The Eighth Circuit Court of Appeals

On Friday, I argued a case in front of the Eighth Circuit Court of Appeals. The issue was unique, and dealt squarely with The United States Constitution’s Fourth Amendment in the Bill of Rights which prohibits illegal searches or seizures without a warrant or a warrant exception.

The Eighth Circuit Court of Appeals is a step below the United States Supreme Court.

Basically, government agents need a warrant to search something that is considered private unless there is an exception to the warrant requirement. Such exceptions include consent to search, and searches incident to a lawful arrest.

The argument is that the information encoded in a magnetic strip on the back of a credit or debit card is private. If the court agrees, then government agents would either need a warrant, or an exception to the warrant requirement, in order to lawfully look at the information encoded in the magnetic strip.

The facts of the case are important to understand the issue.

The defendant – a visitor from France – was traveling on Interstate 80 through Nebraska. He was stopped in Seward County for a minor traffic violation. The custom in France when a vehicle is stopped includes the driver getting out of the vehicle and walking his license and registration and insurance to the law enforcement officer. In this case, the driver did just that, and the officer ordered him to get back into his car.

A conversation ensued and it led to an argument. The driver was subsequently arrested, and his vehicle was searched. In one of the bags searched, the officer found dozens of prepaid gift cards with the defendant’s name embossed on the front.

The officer believed that the cards were suspicious, and he sent them to Federal agents in Omaha, Nebraska to determine whether or not the cards were fraudulent.

Federal agents got the cards and ran them through a card reader and discovered that the information encoded in the magnetic strip was associated with other legitimate card holders throughout the United States.

Restated, someone had encoded legitimate cardholder information into the magnetic strip on the back of the cards, and that information was not associated with the driver.

Simply put, the cards were, in fact, fraudulent.

During trial, the driver testified that he had purchased the cards while he lived in France, and believed all of the gift cards were valid and in his name.

He then used the cards while traveling throughout the United States.

In a pretrial Motion to Suppress, I argued that the government needed a warrant to scan cards through a card reader.

The argument was that the information encoded in the magnetic strips on the debit cards or credit cards is private and society as a whole has a legitimate privacy interest in the information encoded in those magnetic strips.

If the court agreed with me, and agreed that the information included in the magnetic strips was in fact private, then law enforcement would need a warrant to scan those cards and recover the information encoded in the magnetic strips.

The argument by the United States is simply that because the information encoded in the magnetic strip is the same as the information on the front of the card, a person does not have an expectation of privacy in the information. The government contends that every time a person uses a card to make a purchase, the person is giving up his right to privacy in the information encoded on the back of the card.

When arguing to the court, I asked each judge to pull out their wallet and hand me their credit or debit cards, and I told them all I wanted to do with them was scan them to see if the information in the magnetic strip matched the information on the front of the cards.

When I suggested that to the panel of judges, one of them noted that it did feel strange that he should willingly give me his card up to have it scanned.

The government also argued that a person gives up his right to privacy to the information encoded in the magnetic strip every time a person makes a purchase.

I replied that merely because a person consents to having the information read when purchasing something at a store, that does not mean a person consents to having that information scanned by the government for any purpose whatsoever and at any point.

As an example, I reminded the court that I had to go through a metal detector when I came into the building. My bag was also subject to being scanned through the x-ray machine prior to entry. I argued that merely because my bag had been scanned when entering into the building, that did not mean I consented to government agents looking through my bag several hours later as I was sitting in court waiting to argue.

An Opinion by the Eighth Circuit Court of Appeals on the case will likely be published within the next few months.

If the defendant loses, he will have the option of appealing the case to the United States Supreme Court, who would not have to hear the issue and less they chose to do so.

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