794 F.3d 617 (6th Cir. 2015), 14-5178, United States v. Bah

Docket Nº:14-5178, 14-5179
Citation:794 F.3d 617
Opinion Judge:ROGERS, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MAMADOU BAH (14-5178); ALLAN MARCUS HARVEY (14-5179), Defendants-Appellants
Attorney:Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant in 14-5178. Jonathan Sevier Cave, THE CAVE LAW FIRM, PLLC, Greenville, Tennessee, for Appellant in 14-5179. Suzanne Kerney-Quillen, UNITED STATES ATTORNEY'S OFFICE, Greeneville, Tennessee, fo...
Judge Panel:Before: ROGERS and MCKEAGUE, Circuit Judges; SARGUS, Chief District Judge.[*]
Case Date:July 24, 2015
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 617

794 F.3d 617 (6th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MAMADOU BAH (14-5178); ALLAN MARCUS HARVEY (14-5179), Defendants-Appellants

Nos. 14-5178, 14-5179

United States Court of Appeals, Sixth Circuit

July 24, 2015

Argued June 19, 2015.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville. No. 2:13-cr-00048--J. Ronnie Greer, District Judge.

ARGUED:

Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant in 14-5178.

Jonathan Sevier Cave, THE CAVE LAW FIRM, PLLC, Greenville, Tennessee, for Appellant in 14-5179.

Suzanne Kerney-Quillen, UNITED STATES ATTORNEY'S OFFICE, Greeneville, Tennessee, for Appellee.

ON BRIEF:

Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant in 14-5178.

Jonathan Sevier Cave, THE CAVE LAW FIRM, PLLC, Greenville, Tennessee, for Appellant in 14-5179.

Suzanne Kerney-Quillen, UNITED STATES ATTORNEY'S OFFICE, Greeneville, Tennessee, for Appellee.

Before: ROGERS and MCKEAGUE, Circuit Judges; SARGUS, Chief District Judge.[*]

OPINION

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ROGERS, Circuit Judge.

This case addresses whether an individual has a reasonable expectation of privacy in the magnetic strips on credit cards. On May 23, 2013, Morristown Police Corporal Todd Davidson stopped a rental vehicle driven by Mamadou Bah for speeding in a construction zone. During the traffic stop, officers placed Bah under arrest for driving on a suspended license and detained passenger Allan Harvey for " investigatory purposes" after discovering approximately 72 credit, debit, and gift cards in the rental car's glove compartment and trunk. Bah and Harvey filed motions to suppress evidence of the credit, debit, and gift cards and cell phones found in the car in district court, alleging that the officers had violated their Fourth Amendment rights by: (1) unlawfully searching the rental car in which Bah and Harvey were driving, incident to Bah's arrest; (2) scanning the magnetic strips on numerous credit, debit, and gift cards found inside the vehicle, without first obtaining a warrant; (3) performing a warrantless search of a Blackberry cell phone; and (4) unlawfully detaining Harvey following Bah's arrest. The district court denied their motions, and Bah and Harvey appeal. Because Harvey does not have standing to contest the search of Bah's rental vehicle, Harvey was reasonably detained during the traffic stop, the warrantless search of Bah's Blackberry did not taint the subsequent cell phone searches conducted pursuant to a warrant, and scanning the magnetic strips of credit and gift cards was not a search, the district court properly determined that neither Bah nor Harvey's Fourth Amendment rights were violated.

On May 23, 2013, Morristown Police Corporal Todd Davidson stopped a white Nissan Altima for traveling 56 miles per hour in a 35-mile-per-hour construction zone. Davidson approached the vehicle and found Mamadou Bah in the driver's seat and Allan Marcus Harvey reclined in the front passenger seat, " as if he [had been] taking a nap." Bah gave Davidson his license and documentation on the Hertz rental vehicle, and Davidson returned to his cruiser to perform a background check. While running the background check, Davidson observed Harvey " fumbling around the passenger's side

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compartment as if he was either trying to conceal something or retrieve something." 1 Because Harvey's movements made Davidson nervous,2 Davidson called for back-up.

Before back-up arrived, the records check revealed that Bah's license had been suspended. Consequently, Davidson prepared to arrest Bah, pursuant to police regulation General Order 500.49. Additionally, because Bah was the only driver listed on the rental agreement, Davidson decided to tow the vehicle. Once Officer Derrick Johnson responded to the scene, and Davidson briefed him on the situation, Bah was arrested and secured in Davidson's police cruiser. Johnson then ordered Harvey to step out of the vehicle, patted him down, and asked for Harvey's identification.

After Harvey exited the vehicle, Davidson searched it. Bah's initial arrest report referred to the search as one conducted incident to Bah's arrest; during the motion to suppress hearing, however, Davidson testified that he had simply conducted an inventory search as required by department policy. According to Davidson, General Order 200.04-B allows an officer--provided there is lawful justification to impound the vehicle--to " conduct an inventory search of the contents of the vehicle and all containers therein." In addition to searching the glove compartment and trunk, Davidson requested a K-9 sniff because the car was a rental; Davidson did " not want the next renter or lessee of the vehicle to be caught with something that they didn't know was in the vehicle."

During the search, Davidson found a damaged Blackberry cellular phone in the driver's side door pocket, two cellular phones in the center console between the passenger and driver seats, an iPhone in the passenger side door pocket, several cartons of cigarettes in the back seat, four credit, debit, or prepaid gift cards in the passenger glovebox, and a large quantity of additional cards in a plastic bag in the trunk of the vehicle, inside a bag that Harvey said belonged to Bah. Upon discovering approximately 68 credit, debit, and gift cards in the trunk, Davidson " felt that the investigation needed to be furthered[, and] . . . needed to involve an investigator with the police department." Davidson then advised Harvey that, although he was " not under arrest," he was being placed in " temporary custody." Bah and Harvey were then both transported to the Morristown Police Department in handcuffs,3 where four more cards were found in Bah's wallet, and five additional cards were found in Harvey's wallet. Johnson later found five additional cards in the back seat of the police cruiser in which

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Harvey had been transported to the police department for further investigation.

At the police department, Detective Tracy Bowman and Corporal Gary Bean examined the items from the rental vehicle and contacted Special Agent Kevin Kimbrough of the Tennessee Highway Patrol, who had experience with identity theft investigations. Bowman and Johnson--while waiting for Kimbrough and without a warrant--looked at a text message and several photographs on the unlocked Blackberry cellular phone. The photographs depicted " a large amount of cash," " what appeared to be marijuana," and a " skimming device," which can be used to re-encode magnetic strips. The locked cellular phones were not examined. When Kimbrough arrived, another officer showed him the photographs from the Blackberry cellular phone.

Kimbrough--also without a warrant4--then used a magnetic card reader, or " skimmer," to read the information encoded on the magnetic strips of 18 credit, debit and gift cards (those cards not found in the car's trunk5). A skimmer is a device similar to that used at gas stations, restaurants, and grocery stores to read the " magstripe," or magnetic strip, on cards. The magstripe of any credit, debit, or prepaid gift card typically contains limited, unique information: an account number, bank identification number (the six-digit number that identifies a particular financial institution), the card expiration date, the three digit " CSC" code, and the cardholder's first and last name. With the exception of the bank identification number and a " few other additional, unique identifiers," the information stored on the magstripe mirrors that provided on the front and back of the card. The magstripe does not typically contain an individual's birth date, social security number, mailing address, blood type or other personal data. Because financial transactions may be conducted using only the data printed on the front and back of a card, accessing the information stored on the magstripe is not always necessary to make a charge. An encoding device is required to change, or re-encode, the data on a magstripe.

Upon scanning the 18 cards, Kimbrough found that a " majority, if not all" of the magstripes had been re-encoded so that the financial information they contained did not match the information printed on the front and backs of the cards. Bah and Harvey were then taken into custody and transported to the Hamblin County Jail.

In total, officers recovered 86 cards from Bah, Harvey and their vehicle: four

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cards in the glove compartment, 68 cards in the trunk, four cards in Bah's wallet, five cards in Harvey's wallet, and five cards in the back seat of Johnson's cruiser after he had transported Harvey. Secret Service Special Agent Doug Allen determined that all 68 of the cards seized from the trunk of the rental vehicle had been re-encoded. The re-encoded account numbers had been either stolen or compromised, and a number of the associated accounts had already incurred fraudulent charges.

Based on his determination that the magstripes had been re-encoded with compromised or stolen account numbers, Allen obtained a federal search warrant for the cellular telephones seized following the traffic stop. The warrant affidavit did not refer to any of the information officers had already viewed on the Blackberry cellular phone. On May 30, 2013, Bah and Harvey were charged with production, use, or trafficking in counterfeit access devices, and later indicted.

Both Bah and Harvey moved to suppress the evidence obtained from the rental vehicle, arguing that the search could not...

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