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A federal appeals court has found that law enforcement can, without a warrant, swipe credit cards and gift cards to reveal the information encoded on the magnetic stripe.
It’s the third such federal appellate court to reach this conclusion.
Last week, the 5th US Circuit Court of Appeals found in favor of the government in United States v.
Turner, establishing that it was entirely reasonable for Texas police officers to scan approximately 100 gift cards found in a car that was pulled over at a traffic stop. Like the previous similar 8th Circuit case that Ars covered in June 2016, the defendants challenged the search of the gift cards as being unreasonable. (The second case was from the 3rd Circuit in July 2015, in a case known as US v.
In this case, after pulling over the car and running the IDs of both men, police found that there was an outstanding warrant for the passenger, Courtland Turner. When Turner was told to get out of the car and was placed in the patrol car, the officer returned to the stopped car and noticed an “opaque plastic bag partially protruding from the front passenger seat,” as if someone had tried to push it under the seat to keep it hidden.
The cop then asked the driver, Broderick Henderson, what was in the bag. Henderson replied that they had bought gift cards. When the officer then asked if he had receipts for them, Henderson replied that they had “bought the gift cards from another individual who sells them to make money.”
As the 5th Circuit summarized:
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 provided photos of Henderson and Turner purchasing gift cards.
Turner’s lawyers later challenged the scanning, arguing that this “search” of these gift cards went against their client’s “reasonable expectation of privacy,” an argument that neither the district court nor the appellate court found convincing.
The 5th Circuit also noted that while users have the “ability to re-encode the cards,” citing a device for sale on Amazon, 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.”