Defendant challenged the government reading the magnetic strips on the back of allegedly counterfeit credit cards; not the seizure of the cards in the first place. The court finds that there is no reasonable expectation of privacy in the magnetic strips because they are intended to be read when used. Moreover, it is analogous to the drug testing of seized drugs approved in Jacobsen. United States v. De L’Isle, 2014 U.S. Dist. LEXIS 151078 (D. Neb. October 24, 2014):
To begin with, a scan of magnetically-coded information on a credit or debit card does not involve a physical intrusion into a constitutionally-protected 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 unknown to the agent—whether or not a suspicious white powder was cocaine. It could tell him nothing more, not even whether the substance was sugar or talcum powder.” Id. at 122. And a test
that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. This conclusion is not dependent on the result of any particular test. It is probably safe to assume that virtually all of the tests conducted under circumstances comparable to those disclosed by this record would result in a positive finding; in such cases, no legitimate interest has been compromised. But even if the results are negative—merely disclosing that the substance is something other than cocaine—such a result reveals nothing of special interest.
Id. at 122-24. An interest in possessing contraband cannot be deemed legitimate, and thus government conduct that only reveals the possession of contraband compromises no legitimate privacy interests, because the expectation that certain facts will not come to the attention of law enforcement is not an interest in privacy that society is prepared to consider reasonable. See, Caballes, 543 U.S. at 408-09; Jacobsen, 466 U.S. at 122-23.
This case presents an intersection of those principles—that is, between the principle that there is no legitimate privacy interest in already-known information, and that there is no legitimate privacy interest in contraband. And “[a] privacy expectation in the account information stored on credit and debit cards’ magnetic strips—separate and beyond the credit and debit cards themselves—is not objectively reasonable.” Alabi, 943 F. Supp. 2d at 1280. Scanning a card to read the account information reveals only the same information that would be revealed in a private search when the card was used as intended. Id. at 1281; see Medina, 2009 WL 3669636, at *10-11. And the only time the account-holder’s information (as opposed to such details as the lender’s routing information) would not also be revealed by a cursory examination of the surface of the card would be when it was inconsistent—that is, when the card was counterfeit and contraband. Alabi, 943 F. Supp. 2d at 1282; see Medina, 2009 WL 3669636, at *10.
Nor does the Court believe that the Supreme Court’s recent decision in Riley, 134 S. Ct. 2473, offers any reason to doubt that conclusion. In Riley, the Supreme Court held that a search incident to arrest does not permit law enforcement to search the contents of the suspect’s cell phone without a warrant. Id. at 2485. But to begin with, in Riley, it does not appear to have been disputed that the searches at issue were, in fact, searches. Both searches involved activating suspects’ cell phones and working through their menus to obtain personal information. Id. at 2477. But more critically, the Court’s reasoning in Riley rested in large measure on the quantity and quality of personal information that can be obtained from a modern smartphone, and the expectation of privacy that an individual may have in such information. See id. at 2489. A credit card’s stored information, unlike a smartphone’s, is intended to be read by third parties. That is the only reason for its existence. There is simply no basis to extend Riley to digital information that literally has no purpose other than to be provided to others to facilitate financial transactions.
