United States v. De L'Isle

• Decision Date: 08 June 2016
• Docket Number: No. 15-1316,15-1316
• Citation: 825 F.3d 426
• Parties: United States of America, Plaintiff–Appellee v. Eric–Arnaud Benjamin Briere DE L'Isle, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

825 F.3d 426

United States of America, Plaintiff–Appellee

v.Eric–Arnaud Benjamin Briere DE L'Isle, Defendant–Appellant.

No. 15-1316

United States Court of Appeals, Eighth Circuit.

Submitted: November 20, 2015

Filed: June 8, 2016

Rehearing and Rehearing En Banc Denied July 22, 2016.

Counsel who presented argument on behalf of the appellant was Chad James Wythers, of Lincoln, NE.

Counsel who presented argument on behalf of the appellee was William W. Mickle, II, AUSA, of Lincoln, NE.

Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.

BEAM

, Circuit Judge.

Eric–Arnaud Benjamin Briere DE L'Isle appeals the district court's¹ denial of his motion to suppress information discovered by law enforcement after officers seized credit, debit, and gift cards from DE L'Isle's vehicle and scanned the cards' magnetic strips. Despite DE L'Isle's untimely motion to suppress, the district court examined the merits of the motion and concluded that reading the magnetic strip on the back of a credit, debit, or gift card was not a search within the meaning of the Fourth Amendment. For the reasons discussed below, we affirm.

I. BACKGROUND

On June 20, 2014, Sergeant Michael Vance stopped DE L'Isle for following too closely to a semi-tractor trailer. When the officer approached DE L'Isle's car, he smelled burnt marijuana and saw air fresheners inside the car. DE L'Isle accompanied Sergeant Vance to his police cruiser where DE L'Isle was given a warning citation for following too closely. Sergeant Vance then deployed his canine, which alerted to the presence of controlled substances inside the vehicle. When Sergeant Vance began searching the vehicle, DE L'Isle approached him and told him he could not search the vehicle. After a brief struggle between DE L'Isle and Sergeant Vance, DE L'Isle was handcuffed and placed into the backseat of the police cruiser.

Sergeant Vance and two other officers completed the search. No narcotics were found, but they seized a large stack of credit, debit, and gift cards located in a duffle bag in the trunk of DE L'Isle's car. DE L'Isle was subsequently arrested for assault and resisting arrest. United States Secret Service agents then scanned the seized cards and discovered that the magnetic strips on the back of the cards either contained no account information or contained stolen American Express credit card information. Ten of the cards were American Express credit cards with DE L'Isle's name on the front. The magnetic strips on the back of these ten cards, however, were “empty”; there was no information at all in the magnetic strips. At least one card, card 23, was a Parker's PumpPal Club gas debit card, and card 25 was a Quik Trip prepaid card. The magnetic strips on the back of these cards had account information linked to legitimate American Express credit card accounts. Cards 31 through 47 were American Express gift cards. The magnetic strips on these cards contained credit card information from legitimate American Express customers. Cards 48 through 58 were Visa debit cards, Visa gift cards, and a Mastercard. The account information encoded on the magnetic strips of these cards also corresponded to American Express credit accounts. Card 59 was a Subway gift card with American Express credit card information encoded in the magnetic strip. However, none of the American Express account information on any of the cards was DE L'Isle's. In fact, he had no existing accounts with American Express.

As a result, DE L'Isle was charged with possession of fifteen or more counterfeit and unauthorized access devices, in violation of 18 U.S.C. §§ 1029(a)(3)

and (c)(1)(A)(i). He pled not guilty, and on July 31, 2014, the magistrate judge filed a progression order requiring that pretrial motions be filed on or before August 29, 2014. On October 23, 2014, De L'Isle filed a motion to suppress asking the district court to suppress any evidence discovered when law enforcement scanned the magnetic strips on the seized cards. He argued that the search of the information in the magnetic strips of the cards was done without a warrant or a warrant exception and thus violated his Fourth Amendment right to be free from unreasonable searches. The district court noted that his motion was untimely. However, the court considered the merits of the motion and held that “based on the law,” DE L'Isle's motion lacked merit.² Thus, the district court denied the motion to suppress without a hearing, ultimately holding that “reading the magnetic strip on the back of a credit, debit, or gift card is not a ‘search’ for Fourth Amendment purposes.”

At trial, United States Secret Service Agent Nicholas Wadding testified about credit card theft and identity theft. He explained that nearly all plastic cards have three tracks, or lines, of information on the magnetic strip. The first line has the account number, the second line has the credit card holder's name, and the third line, which is discretionary, may have a frequent flier number or some specific identifier.³ According to Peter Grimm, an American Express fraud investigator, the magnetic strip also generally contains the card's expiration date. The information contained in the magnetic strip should match the information on the front of the card. A card is said to be “re-encoded” when the magnetic strip information is rewritten.

The ten American Express cards confiscated from De L'Isle's vehicle all had his name on the front of the cards with different account numbers, but the cards had no information on the magnetic strips. Grimm testified that it is significant that a card has a blank magnetic strip because that means it is counterfeit. All American Express cards are issued with account information contained in the magnetic strip. It is also significant that the magnetic strips on the Parker's PumpPal Club gas debit card, Quik Trip prepaid card, American Express gift cards, Visa debit and gift cards, Mastercard debit card, and Subway gift card all contained legitimate American Express customer account information. American Express would never encode credit card holder information on the back of these types of cards. If a gift card has been re-encoded with account information that was not originally there, it is a counterfeit card. DE L'Isle testified that he bought the cards from an unknown person and believed they were legitimate. On October 29, 2014, the jury returned a guilty verdict, and DE L'Isle was sentenced to fifteen months in prison and three years of supervised release. He was also ordered to pay over $4,700 in restitution and over $12,700 in court costs.

DE L'Isle now appeals the district court's denial of his motion to suppress. He does not challenge the traffic stop or the seizure of the cards. DE L'Isle disputes only the district court's narrow holding that he had no Fourth Amendment privacy interest in the information contained in the magnetic strips on the credit, debit, and gift cards seized from his vehicle.

II. DISCUSSION

When reviewing a district court's denial of a motion to suppress, “this [c]ourt reviews factual findings for clear error, and questions of constitutional law de novo .” United States v. Smith , 715 F.3d 1110, 1114 (8th Cir. 2013)

(quoting United States v. Hollins , 685 F.3d 703, 705 (8th Cir. 2012)

). In regard to factual determinations, this court “give[s] ‘due weight’ to the inferences of the district court and law enforcement officials.” United States v. Robbins , 682 F.3d 1111, 1115 (8th Cir. 2012) (quoting United States v. Replogle , 301 F.3d 937, 938 (8th Cir. 2002) ). Also, “[w]e may affirm the district court's denial of a motion to suppress on any ground the record supports.” United States v. Anderson , 688 F.3d 339, 343 (8th Cir. 2012) (quoting United States v. Pratt , 355 F.3d 1119, 1121 (8th Cir. 2004) ).

DE L'Isle argues that reading the magnetic strips on the back of the cards was a search in violation of his Fourth Amendment rights because the strip contains information about the account. According to DE L'Isle, this is the type of information that the Supreme Court would consider a legitimate privacy interest. Given the facts of this case, we disagree.

The Fourth Amendment gives people the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV

. “[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” Riley v. California , –––U.S. ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014) (quoting Brigham City v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ), cert. denied , Riley v. California , ––– U.S. ––––, 136 S.Ct. 506, 193 L.Ed.2d 401 (2015). A search is reasonable if the officer has a valid search warrant or if the search fits within a specific warrant exception. Id. It is clear that a physical intrusion or trespass by a government official constitutes a search within the meaning of the Fourth Amendment. United States v. Jones , –––U.S. ––––, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012). However, “a violation [can also] occur[ ] when government officers violate a person's ‘reasonable expectation of privacy.’ ” Id. at 950 (quoting Katz v. United States , 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). For this type of violation, the claimant must show both “an actual (subjective) expectation of privacy, and ... that the expectation [is] one that society is prepared to recognize as ‘reasonable.’ ” Katz , 389 U.S. at 361, 88 S.Ct. 507. Thus, “[o]fficial conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Illinois v. Caballes , 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (quoting United States v. Jacobsen , 466 U.S. 109, 123, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ).

First, scanning the magnetic strips on the cards was not a physical intrusion into a protected area prohibited by the Fourth Amendment. See Florida v. Jardines , ––– U.S. ––––, 133...