United States District Court, D. Nebraska
JOHN M. GERRARD, District Judge.
The defendant has filed a motion to continue (filing 39), a motion for leave to file a motion to suppress out of time (filing 40), and a motion to suppress (filing 41). The sole basis for the motion to continue is so that the defendant's motion to suppress may be fully considered.
The defendant's motion to suppress was filed well out of time, and the defendant has articulated no good cause to excuse the untimely filing. See NECrimR 12.3(a); see also, Fed. R. Crim. P. 12(c); United States v. Green, 691 F.3d 960, 965-66 (8th Cir. 2012); United States v. Salgado-Campos, 442 F.3d 684, 685-86 (8th Cir. 2006). Nonetheless, the Court has examined the merits of the defendant's motion to suppress. The Court will, therefore, deny the motion to continue, and grant the motion for leave to file out of time, but for the reasons explained below, will deny the motion to suppress.
The defendant is charged with possessing counterfeit or unauthorized access devices with intent to defraud-or, more specifically, with possessing counterfeit credit, debit, and gift cards. He has moved to suppress information obtained by law enforcement from scanning the magnetic strips on the back of those cards. See filing 42. It is important to note that the defendant does not challenge the events leading up to that alleged "search": he does not question the constitutional validity of the traffic stop or his detention, the search of his vehicle and the duffle bag in which the cards were found, or his arrest. His motion is limited to a Fourth Amendment challenge to law enforcement's purported "search" of the magnetic strip on the back of each card, and the Court's analysis is similarly limited.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The ultimate touchstone of the Fourth Amendment is reasonableness. Riley v. California, 134 S.Ct. 2473, 2482 (2014). Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, reasonableness generally requires the obtaining of a judicial warrant. Id. In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement. Id.
But the initial question is whether a "search" was conducted for Fourth Amendment purposes. For instance, a Fourth Amendment search may occur when the government gains evidence by physically intruding into constitutionally-protected areas, such as a home. See Florida v. Jardines, 133 S.Ct. 1409, 1417 (2013). And a search may occur when the government violates a subjective expectation of privacy that society recognizes as reasonable. United States v. Jones, 132 S.Ct. 945, 954-55 (2012) (Sotomayor, J., concurring) (citing Kyllo v. United States, 533 U.S. 27 (2001); Smith v. Maryland, 442 U.S. 735 (1979); Katz v. United States, 389 U.S. 347 (1967)); see Jardines, 133 S.Ct. at 1417 (the Katz reasonable-expectations test has been added to, not substituted for, a property-based understanding of the Fourth Amendment). But official conduct that does not compromise any legitimate interest in privacy is not a search subject to the Fourth Amendment. Illinois v. Caballes, 543 U.S. 405, 409 (2005).
The court in United States v. Alabi, 943 F.Supp.2d 1201 (D.N.M. 2013), concluded (on effectively identical facts to this case) that no search had occurred when law enforcement read the magnetic strips on the back of fraudulent credit cards, because it involved neither a physical intrusion nor any violation of a reasonable expectation of privacy. See also United States v. Medina, 2009 WL 3669636 (S.D. Fla. 2009), adopted in part and rejected in part on other grounds sub nom, United States v. Duarte, 2009 WL 3669537 (S.D. Fla. 2009). The Court is persuaded by the Alabi court's thoughtful and comprehensive reasoning, and likewise concludes that a Fourth Amendment search is not present here.
To begin with, a scan of magnetically-coded information on a credit or debit card does not involve a physical intrusion into a constitutionallyprotected area. "[R]eading and displaying virtual data encoded on a track does not involve any physical invasion or penetration of space." Alabi, 943 F.Supp.2d at 1265. Nor, when the card is already in the physical possession of the person scanning it, is the magnetic strip a constitutionally-protected area.
All of the enumerated constitutionally protected areas-homes, persons, papers and effects-are areas in which a person may keep information that he or she wishes to keep private, which a person should expect to be secure from arbitrary government intrusion, and thus areas in which the Framers required probable cause to subject them to law enforcement disclosure. Credit and debit cards' magnetic strips are not areas in which an average person would store information that he or she wishes to keep private. Credit cards and debit cards, unlike a person's personal effects such as luggage or a wallet, are not meant to contain things or information which a person may wish to keep secure, but rather contain the information that the financial institution which issued the card to the cardholder placed there- the account information embossed on the front of the card. A person may wish to keep the contents of his or her luggage secure from arbitrary police interference, because, while the outside of the bag may not seem private, a person may store any number of private things within. A person may also have an interest in keeping the contents of a wallet secure, because the person may not wish to disclose information contained within, such as a social security card, family photographs, or even account information found on the outside of his or her credit and debit cards. In contrast, a credit or debit card's magnetic strip cannot contain anything except a limited number of alphanumeric characters. Moreover, rather than expecting this information and these characters to remain secure from disclosure, credit and debit cards are issued solely for the purpose of disclosing the information when using the card, so that the person using the card may purchase the goods. In contrast to such private, personal effects which are constitutionally protected areas, the evidence in the case shows that, with regard to the alphanumeric characters on credit and debit cards' magnetic strips, in all but criminal circumstances, once law enforcement have lawful possession of a person's credit or debit card, the information in the cards' magnetic strips has already been disclosed to the officers.
Id. at 1270. Examining such a card is, instead, analogous to examining coins or currency to determine whether they are counterfeit-activity which is well understood to be consistent with the Fourth Amendment, if the money is already lawfully in government hands. See, id. at 1272-73; Medina, 2009 WL 3669636, at *10.
Similarly-even assuming that the defendant could show a subjective expectation of privacy in the magnetically-encoded information on the cards, see Alabi, 943 F.Supp.2d at 1275-that expectation is not one that society is prepared to accept as legitimate. Society is not prepared to accept as legitimate an asserted privacy interest in information that any member of the public may see. Id. at 1276 (citing California v. Ciraolo, 476 U.S. 207 (1986)).
It is true that when information within an area or item has not been exposed to public view, and when investigating the contents may reveal information other than information about criminal activity only, the investigation of the area or item may be a Fourth Amendment search. Id. at 1277. But, for instance, the Supreme Court has held that a chemical test of white powder found in a damaged package was not a Fourth Amendment search because it did not reveal any information that was not already known to law enforcement, other than whether the substance was cocaine. United States v. Jacobsen, 466 U.S. 109, 120 (1984). The additional intrusion, the Supreme Court explained, "could disclose only one fact previously ...