D.N.M.: SW not required to read magnetic strip in CC fraud case

A search warrant is not required to read the magnetic strip on a credit card in a suspected credit card fraud case. There is no reasonable expectation of privacy in the information on the card because it is exposed to the credit card reader every time it is used, as the credit card holder intends. United States v. Alabi, 943 F. Supp. 2d 1201 (D. N.M. 2013) (a long, interesting, and well-written opinion; Judge Browning’s opinions are all far too long, but this one is worth reading):

The primary issues are: (i) whether the warrantless reading of magnetic strips on the backs of credit and debit cards by United States Secret Service agents violates the Fourth Amendment of the United States Constitution’s prohibition against unreasonable searches and seizures; (ii) if the warrantless reading of the magnetic strips violates the Fourth Amendment, whether the evidence discovered by reading the cards fits within the inevitable-discovery doctrine’s exception to the exclusionary rule; and (iii) given that the information discovered from the reading was used in a search warrant application, whether the warrantless reading of the magnetic strips requires the Court to exclude the evidence found in execution of the search warrant as fruit of the poisonous tree. The Court will deny the Motion to Suppress. The Secret Service agent’s scan of the magnetic strip on Defendants Oladipo Alabi’s and Kehinde Oguntoyinbo’s credit and debit cards to read the electronically stored account information contained in the strips, when the agent already physically possessed the cards, did not violate the Defendants’ Fourth Amendment rights. Scanning the credit and debit cards’ magnetic strips to read the account information was not a government invasion of a constitutionally protected area and thus not a Fourth Amendment search under the trespass-based search analysis, which the Supreme Court of the United States used in its two most Fourth Amendment search cases: Florida v. Jardines, 133 S. Ct. 1409 (2013), and United States v. Jones, 132 S. Ct. 945 (2012). The government’s scan of credit and debit cards’ magnetic strips is also not a Fourth Amendment search under the reasonable-expectation-of-privacy approach in Katz v. United States, 389 U.S. 347 (1967), because, given that the financial institutions which issue credit and debit cards encode the same information on all credit and debit cards — account information identical to the account information embossed on the card’s exterior — and given that the electronically stored account information is necessarily disclosed to private parties when credit and debit cards are used as intended, the scan does not implicate a legitimate privacy interest. Regardless whether the scan violated the Fourth Amendment, however, the evidence that the Secret Service found in the cards’ scan is admissible under the inevitable-discovery doctrine. Moreover, because the evidence was derived from an independent source as there was probable cause without information gleaned from the credit and debit cards’ scan, and because the officers’ objectively reasonable reliance on the search warrant brings the search under the good-faith exception to the exclusionary rule, the Court will not exclude the evidence that law enforcement discovered while executing the search warrant.

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