- The Washington Times - Friday, June 10, 2016

The Fourth Amendment’s protection against unlawful searches doesn’t apply to the magnetic strips on the backs of credit cards, a federal appeals court ruled Wednesday.

Weighing in on a 2014 counterfeiting case, the 8th Circuit Court of Appeals said in a 15-page opinion this week that investigators didn’t violate the U.S. Constitution when they scanned the backs of dozens of credit cards discovered during a traffic stop.

The defendant, Eric-Arnaud Benjamin Briere De L’Isle, had been driving through Seward County, Nebraska, when he was pulled over by a sheriff’s deputy for following too close to a truck. Sgt. Michael Vance executed a search of the man’s car after suspecting it contained drugs and subsequently found a duffel bag containing 51 various credit, debit and gift cards.

An expert on credit-card fraud testified on behalf of the government when the case was heard in U.S. District Court and indicated on the stand that several of the cards were likely counterfeit because the magnetic strips on their backs either revealed no information at all when scanned by a machine, or else corresponded with legitimate accounts associated with individuals other than De L’Isle.

A jury ultimately convicted De L’Isle in October 2014 on one count of possession of counterfeit devices and sentenced him to 15 months in prison, triggering an appeals claim that culminated in Wednesday’s decision.

Attorneys for De L’Isle initially asked the District of Nebraska judge to throw out any evidence obtained by investigators when they scanned the backs of the cards because that search was conducted without a warrant, but the motion to suppress was rejected for lack of merit.

The 8th Circuit Court of Appeals agreed to revisit the matter, however, only to conclude this week that scanning a magnetic strip does not amount to a constitutionally-protected “search.”

“There may be an instance, with facts different from this case, where a court reasonably finds a legitimate privacy interest in information contained in the magnetic strip of a credit, debit or gift card. In such a case, a motion to suppress may well be proper to further explicate the nature and character of privacy interests, if any, that may reside within the confines of these magnetic strips,” wrote the three-member panel of the appeals court.

“However, here, where all of the information in the magnetic strip should have been identical to the information in plain view on the front of the card, and where the cards were lawfully possessed by law enforcement officers and established to be counterfeit, we cannot conclude that De L’Isle had a privacy interest warranting further investigation into potential Fourth Amendment protections.”

Government officials did not immediately respond to requests for comment made by Ars Technica, where the decision was first reported Friday.

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