     Case: 15-50788   Document: 00513716931        Page: 1   Date Filed: 10/13/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                    No. 15-50788                         FILED
                                                                  October 13, 2016

UNITED STATES OF AMERICA,                                           Lyle W. Cayce
                                                                         Clerk
             Plaintiff - Appellee

v.

COURTLAND LENARD TURNER,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before WIENER, CLEMENT, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
       The central issue in this case is whether a law enforcement officer’s
scanning of the magnetic stripe on the back of a gift card is a search within the
meaning of the Fourth Amendment. We join two other circuits in holding that
it is not.
                                         I.
       Defendant Courtland Turner was riding in a car driven by Roderick
Henderson that was pulled over for lacking a visible license plate light.
Henderson failed to show the officer a valid driver’s license, providing him
instead with a Texas identification card. Turner likewise provided the officer
with an identification card.
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                                No. 15-50788
      The officer retreated to his patrol car to conduct a records check and
verify Turner’s and Henderson’s identities. In doing so, he discovered that
Turner had an active arrest warrant for possession of marijuana. As a result,
the officer asked Turner to exit the vehicle; he complied. As Turner exited the
vehicle, the officer observed an opaque plastic bag partially protruding from
the front passenger seat. It appeared to the officer that someone attempted to
conceal the bag by pushing it under the seat.
      After placing Turner in the patrol car while dispatch confirmed the
warrant, the officer asked Henderson what was inside the bag. Henderson
handed the officer the bag and said that “we”—apparently referring to Turner
and himself—purchased gift cards.      The officer opened the bag and saw
approximately 100 gift cards. He then asked Henderson whether he had any
receipts for the gift cards. Henderson responded that he did not and that “we”
bought the gift cards from another individual who sells them to make money.
      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.             The stores
provided photos of Henderson and Turner purchasing gift cards.


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                                 No. 15-50788
      Turner was charged with aiding and abetting the possession of
unauthorized access devices. He moved to suppress evidence of the gift cards,
challenging both the roadside seizure of the cards and the subsequent
examination of the magnetic stripes.         The district court denied Turner’s
motion, finding that, although Turner had standing to seek suppression, there
was no constitutional violation because (1) Henderson provided consent for the
seizure of the gift cards and (2) the later examination of the cards did not
constitute a search. Turner entered a conditional guilty plea, reserving his
right to appeal the suppression ruling.
                                       II.
      “When examining a district court’s ruling on a motion to suppress, we
review questions of law de novo and factual findings for clear error.” United
States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009). We view the evidence in the
light most favorable to the prevailing party, United States v. Hernandez, 279
F.3d 302, 306 (5th Cir. 2002), and may “affirm the district court’s ruling . . .
based on any rationale supported by the record.” United States v. Waldrop, 404
F.3d 365, 368 (5th Cir. 2005).
      As the party seeking suppression, Turner “has the burden of proving, by
a preponderance of the evidence, that the evidence in question was obtained in
violation of his Fourth Amendment rights.” United States v. Smith, 978 F.2d
171, 176 (5th Cir. 1992) (citing Rakas v. Illinois, 439 U.S. 128, 131 n.1, 133–34
(1978)). That burden includes establishing standing to contest the evidence,
United States v. Iraheta, 764 F.3d 455, 460–61 (5th Cir. 2014), and showing
that the challenged government conduct constitutes a Fourth Amendment
search or seizure. Smith, 978 F.2d at 176.
                                      III.
      We agree with the district court that Turner may challenge the seizure
of the gift cards. He jointly possessed the cards with Henderson, and the bag
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containing them was found underneath where he was sitting. See Iraheta, 764
F.3d at 461–62 (explaining that passengers of a vehicle have standing to
challenge seizure of their luggage); United States v. Miller, 608 F.2d 1089, 1101
(5th Cir. 1979) (treating a plastic portfolio as personal luggage subject to
Fourth Amendment search requirements). 1
       Turner agrees that by handing the bag to the officer in response to his
question about its contents, Henderson consented to the officer’s initial seizure
of, and look inside, the bag.          But he disagrees with the district court’s
conclusion that Henderson’s consent extended to the officer’s taking
permanent possession of the gift cards. We need not resolve this dispute over
the scope of Henderson’s consent, because we find another lawful basis for the
seizure of the gift cards.
       The taking of physical items like gift cards is a seizure that requires
either a warrant or some other justification that renders such an intrusion
reasonable under the Fourth Amendment. See United States v. Paige, 136 F.3d
1012, 1022 (5th Cir. 1998). One situation in which a warrant may not be
required occurs when police “seize evidence in plain view.” Arizona v. Hicks,
480 U.S. 321, 326 (1987) (emphasis omitted) (quoting Coolidge v. New
Hampshire, 403 U.S. 443, 465 (1971)). For a plain-view seizure to be lawful,
the officer must have had lawful authority to be in the location from which he
viewed the evidence, and the incriminating nature of the item must be
“immediately apparent.”         Horton v. California, 496 U.S. 128, 136 (1990)
(quoting Coolidge, 403 U.S. at 466). As the officer obviously had authority to
be standing on the side of the road when he observed the gift cards (the lawful
authority requirement typically arises when the police observe the item while


       1 The government challenges Turner’s “standing” to contest only what it views as
Henderson’s consent to the seizure of the gift cards. As we find the seizure lawful under the
plain-view exception rather than as a matter of consent, we need not decide this question.
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inside a home), Turner contests only whether it was immediately apparent that
the cards were instrumentalities of a crime.
       “The incriminating nature of an item is immediately apparent if the
officers have probable cause to believe that the item is either evidence of a
crime or contraband.” United States v. Buchanan, 70 F.3d 818, 826 (5th Cir.
1996). To have probable cause, “it is not necessary that the officer know that
the discovered res is contraband or evidence of a crime, but only that there be
‘a “practical, nontechnical” probability that incriminating evidence is
involved.’”    United States v. Espinoza, 826 F.2d 317, 319 (5th Cir. 1987)
(quoting Texas v. Brown, 460 U.S. 730, 742–43 (1983)).           When reviewing
probable      cause   determinations,   we   “consider     the   totality   of   the
circumstances—including the officers’ training and experience as well as their
knowledge of the situation at hand.” Buchanan, 70 F.3d at 826.
      The circumstances here were as follows: the plastic bag contained
approximately 100 gift cards and appeared to have been concealed under the
front passenger seat. Henderson admitted not having receipts for the gift cards
and further stated that he and Turner purchased the gift cards from an
individual who sells them for a profit. The officer, upon learning this, conferred
with other officers who had experience with large numbers of gift cards being
associated with drug dealing, fraud, and theft. We conclude that these facts
support probable cause to believe the gift cards were contraband or evidence of
a crime. See United States v. Watson, 273 F.3d 599, 602 (5th Cir. 2001)
(describing probable cause as a “fair probability” that a crime occurred, which
is “more than a ‘bare suspicion’ but less than a preponderance of the evidence”
(quoting United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999))).
      Turner counters that a finding of probable cause is at odds with the
officer’s view that during the stop there was insufficient evidence to arrest
Henderson for a gift card crime. This does not control our inquiry for a couple
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                                      No. 15-50788
reasons. The existence of probable cause is an objective one that does not turn
on the subjective beliefs of an officer. And even if the officer’s view was a
reasonable assessment of the evidence, he could seize the gift cards so long as
there was probable cause to believe they were evidence of a crime, even if that
crime could not yet be tied to a particular suspect.
                                            IV.
       Having concluded that the gift cards were lawfully seized, we must
decide whether it was lawful for law enforcement to scan the magnetic stripes
on the cards to see the information encoded therein.
       Once seized, most items do not give rise to a separate Fourth
Amendment search inquiry. Think of a firearm or a marijuana plant. The
evidentiary value of those items is the object itself, so seizing them is all law
enforcement needs to do. Some items, however, conceal other items. Even
when law enforcement lawfully seizes a suitcase, for example, it still needs a
warrant (or some other recognized justification) to open it. United States v.
Place, 462 U.S. 696, 699–700 (1983). That is because, in addition to the Fourth
Amendment possessory interest a person has in a suitcase, there is an
additional Fourth Amendment privacy interest in its contents.
       When it comes to technology that allows law enforcement to obtain
information embedded in an item, it can be more difficult to determine whether
there is a separate privacy interest located within an item that already enjoys
constitutional protection from unlawful seizure. Such a privacy interest exists
in the electronic contents of computers and cell phones. See Riley v. California,
134 S. Ct. 2473, 2485 (2014). 2 Yet, other applications of technology that reveal



       2There was no dispute in Riley that reviewing the contents of a cell phone involved a
search. At issue was only whether such a search was permissible without a warrant when
conducted during an arrest. Riley, 134 S. Ct. at 2493 (holding that search-incident-to-arrest
doctrine does not extend to search of cell phone).
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information not visible to the naked eye—for example, using a special light to
detect ultraviolet ink on currency or examining the metadata located within
an electronic image already in the lawful possession of the government—have
not been thought to constitute a search. See United States v. Post, 997 F. Supp.
2d 602, 606 (S.D. Tex. 2014); United States v. Medina, No. 09-20717-CR, 2009
WL 3669636, at *10 (S.D. Fla. Oct. 24, 2009), report and recommendation
adopted in part, rejected in part sub nom. United States v. Duarte, No. 09-
20717-CR, 2009 WL 3669537 (S.D. Fla. Nov. 4, 2009).                         What about the
information encoded in the magnetic stripe 3 on the back of gift cards?
       A Fourth Amendment privacy interest is infringed when the government
physically intrudes on a constitutionally protected area or when the
government violates a person’s “reasonable expectation of privacy.” United
States v. Jones, 132 S. Ct. 945, 949–50 (2012).                 Although technology can
sometimes involve the former, see id. at 949 (finding that placement of a GPS
tracking device on a car amounted to an unlawful trespass), it more often
involves the latter. Indeed, the “reasonable expectation of privacy” approach
arose from wiretapping. See Katz v. United States, 389 U.S. 347 (1967).
       Turner argues that scanning the gift cards amounted to a search under
the “reasonable expectation of privacy” inquiry. That requires “first that a
person have exhibited an actual (subjective) expectation of privacy and, second,
that the expectation be one that society is prepared to recognize as
‘reasonable.’”      Katz, 389 U.S. at 361 (Harlan, J., concurring).                         The
reasonableness of an expectation of privacy turns on “our ‘societal
understanding’ about what deserves ‘protection from government invasion.’”


       3 Some courts have referred to magnetic stripes as “magnetic strips.” The technical
term is magnetic stripe. See Magnetic Stripe Technology, IBM, http://www-03.ibm.com/ibm
/history/ibm100/us/en/icons/magnetic/ (last visited Oct. 5, 2016) (“The magnetic stripe . . . was
the catalyst that accelerated the proliferation of the global credit card industry, which now
handles US$6 trillion in transactions per year.”).
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Smith, 978 F.2d at 177 (quoting Oliver v. United States, 466 U.S. 170, 178
(1984)). Analogizing to the cell phones the Supreme Court discussed in Riley,
Turner contends that society recognizes as reasonable an expectation of
privacy in a gift card’s magnetic stripe because it is an electronic storage device
that contains personal information.
       At this point, it is helpful to describe the electronic information encoded
in the typical gift card. The record lacks much detail about this, a deficiency
that hurts Turner as he bears the burden of establishing a privacy interest.
Useful information can be found, however, in other cases addressing whether
scanning credit or gift cards amounts to a search.                One such court has
explained that the typical magnetic stripe has “three data strips which hold
only 79 alphanumeric characters, 40 numeric characters, and 107 numeric
characters, respectively.” See United States v. Bah, 794 F.3d 617, 633 (6th Cir.
2015). For credit cards, most of which have more information than a gift card,
that limited space usually contains the “account number, a bank identification
number, the card’s expiration date, a three digit ‘CSC’ code, and, at times, the
cardholder’s first and last name.” Id. at 630. Of course, it is the issuing
institution, not card users, that initially codes and stores this information on
the magnetic stripe. See United States v. Alabi, 943 F. Supp. 2d 1201, 1279 (D.
N.M. 2013). Users do have the ability to re-encode the cards, 4 but need an
uncommon device to do so. 5 See id. at 1284. The time and expense it takes to
purchase and use a re-encoding device to change at most a few lines of




       4 At least for credit cards, some user agreements prohibit tampering with cards. See
Alabi, 943 F. Supp. 2d at 1215–16; HSBC Credit Card Agreement Terms, HSBC BANK,
http://www.hsbc.co.uk/1/PA_esf-ca-app-content/content/pws/content/personal/pdfs/hsbc-ban
k-credit-card-tcs.pdf (last visited Sept. 29, 2016).
        5 See Deftun MSR606 HiCo Magnetic Stripe Card Reader Writer Encoder,

AMAZON.COM, https://www.amazon.com/Deftun-MSR606-Magnetic-Stripe-Encoder/dp/B006
RE896K (last visited Oct. 5, 2016) (listing price at $299.99).
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characters means it will rarely be worth doing for a lawful purpose. Id. at
1284–85; Bah, 794 F.3d at 632; United States v. DE L’Isle, 825 F.3d 426, 432–
33 (8th Cir. 2016).     The incentive to re-encode exists, however, when a
fraudster changes the account number encoded in a gift card to match one with
a higher balance than the card he purchased or counterfeited. See Alabi, 943
F. Supp. 2d at 1284–85.
      A number of these features lead us to conclude that there is no
reasonable expectation of privacy in the magnetic stripe of a gift card. For
starters, the few lines of characters encoded in a gift card are infinitesimally
smaller than the “immense storage capacity” of cell phones or computers.
Riley, 134 S. Ct. at 2489. The Supreme Court described that capacity as “[o]ne
of the most notable distinguishing features of modern cell phones” that had
“several interrelated consequences for privacy,” including that “a cell phone
collects in one place many distinct types of information—an address, a note, a
prescription, a bank statement, a video—that reveal much more in
combination than any isolated record.” Id.
      Even more important is that the vast gulf in storage capacity between
gift cards and cell phones reflects their different purposes. A primary purpose
of modern cell phones, and certainly of computers, is to store personal
information. See id. at 2489–91. The purpose of a gift card is to buy something.
See Alabi, 943 F. Supp. 2d at 1279. The issuer of a gift card places the
information on it, which can only be altered using a device that few Americans
know about and even fewer own. As one court has put it, “[r]ather than using
credit and debit cards to manipulate and store the data contained in the cards’
magnetic strips, individuals and society put to use the magnetic strips by using
the data that the issuer encoded on them . . . to facilitate a financial transaction
and purchase goods and services.” Id. at 1284.


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       Another Fourth Amendment consequence flows from the commercial
purpose of gift cards. Unlike cell phones and computers, whose function of
storing personal information often results in access being restricted by a
password, the raison d’être of gift cards means that third party cashiers will
often be doing the same swiping that law enforcement did here. DE L’Isle, 825
F.3d at 430 (“[T]he purpose of a . . . gift card is to enable the holder of the card
to make purchases, and to accomplish this, the holder must transfer
information from the card to the seller, which negates an expressed privacy
interest.”); Bah, 794 F.3d at 633 (“A credit card’s stored information . . . is
intended to be read by third parties. That is the only reason for its existence.”
(second emphasis added) (quoting United States v. Benjamin, No. 4:14-CR-
3089, 2014 WL 5431349, at *11 (D. Neb. Oct. 24, 2014))); see generally Smith
v. Maryland, 442 U.S. 735 (1979) (discussing the third party doctrine); United
States v. Miller, 425 U.S. 435 (1976) (same).
      We thus join the other courts that have considered this issue and
conclude that society does not recognize as reasonable an expectation of privacy
in the information encoded in a gift card’s magnetic stripe. See Bah, 794 F.3d
at 631; DE L’Isle, 825 F.3d at 432; Alabi, 943 F. Supp. 2d at 1285; Medina,
2009 WL 3669636, at *11.
      The most recent of those cases, DE L’Isle, included a dissent. See 825
F.3d at 433–37 (Kelly, J., dissenting). Judge Kelly’s dissent does not actually
conclude that scanning a credit card amounts to a search, but instead would
have remanded for additional factfinding “on whether there are significant
technological barriers to an individual rewriting information on the magnetic
stripe of their cards.” Id. at 434. Given that our circuit places the burden on
the defendant to establish a reasonable expectation of privacy in the item police
examined, see Smith, 978 F.2d at 176, Turner should have introduced at the
suppression hearing any information about the technology that would have
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helped him meet his burden. In addition, the DE L’Isle dissent’s concern about
credit cards containing new chip technology that has “a storage capacity much
greater than that of the old magnetic stripes,” DE L’Isle, 825 F.3d at 436, does
not yet apply to gift cards. 6
      The technology of today will not, however, be the technology of tomorrow.
The Supreme Court has noted the need to take account of rapidly evolving
capabilities when applying the Fourth Amendment to other Information Age
technologies. See Kyllo v. United States, 533 U.S. 27, 33–34 (2001) (“It would
be foolish to contend that the degree of privacy secured to citizens by the
Fourth Amendment has been entirely unaffected by the advance of technology
. . . . The question we confront today is what limits there are upon this power
of technology to shrink the realm of guaranteed privacy.”); Riley, 134 S. Ct. at
2494–95 (“Modern cell phones . . . [w]ith all they contain and all they may
reveal, [] hold for many Americans ‘the privacies of life’ . . . . The fact that
technology now allows an individual to carry such information in his hand does
not make the information any less worthy of the protection for which the
Founders fought.”). As other courts deciding this issue have, we thus limit our
holding to the gift cards of today, which are not intended to be used for—and
rarely are used for—storing information entered by the user. See Bah, 794
F.3d at 633 (“Our holding today is limited in scope . . . we do not address
hypothetical magnetic strips of the future that may have greater storage
capacity and tend to store more private information.”); DE L’Isle, 825 F.3d at
433 (“There may be an instance, with facts different from this case, where a
court reasonably finds a legitimate privacy interest in information contained



      6 Another difference between gift cards and credit cards is that the magnetic stripes
on the latter typically contain identifying information like the cardholder’s name and
address. See Bah, 794 F.3d at 630. Despite that feature, courts have unanimously rejected
the argument that the swiping even of credit cards is a Fourth Amendment search.
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in the magnetic strip of a credit, debit, or gift card.”). And even with the gift
cards of today, law enforcement can view the encoded information only after
coming into lawful possession of the cards.
                                     ***
      The judgment of the district court is AFFIRMED.




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