Gift Card Thief Out of Luck in 5th Circuit

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By Melissa Heelan Stanzione

Oct. 14 — There was no search when a police officer swiped a suspect’s gift card at the scene of an arrest, the U.S. Court of Appeals for the Fifth Circuit held Oct. 13 ( United States v. Turner , 2016 BL 341775, 5th Cir., No. 15-50788, 10/13/16 ).

The holding applies only to “the gift cards of today,” however, because today’s technology won’t be “the technology of tomorrow,” Judge Gregg J. Costa wrote for the court.

Courtland Lenard Turner was in his friend’s car when it was pulled over for a minor traffic violation.

After a police officer realized Turner was wanted on an outstanding warrant, he ordered him out of the car, noticing a plastic bag stuffed halfway under Turner’s seat.

Turner’s friend handed the bag, filled with 143 gift cards, to the cop, who swiped them with his in-car computer, determining many were altered.

During trial for aiding and abetting the possession of unauthorized access devices, Turner moved to suppress evidence of the cards.

Probable Cause

The gift cards were lawfully seized because the facts—the sheer quantity, that they were partially concealed and are associated with fraud and theft—support probable cause to believe they were evidence of a crime, the court said.

Furthermore, the officer lawfully swiped the cards, it said.

There’s no reasonable expectation of privacy in the relatively small amount of information encoded in the gift card stripes because they are intended to be read by third-parties such as store clerks, the court said.

New technology providing cards with greater storage capacity might result in a different privacy finding, it said.

The Eighth and Sixth circuits have also held that card swiping isn’t a search (84 U.S.L.W. 1865, 6/16/16).

Judges Jacques L. Wiener Jr. and Edith Brown Clement joined the opinion.

The U.S. attorney’s office represented the government. John Scott Peterson of Waco, Texas, represented Turner.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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