Defendant was found with over 70 credit and gift cards. The court finds no reasonable expectation of privacy in the magnetic strips on the back. They are intended to be read when used, and they are not a constitutionally protected area. United States v. Bah, 2015 U.S. App. LEXIS 12817 (6th Cir. July 24, 2015):
The warrantless scans of the magnetic strips on the credit, debit, and gift cards also did not violate Bah’s and Harvey’s Fourth Amendment rights because the scans did not constitute a “search.” The Fourth Amendment provides, in pertinent part, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV (emphasis added). No “search” occurred when law enforcement read the magnetic strips on the backs of the fraudulent cards because: (1) the scans did not involve a physical intrusion of a constitutionally protected area—as required under the trespass-based search analysis; and (2) the scans did not violate the cardholders’ reasonable expectations of privacy under Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), and cases following Katz.
First, the scans of the magnetic strips of the credit and gift cards did not involve physical intrusions into constitutionally-protected areas. As the district court in United States v. Alabi, 943 F. Supp. 2d 1201 (D.N.M. 2013) explained, “both United States v. Jones[, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012)] and Florida v. Jardines[, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013)] involved situations in which ‘the Government obtain[ed] information by physically intruding’ into an area,” either by physically attaching a GPS device to a private individual or invading the curtilage of an individual’s home to conduct a dog sniff. Alabi, 943 F. Supp. 2d at 1265 (citation omitted). “[S]liding a card through a scanner to read virtual data[, however,] does not involve” any such physical invasions. Id. Thus, when law enforcement officers lawfully possess credit, debit or gift cards, scanning the cards to read the virtual data contained on the magnetic strips involves no physical penetration of constitutionally protected space. Id.
Second, even assuming for the sake of argument that Bah and Harvey hold a subjective expectation of privacy in the magnetic strips9—strips that include their 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 name10—neither Bah nor Harvey holds a reasonable expectation of privacy in the magnetic strips. Because the information on the magnetic strips, with the possible exception of a “few other additional, unique identifiers,” mirrors that information provided on the front and back of a physical credit, debit or gift card, and the magnetic strips are routinely read by private parties at gas stations, restaurants, and grocery stores to accelerate financial transactions, such an expectation of privacy is not one that society is prepared to consider reasonable. Courts “must determine whether the [individual’s] subjective privacy interest is ‘legitimate,’ by analyzing whether it is an ‘interest in privacy that society is prepared to consider reasonable.”‘ Alabi, 943 F. Supp. 2d at 1275 (quoting Illinois v. Caballes, 543 U.S. 405, 409, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005)).
Every court to have addressed this question has reached the same conclusion. Some courts have stressed that there can be no reasonable expectation of privacy in an account number—and consequently, magnetic strip—that is routinely shared with cashiers every time the card is used. For instance, in United States v. Medina, No. 09-20717-CR, 2009 U.S. Dist. LEXIS 104158, 2009 WL 3669636 (S.D. Fla. Oct. 24, 2009) (rev’d on other grounds), the court emphasized that “the credit card holder voluntarily turns over his credit card number every time he uses the card,” and then found that there is “no expectation of privacy in that number.” 2009 U.S. Dist. LEXIS 104158, [WL] at *11. The court in United States v. Briere de L’Isle, No. 4:14-CR-3089, 2014 U.S. Dist. LEXIS 151078 (D. Neb. Oct. 24, 2014), likewise suggested that “[s]ociety is not prepared to accept as legitimate an asserted privacy interest in information that any member of the public may see.” 2014 U.S. Dist. LEXIS 151078 at *7.
Other courts have emphasized the fact that the scan of the magnetic strip reveals little—to potentially nothing—that cannot be viewed on the front and back of the physical card; consequently, these courts have reasoned that once law enforcement personnel have lawful, physical possession of the card, the scan does not constitute a separate “search.”
