness of an
expectation of privacy turns on our `societal understanding’ about what
deserves `protection from government invasion.’ 978 F.2d at 177 (quoting Oliverv. U.S., 466 U.S. 170, 178 (1984)). Analogizing to the cell phones the
Supreme Court discussed in Riley, Turner contends that society
recognizes as reasonable an expectation of privacy in a gift card's magnetic
stripe because it is an electronic storage device that contains personal
information.
U.S. v. Turner, supra.
At this point, it is helpful to describe the electronic
information encoded in the typical gift card. The record lacks much detail
about this, a deficiency that hurts Turner as he bears the burden of
establishing a privacy interest. Useful information can be found, however, in
other cases addressing whether scanning credit or gift cards amounts to a
search. One such court has explained that the typical magnetic stripe has `three
data strips which hold only 79 alphanumeric characters, 40 numeric characters,
and 107 numeric characters, respectively.’ See U.S. v. Bah,
794 F.3d 617, 633 (U.S. Court of Appeals for the 6th Circuit Court of Appeals
2015). For credit cards, most of which have more information than a gift card,
that limited space usually contains the `account number, a bank identification
number, the card's expiration date, a three digit “CSC” code, and, at times,
the cardholder's first and last name.’ U.S. v. Bah, supra. Of
course, it is the issuing institution, not card users, that initially codes and
stores this information on the magnetic stripe. See U.S. v. Alabi,
943 F.Supp.2d 1201, 1279 (U.S. District Court for the District of New Mexico
2013). Users do have the ability to re-encode the cards, but need an
uncommon device to do so. See U.S. v. Alabi, supra. The time
and expense it takes to purchase and use a re-encoding device to change at most
a few lines of characters means it will rarely be worth doing for a lawful
purpose. U.S. v. Alabi, supra; U.S.
v. Bah, supra. U.S. v. DE L'Isle, 825 F.3d 426, 432–33 (U.S. Court
of Appeals for the 8th Circuit 2016). The incentive to re-encode
exists, however, when a fraudster changes the account number encoded in a gift
card to match one with a higher balance than the card he purchased or
counterfeited. See U.S. v. Alabi, supra.
U.S. v. Turner, supra.
The Court of Appeals explained that a
number of these features lead us to conclude that there is
no reasonable expectation of privacy in the magnetic stripe of a gift card. For
starters, the few lines of characters encoded in a gift card are infinitesimally
smaller than the `immense storage capacity’ of cell phones or computers. Riley v. California, supra. The Supreme
Court described that capacity as `[o]ne of the most notable distinguishing
features of modern cell phones’ that had `several interrelated consequences for
privacy,’ including that `a cell phone collects in one place many distinct
types of information—an address, a note, a prescription, a bank statement, a
video—that reveal much more in combination than any isolated record.’ Riley v. California, supra.
Even more important is that the vast gulf in storage
capacity between gift cards and cell phones reflects their different purposes.
A primary purpose of modern cell phones, and certainly of computers, is to
store personal information. See Riley v. California, supra. The
purpose of a gift card is to buy something. See See U.S. v.
Alabi, supra. The issuer of a gift card places the information on it, which
can only be altered using a device that few Americans know about and even fewer
own. As one court has put it, `[r]ather than using credit and debit cards to
manipulate and store the data contained in the cards' magnetic strips,
individuals and society put to use the magnetic strips by using the data that
the issuer encoded on them . . . to facilitate a financial transaction and
purchase goods and services.’ See U.S. v. Alabi, supra. . . .
U.S. v. Turner, supra.
The opinion concludes with these observations:
The technology of today will not, however, be the technology
of tomorrow. The Supreme Court has noted the need to take account of rapidly
evolving capabilities when applying the Fourth Amendment to other Information
Age technologies. See Kyllo v. U.S., 533 U.S. 27, 33–34 (2001) (“`t
would be foolish to contend that the degree of privacy secured to citizens by
the Fourth Amendment has been entirely unaffected by the advance of
technology.... The question we confront today is what limits there are upon
this power of technology to shrink the realm of guaranteed privacy’). . . .
As other courts deciding this issue have, we thus limit our
holding to the gift cards of today, which are not intended to be used for—and
rarely are used for—storing information entered by the user. See U.S.
v. Bah, supra (`Our holding today is limited in scope ... we do not
address hypothetical magnetic strips of the future that may have greater
storage capacity and tend to store more private information’). . . . And even
with the gift cards of today, law enforcement can view the encoded information
only after coming into lawful possession of the cards.
U.S. v. Turner, supra.
The Court of Appeals therefore affirmed the U.S. District
Court Judge’s denial of Turner’s motion to suppress. U.S. v. Turner, supra.
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