JAMES O. BROWNING, District Judge.
Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed.R.Crim.P. 12(d) ("When factual issues are involved in deciding a [pretrial] motion, the court must state its essential findings on the record."). This Memorandum Opinion and Order's findings of fact shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982) ("[U]nder Rule[] 104(a) ..., the district court `is not bound by the Rules of Evidence except those with respect to privilege.'") (quoting United States v. Matlock, 415 U.S. 164, 174, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed. R.Evid. 104(a) ("The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege."). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269 ("The purpose of the suppression hearing was, of course, to determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant's rights under the Fourth and Fifth Amendments. In this type of hearing the judge had latitude to receive it, notwithstanding the hearsay rule."); United States v. Garcia, 324 Fed. Appx. 705, 708 (10th Cir.2009) (unpublished) ("We need not resolve whether Crawford [v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)]'s
1. New Mexico State Police Officer Chester Bobbitt was patrolling Interstate 40 near Tucumcari, New Mexico, on April 6, 2011, at 8:20 a.m. when he saw a 2010 Toyota Camry with expired California license plates driving eastbound. See Motion to Suppress at 1; Government's Memorandum in Opposition to Defendant Oguntoyinbo's Motion to Suppress at 1, filed February 7, 2013 (Doc. 96) ("MTS Response"); Transcript of Hearing at 25:13-26:10 (taken Feb. 26, 2013) (Kochersberger, Vela) ("Tr.") (both parties proffer as factual evidence the factual background provided in their briefs and agree that, except for the locations where the state police officer is alleged to have found the cards, the facts are undisputed).
2. The Defendants were traveling in a rental car, the Toyota Camry, eastbound on Interstate Highway 40 near Tucumcari, New Mexico. See Motion to Suppress at 1.
3. The rental agreement was in Oguntoyinbo's name alone. See MTS Response at 2.
4. At approximately 8:20 a.m., Bobbitt initiated a traffic stop of Oguntoyinbo's vehicle. See Motion to Suppress at 1; MTS Response at 1.
5. Bobbitt engaged his lights and siren, and pulled Oguntoyinbo's vehicle over. See MTS Response at 1.
6. There were two men in the Toyota Camry. See MTS Response at 1.
7. Oguntoyinbo was the driver. See MTS Response at 1.
8. Alabi was the passenger. See MTS Response at 1.
9. Oguntoyinbo presented a driver's license and the rental agreement for the vehicle to Bobbitt. See MTS Response at 1-2.
10. Bobbitt gave Oguntoyinbo a traffic warning and told him that he was free to leave. See MTS Response at 2.
11. At some point during this routine traffic stop, Bobbitt obtained Oguntoyinbo's limited consent to search his rental
12. Alabi also consented to the search of the vehicle and luggage. See MTD Response at 2.
13. As a result of the search, Bobbitt seized, among other things, thirty-one credit and debit cards from the Defendants possession. See Motion to Suppress at 2; MTS Response at 2 ("Officer Bobbitt found that, between the two defendants, they possessed approximately 31 credit and debit cards.").
14. Bobbitt also seized: (i) approximately sixty-seven Wal-Mart cash cards valued at $1,650.00; (ii) approximately $5,673.00 in cash; (iii) two laptop computers; (iv) six cellular telephones; (v) a bundle of paperwork which contained a list of approximately 500 names with birth dates, Social Security numbers, addresses, and telephone numbers; and (vi) two Louis Vuitton bags. See Search Warrant and Search Warrant Application at 9, filed February 7, 2013 (Doc. 96-1) ("Search Warrant Application").
15. Bobbitt then arrested the Defendants on state charges related to identity theft. See MTS Response at 2.
16. The Defendants were then transported to the New Mexico State Police station located in Tucumcari, where they were detained. See Motion to Suppress at 2; MTS Response at 2 ("Bobbitt transported Oguntoyinbo and Alabi to a New Mexico State Police facility to process their arrests and to conduct an inventory search.").
17. Following the Defendants' arrest, Bobbitt relinquished custody of the credit/debit cards to the Department of Homeland Security, Immigration, and Custody Senior Special Agent Christine Brital. See Motion to Suppress at 2; MTS Response at 2-3.
18. Brital then transported the credit/debit cards to the United States Secret Service Albuquerque Regional Office and gave the credit/debit cards to Special Agent Nick Jonte. See Motion to Suppress at 2; MTS Response at 3.
19. It was not until April 7, 2011, that Jonte proceeded to scan and search each of the individual credit and debit cards to obtain the electronic information on the magnetic strips. See Motion to Suppress at 2; MTS Response at 3.
20. Credit/debit cards contain information on the fronts of the cards, usually including the institution which issued the card, and embossed lettering and numbering indicating the cardholder's name, the card number, and the expiration date. See MTS Response at 3 (noting that a "name, account number and name of issuing financial institution [i]s embossed on the front of the card.").
21. Credit/debit cards also generally contain a magnetic strip on the back of the card containing data. See Tr. at 19:1-4 (Kochersberger, Vela) (Q: "The magnetic strips that you were demonstrating on the machine those are contained on credit cards as you demonstrated right?" A: "Yes, sir."); Wikipedia entry for Magnetic Stripe Card at 3-4, printed February 25, 2013 (United States' Hearing Exhibit 3); Tr. at 18:5-6 (Court) (admitting into evidence United States' Hearing Exhibits 1-5).
22. Driver's licenses also generally include the magnetic strip used on the back of credit/debit cards. See Tr. at 19:5-12 (Kochersberger, Vela) (Q: "And you also demonstrated they are contained on most
23. The magnetic strip on the back of a credit/debit card contains three tracks on which data may be stored. See Model 5607 Magnetic Stripe Card Reader/Verifier Instruction Manual at 1 (United States' Hearing Exhibit 2); Wikipedia entry for Magnetic Stripe Card at 2, 3.
24. The magnetic strip on the back of a credit/debit card generally contains two tracks of stored data, which includes, among other information, the following: (i) the primary account number; (ii) the card-owner's name; and (iii) the expiration date. See Tr. at 7:12-14 (Vela); id. at 14:20-15:2 (Vela adopting, under oath during direct examination, proffer of evidence before he was sworn in). See also Wikipedia entry for Magnetic Stripe Card at 3-4.
25. The electronically-stored information in the magnetic strip that appears on the Model 5607 Magnetic Stripe Card Reader/Verifier's display is identical to the information on the front of the credit card, reflecting the cardholder's name, account number, and the card's expiration date. See Tr. at 8:19-19:1 (Vela, Gerson); id. at 14:16-19 (Gerson, Vela).
26. The Card Reader/Verifier is used to verify that the information on a card's magnetic stripe is the same as the information on the outside of the credit/debit card. See Tr. at 11:20-12:3 (Court, Vela); id. at 14:20-15:2 (Vela adopting, under oath during direct examination, his testimonial evidence given before he was sworn in); Model 5607 Magnetic Stripe Card Reader/Verifier Instruction Manual at 1.
27. The Card Reader/Verifier is able to read and display on its screen alphanumeric data contained on a card's magnetic strip as long as the data fit within the Card Reader/Verifier's character limitations. See Tr. at 98:21-99:8 (Court, Gerson).
28. Because credit and debit cards use only two of the three available lines for data storage, the Card Reader/Verifier and card readers at stores do not read the third line of data. See Tr. at 89:13-18 (Court, Gerson) ("[I]f I understand the mechanics of this [magnetic strip and card reader] you can put some information on there that would not be read by the card reader." A: "I believe that's correct yes.... And so it would be a good place to store some information that you wanted to keep from people because they would not... thin[k] to look there.").
29. Cash registers at stores use a different card reader which scans the information off of the back of the magnetic strip each time a card is swiped through the reader to facilitate the financial transaction by sending that information to the card-issuer so that the issuer can charge the cardholder's account. See Tr. at 47:1-13
30. When a person makes a purchase at a store using a credit or debit card, the card information that is printed on the credit or debit card receipt is the information scanned from the card's magnetic strip. See Tr. at 47:15-23 (Gerson) ("[T]he clerk who's using a machine like this ... would still be able to see that information... printed out on the receipt that comes out ... independent of the transaction....").
31. Driver's licenses for the State of New Mexico contain a magnetic stripe on the back. See Tr. at 19:10-12 (Kochersberger, Vela) (Q: "There was a magnetic strip on the back of your New Mexico drivers licenses as well?" A: "That's correct.").
32. Driver's licenses for the State of California have magnetic stripes on the back, which contain information that the Model 5607 Card Reader/Verifier is capable of reading. See Tr. at 20:5-8 (Kochersberger, Vela) (Q: "The California one is capable of being program[med]; is that correct?" A: "Fr[om] what the instruction... [manual] said here that the California DMV [] will read it, so [yeah]."); Model 5607 Magnetic Stripe Card Reader/Verifier Instruction Manual at 2.
33. The information contained on the magnetic stripe is programmable, meaning that the information was programmed and stored there electronically. See Tr. at 20:18-21:7 (Kochersberger, Vela) (discussing the various magnetic stripes that are encoded with different information, such as information on the back of a hotel room key that allows entrance into a particular room, or a security card that allows access to a particular building or room in a building).
34. With an appropriate device, the information programmed on a magnetic stripe can be "reencoded" — programmed with different information. Tr. at 21:17-25 (Kochersberger, Vela) (Q: "[I]f you have the appropriate device you can actually erase that information from the credit [card and] put other information on it, right?" A: "To my knowledge you could do that, you could it's called reencoding." Q: "[T]hat's the issue in this case is that some of the cards you believe were reencoded with information different than how it came from the issuer right?" A: "That is correct.").
35. To enable a person to commit credit card theft/fraud, the original information on the back of a credit or debit card is replaced with the data taken from another person's card's magnetic strip, so that the card is still able to be processed by a card reader, but is processed to a person's account other than the cardholder identified on the front of the reencoded card. See Tr. at 73:14-74:16 (Gerson) (explaining that a person presents a credit card to a store clerk, then if the clerk asks for identification, the person will show his or her own license, which contains the same name as embossed on the front of the card, and then "the clerk would then run the credit card through a reader that sends the billing information off to the bank. The bank doesn't see what's on the front of the credit card nor what's [on] the driver's license," so it can charge the purchase to a person different from the cardholder named on the front of the card).
37. There is no evidence that any of the thirty-one credit and debit cards found in the Defendants' possession have been used. See Tr. at 43:10-15 (Samore) (noting that the factual allegations in the case are "that the credit cards were taken off the person of each gentleman and had never been used....")
38. The information obtained from the magnetic strips was later included in the Search Warrant Application to obtain a search warrant for the search of four cellular telephones and two laptop computers seized in the initial search of the rental vehicle. See Motion to Suppress at 2; MTS Response at 4-5; Search Warrant Application at 10.
39. The other items obtained in the search of the rental vehicle, along with descriptions where the items were found, were also included in the Search Warrant Application. See Search Warrant Application at 9.
40. The search was not necessary to protect the officer's safety or preserve evidence at the scene.
The Defendants move the Court for an order suppressing all evidence discovered as a result of the April 7, 2011, warrantless search of electronic information stored on the magnetic stripes on the thirty-one credit and debit cards seized from Oguntoyinbo's vehicle. See Motion to Suppress at 1; Agreed Order to Join in Defendant Oguntoyindo's [sic] Motion to Suppress at 1. In his motion, Oguntoyinbo asserts that the United States Secret Service agents' warrantless reading of magnetic stripes on the backs of credit and debit cards violated the Fourth Amendment's prohibition against unreasonable searches and seizures, and that the Court should suppress all the evidence derived from reading the magnetic stripes. See Motion to Suppress at 1.
Oguntoyinbo argues that he possessed an expectation of privacy in the information electronically stored on his credit cards' magnetic strips. See Motion to Suppress at 2. He asserts that Jonte violated his privacy rights by searching the magnetic strips on the backs of the cards with the card reader, contending that "[s]earching a credit card's magnetic strip is no different than searching any device that saves or stores digital data." Motion to Suppress at 2-3. He asserts that Jonte needed a search warrant to scan for this data, because the magnetic strips on the backs of credit and debit cards are capable of storing a person's most private and sensitive personal information, including, for example, a name, address, or social security number: "As an electronic repository for personal data, the Defendant clearly had a reasonable expectation of privacy in his credit cards and the information
Oguntoyinbo argues that Jonte's warrantless search is invalid and unconstitutional, as it cannot be justified by any exception to the warrant rule. See Motion to Suppress at 3. He asserts that the search-incident-to-arrest exception to the warrant requirement cannot justify the search, because the circumstances here clearly indicate that mining the data stored on the cards' magnetic strips cannot reasonably be said to be consistent with the "purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy." Motion to Suppress at 3 (quoting Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009)). Oguntoyinbo contends that, in light of this exception's purposes, the exception cannot justify the warrantless search of the data on the cards, because "the exception cannot be used to justify the warrantless search of personal property when that property is already in the exclusive control of the government because officer safety and destruction of evidence are no longer valid concerns at that point." Motion to Suppress at 4 (citing United States v. Rollins, 190 Fed.Appx. 739, 743 (10th Cir.2006) (unpublished)). Oguntoyinbo argues that there are two circumstances here that clearly preclude finding that scanning the magnetic strips on the back of the cards was a search incident to his arrest: (i) that the search was not contemporaneous, as it occurred over twenty-four hours after the cards had been taken into the government's possession; and (ii) unlike a cellular telephone or a pager, the information on a magnetic strip is relatively permanent, as it can only be altered by the intentional act of one with physical possession of the card. See Motion to Dismiss at 5. Oguntoyinbo thus asks the Court to find the search in which the United States scanned the information from the magnetic strips on the backs of the cards per se unreasonable and invalid, and suppress all evidence obtained as a result of the search. See Motion to Dismiss at 5.
On February 7, 2013, the United States filed the MTS Response, asking that the Court deny the Motion to Suppress. See Doc. 96. The United States asserts:
MTS Response at 5-6. The United States argues that reading the magnetic strips
The United States argues that, even if the government's reading the information from the cards' magnetic strips constitutes a search, Oguntoyinbo lacks standing to object to the search, because he had no reasonable expectation of privacy in the "thing or the place searched." MTS Response at 11. The United States contends that, to show standing, Oguntoyinbo must demonstrate that he had a subjective privacy in the area search and that his subjective expectation must be one that society is prepared to recognize as reasonable, and he can demonstrate neither. See MTS Response at 11 (citing United States v. Anderson, 154 F.3d 1225, 1229 (10th Cir. 1998)). First, it argues that Oguntoyinbo lacks a subjective expectation of privacy, because the magnetic strip's purpose is to be read by credit card processing readers, which is the act that the United States performed here. See MTS Response at 11 (citing, as a comparison, United States v. Bermudez, 2006 WL 3197181, at *13 (S.D.Ind. June 30, 2006)). Second, the United States contends that, regardless whether Oguntoyinbo had some subjective expectation of privacy, it is not one that society would recognize as reasonable, because, as the information contained in the magnetic strip — if unaltered — is the same as that on the front of the card, society would not recognize as reasonable an expectation of privacy in information that is publicly disclosed unless criminally altered. See MTS Response at 12 (citing United States v. Medina, 2009 WL 3669636, at **10-11). The United States also asserts that, because many cardholder agreements provide that the card remains the property
The United States takes issue with Oguntoyinbo's assertion "that `searching a credit card's magnetic strip is no different than searching any device that saves or stores digital data,'" MTS Response at 14 (quoting Motion to Suppress at 2-3), asserting: "This claim is factually incorrect.... `[T]he magnetic strip on the back of a credit card, unlike a hard drive or an external electronic storage device, is designed simply to record the same information that is embossed on the front of the card.'" MTS Response at 14 (quoting United States v. Medina, 2009 WL 3669636, at *10).
The United States argues that, if the Court determines that there was a search, and that Oguntoyinbo has standing to allege a Fourth Amendment violation, the Court should find that a warrant was not required, because the search was reasonable. See MTS Response at 15-16. According to the United States, the search was reasonable, because, on the one hand, the intrusion into a person's individual privacy in scanning the back of their card to glean information printed on the front is minimal, while, on the other hand, the government's legitimate interest in preventing and prosecuting credit card fraud is substantial. See MTS Response at 16. The United States additionally asserts that, although in this case there was likely enough information on which the United States could have obtained a warrant to scan the cards before doing so, in many cases,
MTS Response at 16.
The United States argues that, should the Court conclude that the scan of the cards was a search that violated Oguntoyinbo, although information obtained from the scan was used in the search warrant application, the Court should nevertheless find the search warrant sufficient without this information. See MTS Response at 17. The United States points out that, apart from the information obtained by the scanning the credit and debit cards, the state trooper, pursuant to the Defendants' consensual search of the vehicle, found in the car's trunk: "approximately 67 Wal-Mart cash cards valued at approximately $1650.00; approximately $5673.00 in cash; two laptop computers; and a bundle of paperwork which contained a list of approximately 500 names with birth dates, Social Security numbers, addresses, and telephone numbers." MTS Response at 17. It asserts that the application would have demonstrated probable cause without including the information gleaned from the cards' scans:
MTS Response at 18. The United States asserts that the Court should therefore deny the Motion to Suppress to the extent that it requests the Court to suppress any
The United States argues that the search warrant was obtained in good faith, as Vela had no reason to believe that scanning the credit and debit cards was a Fourth Amendment search, or that a warrant was necessary to perform the scan. See MTS Response at 18. It asserts: "His inclusion of this information in the warrant application was done in good faith, and his execution of the warrant was done in the honest belief that the warrant was duly issued upon a proper showing of probable cause." MTS Response at 18. The United States contends that, under the good-faith exception to the warrant requirement that the Supreme Court articulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), even if the Court finds that the search warrant stripped of the information gleaned from the cards' scans is insufficient for probable cause, the Court should not suppress the fruits of the warrant. See MTS Response at 19. According to the United States, the information gleaned from the cards' scan would have inevitably been discovered, because "[h]ad the government known that a warrant was required to conduct this examination, it would have included the cards among the items to be searched listed in the warrant application," and, because there was probable cause for the search warrant to issue without this information, the cards would have been scanned along with the search of the laptop and cellular telephones pursuant to the warrant. MTS Response at 19-20 (citing United States v. Morales-Ortiz, 376 F.Supp.2d 1131 (D.N.M.2004) (Browning, J.)). The United States argues that, if the Court were to conclude otherwise, the Court would violate the "reasoning behind [the inevitable-discovery] exception to the exclusionary rule ... [as] the exclusionary rule was never intended to place law enforcement officers and prosecutors in a worse position than they would have been had the unlawful search not occurred." MTS Response at 20. The United States thus asks the Court to find that the information is admissible under the inevitable-discovery doctrine's exception to the Fourth Amendment warrant requirement. See MTS Response at 20-21.
On February 22, 2013, Oguntoyinbo filed his Defendant Kehinde Oguntoyinbo's Reply in Support of Defendant's Motion to Suppress. See Doc. 105 ("MTS Reply"). Oguntoyinbo contends that he possessed an expectation of privacy in the information stored on the credit and debit cards that the United States searched, and that the warrantless search of those cards was "per se" unreasonable unless justified by an exception to the warrant requirement, none of which apply. MTS Reply at 1. He argues that he has standing to assert the Fourth Amendment violation, because he had a reasonable expectation of privacy "in the personal information electronically stored on the magnetic strips of his credit cards." MTS Reply at 1. Oguntoyinbo asserts that a person has a reasonable expectation of privacy "in an electronic repository for personal data," whether owned or borrowed, and his credit cards were an electronic repository for personal data. MTS Reply at 2 (quoting United States v. Morales-Ortiz, 376 F.Supp.2d at 1139). He contends that, regardless whether the credit and debit cards were his property or the issuing financial institution's property, he had a reasonable expectation that the "items would be free from governmental invasion...." MTS Reply at 3 (citing United States v. Chan, 830 F.Supp. 531, 534-35 (N.D.Cal.1993)). According to Oguntoyinbo, society recognizes this privacy interest in the information stored
Oguntoyinbo argues that the high-tech process used to scan the information in the magnetic strip on the back of the cards constitutes a search for Fourth Amendment purposes, and the Court should reject the United States' argument it is not, because it flies in the face of established law. See MTS Reply at 4. He contends:
MTS Reply at 4 (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Oguntoyinbo asserts that the case law that the United States cites in support of its contention that the government does not need a search warrant to examine physical objects when those objects are legally in its possession are inapposite, as they are based on the courts' holdings that "a second warrant" is not required to examine objects already obtained via a first search warrant. MTS Reply at 4-5 & n. 3 (quoting United States v. Snyder, 852 F.2d at 474; State v. Petrone, 161 Wis.2d 530, 468 N.W.2d 676, 681 (1991); People v. Patterson, 217 Ill.2d 407, 299 Ill.Dec. 157, 841 N.E.2d 889, 908 (2005)). He argues that, to equate the hightech scan of a card's magnetic strip to obtain personal information with conducting a blood test or developing a film roll "ignores the realities of electronic storage and the quantity and variety of information that can be stored on such devices." MTS Reply at 5. He points out that "[t]he Tenth Circuit has explicitly addressed concerns with oversimplifying the connection between electronically stored information and other physical objects when applying the Fourth Amendment." MTS Reply at 5-6 (citing United States v. Carey, 172 F.3d 1268, 1275 (10th Cir.1999); United States v. Walser, 275 F.3d 981, 986 (10th Cir.2001)). Oguntoyinbo argues that Kyllo v. United States, rather than supporting a finding that there was not an unreasonable search, supports a finding that the United States' scan of the cards here was an unreasonable search, because "an electronic repository for personal information is more akin to a virtual warehouse of private information." MTS Reply at 6. He asserts that, whereas the Supreme Court in Kyllo v. United States was concerned with technology breaking the barrier between a person's serious privacy interest in the contents of their home, so here, according to Oguntoyinbo, scanning the personal information contained within the cards' magnetic strips uses technology to invade otherwise very personal private information. See MTS Reply at 6.
Oguntoyinbo argues that no exception to the general rule requiring a warrant justifies the warrantless search of the credit and debit cards, and the search is invalid. See MTS Reply at 7. He reasserts that the search does not fit within the search-incident-to-arrest warrant exception, because the United States cannot reasonably contend
Oguntoyinbo next argues that the United States failed to satisfy the inevitable discovery doctrine's requirements to allow for the evidence's admission. See MTS Reply at 10. Oguntoyinbo contends that the United States must show that the evidence would have been lawfully discovered and that the lawful means to discover the evidence were being actively pursued before the illegal conduct occurred. See MTS Reply at 10 (citing United States v. Souza, 223 F.3d 1197, 1199 (10th Cir. 2000)). He asserts:
MTS Reply at 10 (quoting United States v. Cunningham, 413 F.3d 1199, 1203-04 (10th Cir.2005)). According to Oguntoyinbo, the United States' contention that, if it would have known it needed a warrant to scan the cards, it would have gotten a warrant, is inapposite. He asserts that the United States cannot meet its burden to show inevitable discovery, because it is uncontested that the government did not seek a warrant for the information stored on the cards' magnetic strips before it searched them, and thus cannot show that it was pursuing lawful means to obtain the evidence at the time it unlawfully discovered information. See MTS Reply at 11. Oguntoyinbo thus asserts: "The Defendant's Fourth Amendment rights were violated by the government when it initiated a warrantless search of the Defendant's personal data stored on the magnetic strips of each of his credit/debit cards. Consequently, all evidence obtained as a result of the illegal search must be suppressed." MTS Reply at 11.
At the hearing on the Motion to Suppress, Oguntoyinbo asserted that "[t]he Government within the standing argument gets bogged down on the fact ... [that the magnetic strip on a credit card] only contains the information that you can see with your eyes on the front of the credit card." Tr. at 28:16-20 (Kochersberger). His position, he stated, "is that the ... magnetic strip on the credit card is no different than any other form electronic storage media,
Oguntoyinbo asserted that the storage medium is not the important issue on which to focus, but rather the law draws a distinction at the user's intention in storing the information: once a person electronically stores information on electronic storage media, that person has a reasonable expectation of privacy in that storage medium. See Tr. at 34:15-35:7 (Kochersberger). The Court asked whether the rule for which Oguntoyinbo is advocating makes the situation analogous to implementing a rule that, as long as a person
Tr. at 39:16-24 (Kochersberger). The Court asked whether Fourth Amendment law distinguishes between different third-parties — whether a person can have a reasonable expectation of privacy only from the government, but not from other persons. See Tr. at 39:25-40:11 (Court). Oguntoyinbo responded only that the Court should consider the extent of the disclosure of information, noting that there is a different expectation of privacy in a credit card in one's wallet when compared with a credit card that someone may have posted to the internet for viewing by anyone that might wish to view the information. See Tr. at 40:12-22 (Kochersberger). Oguntoyinbo asserted that the scope of a person's disclosure of information in which the person holds a reasonable expectation of privacy is important to analyzing the scope of the expectation of privacy. See Tr. at 40:19-41:5 (Kochersberger).
In response to the Court's question whether he had anything else to add to the standing argument, Oguntoyinbo responded that, whereas he believes the United States is arguing that a person does not have a reasonable expectation of privacy in a credit card's account number, he is arguing that a person has a reasonable expectation of privacy in electronically stored information contained on an electronic storage medium, including the magnetic strip on a card. See Tr. at 41:15-41:24 (Kochersberger). He added that a person's reasonable expectation of privacy does not change if the property in which the electronic information is stored is borrowed. See Tr. at 41:25-42:9 (Kochersberger). He asserted that, although a credit or debit card's magnetic strip typically does not hold personal information, it can,
Alabi added that he agrees with all of the points that Oguntoyinbo raised and believes that it is important the cards had not ever been used before the police seized them. See Tr. at 43:10-14 (Samore). He asserted that, even if the Court finds that a person does not have a reasonable expectation of privacy in the information stored on a credit or debit card's magnetic strip, because this information is disclosed as soon as a card is used, it makes even more important that the cards in this case had never been used, as it shows that the Defendants had not disclosed the information stored on the cards. See Tr. at 43:14-20 (Samore).
The Court asked the United States whether it saw a weakness in its argument that the Defendants lack standing to allege a Fourth Amendment violation, given that it was the third argument in its brief rather than the first. See Tr. at 45:1-6 (Court). The United States asserted that it does not believe that there is a weakness in its standing argument, but rather "prefer[s] that the court rule ... [that] this was not a search at all and therefore we don't even need to get into the elements of standing under the Fourth Amendment." Tr. at 45:7-11 (Gerson). The United States asserted that, Oguntoyinbo, in contending that he had a reasonable expectation of privacy in the information contained in the cards' magnetic strips, conflates the two elements necessary for a reasonable expectation of privacy elements into one element. See Tr. at 46:4-7 (Gerson). It argued: "It may be that some criminal who [reencodes] a credit card may personally have a subjective expectation that the criminally derived [information] that he's encoded into a card is confidential." Tr. at 46:7-11 (Gerson). The United States asserted that the Court should conclude that society would not recognize as reasonable an expectation of privacy of information stored in a manner that is used by and benefits only criminals. See Tr. at 46:11-16 (Gerson). It argued that the "whole point of having a credit card is to make use of it for financial transactions, and the only way that these credit cards get used nowadays... is for the card to get fed[] through a card reader for the purposes of facilitating whatever the financial transaction may be." Tr. at 46:17-23 (Gerson). The United States submitted that, because consumers widely use credit and debit cards, and because the information contained on the cards' magnetic strips is disclosed to the stores automatically each time they use them, society would not recognize as reasonable an expectation in such information's privacy. See Tr. at 47:24-48:5 (Gerson). According to the United States, the danger that a person may accidently use a card on which he or she stores his or her personal information, thus disclosing such sensitive information, shows the reality that the only people interested in changing the information contained on a card's magnetic strip are criminals who intend to use that information for fraudulent and criminal purposes. See Tr. at 48:6-11 (Gerson). The United States added that a card's magnetic strip is not a device that the Court should find is subject to privacy expectations, as it is, realistically, not at all similar to a USB drive, a CD-ROM, a DVD, a cellular telephone, or a laptop computer.
The Court asked whether it should draw the line at a card that appears to be issued by a financial institution, given that it has read about the ability to store medical records on a similar cards. See Tr. at 52:8-16 (Court). The United States responded that the card appearing to be one issued by a financial institution is a "critically important factor." Tr. at 52:17-18 (Gerson). It stated that, while a person has no reasonable expectation of privacy in the information contained on a credit or debit card, the Court should not foreclose the ability to maintain an expectation of privacy in the magnetic strips on all cards, as such a rule may encompass cards such as medical cards on which storage of information which society recognizes as reasonably private may prove beneficial and be widely used in the future. See Tr. at 52:18-53:2 (Gerson). The United States also pointed out that medical records stored on cards' magnetic strips are not accessible by the government using the Model 5607 Card Reader/Verifier, which was used in this case and is used by law enforcement generally, as it is only capable of reading information from credit and debit cards and driver's licenses. See 53:2-11 (Gerson).
Oguntoyinbo responded that, while he agrees that the information which may be stored on the magnetic strip is limited, he disagrees that it is necessarily limited to only the same information that would be present on credit and debit cards and licenses. See Tr. at 54:22-55:1 (Kochersberger). He asserted that, if the cards at
Tr. at 55:23-56:8 (Kochersberger). Oguntoyinbo argued, rather, that what is determinative for purposes whether society will recognize as reasonable an expectation of privacy in information stored on electronic storage media is whether the person to whom the information belongs gives out that private information. See Tr. at 56:9-15 (Kochersberger). He asserted:
Tr. at 56:25-57:5 (Kochersberger).
In regards to whether the scanning of the cards' information was a search, Oguntoyinbo first asserted that he adamantly disagrees with the United States' position that the cards were ever lawfully in the United States' possession. See Tr. at 57:21-58:12 (Kochersberger). He argued that the United States cannot prove that they searched the credit and debit cards' strips as a search incident to arrest or as an inventory search. See Tr. at 58:13-59:4 (Kochersberger). The Court asked whether Oguntoyinbo was now arguing that the United States did not constitutionally come to possess the cards in the first place, noting the Court's belief was that he was contesting only the search of the cards' magnetic strips in this motion, and not the possession of the cards. See Tr. at 59:5-14 (Court). Oguntoyinbo responded that the Court is correct, and he is arguing only that the search of the magnetic strips was unconstitutional, but contended that how the United States possessed the cards is important, because of the difference between a hypothetical in which the government swipes a DWI-arrestee's credit cards as part of an inventory search, and the situation here, in which swiping the cards was part of the investigation into Oguntoyinbo's alleged crime.
The United States responded to Oguntoyinbo's argument whether the information scan was a search by pointing out that it does not argue the scan was a search incident to arrest or that it was an inventory search. See Tr. at 68:22-69:5 (Gerson, Court). It noted that its argument is that the cards came lawfully into the United States' possession and that the scan was not a search once they were lawfully in its possession. See Tr. at 69:5-9 (Gerson). The Court asked how the scan of the magnetic strip is different from a hypothetical situation in which the government lawfully possesses a person's backpack, which is closed, and then unzips the bag, searches through it and finds marijuana in the bag. See Tr. at 69:10-16 (Court). The United States responded by contending that the card scan was similar to a government examination of a backpack's exterior, which is not a search. See Tr. at 69:25-70:10 (Gerson). The United States likened the card scan to a situation in which the government arrests a person on suspicion of counterfeiting money, and then later holds the money under ultraviolet light, which it contends would not constitute a search. See Tr. at 70:16-71:3 (Gerson). The United States asserted:
Tr. at 71:21-72:6 (Gerson).
Oguntoyinbo responded by noting that it is always a search "when you get down to the level of searching the information that is contained electronically on some storage media." Tr. at 76:24-77:2 (Kochersberger). He asserted: "The issue is that the new search that's being done is examining the information that was intentionally place[d] ... on the storage medium ... [P]hyscial examinations even aided by technology is different than searching the information that's contained." Tr. at 77:8-16 (Kochersberger).
In regard to the United States' position that, even if it was a search, it does not violate the Fourth Amendment, because it was a reasonable one, Oguntoyinbo argued that the United States' arguments do not have a sound basis in the law. He asserted that, to the extent that the United States relies on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny, those cases are inapposite to the further search of the information stored on the cards. See Tr. at 78:3-13 (Kochersberger). He stated that the United States' argument that it would present a great burden to investigators of credit card crimes if they could not scan cards without probable cause also is irrelevant for Fourth Amendment reasonableness purposes. See Tr. at 78:14-25 (Kochersberger). He asserted:
Tr. at 78:18-79:3 (Kochersberger). He contended that the proper approach to take is that the consensual search in which the law enforcement officers obtained the cards was one search, and the search of the data stored in those containers, the search of the cards' magnetic strips, "is a separate search from the search and seizure of the card itself." Tr. at 79:6-14 (Kochersberger). He asserted that the United States' approach that the scan of the cards did not constitute a search after the cards were lawfully in their possession is analogous to concluding that, once law enforcement officers lawfully obtain a person's computer, they can then search through the computer without a warrant. See Tr. at 79:15-20 (Kochersberger). According to Oguntoyinbo, the government cannot search a computer in its possession without obtaining a warrant to do so. See Tr. at 79:21-25 (Kochersberger). He asserted that the same reasoning would extend to the medical cards to which the Court referred earlier: once in the government's possession, the government would need a warrant to search the information inside. See Tr. at 80:25-81:5 (Kochersberger).
The Court asked what problem is presented by drawing the constitutional line at credit and debit cards, crafting a rule that says the police do not need a warrant to swipe such commercial cards and ensure that the information on the exterior of the card, in plain view once the card is otherwise lawfully obtained by law enforcement, is contained in the magnetic strip as it should be. See Tr. at 81:6-12 (Court). Oguntoyinbo responded that, although courts often draw bright-line rules, such a rule for credit and debit cards "seems to be a sort of artificial distinction .... dealing with the appearance of the container as opposed to the content and how it was placed there." Tr. at 81:13-18 (Kochersberger). He noted that crafting such a rule is the same thing as saying that a person can never have a reasonable expectation in the information stored on a magnetic strip on something that appears to be a credit card. See Tr. at 81:18-21 (Kochersberger). The Court asked whether that rule would be effectuating the purpose underlying the reasonable-expectation-of-privacy analysis; although somewhat circular, "if a court says there's no expectation of privacy the only people that are going to put information there are going to be people engaging [in] nefarious conduct. If the[] [court says] there is a[] reasonable [expectation of privacy] you might put [War and Peace] on there." Tr. at 81:22-82:2 (Court). The Court asked: "[I]f you've got three billion cards out there and three billion people are using them for commercial purposes, should you be fashioning then some sort of rule for the small group of people that want to take a commercial instrument and recode it for privacy purposes?" Tr. at 82:6-10 (Court). Oguntoyinbo responded that he believes such line-drawing is a narrow view of the Fourth Amendment, and that the automobile exception has presented problems and people often find "strained somewhat in the way it's gone so far...." Tr. at 82:11-16 (Kochersberger). He noted that he does not "think drawing a line
The United States retorted that drawing a line at commercial credit and debit cards is an appropriate line, as the way in which people so frequently use the cards, and the reality that the only people who change the information stored in the magnetic strips on the back of the cards are criminals, supports such constitutional line-drawing. To craft such a narrow distinction stops at the beginning any sort of slippery-slope or parade-of-horribles arguments that may be made, as the rule stops where it begins: at credit and debit cards that necessarily have the same information stored electronically as is in plain view on the outside of the card. See Tr. at 84:3-10 (Gerson). The United States argued, similarly, the limited nature of the intrusion on a person's privacy, the mere checking to see if information in the magnetic strip is the same as that on the front of the card, shows that the search is reasonable — which is the Fourth Amendment's touchstone. See Tr. at 85:3-15 (Gerson). The Court asked, even if, as the United States asserts, the search was reasonable, why the government did not get a warrant to search the cards along with the cellular telephones and laptops, as it had the cards in its possession and contends that it had probable cause without the information gleaned from the cards. See Tr. at 86:17-87:6 (Court, Gerson). The United States stated that it could have included the cards on the search warrant, but declined to do so, because "there [is] ... no basis in law, or at least there hasn't been until today, that says that we need to do that and because it is ... inconsistent with the nationwide practice of secret service and of law enforcement...." Tr. at 87:8-19 (Gerson).
In response to the United States' argument about the reasonableness of the search, Alabi responded that he believes the Court should heed the danger of a narrow-minded decision that is based on the technology only as it exists presently, and in front of the court is an issue about the practices of the United States Secret Service generally in searching these cards without a warrant, and that issue "shouldn't be decided by the limitations on the technology." Tr. at 90:9-22 (Samore). Oguntoyinbo responded:
Tr. at 91:5-11 (Kochersberger). He noted his surprise with the general scarcity of case law analyzing similar issues, but asserted that care should be taken when analogizing electronically stored information to information found within physical objects, such as backpacks or cars, which may lawfully come into the government's possession, because the nature of electronically stored information is fundamentally different.
With respect to whether there was probable cause for the warrant to issue without the information gleaned from scanning the credit and debit cards, Oguntoyinbo noted that he is not willing to concede that there was probable cause without the information, but that he does not believe it was analyzed fully on either side of the briefing in this motion. See Tr. at 92:23-93:3 (Kochersberger). He noted that it is his preference to bifurcate the issues and, if the Court concludes that the information from
With regard to the officers' good-faith reliance on the search warrant, Oguntoyinbo stated: "I don't think we dispute that they needed a warrant for the credit cards, but I don't think that that makes it good faith." Tr. at 96:10-14 (Kochersberger). He asserted that neither the good-faith exception nor the inevitable-discovery doctrine exception applies, because the government did not ever ask for a warrant to issue on the information stored on the credit cards. See Tr. at 96:10-22 (Kochersberger). The Court noted that the parties appear to have approximately six arguments, and, after further noting that the Supreme Court has recently provided district courts some liberty in deciding in which order to tackle issues in a Fourth-Amendment analysis, the Court asked the United States whether it had a preference for the order of the Court's analysis. See Tr. at 97:1-9 (Court). The United States asked that the Court analyze whether Oguntoyinbo has standing for Fourth Amendment purposes first, and then whether the scan was a search, but then has no preference after those issues. See Tr. at 97:10-14 (Gerson). The United States argued that, even if the affidavit was insufficient to support probable cause for the warrant to search the laptop computers and cellular telephones, the government's agents had no reason to believe that the warrant was insufficient. See Tr. at 100:23-101:11 (Gerson). With regard to inevitable discovery, the United States argued that, if there was any basis in law to think that the credit cards should have been included in the search warrant, the government would have included them. It argued that, to exclude the credit cards as not coming under the inevitable-discovery doctrine because the Court now, as a matter of first impression, concludes that a warrant is required to scan the backs of credit and debit cards flies in the face of the purposes behind the inevitable-discovery doctrine, and the Court should thus not so conclude. See Tr. at 101:12-102:10 (Gerson, Court). Alabi pointed out that, taken outside the limited context of credit cards, to allow inevitable discovery to cover the acts of a government agent that searches without a warrant an electronic storage medium in the sole possession of a person, not ever used to disclose the electronically stored information on the card, would create a dangerous precedent in the context of today's fast-expanding electronic world. See Tr. at 103:8-104:10 (Sagone). Oguntoyinbo asserted that the United States misstates the purposes underlying the inevitable-discovery doctrine, contending instead that its purpose is not to exclude evidence that the government has probable cause to obtain, and has begun to pursue a search warrant to obtain, because the government accidentally happened to stumble upon the evidence in good faith before the search warrant could issue. See Tr. at 104:23-105:5 (Kochersberger). The Court noted that it used to agree with
The Court then asked, were the Court to articulate a rule that, if the medium is a card which appears to be a credit and debit card that a financial institution has issued, then there is no reasonable expectation of privacy, whether the United States still would argue that it was not a search, because such a rule would appear to implicitly recognize it is a search, as the government faced with a card labeled "medical information" would not then be able to scan the information from such a card without a warrant. Tr. at 97:18-98:10 (Court, Gerson). The United States responded:
Tr. at 98:11-20 (Gerson).
On February 27, 2013, Alabi filed his Unopposed Motion to Join in Defendant Oguntoyindo's [sic] Motion to Suppress, which the Court granted on March 4, 2013. See Agreed order to Join in Defendant Oguntoyindo's [sic] Motion to Suppress at 1. On March 8, 2013, Oguntoyinbo filed Defendant Kehinde Oguntoyinbo's Supplemental Brief in Support of Motion to Suppress. See Doc. 112 ("MTS Supp."). Oguntoyinbo argues that the inadmissible evidence that the United States obtained in scanning the backs of his credit and debit cards cannot be admitted under the inevitable-discovery doctrine, because "there is simply no evidence that an independent investigation, unrelated to the illegal search, would have led to the lawful discovery of the evidence." MTS Supp. at 1. He asserts that "[t]he illegal search of Mr. Oguntoyinbo's credit cards tainted the only ongoing investigation of the Defendant; therefore the inevitable discovery exception cannot apply." MTS Supp. at 3. He contends that a prerequisite for the inevitable-discovery doctrine's application is the existence of an investigation independent of the investigation in which the evidence was seized unconstitutionally. See MTS Supp. at 3-4. He asserts that the credit and debit card information should thus be excluded as the only investigation ongoing at the time was the one that the arresting officers conducted, in which they obtained the cards, and their failure to get a search warrant for the cards irrevocably taints the evidence derived from the unlawful search of the electronically stored information in the cards. See MTS Supp. at 5.
Oguntoyinbo points out that the Tenth Circuit has stated that it is "very reluctant to apply the inevitable discovery exception in situations where the government fails to obtain a search warrant and no exception to the warrant requirement exists." MTS Supp. at 5-6 (quoting United States v. Souza, 223 F.3d 1197, 1206 (10th Cir. 2000)). He asserts that the Tenth Circuit, in United States v. Souza, set forth the following four-factor test to guide courts in determining whether a warrant would have been issued that would have inevitably led to the discovery of the evidence in question:
MTS Supp. at 6 (quoting United States v. Souza, 223 F.3d at 1204). Oguntoyinbo argues that, under this analysis, the United State cannot meet its burden to demonstrate that it possessed the overwhelming or extremely strong probable cause that would have made obtaining a warrant a certainty. See MTS Supp. at 8. He asserts that the United States' "sole argument for the application of the inevitable discovery exception is[,] had it known a warrant was required, it would have got one. The Government's logic is flawed." MTS Supp. at 8. He contends that the flaw in the argument is that the United States, even with the information obtained from the consensual search of the vehicle, had no basis on which to assert that probable cause existed to scan the credit and debit cards in Oguntoyinbo's or Alabi's names. See MTS Supp. at 8. According to Oguntoyinbo, because there is insufficient probable cause for a warrant to issue on these cards, all information obtained from the cards is inadmissible under the exclusionary rule, as the inevitable discovery doctrine cannot apply. See MTS Supp. at 9-10.
On March 13, 2013, the United States filed the Government's Supplemental Memorandum in Opposition to Defendant Oguntoyinbo's Motion to Suppress. See Doc. 114 ("Supp. Resp."). The United States asserts that "[t]he Tenth Circuit has held that the independent, lawful police investigation does not have to be ongoing at the time of the unlawful search for the inevitable discovery doctrine to apply." Supp. Resp. at 3 (citing United States v. Larsen, 127 F.3d 984, 987 (10th Cir.1997)). It contends that "[t]he Tenth Circuit has held expressly that `it is possible for an investigation that begins after the violation to be independent of the illegal investigation.'" Supp. Resp. at 3 (quoting United States v. Larsen, 127 F.3d at 987). The United States argues that three of the four factors in United States v. Souza to which Oguntoyinbo cites support the inevitable-discovery doctrine's application to this case. See Supp. Resp. at 4. It asserts that the extent to which the warrant process had been completed at the time is the only factor not weighing heavily in favor of the exception's application in the case, although it should, because the only reason the agents read the magnetic strips before applying for the warrant was that they did not believe they needed a warrant under the law, and because the agents applied for the warrant the next day. See Supp. Resp. at 5. The United States also contends that the strength of the probable cause at the time supports applying the inevitable-discovery doctrine to the case, because the United States had probable cause without the information gleaned from the cards, and would have included the cards on the warrant if it knew the law so required. See Supp. Resp. at 5-7. The third factor that the United States contends weighs in its favor on the inevitable discovery application is whether a warrant was ultimately obtained, as a warrant was obtained here and, in light of the substantial evidence of identity theft found in the vehicle independent of the information on the cards' magnetic strips, the warrant would have issued without the cards' information. See Supp. Resp. at 7-8. According to the United States, the factor analyzing whether police jumped the gun, because they
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. It also commands that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. In determining whether a Fourth Amendment violation has occurred, courts must "assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 950, 181 L.Ed.2d 911 (2012) (Scalia, J.) (alteration in original) (quoting Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (Scalia, J.)).
"Not all searches require a warrant. The hallmark of the Fourth Amendment is reasonableness." United States v. Harmon, 785 F.Supp.2d 1146, 1157 (D.N.M. 2011) (Browning, J.). See United States v. McHugh, 639 F.3d 1250, 1260 (10th Cir. 2011) ("[T]he ultimate touchstone of the Fourth Amendment is `reasonableness.'") (quoting Brigham City, Utah v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)). "In the criminal context, reasonableness usually requires a showing of probable cause." Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d 1174, 1184 (D.N.M.2011) (Browning, J.) (quoting Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 828, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002)). The Supreme Court has stated in the law enforcement context that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. at 357, 88 S.Ct. 507 (footnotes omitted).
The defendant in United States v. Jones was suspected of drug trafficking, and a joint Federal Bureau of Investigation and District of Columbia Metropolitan Police Department task force obtained a warrant authorizing installation, within ten days, of a Global Positioning System device in Washington, D.C. See 132 S.Ct. at 948. On the eleventh day, task force agents attached the GPS device to the bottom of the defendant's car while the car was in Maryland. The agents then used the GPS device to track the defendant's movements over the next twenty-eight days, replacing the battery once, and collecting over two-thousand pages of data sent from the device. See 132 S.Ct. at 948.
The Honorable Antonin G. Scalia, Associate Justice for the Supreme Court, writing for the majority, in which Chief Justice Roberts, and Justices Kennedy, Thomas, and Sotomayor joined, held that "the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a `search.'" United States v. Jones, 132 S.Ct. at 949. Justice Scalia reasoned
Justice Scalia reasoned that the Fourth Amendment's text supports taking a property-law based approach to determine whether there was a search, but did not shy away from the fact that, in recent history, the Supreme Court had deviated from this approach:
United States v. Jones, 132 S.Ct. at 949-50.
The United States had contended that, under the "Harlan standard" — i.e., the Katz v. United States reasonable-expectation-of-privacy approach — "no search occurred here, since Jones had `no reasonable expectation of privacy' in the area of the Jeep accessed by the Government agents (its underbody) and in the locations of the jeep on the public roads, which were visible to all." United States v. Jones, 132 S.Ct. at 950. Justice Scalia concluded, however, that the Supreme Court "need not address the Government's contentions" in relation to the Katz v. United States reasonable-expectation-of-privacy test analysis. 132 S.Ct. at 950. Justice Scalia explained that the Supreme Court need not address those contentions, because the trespass-based search approach, which existed at the time of the Fourth Amendment's adoption, disposes of the issue:
United States v. Jones, 132 S.Ct. at 950-51 (internal footnotes omitted).
In her concurrence, Justice Sotomayor agreed that "the trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case." United States v. Jones, 132 S.Ct. at 955 (Sotomayor, J., concurring). She continued:
United States v. Jones, 132 S.Ct. at 954-55 (Sotomayor, J., concurring). Justice Sotomayor's concurrence focused on the reality, in her view, that,
132 S.Ct. at 955 (Sotomayor, J., concurring) (quoting the majority opinion, 132 S.Ct. at 953).
The Honorable Samuel A. Alito, joined by Justices Ginsburg, Breyer, and Kagan, concurred in the judgment only, reasoning that, although they agree with the result, given the use of twenty-first century technology, he would have analyzed whether the government's long-term monitoring of the defendant violated the Katz v. United States reasonable-expectation-of-privacy test:
United States v. Jones, 132 S.Ct. at 957-58 (Alito, J., concurring in the judgment). Justice Alito first takes issue with the majority's "questionable proposition that the[] two procedures [of attaching and using a GPS device] cannot be separated for Fourth amendment purposes." 132 S.Ct. at 958. Justice Alito submitted that, "[i]f these two procedures are analyzed separately, it is not at all clear from the Court's opinion why either should be regarded as a search." 132 S.Ct. at 958.
Justice Alito contended that the majority's opinion suggests that "the concept of a search, as originally understood comprehended any technical trespass that led to the gathering of evidence," but noted his disagreement, stating: "[W]e know this is incorrect." 132 S.Ct. at 958. Justice Alito pointed out that the open-fields doctrine grew out the distinction between a physical intrusion of property: "At common law, any unauthorized intrusion on private property was actionable, but a trespass on open fields ... does not fall within the scope of the Fourth Amendment because private property outside the curtilage is not part of a `hous[e]' within the meaning of the Fourth Amendment." United States v. Jones, 132 S.Ct. at 958-959 (Alito, J., concurring in the judgment) (quoting Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)).
Justice Alito asserted that the trespass-based approach that the majority uses was "repeatedly criticized" and ultimately "repudiated," based largely on its incompatibility with cases involving wiretapping and eavesdropping surveillance cases. United States v. Jones, 132 S.Ct. at 959, 960 (Alito, J., concurring in the judgment). Justice Alito contended that "the majority is hard pressed to find support in post-Katz cases for its trespassed-based" decision that the trespass committed when the government trespassed on the defendant's effects by attaching the GPS devise to the jeep constituted a Fourth Amendment search. 132 S.Ct. at 960-61. Justice Alito pointed to multiple problems which he believes the majority's trespass-based approach creates. First, he asserted that the majority's analysis is irreconcilable with the government's conduct that he contends society would find offensive the GPS-monitoring, rather than the attachment of the device. If the government could follow a car without physically trespassing on a person, home, paper, or effect, such as remotely monitoring a car via an internal GPS device, this monitoring would not constitute a Fourth Amendment search under the majority's analysis. See 132 S.Ct. at 961. Second, along the same lines, Justice Alito pointed out an "incongruous result[]" from the majority's opinion that a short-term tracking of a vehicle with a GPS device, merely tracking a vehicle down a single street, is a Fourth Amendment search, while, "if the police follow the same car for a much longer period using unmarked cars
In Florida v. Jardines, Justice Scalia, writing for the majority once again, held that using a drug-sniffing dog to sniff a person's "home and its immediate surroundings" is a search for Fourth Amendment purposes. 133 S.Ct. at 1417-18. Justices Thomas, Ginsburg, Sotomayor, and Kagan joined Justice Scalia's majority opinion in Florida v. Jardines. Justice Kagan filed a separate concurring opinion, in which Justices Ginsburg and Sotomayor joined, adding "further thoughts, suggesting that a focus on Jardines' privacy interests would make `an easy cas[e] easy' twice over," but noting: "I join the Court's opinion in full." 133 S.Ct. at 1420 (Kagan, J., concurring). Justice Alito dissented, and Chief Justice Roberts, Justice Kennedy, and Justice Breyer joined his opinion.
In Florida v. Jardines, based on a tip that the defendant, Jardines, was growing marijuana in his home, the Miami-Dade police department and the Drug Enforcement Administration sent a surveillance team to Jardines' home. Observing nothing of note in the first fifteen minutes watching the home, two detectives approached the home accompanied by a canine trained to detect marijuana, cocaine, heroin, and several other drugs by alerting the detectives with behavioral changes. As the dog approached Jardines' front porch, the dog "apparently sensed one of the odors he had been trained to detect," and after tracking back and forth, sat at the base of the front door, "which is the trained behavior upon discovering the odor's strongest point." 133 S.Ct. at 1413. The dog's handler then immediately left the porch, and told the other agents and officers at the scene that the dog had alerted to drugs, at which time the officers applied for and received a search warrant for the residence, the execution of which revealed marijuana plants. Jardines was arrested for trafficking in marijuana and moved to suppress the evidence based on an illegal search. See 133 S.Ct. at 1413.
Justice Scalia held that the use of a drug-sniffing dog was a Fourth Amendment search, reasoning:
Florida v. Jardines, 133 S.Ct. at 1414. The Supreme Court noted that "[t]he Fourth Amendment `indicates with some precision the places and things encompassed by its protections': persons, houses, papers, and effects." 133 S.Ct. at 1414 (quoting Oliver v. United States, 466 U.S. at 176, 104 S.Ct. 1735). Thus, the Fourth Amendment does not cover every "investigation[] on private property; for example, an officer may (subject to Katz) gather information in what we have called `open fields' — even if those fields are privately owned — because such fields are not enumerated in the Amendment's text." 133 S.Ct. at 1414.
The Supreme Court held that "the officers' investigation took place in a constitutionally protected area," the home, as the front porch is the home's curtilage. See
Florida v. Jardines, 133 S.Ct. at 1415. Justice Scalia noted that, while society recognizes an implicit license which "typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave," he concluded that "introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that." 133 S.Ct. at 1415-16 (emphasis in original). Justice Scalia explained:
133 S.Ct. at 1416.
The State of Florida argued "that investigation by a forensic narcotics dog by definition cannot implicate any legitimate privacy interest." 133 S.Ct. at 1417. Florida cited to United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), and Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), "which held, respectively, that canine inspection of luggage in an airport, chemical testing of a substance that had fallen from a parcel in transit, and canine inspection of an automobile during a lawful traffic stop, do not violate the `reasonable expectation of privacy' described in Katz." 133 S.Ct. at 1417. Justice Scalia pointed out that, in United States v. Jones, the Supreme Court had already concluded that "[t]he Katz reasonable-expectations test `has been added to,
Florida v. Jardines, 133 S.Ct. at 1417.
The Honorable Elena Kagan, Associate Justice for the Supreme Court, wrote a concurring opinion, noting: "The Court today treats this case under a property rubric; I write separately to note that I could just as happily have decided it by looking to Jardines' privacy interests." Florida v. Jardines, 133 S.Ct. at 1418 (Kagan, J., concurring). Justice Kagan analogized the government's conduct in using a drug-sniffing door on Jardines' porch to a stranger coming to your front door, who "doesn't knock or say hello," but instead, peers through the windows "into your home's furthest corners" with "super-high-powered binoculars," and "in just a couple of minutes, his uncommon behavior allows him to learn details of your life you disclose to no one." 133 S.Ct. at 1418 (Kagan, J., concurring). This conduct, she posited, is a trespass which exceeds any implied license, is also an invasion of reasonable expectations of privacy, and "is this case [Florida v. Jardines] in every way that matters. Here, police officers came to Joelis Jardines' door with a super-sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted. The equipment they used was animal, not mineral [which is of no significance]." 133 S.Ct. at 1418 (Kagan, J., concurring). According to Justice Kagan, had she written the majority opinion based on the Katz v. United States reasonable-expectations-of-privacy search test:
Florida v. Jardines, 133 S.Ct. 1409, 1418-19 (Kagan, J., concurring).
Justice Alito, joined in his opinion by Chief Justice Roberts, and Justices Kennedy and Breyer, dissented. He submitted that "[t]he Court's decision in this important Fourth Amendment case is based
Florida v. Jardines, 133 S.Ct. at 1421 (Alito, J., dissenting).
Justice Alito contended that the majority's opinion that the detective "exceeded the boundaries of the license to approach the house that is recognized by the law of trespass, ... is unfounded." 133 S.Ct. at 1421 (Alito, J., dissenting). Justice Alito pointed out that the law of trespass does not distinguish between visitors or reasons for the visit in granting an implied license to approach a house's front door. See 133 S.Ct. at 1421-22 (Alito, J., dissenting). He also asserted: "As I understand the law of trespass and the scope of the implied license, a visitor who adheres to these limitations is not necessarily required to ring the doorbell, knock on the door, or attempt to speak with an occupant," and uses mail carriers as an example of such a visitor. 133 S.Ct. at 1423 (Alito, J., dissenting). Justice Alito pointed out that the implied license also applies to law enforcement, and cites to Kentucky v. King, ___ U.S. ___, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011), in which the Supreme Court held that law enforcement officers approaching the front door of a residence to conduct a "knock and talk" is not a Fourth Amendment search. Florida v. Jardines, 133 S.Ct. at 1423 (Alito J., concurring). Given that "Detective Bartelt did not exceed the scope of the license to approach respondent's front door," Alito took issue with the majority's conclusion "that Detective Bartelt went too far because he had the `objectiv[e] ... purpose to conduct a search.'" 133 S.Ct. at 1423 (Alito, J., dissenting) (emphasis in original). According to Justice Alito, because approaching a house to conduct a knock and talk is not a search,
Florida v. Jardines, 133 S.Ct. at 1424 (Alito, J., dissenting) (emphasis in original) (internal citations omitted). Justice Alito thus concluded: "For these reasons, the real law of trespass provides no support for the Court's holding today. While the Court claims that its reasoning has `ancient and durable roots,' its trespass rule is really a newly struck counterfeit." 133 S.Ct. at 1424 (Alito, J., dissenting) (internal citations omitted).
Justice Alito did not look any more favorably upon Justice Kagan's conclusion that Detective Bartelt's conduct violated Jardines' reasonable privacy expectations, asserting:
Florida v. Jardines, 133 S.Ct. at 1424 (Alito, J., dissenting). Justice Kagan asserted that Detective Bartelt's use of Franky the drug-sniffing dog was an invasion of Jardines' privacy in his home, because the government's conduct was similar to the conduct in Kyllo v. United States, in which the Supreme Court held that using a thermal imaging device to monitor movements in a home was a Fourth Amendment search. Justice Alito pointed out that "[t]his Court ... has already rejected the argument that the use of a drug-sniffing dog is the same as the use of a thermal imaging device. The very argument now advanced by the concurrence appears in Justice Souter's Caballes dissent. But the Court was not persuaded." Florida v. Jardines, 133 S.Ct. at 1425 (Alito, J., dissenting) (internal citations omitted) (citing Illinois v. Caballes, 543 U.S. at 409-410 and 413 n. 3, 125 S.Ct. 834). Justice Alito contended that "Kyllo is best understood as a decision about the use of new technology.... A dog, however, is not a new form of `technology' or a `device.' And, as noted, the use of dogs' acute sense of smell in law enforcement dates back many centuries." 133 S.Ct. at 1425 (Alito, J., dissenting). Justice Alito therefore concluded that the government's conduct in Florida v. Jardines "did not constitute a trespass and did not violate respondent's reasonable expectations of privacy. I would hold that this conduct was not a search, and I therefore respectfully dissent." 133 S.Ct. at 1426.
The Tenth Circuit refers to the test whether a particular search implicates a defendant's Fourth Amendment interests — whether the search violates the defendant's reasonable privacy expectation — as one of "standing." E.g. United States v. Creighton, 639 F.3d 1281, 1286 (10th Cir. 2011) ("The Defendant has the burden of establishing ... standing, or, in other words, a subjective expectation of privacy in the [item searched] that society is prepared to recognize as reasonable."); United States v. Poe, 556 F.3d 1113, 1121 (10th Cir.2009) ("[A] defendant raising a Fourth Amendment challenge must first demonstrate that he has standing to object to the search.") (citing United States v. Rubio-Rivera, 917 F.2d 1271, 1274 (10th Cir. 1990)); United States v. Shareef, 100 F.3d 1491, 1499 (10th Cir.1996) ("A Defendant has standing to challenge a search only if he or she ha[d] a reasonable expectation of privacy in the area being searched."). Accordingly, the Court, tracing the Tenth Circuit's language has also referred to this
In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court disapproved of labeling the inquiry whether a search implicates a defendant's personal Fourth Amendment interests as standing, "rather than simply recognizing it as one involving the substantive question of whether or not the proponent of the motion to suppress had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge." 439 U.S. at 133, 99 S.Ct. at 425. Dispensing with this label, the Supreme Court noted:
Rakas v. Illinois, 439 U.S. at 138-39, 99 S.Ct. 421. The Supreme Court emphasized:
439 U.S. at 139-40, 99 S.Ct. 421. In Minnesota v. Carter, the Supreme Court recognized that Rakas v. Illinois put an end to the Fourth Amendment standing analysis as separate from the substantive Fourth Amendment search analysis:
Minnesota v. Carter, 525 U.S. 83, 87-88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). As the Supreme Court notes that "[t]he inquiry under either [the substantive application of the principle that the rights secured by this Amendment are personal, in place of a separate notion of "standing,"] is the same," Rakas v. Illinois, 439 U.S. at 139, 99 S.Ct. 421, that the Katz v. United States reasonable-expectation-of-privacy analysis has now been classified as a substantive Fourth Amendment test, as opposed to a standing test, is in line with the Supreme Court's guidance that the analysis "is more properly subsumed under substantive Fourth Amendment doctrine." Rakas v. Illinois, 439 U.S. at 139, 99 S.Ct. 421.
A Fourth Amendment search occurs either where the government, to obtain information, trespasses on a person's property or where the government violates a person's subjective expectation of privacy that society recognizes as reasonable to collect information. See United States v. Jones, 132 S.Ct. at 947 ("[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." (emphasis omitted)) (citing Alderman v. United States, 394 U.S. 165, 176, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Soldal v. Cook Cnty., 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992)). "When `the Government obtains information by physically intruding' on persons, houses, papers, or effects, `a `search' within the original meaning of the Fourth Amendment' has `undoubtedly occurred.'" Florida v. Jardines, 133 S.Ct. at 1414 (quoting United States v. Jones, 132 S.Ct. at 950 n. 3).
The Fourth Amendment "establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When `the Government obtains information by physically intruding' on persons, houses, papers, or effects, `a `search' within the original meaning of the Fourth Amendment' has `undoubtedly occurred.'" Florida v. Jardines, 133 S.Ct. at 1414 (quoting United States v. Jones, 132 S.Ct. at 950 n. 3 ("[A] `search' within the original meaning of the Fourth Amendment" occurs "[w]here ... the Government obtains information by physically intruding on a constitutionally protected area.")). "[A]n actual trespass," however, "is neither necessary nor sufficient to establish a constitutional violation." United States v. Jones, 132 S.Ct. at 951 n. 5
In determining whether a search has occurred, "[t]resspass alone does not qualify, but there must be conjoined with that ... an attempt to find something or to obtain information." United States v. Jones, 132 S.Ct. at 951 n. 5. The Supreme Court has also noted that "[p]hysically invasive inspection is simply more intrusive than purely visual inspection." Bond v. United States, 529 U.S. 334, 337, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). Moreover, the Supreme Court in Florida v. Jardines suggested that the trespass-based analysis applies only when the trespass occurs in one of the four places or things listed in the Fourth Amendment:
Florida v. Jardines, 133 S.Ct. at 1414 (2013).
With Justice Scalia penning both the majority opinion in Florida v. Jardines and United States v. Jones, the question arises whether the Katz v. United States reasonable-expectation-of-privacy test is still good law. Justice Scalia has consistently been critical of this "notoriously unhelpful test":
Minnesota v. Carter, 525 U.S. at 97-98, 119 S.Ct. 469 (Scalia, J., concurring) (emphasis in original) (internal citations omitted).
In United States v. Jones, Justice Alito, concurring in the judgment, joined by Justices Ginsberg, Breyer, and Kagan, disagreed with the majority's revival of the trespass-based approach to determine whether there was a Fourth Amendment search, writing that he "would analyze the question presented in this case by asking whether respondent's reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove." 132 S.Ct. at 958 (Alito, J., concurring). Although Justice Sotomayor in United States v. Jones disagreed with Justice Alito's opinion that the trespass-based approach has been repudiated, noting that "the trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum," she supports continued application of the Katz v. United States reasonable-expectation-of-privacy approach as an appropriate analysis: "In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion's trespassory test may provide little guidance." 132 S.Ct. at 955 (Sotomayor, J., concurring).
In Florida v. Jardines, Justice Kagan, in her concurring opinion, in which Justices Ginsburg and Sotomayor joined, agreed that the use of the drug sniffing dog at the doorstep was a Fourth Amendment search, but wrote separately to note that she "could just as happily have decided it by looking to Jardines' privacy interests." Florida v. Jardines, 133 S.Ct. at 1418 (Kagan, J., concurring). Justice Alito, in his dissent in which Chief Justice Roberts, and Justices Kennedy and Breyer joined, did not take a position in relation to whether one approach or the other, or both, is correct, concluding that the officer's conduct is constitutional under both analyses: "The conduct of the police officer in this case did not constitute a trespass and did not violate respondent's reasonable expectations of privacy. I would hold that this conduct was not a search, and I therefore respectfully dissent." 133 S.Ct. at 1426 (Alito, J., dissenting). It thus appears that, as the Supreme Court now stands, Justices Alito, Breyer, Kagan, Ginsburg, and Sotomayor still adhere to application of the Katz v. United States reasonable-expectation-of-privacy Fourth Amendment analysis, at least as a possible approach alongside of the trespass-based approach, to determine whether the conduct amounts to a Fourth Amendment search.
"`Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.'" Rakas v. Illinois, 439 U.S. at 133-34, 99 S.Ct. 421 (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)). "A district court cannot suppress evidence unless the movant proves that a search implicates personal Fourth Amendment interests." United States v. Jones, 44 F.3d 860, 871
Kyllo v. United States, 533 U.S. at 32-33, 121 S.Ct. 2038. The Supreme Court thus articulated the Katz v. United States rule — which Professor Wayne R. LaFave has noted is "somewhat inaccurately stated as the `reasonable expectation of privacy' test," Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.1(b), at 435 (4th ed., 2004) — which posits: "a Fourth Amendment search does not occur ... unless `the individual manifested a subjective expectation of privacy in the object of the challenged search,' and `society [is] willing to recognize that expectation as reasonable.'" Kyllo v. United States, 533 U.S. at 33, 121 S.Ct. 2038 (emphasis in original) (quoting California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986)).
A "reasonable expectation of privacy" is "said to be an expectation `that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'" United States v. Jones, 132 S.Ct. at 951. See United States v. Harmon, 785 F.Supp.2d at 1157 ("To decide whether a reasonable expectation of privacy exists, courts consider concepts of real or personal property law...."). In analyzing whether an expectation of privacy is reasonable in the Fourth Amendment context based on property law, "arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control." Rakas v. Illinois, 439 U.S. at 143 & n. 12, 99 S.Ct. 421. While ownership or lawful possession is not determinative under the Katz v. United States reasonable-expectation-of-privacy test, it is often a dispositive factor; because the Fourth Amendment is a personal right, a defendant bears the burden of demonstrating "that he gained possession [of the area searched] from the owner or someone with the authority to grant possession." United States v. Arango, 912 F.2d 441, 445-46 (10th Cir.1990).
A defendant maintains a subjective expectation of privacy when the defendant "has shown that `he sought to preserve something as private.'" Bond v. United States, 529 U.S. at 338, 120 S.Ct. 1462 (internal alterations omitted) (quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). Thus, there is no reasonable expectation of privacy in otherwise private information disclosed to a third party. "[T]he Fourth Amendment protects people, not places.
United States v. Miller, 425 U.S. at 443, 96 S.Ct. 1619.
The Supreme Court has recognized, however, that subjective expectations of privacy do not always coincide with the interests that the Fourth Amendment is universally thought to protect. In Smith v. Maryland, for instance, the Supreme Court identified situations in which it would not follow the subjective approach:
442 U.S. at 740 n. 5, 99 S.Ct. 2577. Most recently, in United States v. Jones, Justice Sotomayor commented that, given the reality of technology in the twenty-first century, it may no longer be sound to universally hold to the third-party disclosure rule to determine whether a subjective expectation of privacy exists:
132 S.Ct. at 957 (Sotomayor, J., concurring) (internal citations omitted).
Under the second step of Katz v. United States' reasonable-expectation-of-privacy approach, courts must determine "whether society is prepared to recognize that [subjective privacy] expectation as objectively reasonable." United States v. Ruiz, 664 F.3d at 838 (United States v. Allen, 235 F.3d at 489). The Supreme Court has cautioned: "The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities." United States v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Determining whether society would view the expectation as objectively reasonable turns on whether the government's intrusion infringes on a legitimate interest, based on the values which the Fourth Amendment protects. See California v. Ciraolo, 476 U.S. at 212, 106 S.Ct. 1809 (explaining that "[t]he test of legitimacy is not whether the individual chooses to conceal assertedly `private' activity," but instead "whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment") (quoting Oliver v. United States, 466 U.S. at 181-83, 104 S.Ct. 1735). This second factor of the Katz v. United States reasonable-expectation-of-privacy analysis developed from Justice Harlan's "attempt to give content to the word `justifiably' in the majority's assertion that eavesdropping on Katz was a search because it `violated the privacy upon which he justifiably relied while using the telephone booth.'" LaFave, supra, § 2.1(d), at 439 (quoting Katz v. United States, 389 U.S. at 353, 88 S.Ct. 507). Thus, whether society will recognize a certain expectation of privacy does not turn on whether the hypothetical reasonable person would hold the same expectation of privacy, but rather whether the expectation of privacy is justified or legitimate. The Supreme Court has provided that, while no single factor determines legitimacy, whether society recognizes a privacy interest as reasonable is determined based on our societal understanding regarding what deserves protection from government invasion:
Oliver v. United States, 466 U.S. at 177-78, 104 S.Ct. 1735 (internal citations omitted).
The Supreme Court has held that "[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. at 409, 125 S.Ct. 834
United States v. Place, 462 U.S. at 707, 103 S.Ct. 2637.
In United States v. Jacobsen, the Supreme Court extended this holding to the chemical field test of a white powdery substance to reveal that the substance was cocaine. See 466 U.S. at 122-24, 104 S.Ct. 1652. A Federal Express employee and supervisor had opened a damaged package, and exposed four zip-lock plastic bags containing six and one-half ounces of white powder. See 466 U.S. at 111, 104 S.Ct. 1652. They then called the DEA and repacked the contents in the original packaging before they provided the package to the DEA officers. See 466 U.S. at 111, 104 S.Ct. 1652. When the agents arrived, the agents removed the exposed plastic bags from the broken package, opened each of the four bags, and field-tested the white powder, identifying the powder as cocaine. See 466 U.S. at 111-12, 104 S.Ct. 1652. The Supreme Court first held that removal of the plastic bags from the tubes and the agent's visual inspection were not Fourth Amendment searches:
466 U.S. at 120, 104 S.Ct. 1652 (footnote omitted). The Supreme Court noted: "The question remains whether the additional intrusion occasioned by the field test, which had not been conducted by the Federal Express agents and therefore exceeded the scope of the private search, was an unlawful `search' or `seizure' within the meaning of the Fourth Amendment." United States v. Jacobsen, 466 U.S. at 122, 104 S.Ct. 1652. The Supreme Court, relying on United States v. Place, held that the additional digital scan of the white substance was not a Fourth Amendment search, because the test discloses only whether the substance is cocaine and "nothing [else] of special interest":
United States v. Jacobsen, 466 U.S. at 122-24, 104 S.Ct. 1652.
Most recently, where a "dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation," the Supreme Court, again relying on United States v. Place and also on United States v. Jacobsen, held that "[a]ny intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement." Illinois v. Caballes, 543 U.S. at 409, 125 S.Ct. 834.
Illinois v. Caballes, 543 U.S. at 409-10, 125 S.Ct. 834.
"[B]ecause `the ultimate touchstone of the Fourth Amendment is reasonableness,'" when a search implicating the Fourth Amendment has occurred, the district court must determine whether the search is reasonable. Kentucky v. King, 131 S.Ct. at 1856 (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)). See Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) ("`[U]nder our general Fourth Amendment approach' we `examin[e] the totality of the circumstances' to determine whether a search is reasonable within the meaning of the Fourth Amendment.") (quoting United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001)). "Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term `probable cause,' a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable." United States v. Knights, 534 U.S. at 121, 122 S.Ct. 587 (citing, as an e.g. cite, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). This balancing test has been justified by the Supreme Court's recognition that "[t]he Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as `legitimate.'" Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (quoting New Jersey v. T.L.O., 469 U.S. 325, 338, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)).
"Whether a search is reasonable `is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'" Samson v. California, 547 U.S. at 848, 126 S.Ct. 2193 (quoting United
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. at 652-53, 115 S.Ct. 2386 (1995) (quoting Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)). The Supreme Court has held that the test of reasonableness under the Fourth Amendment is not a concrete test:
Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
In analyzing the first factor — the intrusion on the individual's privacy — courts and the Tenth Circuit look to the individual's privacy expectations. See, e.g., United States v. Knights, 534 U.S. 112, 119-120, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (noting that the petitioner had a "significantly diminished ... reasonable expectation of privacy," because a condition of his probation was to consent to search of his apartment without notice or probable cause, and because he was clearly notified and informed of the provision); Banks v. United States, 490 F.3d at 1186-87 (noting that the plaintiffs, convicted felons on probation, have a more limited expectation of privacy than the ordinary citizen, noting: "Those who have never been convicted of a felony are the last distinct category. What is `reasonable' under the fourth amendment for a person on conditional release, or a felon, may be unreasonable for the general population."); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir.1996) ("[W]hile obtaining and analyzing the DNA or saliva of an inmate convicted of a sex offense is a search and seizure implicating Fourth Amendment concerns, it is a reasonable search and seizure. This is so in light of an inmate's diminished privacy rights ....").
As Justice Kagan has noted, property law informs society's expectations about what government intrusions are reasonable: "It is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align. The law of property `naturally enough influence[s]' our `shared social expectations' of what places should be free from governmental incursions." Florida v. Jardines, 133 S.Ct. at 1419 (Kagan, J., concurring) (quoting Georgia v. Randolph, 547 U.S. 103, 111, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006)). Similarly, in Vernonia Sch. Dist. 47J v. Acton, Justice Scalia writing for the majority noted: "What expectations
Searches conducted pursuant to consent constitute one exception to the Fourth Amendment's search-warrant and probable-cause requirements. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). When an individual consents to a police search, and the consent is "freely and voluntarily given," the search does not implicate the Fourth Amendment. United States v. Peña, 143 F.3d 1363, 1366 (10th Cir.1998) (quoting Schneckloth v. Bustamonte, 412 U.S. at 219, 93 S.Ct. 2041). The Tenth Circuit has provided a two-part test for determining voluntariness, which requires that the government "(1) `proffer clear and positive testimony that consent was unequivocal and specific and intelligently given,' and (2) the officers must have used no `implied or express duress or coercion.'" United States v. Sanchez, 608 F.3d 685, 690 (10th Cir.2010) (quoting United States v. Taverna, 348 F.3d 873, 878 (10th Cir.2003)).
Determining whether a party's consent was free and voluntary is a question of fact to be determined from the totality of the circumstances. See United States v. Peña, 143 F.3d at 1366. The Supreme Court and the Tenth Circuit have developed a non-exhaustive list of factors that courts should consider when trying to determine whether a defendant's consent was voluntarily given:
United States v. Sedillo, No. CR 08-1419 JB, 2010 WL 965743, at *12 (D.N.M. Feb. 19, 2010) (Browning, J) (quotations, alterations, and citations omitted). See United States v. Fox, 600 F.3d 1253, 1258 (10th Cir.2010); United States v. Ledesma, 447 F.3d 1307, 1314 (10th Cir.2006); United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir.1997).
Because courts are required to look at the totality of the circumstances in determining whether an individual's consent was voluntary, see United States v. Peña, 143 F.3d at 1366, no one factor is dispositive in a court's inquiry into the circumstances. For example, although an officer's failure to advise a defendant that he or she is free to leave might suggest that coercive law enforcement conduct caused the defendant's consent to search, the Supreme Court has ruled that officers do not need to advise an individual of his or her right to refuse to consent to a search for that individual's consent to be voluntary. See Schneckloth v. Bustamonte, 412 U.S. at 232, 93 S.Ct. 2041. Moreover, the mere presence of officers by exits to a building, threatening no more than to question individuals if they seek to leave, "should not [result] in any reasonable apprehension by any [individual] that they would be seized or detained in any
Probable Cause must support a search warrant, which requires "more than mere suspicion but less evidence than is necessary to convict." United States v. Burns, 624 F.2d 95, 99 (10th Cir.1980). To establish probable cause to justify a search of a home, an affidavit in support of a search warrant "must contain facts sufficient to lead a prudent person to believe that a search would uncover contraband or evidence of criminal activity." United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir.2000). "Probable cause undoubtedly requires a nexus between suspected criminal activity and the place to be searched." United States v. Corral-Corral, 899 F.2d 927, 937 (10th Cir.1990). The task of the magistrate judge issuing the search warrant "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Reed, 195 Fed.Appx. 815, 821 (10th Cir.2006) (unpublished) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). See United States v. Glover, 104 F.3d 1570, 1578 (10th Cir.1997) (finding that, in determining whether an affidavit supports a finding of probable cause, the court must review the affidavit as a whole and look to the totality of the information contained therein). In making his or her determination, the magistrate judge "may draw reasonable inferences from the material provided in the warrant application." United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir.1998).
"A reviewing court should accord great deference to a magistrate's determination of probable cause." United States v. Reed, 195 Fed.Appx. at 822. The court's duty is "simply to ensure that the magistrate had a substantial basis for ... conclud[ing] that probable cause existed." Illinois v. Gates, 462 U.S. at 236, 238-39, 103 S.Ct. 2317. This deference is appropriate to further the Fourth Amendment's strong preference for warrants. See Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); United States v. Ventresca, 380 U.S. 102, 105-06, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ("An evaluation of the constitutionality of a search warrant should begin with the rule that the informed and deliberate determinations of magistrates empowered to issue warrants ... are to be preferred over the hurried action of office[r]s...."). Because of the strong preference for warrants, "in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall." United States v. Ventresca, 380 U.S. at 106, 85 S.Ct. 741.
The deference accorded a magistrate judge's probable cause determination,
The Supreme Court has stated that "those searches deemed necessary should be as limited as possible." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The Tenth Circuit has explained that "the Fourth Amendment requires that the government describe the items to be seized with as much specificity as the government's knowledge and circumstances allow, and warrants are conclusively invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized." Cassady v. Goering, 567 F.3d 628, 635 (10th Cir.2009) (quoting United States v. Leary, 846 F.2d 592, 600 (10th Cir.1988)). The particularity requirement prevents general searches and strictly limits the discretion of the officer executing the warrant. See Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir.1985) ("The particularity requirement ensures that a search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause."); United States v. Janus Indus., 48 F.3d 1548, 1553 (10th Cir.1995) ("As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.") (quoting Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965)). "A description is sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized." United States v. Janus Indus., 48 F.3d at 1553 ("The test applied to the description of the items to be seized is a practical one.").
In Cassady v. Goering, the search warrant authorized the search of the plaintiff's entire farm, including his house, and the seizure of "[a]ny & all narcotics," "[a]ny and all illegal contraband," and various specific items mostly related to a narcotics operation, as well as the search and seizure of "all other evidence of criminal activity" and all personal property that was stolen, embezzled, or otherwise illegal. 567 F.3d at 635. The Tenth Circuit found that the warrant violated the plaintiff's Fourth Amendment rights, because "[t]he warrant[] allowed precisely the kind of rummaging through a person's belongings, in search of evidence of even previously unsuspected crimes or of no crime at all, that the Fourth Amendment proscribes." 567 F.3d at 635 (quoting Voss v. Bergsgaard, 774 F.2d at 405).
The Tenth Circuit has previously applied a blanket suppression where officers conducted a general search for evidence of crimes not specifically listed in the warrant. See Cassady v. Goering, 567 F.3d at 643; United States v. Foster, 100 F.3d 846, 851-52 (10th Cir.1996); United States v. Medlin, 842 F.2d 1194, 1199-1200 (10th Cir.1988).
When evidence is obtained in violation of a person's Fourth or Fifth Amendment rights, the government will generally be prohibited from using that evidence in a criminal prosecution of that person. See Sanchez-Llamas v. Oregon, 548 U.S. 331, 332-33, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006) ("[T]he exclusionary rule has been used primarily to deter certain Fourth and Fifth Amendment violations, including, e.g., unconstitutional searches and seizures, and confessions exacted in violation of the right against compelled self-incrimination or due process.") (internal citations omitted); United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) ("Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure."). The exclusionary rule will apply if the defendant can show, by a preponderance of the evidence, a constitutional violation under the Fourth Amendment, and a causal nexus between the violation and the evidence sought to be excluded. See United States v. Torres-Castro, 470 F.3d 992, 999 (10th Cir.2006). Once the defendant makes this showing, if the prosecutor still desires to proffer the challenged evidence, the burden shifts to the government to prove that an exception to the exclusionary rule applies. See United States v. Torres-Castro, 470 F.3d at 999. There are a number of exceptions to the exclusionary rule.
If illegally obtained evidence is somehow purged of the taint of the unconstitutional conduct, it can be admitted. "The Government can establish that a particular item of evidence has been purged of the primary taint by demonstrating that the evidence would have been inevitably discovered, was discovered through independent means, or was so attenuated from the illegality as to dissipate the taint of the unlawful conduct." United States v. Olivares-Rangel, 458 F.3d 1104, 1109 (10th Cir.2006). See United States v. Torres-Castro, 470 F.3d at 999 ("[T]he government may avoid suppression by demonstrating that the evidence would have been inevitably discovered, that it was discovered by independent means, or that it was so attenuated from the illegality as to dissipate any taint from the Fourth Amendment violation.").
"The inevitable discovery doctrine provides an exception to the exclusionary rule, and permits evidence to be admitted `if an independent, lawful police investigation inevitably would have discovered it.'" United States v. Cunningham, 413 F.3d 1199, 1203 (10th Cir.2005) (internal citations omitted) (quoting United States v. Owens, 782 F.2d 146, 152 (10th Cir.1986)). See United States v. Torres-Castro, 470 F.3d at 999. "Inevitable discovery analysis thus requires the court to examine each of the contingencies involved that would have had to have been resolved favorably to the government in order for the evidence to have been discovered legally and to assess the probability of the contingencies having occurred." United States v. Cunningham, 413 F.3d 1199, 1203 (10th Cir.2005). The inevitable-discovery doctrine "applies whenever an independent investigation inevitably would have led to discovery of the evidence, whether or not the investigation was ongoing at the time of the illegal police conduct"; "it is possible for an investigation that begins after the violation to be independent of the illegal investigation." United States v. Larsen, 127 F.3d 984, 986-87 (10th Cir.1997). See United States v. Cunningham, 413 F.3d at 1204 n. 1 (stating that there is no conflict between
United States v. Cunningham, 413 F.3d at 1203-04.
The Tenth Circuit in United States v. Souza referred to "steps taken to obtain a warrant prior to the unlawful search" as a "prerequisite to a consideration of the inevitable discovery exception." 223 F.3d at 1205. The Tenth Circuit later, however, recognized that the statement is incompatible with its holding in United States v. Larsen — that the doctrine "applies whenever an independent investigation inevitably would have led to discovery of the evidence, whether or not the investigation was ongoing at the time of the illegal police conduct," United States v. Larsen, 127 F.3d at 986-87 — and noted that this statement in United States v. Souza was dicta:
United States v. Sanders, 43 Fed.Appx. 249, 254 n. 2 (10th Cir.2002) (unpublished). Accordingly, the Court concludes that officers having already taken steps to acquire a warrant for the particular evidence sought to be admitted under the inevitable-discovery doctrine is not a prerequisite for the evidence's admission.
In United States v. Owens, the Tenth Circuit emphasized the "danger of admitting unlawfully obtained evidence on the strength of some judge's speculation that it would have been discovered legally anyway." 782 F.2d at 152-53. The Tenth Circuit considered whether contraband seized without a warrant could still be admitted under the inevitable-discovery doctrine. Rejecting the government's position that the motel maids' routine cleaning of the defendant's room for the next occupant would have revealed the contraband and that, therefore, discovery of the evidence was inevitable, the Tenth Circuit found:
United States v. Owens, 782 F.2d at 153. "United States v. Owens suggests that courts should be realistic, if not skeptical, when assessing the probability that law-enforcement officers would inevitably have uncovered the challenged evidence through an independent investigation." United States v. Martinez, 696 F.Supp.2d 1216, 1244 (D.N.M.2010) (Browning, J.), aff'd, 643 F.3d 1292 (10th Cir.2011).
If the information found during an "unconstitutional search[] ... [is] used to obtain [a] search warrant," then "evidence seized during the later search conducted pursuant to [the] warrant would be inadmissible as fruit of the poisonous tree." United States v. Hatfield, 333 F.3d 1189, 1194 (10th Cir.2003) (citing Murray v. United States, 487 U.S. 533, 542-44, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988)). When determining whether evidence is fruit of the poisonous tree, a court is to consider whether the evidence was "come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Segura v. United States, 468 U.S. 796, 804-05, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (internal quotations omitted) (alteration in original). Under the independent-source doctrine, evidence that is obtained based upon information unrelated to an unlawful search is not fruit of the poisonous tree. See Segura v. United States, 468 U.S. at 799, 104 S.Ct. 3380 (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)). Evidence therefore need not be excluded under the fruits-of-the-poisonous-tree doctrine if there is an independent source for discovery of the challenged evidence. See Segura v. United States, 468 U.S. at 805, 104 S.Ct. 3380. Two Supreme Court cases have considered the operation of the independent-source doctrine in situations where a search warrant is obtained subsequent to an unlawful search.
In Segura v. United States, police unlawfully entered an apartment and spotted drug-trafficking paraphernalia in plain view. See 468 U.S. at 801, 104 S.Ct. 3380. A warrant was later obtained, based upon information that the police had known before the entry and executed at the apartment. In the meantime, police stayed in the apartment to preserve the scene. Pursuant to the warrant, they later seized the paraphernalia, as well as cocaine, cash, ammunition, and records of drug transactions, none of which had been observed during the unlawful search. See Segura v. United States, 468 U.S. at 801, 104 S.Ct. 3380. Before the Supreme Court was the question whether the evidence that was not in plain view during the unlawful entry should be suppressed. See 468 U.S. at 802 n. 4, 104 S.Ct. 3380.
The Supreme Court held that, because the warrant was based on information obtained
Segura v. United States was limited to situations where the challenged evidence was not in plain view during an unlawful search. Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) addressed this question that Segura v. United States left open: whether the independent-source doctrine was available for evidence observed in plain view during an unlawful search. The Supreme Court held that the doctrine also applied to evidence in plain view. See 487 U.S. at 540-41, 108 S.Ct. 2529.
Murray v. United States dealt with a situation in which federal law enforcement obtained a warrant for a warehouse after illegally forcing entry to that warehouse. Based upon tips from informants, federal agents began surveillance of several defendants. See 487 U.S. at 535, 108 S.Ct. 2529. Agents observed two of the defendants entering and then leaving a warehouse, one driving a camper and the other driving a truck. See 487 U.S. at 535, 108 S.Ct. 2529. When the defendants left the warehouse, the agents saw two individuals and a tractor-trailer rig with a long container inside. See 487 U.S. at 535, 108 S.Ct. 2529. Several other drivers drove the camper and the truck, and ultimately the vehicles were lawfully stopped and found to contain marijuana. See 487 U.S. at 535, 108 S.Ct. 2529. After hearing of the marijuana in the vehicles, agents entered the warehouse and saw numerous burlap-wrapped bales in plain view. See 487 U.S. at 535, 108 S.Ct. 2529. The agents left and did not reenter the warehouse until later. They obtained a warrant, without mentioning the entry or relying upon any observations from that entry, and seized the bales, which contained marijuana. See 487 U.S. at 535, 108 S.Ct. 2529.
The Supreme Court stated that "reseizure of tangible evidence already seized" could be allowed in the right circumstances. Murray v. United States, 487 U.S. at 542, 108 S.Ct. 2529. "So long as a later, lawful seizure is genuinely independent of an earlier, tainted one ... there is no reason why the independent source doctrine should not apply." 487 U.S. at 542, 108 S.Ct. 2529. A source for a warrant would not be genuinely independent "if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant." 487 U.S. at 542, 108 S.Ct. 2529 (footnote omitted). Although the district court had made factual findings that the unlawful entry was not revealed to the magistrate and that the agents did not rely on any observations from the entry in applying for a warrant, the record contained no findings on whether the agents would have sought a warrant absent the entry and so the Supreme Court ultimately remanded for a determination in the district court regarding the independent-source doctrine's applicability. See 487 U.S. at 543-44, 108 S.Ct. 2529.
"A source is genuinely independent if the government can show that the
In support of this principle, the Tenth Circuit approvingly discussed United States v. Moore, 329 F.3d 399 (5th Cir. 2003). In that case, police allegedly unlawfully arrested a motorist and then conducted a canine search of the vehicle's exterior, leading to the discovery of drugs in the trunk. See United States v. Forbes, 528 F.3d at 1279 (discussing United States v. Moore, 329 F.3d at 404-05). Despite the closeness of the events, the United States Court of Appeals for the Fifth Circuit held that the canine search, which was legal in the circumstances regardless of the legality of the arrest, was an independent source and thus the drugs found in the trunk were not subject to suppression. See United States v. Forbes, 528 F.3d at 1279 (discussing United States v. Moore, 329 F.3d at 404-05). Following United States v. Moore, the Tenth Circuit held that, although officers may have unlawfully searched the trailer of a tractor-trailer rig, a near-simultaneous lawful canine search that revealed drugs in the cab of the rig was an independent source. See United States v. Forbes, 528 F.3d at 1280.
Another exception to the exclusionary rule is the investigating officer's "good-faith." In United States v. Leon, the Supreme Court faced the question whether to create an exception to the exclusionary rule when a police officer obtained evidence through the use of a warrant that he mistakenly thought probable cause supported. See 468 U.S. at 905, 104 S.Ct. 3405. The Supreme Court noted that excluding evidence which was obtained pursuant to a warrant that the officer reasonably thought to be valid would not deter police misconduct, because the affected officer had taken all the necessary steps to comply with the Fourth Amendment. See 468 U.S. at 918-19, 104 S.Ct. 3405. It further noted that, when a warrant is issued on less than probable cause, the person whose conduct the law wishes to deter is the issuing judge, and that such exclusion would not have a significantly deterrent effect on judicial conduct. See 468 U.S. at 916-17, 104 S.Ct. 3405. The Supreme Court thus concluded that a court need not suppress evidence seized pursuant to a facially valid warrant which later turns out to lack probable cause, as long as police were acting in good-faith reliance on that warrant. See 468 U.S. at 922-23, 104 S.Ct. 3405.
The Tenth Circuit therefore now applies the rule that, in cases where the police obtained a warrant but the affidavit supporting the warrant does not establish probable cause, suppression of the evidence found is generally not warranted, so long as the officers relied in good faith on the warrant. See United States v. Tuter, 240 F.3d 1292, 1300 (10th Cir.2001); United States v. Danhauer, 229 F.3d 1002, 1007 (10th Cir.2000).
United States v. Tuter, 240 F.3d at 1298-99. Furthermore, there is a presumption that, "when an officer relies upon a warrant, the officer is acting in good faith." United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir.1993).
When a search is conducted pursuant to a warrant that is based on illegally obtained information, a court is not to blindly apply the good-faith exception. Instead, the court is to consider the warrant with the illegally obtained information excluded and determine, based on the remaining information, whether probable cause nevertheless existed. If the remaining content of the warrant affidavit establishes probable cause, the search pursuant to that warrant was appropriate, and the evidence need not be excluded:
United States v. Sims, 428 F.3d 945, 954 (10th Cir.2005). See United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir.1996) ("In our review, we may disregard allegedly tainted material in the affidavit and ask whether sufficient facts remain to establish probable cause."); United States v. Snow, 919 F.2d 1458, 1460 (10th Cir.1990) ("An affidavit containing erroneous or unconstitutionally obtained information invalidates a warrant if that information was critical to establishing probable cause. If, however, the affidavit contained sufficient accurate or untainted evidence, the warrant is nevertheless valid."). The apparent rationale for this rule is that one officer cannot execute a warrant "in good faith" if it contains information that he or a fellow officer obtained illegally. United States v. Herrera, 444 F.3d 1238, 1249 (10th Cir. 2006) ("Leon's good-faith exception applies only narrowly, and ordinarily only where an officer relies, in an objectively reasonable manner, on a mistake made by someone other than the officer.").
In Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), officers arrested Herring pursuant to an arrest warrant listed in the Dale County, Alabama warrant database. See 555 U.S. at 137, 129 S.Ct. 695. In the search incident to that arrest, officers found drugs and a gun on Herring's person. See 555 U.S. at 137, 129 S.Ct. 695. Herring was then indicted on federal gun and drug-possession charges. See 555 U.S. at 138, 129 S.Ct. 695. It turned out, however, that the warrant under which the officers arrested Herring had been recalled, but the database had not been updated to reflect that recall. See 555 U.S. at 138, 129 S.Ct. 695. Asserting that the evidence found during the search was fruit of an unlawful arrest, Herring sought to suppress it. See 555 U.S. at 138, 129 S.Ct. 695. The district court denied Herring's motion to suppress, and the United States Court of Appeals for the Eleventh Circuit
The Supreme Court affirmed the district court's denial of Herring's motion to suppress, based primarily on the good-faith exception to the exclusionary rule. The Supreme Court agreed with the Eleventh Circuit that, although the failure of the police to update the warrant database to reflect the fact that Herring's warrant was withdrawn was negligent, it was not reckless or deliberate. See 555 U.S. at 140, 129 S.Ct. 695. The Supreme Court reiterated its holding in United States v. Leon: "When police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted `in objectively reasonable reliance' on the subsequently invalidated search warrant." Herring v. United States, 555 U.S. at 142, 129 S.Ct. 695 (citing United States v. Leon, 468 U.S. at 922, 104 S.Ct. 3405). Tracing the history of cases applying and declining to apply the exclusionary rule, the Supreme Court distilled a general principle: "To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." Herring v. United States, 555 U.S. at 144, 129 S.Ct. 695.
The Supreme Court in Herring v. United States then held that, as long as the "police have [not] been shown to be reckless in maintaining [the] warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests," exclusion of evidence is not warranted when the arrest was made on objectively reasonable reliance on a warrant that had been subsequently recalled. 555 U.S. at 146, 129 S.Ct. 695. Thus, it appears that, if the police make a negligent administrative error which results in a warrant not being withdrawn when it should have been, and evidence is obtained incident to an arrest made in reasonable reliance on that warrant, the good-faith exception to the exclusionary rule will apply.
The Tenth Circuit, in United States v. McCane, 573 F.3d 1037 (10th Cir.2009), indicated how it believes that Herring v. United States has modified the standard for finding the good-faith exception applies. The Tenth Circuit described Herring v. United States as extending the exception to "good faith reliance upon the negligent mistake of a fellow law enforcement employee." United States v. McCane, 573 F.3d at 1043. "In Herring, the Court applied the good-faith exception where, in making an arrest, police relied upon a record-keeping error in the police computer database indicating there was an active warrant for the arrestee." United States v. McCane, 573 F.3d at 1043. "[T]he good-faith inquiry `is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances.'" 573 F.3d at 1044 (quoting Herring v. United States, 555 U.S. at 145, 129 S.Ct. 695). As the Supreme Court stated: "[E]vidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional." Herring v. United States, 555 U.S. at 143, 129 S.Ct. 695. See United States v. McCane, 573 F.3d at 1044; United States v. Harrison, 566 F.3d 1254, 1256 (10th Cir.2009) ("An officer who knows or should have known that a search warrant was invalid may not rely upon the good faith exception to immunize his subsequent seizure of evidence."); United States v. Otero, 563 F.3d 1127, 1133 (10th Cir.2009).
The Secret Service's scan of the Defendants' credit and debit cards' magnetic strips to read the electronically stored information contained in the strips, when law enforcement already physically and legally possessed the cards, did not violate the Defendants' Fourth Amendment rights. Regardless whether the scan violated the Fourth Amendment, however, the evidence found when the cards were scanned and read is admissible under the inevitable-discovery doctrine. Moreover, the Court will not exclude the evidence law enforcement found in execution of the search warrant for the cellular telephones and laptop computers found during the consensual search of the Defendants' car, because there was probable cause without information gleaned from the credit and debit cards' scan, and because the officers' objectively reasonable reliance on the search warrant brings it under the good-faith exception to the exclusionary rule. The Court will therefore deny the Defendants' Motion to Suppress.
At the hearing on the Defendants' Motion to Suppress, the United States, in response to the Court's inquiry in what order the parties would like the Court to analyze the issues, stated that it preferred the Court to analyze standing for Fourth Amendment purposes first, then to analyze whether the scan was a search, and noted that after those issues it has no preference. See Tr. at 97:10-14 (Gerson). The Supreme Court in Rakas v. Illinois, however, held that the separate standing test "is more properly subsumed under the substantive Fourth Amendment doctrine," noting: "[W]e think the better analysis forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing." 439 U.S. at 139, 99 S.Ct. 421. Moreover, in Minnesota v. Carter, the Supreme Court recognized that analyzing whether a defendant had a reasonable expectation of privacy, "under the rubric of `standing' doctrine, ... [is] an analysis that this Court expressly rejected 20 years ago in Rakas." 525 U.S. at 87, 119 S.Ct. 469.
A defendant has Fourth Amendment standing to object to a search when, under the Tenth Circuit's construction of the test, the defendant has "a subjective expectation of privacy in the [area searched] that society is prepared to recognize as reasonable." United States v. Creighton, 639 F.3d at 1286. The Katz v. United States reasonable-expectation-of-privacy approach for a Fourth Amendment search analyzes whether "`the government violates a subjective expectation of privacy that society recognizes as reasonable.'" United States v. Jones, 132 S.Ct. at 954-55 (Sotomayor, J., concurring) (quoting Kyllo v. United States 533 U.S. at 33, 121 S.Ct. 2038) (citing Katz v. United States, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring)). Whereas the Supreme Court in Rakas v. Illinois noted that "[r]igorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of `standing,' will produce no additional situations in which evidence must be excluded," 439 U.S. at 139,
The Supreme Court's recent Fourth Amendment search jurisprudence follows the approach in Rakas v. Illinois and Minnesota v. Carter, construing the Katz v. United States reasonable-expectation-of-privacy analysis as a substantive Fourth Amendment analysis, rather than as an approach to determine Fourth Amendment standing. In Florida v. Jardines, for example, the majority notes that "[t]he Katz reasonable-expectations test `has been added to, not substituted for,' the traditional property-based understanding of the Fourth Amendment," Florida v. Jardines, 133 S.Ct. at 1417 (emphasis in original) (quoting United States v. Jones, 132 S.Ct. at 951-52), and also notes that "Katz may add to the baseline," by recognizing that "property rights `are not the sole measure of Fourth Amendment violations,'" Florida v. Jardines, 133 S.Ct. at 1414. In light of the Supreme Court's characterization of Katz v. United States' reasonable-expectation-of-privacy approach as part of the Fourth Amendment substantive analysis whether "government officers violate a person's `reasonable expectation of privacy,'" United States v. Jones, 132 S.Ct. at 950 (quoting Katz v. United States, 389 U.S. at 360, 88 S.Ct. 507 (Harlan, J., concurring)), in these two most recent Fourth Amendment search decisions — United States v. Jones and Florida v. Jardines — the Court concludes that, rather than analyzing Fourth Amendment standing separate from the substantive test whether a Fourth Amendment search occurred, the proper procedure is to analyze whether the government officer, the Secret Service agent, violated the Defendants' Fourth Amendment rights by scanning the thirty-one credit and debit cards' magnetic strips.
The United States contends that scanning the magnetic strips on the backs of the thirty-one credit and debit cards was not a Fourth Amendment search, because, "[w]hen physical objects come lawfully into the hands of law enforcement, no warrant is necessary before the police may subject them to examination." MTS Response at 6. The Defendants assert that the United States' position, "taken to its logical end, would mean that a warrant would never be required to retrieve digitally stored information from private cell phones, pagers, hard drives, or any other storage device, a proposition which is simply untrue." MTS Reply at 4. The Court concludes that scanning the credit and debit cards' magnetic strips was not a search for Fourth Amendment purposes, because the search does not violate the Supreme Court's trespass-based search approach, and because scanning credit and debit cards' magnetic strips is "[o]fficial conduct that does not `compromise any legitimate interest in privacy.'" Illinois v. Caballes, 543 U.S. at 408, 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652).
A Fourth Amendment search occurs where the government, to obtain information, trespasses on a person's property to obtain information. A Fourth Amendment search may also occur where the government violates a person's subjective expectation of privacy that society recognizes as reasonable to collect information. See Florida v. Jardines, 133 S.Ct. at 1417 ("The Katz reasonable-expectations test `has been added to, not substituted for,' the traditional property-based understanding of the Fourth Amendment ...." (emphasis omitted)) (quoting United States v. Jones, 132 S.Ct. at 947). Given Justice Scalia's recent guidance in the Florida v. Jardines majority opinion that "a person's `Fourth Amendment rights do not rise or fall with the Katz formulation,'" Florida v. Jardines, 133 S.Ct. at 1417 (quoting United States v. Jones, 132 S.Ct. at 950), and that the trespass-based search analysis is a "baseline" to determine whether law enforcement investigatory conduct constitutes a Fourth Amendment search, id. at 1414, the Court will start its Fourth Amendment inquiry with this trespass-based approach.
The Supreme Court has not explicitly defined "physically intruding" as requiring an entity to invade a space in the physical — as opposed to virtual — world, but United States v. Jones and Florida v. Jardines hint that such a physical-world invasion is required. In United States v. Jones, the Supreme Court reconciled its conclusion that attaching a GPS device to track a jeep in plain view was a Fourth Amendment search with its recognition in New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), that a visual examination of the outside of a vehicle while in plain view does not constitute a search, by noting that "[i]n Class itself we
The Secret Service's digital scan of the electronic information contained in the Defendants' credit and debit cards' magnetic strips was not a physical invasion as the trespass-based analysis requires for a Fourth Amendment search. The Defendants are not contesting — in this motion — that they consented to the search in which the law enforcement officer found the thirty-one credit and debit cards. The Defendants pointed out at the suppression hearing that their contention is that the Fourth Amendment search which they contend violated their right to be free from unreasonable searches was the further examination of the magnetic strips' contents to gather the information contained therein. The Secret Service, in gathering the information on the cards' magnetic strips, did not gather the information on the magnetic strips by any physical invasion or trespass in the physical — as opposed to virtual — world. Rather, the Secret Service gathered the information that was electronically stored on the cards using the "Model 5607 Card Reader," which "reads and displays the data encoded on all three tracks of the magnetic strips on credit cards, ATM cards, [and] driver's licenses." Model 5607 Magnetic Stripe Card Reader/Verifier Instruction Manual at 1 (emphasis added). The Supreme Court in United States v. Jones distinguished attaching, physically, a GPS device to a vehicle in plain view from the observation of a vehicle in New York v. Class without ever reaching into the vehicle. Here, reading and displaying virtual data encoded on a track does not involve any physical invasion or penetration of space. Thus, whereas both United States v. Jones and Florida v. Jardines involved situations in which "the Government obtains information by physically intruding" into an area, Florida v. Jardines, 133 S.Ct. at 1414 (emphasis added) (internal quotations omitted) (quoting United States v. Jones, 132 S.Ct. at 950 n. 3), sliding a card through a scanner to read virtual data does not involve physically invading a person's vehicle to attach a physical device or physical invasion into the curtilage of a person's home with a dog to detect the smell of drugs. Thus, because the Secret Service properly possessed the thirty-one credit and debit cards, and because, by scanning the cards to read the virtual data contained on the strips, the Secret Service's conduct did not involve a physical penetration of space, the Court concludes there was no physical invasion here. The Court therefore concludes that there was no Fourth Amendment search here under the trespass-based search analysis.
The Supreme Court has not suggested that it intends to extend the trespass-based search analysis to cover virtual — as
To accept this intellectual leap from physical to both physical and virtual trespasses, the Supreme Court will have to explain some distinctions that have arisen in its Fourth Amendment jurisprudence since the Katz v. United States test's adoption. This task, however, is not insurmountable. One of the glaring areas in which the Court sees a problem in making the trespass-based analysis the sole approach to whether conduct constitutes a Fourth Amendment search is the area of eavesdropping and wire-tapping. The Supreme Court, it seems, would have to explain how it could adopt the trespass-based analysis and still account for the original distinction, between Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), in which the Supreme Court held, under the trespass-based test that wiretaps on a public street to record the conversation exiting the defendant's home did not violate the Fourth Amendment, and Katz v. United States, in which, while noting that "the underpinnings of Olmstead and Goldman [v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942)] have been so eroded by our subsequent decisions that the `trespass' doctrine there enunciated can no longer be regarded as controlling," the Supreme Court held that a wiretap on the outside of a public telephone booth violated the defendant's Fourth Amendment rights, because "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth." 389 U.S. at 353, 88 S.Ct. 507. Justice Scalia might conclude that Katz v. United States is wrong, and that wiretapping the public telephone booth does not implicate the Fourth Amendment, as it is not a home, person, place, or effect. The Court does not think, however, that, Justice Scalia would believe Olmstead v. United States was correct in holding that wiretapping the home telephone did not constitute a Fourth Amendment search. Applying the trespass-based approach to virtual invasions as well as physical invasions would yield the correct result in Olmstead v. United States — that tapping a home telephone line from outside the house is nevertheless a Fourth
Nevertheless, Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, asserted in United States v. Jones that Justice Scalia's approach "strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law," that "it is highly artificial" and that he would "analyze the question presented in this case by asking whether respondent's reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove." 132 S.Ct. at 958 (Alito, J., concurring in the judgment). Justice Sotomayor in her concurring opinion in United States v. Jones noted that, although she agreed the trespass-based approach was "an irreducible constitutional minimum," she also believes that "[i]n cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion of property, the majority opinion's trespassory test may provide little guidance." 132 S.Ct. at 955 (Sotomayor, J., concurring). Considering that Justice Breyer was among those who joined in Alito's Florida v. Jardines dissent, in which he noted that "[t]he Court's decision is also inconsistent with the reasonable-expectations-of-privacy test," 133 S.Ct. at 1421 (Alito, J., dissenting), and also considering that Justices Ginsburg and Sotomayor joined Justice Kagan in her Florida v. Jardines concurring opinion, in which she wrote "separately to note that I could just as happily have decided [the case] by looking to Jardines' privacy interests," 133 S.Ct. at 1418 (Kagan, J., concurring), and "suggest[s] that a focus on Jardines' privacy interests would make an `easy case easy' twice over," 133 S.Ct. at 1420 (Kagan, J., concurring), it is likely that a Supreme Court majority — at the least Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan — are not in favor of repudiating the Katz v. United States reasonable-expectation-of-privacy test.
Even if the Supreme Court were to extend the trespass-based analysis for
The Defendants contend that the Secret Service's scan of the cards to read the account information stored on the magnetic strips was a search. Whereas an officer's entry into a home, an area in which the officer cannot see and does not know what lies inside, may be considered an invasion into a constitutionally protected, as would an officer's invasion into a parcel of luggage — a person's effect — to gather information about what lies inside the luggage
The Fourth Amendment's language suggests that a magnetic strip on the back of a credit or debit card, as opposed to the credit or debit card separately, is not a constitutionally protected area. First, the Fourth Amendment protects people from unreasonable searches and seizures of "their" property, and the only time in which scanning credit and debit cards' magnetic strips would violate someone's expectation to be "secure" in the information stored in the magnetic strips is when the information therein is not "their" property. U.S. Const. amend IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...." (emphasis added)). See Anderson v. United States, 399 F.2d 753, 755 (10th Cir.1968) ("The courts have very specifically categorized the Fourth Amendment prohibition against unreasonable search and seizure as a personal right."). As Justice Scalia stated in his concurrence in Minnesota v. Carter, in which Justice Thomas joined: "The obvious meaning of the provision is that each person has the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects." 525 U.S. at 92, 119 S.Ct. 469 (Scalia, J., concurring) (emphasis in original). He additionally submitted that, to read "their" as giving an individual a right to preventing unreasonable searches of others' person, papers, and effects, "which would give me a constitutional right not to have your person unreasonably searched .... [,] is so absurd that it has to my knowledge never been contemplated." 525 U.S. at 92, 119 S.Ct. 469 (Scalia, J., concurring). Along these lines, the Supreme Court has recognized that, early on in its jurisprudence — before it invoked the Katz v. United States reasonable-expectation-of-privacy approach — "a defendant who wished to assert a Fourth Amendment objection was required to show that he was the owner or possessor of the seized property or that he had a possessory interest in the searched premises." Simmons v. United States, 390 U.S. 377, 390, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (citing, as an e.g. cite, Jones v. United States, 362 U.S. 257, 262, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). The Fourth Amendment thus protects the Defendants from unreasonable searches and seizures of their effects and their papers, and the Fourth Amendment protects the Defendants against law enforcement's search of their person, their wallet, or their vehicle to take possession of the thirty-one debit and credit cards at issue. The Supreme Court has held that, to invoke protection of a person's home, person, papers or effect, the person must "show that he was the owner or possessor ... or had a possessory interest," in the property searched, Simmons v. United States, 390 U.S. at 390, 88 S.Ct. 967; scanning credit or debit cards would reveal only information which a person would wish to keep "secure," U.S. Const. amend IV, if the person did not own
Second, a scan limited to credit and debit cards' magnetic strips when the cards are physically in the possession of the person scanning the cards is not an invasion into a constitutionally protected area. All of the enumerated constitutionally protected areas — homes, persons, papers and effects — are areas in which a person may keep information that he or she wishes to keep private, which a person should expect to be secure from arbitrary government intrusion, and thus areas in which the Framers required probable cause to subject them to law enforcement disclosure. Credit and debit cards' magnetic strips are not areas in which an average person would store information that he or she wishes to keep private. Credit cards and debit cards, unlike a person's personal effects such as luggage or a wallet, are not meant to contain things or information which a person may wish to keep secure, but rather contain the information that the financial institution which issued the card to the cardholder placed there — the account information embossed on the front of the card. A person may wish to keep the contents of his or her luggage secure from arbitrary police interference, because, while the outside of the bag may not seem private, a person may store any number of private things within. A person may also have an interest in keeping the contents of a wallet secure, because the person may not wish to disclose information contained within, such as a social security card, family photographs, or even account information found on the outside of his or her credit and debit cards. In contrast, a credit or debit card's magnetic strip cannot contain anything except a limited number of alphanumeric characters. Moreover, rather than expecting this information and these characters to remain secure from disclosure, credit and debit cards are issued solely for the purpose of disclosing the information when using the card, so that the person using the card may purchase the goods. In contrast to such private, personal effects which are constitutionally protected areas, the evidence in the case shows that, with regard to the alphanumeric characters on credit and debit cards' magnetic strips, in all but criminal circumstances, once law enforcement have lawful possession of a person's credit or debit card, the information in the cards' magnetic strips has already been disclosed to the officers. The Court thus concludes that, because credit and debit cards' magnetic strips contain nothing that any non-criminal may wish to keep "secure" from government searches or seizures once the card is already physically in government's possession, credit and debit cards' magnetic strips are not constitutionally protected areas.
Third, the Court concludes that any eighteenth century analog for the information-gathering investigation technique that the Secret Service used here would not
The Court has thought of two situations which may be sufficiently analogous to the Secret Service's scan of the Defendants' debit and credit cards magnetic strips to read the account information contained on those cards to provide insight about such an information-gathering technique at the Founders' time: use of a search dog and counterfeit money. As Justice Alito points out in his Florida v. Jardines dissent, law enforcement officers, since at least the fourteenth century, used tracking dogs in their "`pursui[t] [of] thieves or seiz[ure] [of] malefactors.'" 133 S.Ct. at 1424 (Alito, J., dissenting) (citation omitted). The Supreme Court has also held that use of a drug-sniffing dog is not a search, given that "the manner in which information is obtained through this investigative techniques is much less intrusive than a typical search ...., [as] the sniff discloses only presence or absence of narcotics.... [and thus] the information obtained is limited." United States v. Place, 462 U.S. at 707, 103 S.Ct. 2637. Similar to a drug sniff alerting the handler only to the presence of narcotics — information about illegal activity — scanning credit and debit cards to read the information contained on the magnetic strips, when law enforcement already has physical possession of the cards, will disclose "only the presence or absence of" illegal information: either the information disclosed is the same information on the outside of the credit and debit cards, or is information about a different account, used to commit credit card fraud. Where law enforcement scans a person's credit and debit cards already in its possession, just like a drug-sniffing dogs alert to narcotics in a bag, "the information obtained is limited" to criminal activity. United States v. Place, 462 U.S. at 707, 103 S.Ct. 2637. That police have used tracking dogs since the fourteenth century, does not end the inquiry, because, based in light of the Supreme Court majority's conclusion in Florida v. Jardines, it is reasonable to assume that law enforcement officers were not exempt from trespass laws when using tracking dogs; tracking in constitutionally protected areas would thus likely violate the Fourth Amendment. Once law enforcement tracked the suspect to a house using a tracking dog, the officers probably could not go into the home to arrest the man without that being an intrusion, which, today, would require a warrant. Using a scanner that could read the electronically stored information on credit and debit cards if they are in a person's wallet,
The Secret Service's scan of the Defendants' credit and debit cards' magnetic strips, to read the account information on the magnetic strips, is also analogous to an eighteenth-century police officer's investigation whether certain coinage or money is counterfeit. It has been noted that "[c]ounterfeiting money is ... as old as minting money." Nocolas Christin, Alessandro Acquisti, Bryan Parno, Adrian Perrig, Monetary Forgery in the Digital Age: Will Physical-Digital Cash be a Solution? 7 I/S: J.L. & Pol'y for Info. Soc'y 171, 172 (Winter, 2012). Counterfeit coins have been discovered dating back to the Fourth Century B.C.E. See N. Christin et al., supra, at 172. At the Founders' time, in a trial at Old Bailey in 1690, Thomas and Anne Rogers were tried and found guilty of high treason for "Clipping 40 pieces of Silver," evidence of which was discovered when the law enforcement officer found "clipt Mony" in the bottom of a chest.
In conclusion, on the evidence established at the suppression hearing, once the officers lawfully possessed the Defendants' thirty-one credit and debit cards, the virtual invasion of the alleged protected area would not have disclosed anything additional beyond that which the officers already knew and saw — the cardholders' names and account information embossed on the credit and debit cards' exteriors — but would only quickly allow law enforcement to find that the payment form is being used unlawfully. When a law enforcement officer sees only the exterior of the other "constitutionally protected areas" that the Fourth Amendment enumerates — persons, houses, papers, and effects — there may still be information, which a law enforcement officer does not already know or see, and which the person asserting his or her Fourth Amendment right owns or has a right to possess and to feel secure will be free from unreasonable searches. When a law enforcement officer sees only the exterior of a credit or debit card, however, given that the financial institution which issues the card places the same information on the magnetic strip as embossed on the card's exterior, the only instances in which the information inside the credit or debit card is not information already seen by and known to the officer is when the information has been reencoded for unlawful purposes. In these instances, not only does the person asserting his or her Fourth Amendment right not own or otherwise lawfully possess the information contained inside the card on the magnetic strip, but the person has stolen the information with the intent to use that information to steal further from the person whose information is on the magnetic strip. Protecting this area from law enforcement search and seizure would thus not further the Fourth Amendment's express purpose of protecting "[t]he right of the people to be secure in their persons, houses, papers, and effects...." U.S. Const. amend IV. Because "[t]he Fourth Amendment `indicates with some precision the places and things encompassed by its protections': persons, houses, papers, and effects," Florida v. Jardines, 133 S.Ct. at 1414 (quoting Oliver v. United States, 466 U.S. at 178, 104 S.Ct. 1735), and because the search of a credit or debit card's magnetic strip does not implicate the interests in requiring separate probable cause to search these areas — additionally and beyond the search to gain lawful possession of the card itself — the Court concludes that credit and debit cards' magnetic strips are not a constitutionally protected area. Additionally, in light of law enforcement investigatory techniques around the Framers' time, because the scan disclosed information, beyond that in plain view, of only unlawful activity, the Court concludes that the Founders would not have considered this
The Secret Service's scan of the Defendants' thirty-one credit and debit cards was not a Fourth Amendment search under the trespass-based analysis. Scanning the cards to read their account information was not a physical trespass. The majority of the Supreme Court in United States v. Jones, however, opined that "we do not make trespass the exclusive test" and that "[s]ituations involving the transmission of electronic signals without trespass would remain subject to the Katz analysis." 132 S.Ct. at 953 (emphasis in original). The Court will therefore analyze whether the scan constituted a Fourth Amendment search under the Katz v. United States reasonable-expectation-of-privacy analysis. The Defendants contend that they had a clear expectation of privacy in the personal information electronically stored on each of the credit/debit cards magnetic strips. See Motion to Suppress at 1. The United States asserts that the Defendants cannot demonstrate that they had either a subjective expectation of privacy in the information stored on the magnetic strips or that such a subjective expectation is one that society would recognize as reasonable. The Court agrees with the United States.
The first step that a district court takes in analyzing whether a defendant has an expectation of privacy requires analyzing "whether the defendant manifested a subjective expectation of privacy in the area searched." United States v. Ruiz, 664 F.3d 833, 838 (10th Cir.2012) (quoting United States v. Allen, 235 F.3d 482, 489 (10th Cir.2000)). "The first part of the Katz test requires only ... [a person's] conduct [to] have demonstrated an intention to keep activities and ... [property] private, and that he did not knowingly dispose it to the open view of the public." LaFave, supra, § 2.1(d), at 439 (quoting Note, supra, at 754). Although courts often give little attention to this subjective component of the two-part Katz v. United States test, see LaFave, supra, § 2.1(d), at 438, courts have invoked this part to hold that a person's disclosure of something in which the person asserts he or she has a reasonable expectation of privacy precludes finding the manifestation of such a subjective belief. Thus, in United States v. Miller, for example, the Supreme Court recognized:
United States v. Miller, 425 U.S. at 443, 96 S.Ct. 1619.
The Defendants submit that they had a reasonable expectation of privacy in the credit and debit cards that the Secret Service scanned, and that they exhibited their subjective expectation of privacy by not ever having used the cards. In United States v. Medina, No. 09-20717-CR, 2009 WL 3669636 (S.D.Fla. Oct. 24, 2009), the only case that the parties or the Court found analyzing this same issue, the Honorable Edwin G. Torres, United States Magistrate Judge, noted that, because the defendant attempted to use the counterfeit credit card, he "thus knowingly disclosed the information on the magnetic strip of his credit card to a third party and [could not] claim a reasonable expectation to privacy in it." 2009 WL 3669636, at *11. As in United States v. Miller, the use of the credit cards at issue, even if intended only for the limited use of conveying the information contained in the magnetic strip to the bank to facilitate the purchase of goods, would likely preclude the Defendants from maintaining a subjective expectation of privacy. The Defendants conceded as much at the suppression hearing:
Tr. at 37:13-18 (Kochersberger). The Court is reluctant to accept the Defendants' assertion that they possessed thirty-one credit cards, many of them in their own names, several of which had information on the magnetic strips that related to persons other than the Defendants, but they nonetheless subjectively intended not to disclose this information to a third party — i.e., intended not to use the cards. Nevertheless, the United States has not demonstrated that the Defendants had other than "an intention to keep [their] activities and ... [the information] private," and the United States has not shown that the Defendants "knowingly dispose[d] [the thirty-one cards] to the open view of the public," LaFave, supra, § 2.1(d), at 43, aside from consenting to the officer's search in which the cards were discovered. The Court therefore concludes that the Defendants have met their burden with respect to the subjective component of the two-part Katz v. United States reasonable-expectation-of-privacy search analysis, and that, at the time of the search, they had maintained a subjective expectation of privacy in the electronic information on the thirty-one cards' magnetic strips.
Under the second step of Katz v. United States' reasonable-expectation-of-privacy analysis, the Court must determine whether the subjective privacy interest is "legitimate," by analyzing whether it is "an interest in `privacy that society is prepared to consider reasonable.'" Illinois v. Caballes, 543 U.S. at 409, 125 S.Ct. 834 (quoting United States v. Jacobsen, 466 U.S. at 122, 104 S.Ct. 1652). See United States v. Ruiz, 664 F.3d at 838 ("In determining whether [the defendant] had a legitimate expectation of privacy ... we consider ... `whether society is prepared to recognize that expectation as objectively reasonable.'") (quoting United States v. Allen, 235 F.3d at 489); Kerns v. Bd. of Comm'rs of Bernalillo Cnty., 888 F.Supp.2d at 1219
The Supreme Court has stated that, while no single factor determines legitimacy, whether society recognizes a privacy interest as reasonable is determined based on our societal understanding regarding what deserves protection from government invasion:
Oliver v. United States, 466 U.S. at 177-78, 104 S.Ct. 1735 (internal citations omitted). Justice Harlan, the Katz v. United States reasonable-expectation-of-privacy approach architect, stated that the question whether society would recognize a subjective expectation of privacy as reasonable "must ... be answered by assessing the nature of a particular practice and the likely extent of its impact on the individual's sense of security balanced against the utility of the conduct as a technique of law enforcement." United States v. White, 401 U.S. 745, 787, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting).
Society is not prepared to recognize as legitimate an asserted privacy interest in information in plain view that any member of the public may see. In California v. Ciraolo, the Supreme Court held that the "respondent's expectation that his garden was protected from [officers'] observation," which "took place within public navigable airspace ... in a physically nonintrusive manner," is unreasonable "and is not an expectation that society is prepared to honor." 476 U.S. at 213-14, 106 S.Ct. 1809. The Supreme Court reasoned that there were factors weighing in favor of finding the respondent's expectation of privacy reasonable, including that he "took... precautions to maintain his privacy," that "the 10-foot fence was placed to conceal the marijuana crop from at least street-level views," and that the garden was within the curtilage of the home, where "[t]he protection afforded ... is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened." 476 U.S. at 211-13, 106 S.Ct. 1809. The Supreme Court reasoned, however:
California v. Ciraolo, 476 U.S. at 213, 106 S.Ct. 1809 (quoting Katz v. United States, 389 U.S. at 351, 88 S.Ct. 507). The Supreme Court ultimately concluded that, because "[a]ny member of the public flying in this airspace who glanced down could have seen everything that these officers observed." 476 U.S. at 213-14, 106 S.Ct. 1809.
When the information within an area or item has not been exposed to public view, and when investigating the contents may reveal information other than information about criminal activity only, the investigation of the area or item is a Fourth Amendment search. Compare Walter v. United States, 447 U.S. 649, 654-55, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) ("[I]t has been settled that an officer's authority to possess a package is distinct from his authority to examine its contents.") with United States v. Jacobsen, 466 U.S. at 120, 104 S.Ct. 1652 (noting that "the removal of plastic bags from the tube and the agent's visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the private search," and holding that the inspection of the contents "infringed no legitimate expectation of privacy and hence was not a `search' within the Fourth Amendment."). In Walter v. United States, the defendants were charged with interstate shipment of five illegal obscene films, based on the following "bizarre facts":
447 U.S. at 651-52, 100 S.Ct. 2395. The Supreme Court held that the FBI agents' "unauthorized exhibition" of multiple obscene films given to them by a third party "constituted an unreasonable invasion of the owner's constitutionally protected interest in privacy," notwithstanding that "the nature of the contents of these films was indicated by descriptive material on their individual containers." 447 U.S. at 654, 100 S.Ct. 2395. The Supreme Court noted: "The fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents .... [as] it has been settled that an officer's authority to possess a package is distinct from his authority to examine its
Walter v. United States, 447 U.S. at 656, 100 S.Ct. 2395.
In United States v. Jacobsen, the Supreme Court, when faced with facts similar to those in Walter v. United States, held that the government's field test of a small amount of a white powdery substance was not a search, because "governmental conduct that can reveal whether a substance is cocaine, an no other arguably `private' fact, compromises no legitimate privacy interest." 466 U.S. at 123, 104 S.Ct. 1652. A Federal Express employee and supervisor had opened a damaged package, and exposed four zip-lock plastic bags containing six and one-half ounces of white powder. See 466 U.S. at 111, 104 S.Ct. 1652. They then called the DEA and repacked the contents in the original packaging before they provided the package to the DEA officers. See 466 U.S. at 111, 104 S.Ct. 1652. When the agents arrived, the agents removed the exposed plastic bags from the broken package, opened each of the four bags, and field tested the white powder, identifying the powder as cocaine. See 466 U.S. at 111-12, 104 S.Ct. 1652. The Supreme Court first held that removal of the plastic bags from the tubes and the agent's visual inspection were not Fourth Amendment searches:
466 U.S. at 120, 104 S.Ct. 1652 (footnote omitted). The Supreme Court, relying on United States v. Place, held that the additional digital scan of the white substance was not a Fourth Amendment search, because the test discloses only whether the substance is cocaine, and "nothing [else] of special interest":
United States v. Jacobsen, 466 U.S. at 122-24, 104 S.Ct. 1652.
The Court has previously found that "[a]n individual has an expectation of privacy in an electronic repository for personal data, including cell telephones and pager data memories." United States v. Morales-Ortiz, 376 F.Supp.2d at 1139 (citing United States v. Chan, 830 F.Supp. 531, 534-35 (N.D.Cal.1993)). The Court concluded that "agents properly seized the pager and the cell phone under the doctrine of plain view," but the Court "assume[d] without deciding that the manipulation [of the pager required to read the allegedly incriminating message and of the cellular telephone to retrieve the incoming call list] exceeded the scope of the plain view doctrine." 376 F.Supp.2d at 1141-42. The conclusion that there was a reasonable expectation of privacy in a pager's contents in United States v. Chan — the decision on which the Court relied for the proposition that an individual maintains a legitimate expectation of privacy in electronic repositories — was based on the proposition that "[a] warrant may be required to search the contents of a container when its owner's expectation of privacy relates to the contents of that container, rather than to the container itself." 830 F.Supp. at 534 (citing United States v. Chadwick, 433 U.S. 1, 10-11, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Walter v. United States, 447 U.S. at 649, 100 S.Ct. 2395).
The only purpose in storing electronic information on credit and debit cards' magnetic strips is to facilitate a financial transaction by enabling third-party disclosure of the account information on the outside of the cards to be disclosed to the receiving financial institution, which is not physically present. Importantly, the issue in this case is not whether the officers' possession of the thirty-one credit cards was the fruit of an unlawful search. Rather, the Defendants contest the further search of the account information stored on the cards' magnetic strips. See Motion to Suppress at 1 (moving the Court to suppress "all evidence discovered as a result of the April 7, 2011 warrantless search of electronic information stored on the magnetic strips of thirty-one (31) credit/debit cards seized from the Defendant's vehicle"). Issuing financial institutions store on their credit and debit cards' magnetic strips, when they issue a credit or debit card to a cardholder, the same information on every card that they issue: one character and then the account information identical to the account information embossed on the front of the front of the card. See MTS Response at 3 (noting that a "name, account number and name of issuing financial institution [i]s embossed on the front of the card."); Tr. at 19:1-4 (Kochersberger, Vela) (Q: "The magnetic strips that you were demonstrating on the machine those are contained on credit cards as you demonstrated right?" A: "Yes, sir.");
A privacy expectation in the account information stored on credit and debit cards' magnetic strips — separate and beyond the credit and debit cards themselves — is not objectively reasonable. In California v. Ciraolo, the respondent went to substantial lengths to protect as private the curtilage of his home, an area where privacy interests are at their greatest. The Supreme Court nevertheless held that this expectation of privacy was not objectively reasonable, because the marijuana farm in the curtilage of his home was viewable from public vantage point — the airspace overhead — and there is no requirement that law enforcement shield their eyes from things viewable from public vantage point. Here, as the Defendants point out, financial institutions go to great lengths in their attempt to ensure that the electronic account information is kept secure during its electronic transfer. To use a credit or debit card in a store, a person must swipe a credit or debit card, or have the store clerk do the same, necessarily exposing the card and the account information embossed on the card to public vantage point. Moreover, that using the card discloses the information to the store clerk, even if the user swipes the card rather than the clerk, is evident when the store clerk often asks for the last four digits of the user's account number — a question to ensure the information on the card's magnetic strip matches the account information on the front. "The mere fact that an individual has taken measures to restrict some views of his activities [does not] preclude an officer's observations from a public vantage
Although the Secret Service's scan of credit and debit cards to read the account information stored on the cards' magnetic strips is an investigation into the contents of an item or area, it is not a Fourth Amendment search, as it reveals only the same information revealed in a private search when the card is used as intended. The Supreme Court held in United States v. Jacobsen that officers' opening of a package and the zip-lock baggies contained within the package to obtain the white powdery substance contained within those packages "infringed no legitimate expectation of privacy and hence was not a [Fourth Amendment] `search,'" because the investigation "enabled the agent to learn nothing that had not previously been learned during the private search." 466 U.S. at 120, 104 S.Ct. 1652. Here, each time a credit or debit card is used as intended, and scanned by a store clerk or entered into a website at checkout so that the cardholder can purchase an item, the account information stored on the card's magnetic strip is revealed, whether to the store clerk, the website, the issuing financial institution, or any combination, or all three. That the Supreme Court held in Walter v. United States that viewing the contents inside of movie reels, even though the labels on the outside gave the FBI probable cause to believe that there was evidence of criminal activity on the reels, was a Fourth Amendment search is thus distinguishable. The Supreme Court in Walter v. United States pointed out that the FBI's search went beyond that of the private employees' search, as the employees "attempted without success to view portions of the film" and thus revealed information unknown by means of the private search. 447 U.S. at 652, 100 S.Ct. 2395. Here, on the other hand, each time a credit and debit card is used, the full contents of the account information stored on the magnetic strip is successfully viewed by the private party; otherwise, the transaction fails, and the card is returned to the cardholder. Thus, because the Secret Service's scan of credit and debit cards in their possession, every time after the credit and debit cards have been used as intended — to purchase goods — "enable[s] the agent to learn nothing that had not previously been learned during a private search" of the magnetic strip's account information when the card was used, the Secret Service's scan "infringe[s] no legitimate expectation of privacy and hence [i]s not a `search' within the meaning of the Fourth Amendment." United States v. Jacobsen, 466 U.S. at 120, 104 S.Ct. 1652.
Even in situations in which credit and debit cards have not been used, because the Secret Service's scan of credit and debit cards' magnetic strips to read the account information stored on the strips discloses only information known by viewing the outside of the card, or information that the cards and account information are possessed unlawfully, the scan is "[o]fficial conduct that does not `compromise any
The Court's conclusion that there is no legitimate privacy expectation in the information
The ability to reencode cards' magnetic strips equates, formally, to the fact that the cards' magnetic strips are electronic storage media and possibly an electronic repository for personal data. The second step in the Katz v. United States reasonable-expectation-of-privacy analysis does not, however, look formally at the location or item in which there is allegedly an objectively reasonable privacy expectation, but rather looks, functionally, at "the uses to which the individual has put a location, and our societal understanding that certain areas deserve the most scrupulous protection from government invasion," Oliver v. United States, 466 U.S. at 177-78, 104 S.Ct. 1735, and ultimately "must ... be answered by assessing the nature of a particular practice and the likely extent of its impact on the individual's sense of security balanced against the utility of the conduct as a technique of law enforcement," United States v. White, 401 U.S. at 787, 91 S.Ct. 1122 (Harlan, J., dissenting). Courts have found that there is an objectively reasonable privacy expectation in information stored in electronic storage media such as CD-ROMs, DVDs, USB drives, cellular telephones, pagers, and laptop computers, because individuals have put those locations to use for storing information. Among the information stored on these media may include personal information
These electronic storage devices and electronic repositories for personal data are useful, because of individuals' ability to store and manipulate electronic information in them, and the ability of to exclude others from viewing the contents of these media even if the public is able to view the exterior of the media. Moreover, the general public looking at the outside of a USB drive, a laptop computer, or a cellular telephone does not know the contents of these items. Credit and debit cards, however, are not useful because of the individuals' ability to store and manipulate information. Individuals and society put credit and debit cards to use by disclosing their contents. In other words, while individuals use electronic storage media primarily to manipulate information electronic for storage, and while individuals may see these media as useful for their ability to keep information from the others' view, individuals use credit and debit cards primarily to disclose information that the issuing financial institution stored electronically, and the limited information stored on credit cards' magnetic strips is useless if not disclosed. Rather 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 — the account information embossed on the front — to facilitate a financial transaction and purchase goods and services. Additionally, because CD-ROMs, DVDs, USB drives, cellular telephones, pagers, or laptop computers are designed to be used by individuals for the explicit purpose of manipulating and storing information, individuals can do so readily and easily, and all individuals using this media do so as a matter of course. With regard to credit and debit cards, because they are designed to be used by disclosing only the electronic information stored there by the financial institution originally, individuals cannot reencode the information on these cards readily or easily, but must have the proper equipment to do so. See Tr. at 21:17-25 (Kochersberger, Vela) (Q: "[I]f you have the appropriate device you can actually erase that information from the credit [card and] put other information on it, right?" A: "To my knowledge you could do that, you could it's called reencoding." Q: "[T]hat's the issue in this case is that some of the cards you believe were reencoded with information different than how it came from the issuer right?" A: "That is correct."). And individuals, at least most individuals, and likely law-abiding individuals, do not do so as a matter of course. Probably the only individuals in society who put credit and debit cards to use as electronic storage media — by manipulating the information electronically stored on the backs of credit and debit cards — are criminals who, rather than storing names, birthdates, addresses, e-mail passwords, and other personal information on the cards, store credit and debit card account information "skimmed" from
The Court is sensitive to the concerns that the Defendants point out about limiting avenues for future technology growth, and is also sensitive to peoples' privacy expectations in their credit and debit card account information generally. The Court believes that its limited conclusion here — that society is not prepared to recognize as legitimate a privacy interest in the information stored on credit and debit cards' magnetic strips separate from and in addition to a privacy interest in the credit and debit card and account information itself — does not cut contrary to either of these concerns. First, the Court is not concluding that there is no reasonable expectation of privacy in magnetic strips on cards generally, but only as to credit and debit cards specifically. If, for instance, a person or society decides that a convenient and safe means of storing personal information, such as personal medical records or passwords, is to store this information on magnetic strips on the back of a card similar to a credit card, thereby allowing a person to carry that card around in his or her wallet, so long as that card does not reasonably appear to be a credit or debit card, the Court's holding does not affect anyone's ability to do so. The Court does not conclude that a person does not have an objectively reasonable expectation in the electronically stored information on a card's magnetic strip where the front of that card says "medical information," or perhaps says nothing at all, because, as the Defendants point out, any card other than a credit or debit card may in the future come to be used as an electronic repository for personal data. Thus, if law enforcement officers obtain such a card during a lawful search, such as a consensual search, they are not able to the perform the additional search of the electronic information stored on such a card without probable cause. See United States v. Morales-Ortiz, 376 F.Supp.2d at 1139 ("An individual has an expectation of privacy in an electronic repository for personal data....") Where, however, the front of the card appears to be a credit or debit card, such
Second, the Court's conclusion does not cut against society's and Congress' recognition of the importance of keeping credit and debit card account information secure and private. The Court does not conclude that a person's privacy expectation in his or her account number and credit card information, generally, is not objectively reasonable, but rather the additional privacy in a credit or debit card's magnetic strip, particularly. Thus, a law enforcement officer cannot walk up to a person and demand to see their credit and debit cards — assuming that the person has his or her credit cards inside a pocket, wallet, purse, or otherwise not directly viewable from a public vantage point. See Walter v. United States, 447 U.S. at 654-55, 100 S.Ct. 2395 ("[I]t has been settled that an officer's authority to possess a package is distinct from his authority to examine its contents.") (quoting United States v. Chadwick, 433 U.S. at 10, 97 S.Ct. 2476). Similarly, the limited information stored on the backs of credit and debit cards does not implicate the sort of invasion of privacy behind society's and Congress' concern in keeping credit card information secure. The information disclosed in scanning credit and debit cards' magnetic strips is limited to the same information that the exterior of the card discloses. Thus, at the time that the store clerk sees the card as it is taken out of a wallet or purse, or law enforcement possesses the card, the store clerk or law enforcement has already seen the entirety of the information which will be disclosed by scanning the card in a card reader. The information gleaned from scanning the credit or debit card is not only identical to information on the outside of the card, but is also limited to a certain number of alphanumeric characters. Just as the store clerk, when he or she scans a credit and debit card, is not able to see or pull up the cardholder's account history, view the cardholder's most recent credit card bill, or see the outstanding credit limit, law enforcement's scan of the credit or debit card provides them only the same alphanumeric information, and does not allow law enforcement to view the account history or remaining credit limit. Law enforcement uses the same technology as the store, and the information gleaned from the scan is subject to the inherent alphanumeric limitations that magnetic strips provide. Just as society accepts that a store clerk, when given a credit or debit card, is able to see the account number and name on a card when the card is scanned, and then often asks the cardholder for the last four digits on the front to make sure they match the last four digits displayed after scanning the magnetic strip, society recognizes as reasonable that law enforcement, when lawfully in possession of a credit or debit card, is able to see the account and name on a card when the card is scanned, and checking whether the information on the magnetic strip is the same as on the card — as it will be unless changed for nefarious purposes — is not an invasion of an objectively reasonable expectation of privacy.
Finally, the Supreme Court has, in the past, suggested that whether a subjective expectation is legitimate — i.e., whether society would recognize that expectation as reasonable — depends at least in part on whether the expectation of privacy stems from illegal activities. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court noted that whether a person has lawful possession of property or their activity is lawful is part of the calculus in determining whether a privacy expectation is "legitimate":
Rakas v. Illinois, 439 U.S. at 144-45 n. 12, 99 S.Ct. 421. The Supreme Court in Rakas v. Illinois reasoned that society is not prepared to recognize as reasonable an expectation of privacy in a burglar robbing a summer cabin during the offseason. Accordingly, the Court cannot soundly conclude that society is prepared to recognize as reasonable the Defendants' subjective expectation of privacy in the information stored on their credit and debit cards' magnetic strips — which the evidence shows would only be different from the information embossed on the outside of the card if the intent is to engage in a crime. The Court does not believe that society would recognize as reasonable a privacy expectation which, at least in contemporary society, would benefit only criminals.
The Defendants assert that, because there was no warrant to scan the electronically stored information in the
MTS Response at 14-15. Although the Court concludes that the scan of the Defendants' credit and debit cards was not a Fourth Amendment search, the Court further determines that, even if the Secret Service's scan of the Defendants' thirty-one credit and debit cards was a Fourth Amendment search, the warrantless scan of the magnetic strips when the credit cards were lawfully in the government's possession was reasonable.
Not every Fourth Amendment intrusion requires a warrant or probable cause, "because `the ultimate touchstone of the Fourth Amendment is reasonableness.'" Kentucky v. King, 131 S.Ct. at 1856 (quoting Brigham City v. Stuart, 547 U.S. at 403, 126 S.Ct. 1943). The Fourth Amendment prohibits only "unreasonable searches and seizures." New Jersey v. T.L.O., 469 U.S. at 334, 105 S.Ct. 733 (quoting Elkins v. United States, 364 U.S. 206, 213, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)). Whether a particular search is reasonable depends on the totality of the circumstances. See Samson v. California, 547 U.S. at 848, 126 S.Ct. 2193 ("`[U]nder our general Fourth Amendment approach' we `examin[e] the totality of the circumstances' to determine whether a search is reasonable within the meaning of the Fourth Amendment.") (quoting United States v. Knights, 534 U.S. at 118, 122 S.Ct. 587). "[T]he totality-of-the-circumstances test [i]s one where `the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Banks v. United States, 490 F.3d at 1184 (quoting Samson v. California, 547 U.S. at 848, 126 S.Ct. 2193).
The Supreme Court in New Jersey v. T.L.O. held that the Katz v. United States reasonable-expectation-of-privacy analysis parallels the totality-of-the-circumstances reasonableness test in one important way for purposes of this case: an individual's privacy expectation, which is alleged to have made the search unreasonable, must be legitimate. See New Jersey v. T.L.O., 469 U.S. at 338, 105 S.Ct. 733 ("Of course, the Fourth Amendment does not protect subjective expectations of privacy that are unreasonable or otherwise `illegitimate.' To receive the protection of the Fourth Amendment, an expectation of privacy must be one that `society is prepared to recognize as legitimate.'") (quoting Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)). Thus, in Hudson v. Palmer, the Supreme Court held that prison inmates have no legitimate expectation of privacy in their prison cells, and, therefore, that "the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell." 468 U.S. at 525-26, 104 S.Ct. 3194. The Supreme Court reasoned: "Notwithstanding our caution in approaching claims that the Fourth Amendment is inapplicable in a given context, .... [t]he recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions." 468 U.S. at 525-26, 104 S.Ct. 3194.
Nevertheless, the most troubling aspect of the Court's conclusion that the Secret Service's scan of the defendant's thirty-one credit and debit cards was not a Fourth Amendment search, or if it was, that it was reasonable, is that it would have been so easy for the Secret Service to get a warrant. The evidence was not going anywhere, and the Secret Service still had to get a warrant to look at the electronically stored information in the computers and telephones. It would have been so easy to have tossed in to the search warrant application the request to scan the magnetic strips. The law apparently does not take into consideration the ease or difficulty of obtaining a warrant in determining whether there was a Fourth Amendment search in the first place, or in determining whether the search was reasonable. While this fact may be a factor in creating exceptions to the warrant requirement or to the exclusionary rule, that the police could have easily obtained a search warrant does not mean a search warrant was required at all.
The exclusionary rule precludes the government's ability to use evidence in a criminal prosecution that was obtained by law enforcement in violation of the defendant's Fourth or Fifth Amendment rights. Thus, "[i]f the police acquire evidence in the process of violating one's constitutional rights, they are forbidden from using that evidence in a criminal prosecution against the individual, unless an exception to the exclusionary rule applies." United States
Because the Court finds that the Secret Service's scan of the Defendants' credit and debit cards did not violate their Fourth Amendment rights, the information gleaned from the scan is admissible. Accordingly, the Court need not find that the information found in the cards' scan would have inevitably been discovered and need not address whether, because the United States used the information in the search warrant application, it should exclude all information found in the search warrant's execution. Nevertheless, the Court concludes that, if the information found in the scan of the thirty-one credit and debit cards was discovered in violation of the Defendants' Fourth Amendment rights, it is admissible under the inevitable discovery doctrine, and the evidence found in execution of the search warrant is admissible, because the search warrant application was sufficient without the information, and because the officers relied on the search warrant in good faith.
One exception to the exclusionary rule is the inevitable-discovery doctrine, which allows courts to admit unconstitutionally obtained evidence "if an independent, lawful police investigation inevitably would have discovered it." United States v. Cunningham, 413 F.3d at 1203 (quoting United States v. Owens, 782 F.2d at 152). The Tenth Circuit has adopted the following four-part test, often referred to as the United States v. Souza factors, to aid district courts in determining whether the evidence would inevitably have been discovered:
United States v. Cunningham, 413 F.3d at 1203-04 (quoting United States v. Souza, 223 F.3d 1197, 1204 (10th Cir.2000)).
At first blush, it appears that the first United States v. Souza factor — "the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search," United States v. Cunningham, 413 F.3d at 1203-04 — cuts against admitting the information on the cards' magnetic strips, because the United States had not begun the warrant process for the information on the cards' magnetic strips and did not intend to do so. Given that the reason law enforcement did not take steps to seek a warrant was that there is no precedent indicating that scanning credit and debit cards' magnetic strips requires a warrant, however, and in light of the amount of other evidence that the officers found during
The United States v. Souza's second through fourth factors weigh in favor of admitting the information that Secret Service obtained by the cards' scan. First, given the substantial amount of information found in the Defendants' car during the consensual search suggesting that the Defendants were committing or intending to commit credit card fraud and/or identity theft, the showing of probable cause at the time the search occurred is strong. During the consensual search, the state trooper found the following items in the Defendants' trunk: approximately 67 Wal-Mart
Second, that a search warrant was ultimately obtained in the case — although not directed to the scan of the credit and debit cards' magnetic strips — weighs in favor of finding the evidence gleaned from the cards' scan admissible. That there is no precedent suggesting a search warrant for the magnetic strips was necessary, and the amount of information otherwise providing probable cause for a search warrant of the computers and cellular telephones found in the Defendants' vehicle, play into the Court's conclusion that this third factor weighs in favor of admitting the evidence. The officers in this case did not intentionally bypass a search warrant altogether and search through the cellular telephones and computers alongside the magnetic strip scan, but rather, where they knew a warrant was required for a search, went through the process and waited until the warrant issued to then search the cellular telephones and computers. The Court believes that, if the law suggested that the officers were required to obtain a warrant for the information on the cards, the warrant that issued would have covered that information also.
Finally, the evidence in this case does not suggest that law enforcement agents "jumped the gun" because they lacked confidence in their probable cause showing "and wanted to force the issue by creating a fait accompli," but, rather, suggests the opposite: that law enforcement had probable cause and that the officers' conduct throughout adhered to the Fourth Amendment's strictures. United States v. Cunningham, 413 F.3d at 1203-04 ("4) evidence that law enforcement agents `jumped the gun' because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli."). The officer asked for and received consent to search the Defendants' car in the first place; and he recorded the consent. See Warrant Application at 9. Upon finding the trove of evidence in the Defendants' trunk, rather than search further into the electronically stored data in the computers and cellular telephones at the scene, or two days later when Secret Service scanned the thirty-one cards, the officers waited until a warrant issued to search these devices, as they knew the law required. The Court thus concludes that the fourth United States v. Souza factor weighs in favor of admitting the evidence, as there is no evidence showing that law enforcement's scan of the cards' magnetic strips was motivated by a "lack[] [of] confidence in their showing of probable cause" or that they "wanted to force the issue by creating a fait accompli." United States v. Cunningham, 413 F.3d at 1204. Thus, because the Court concludes that all four of United States v. Souza's factors weigh in favor of finding the inevitable-discovery doctrine applicable to the evidence found
The law enforcement officers used the information found in scanning the Defendants' thirty-one credit and debit cards in the search warrant application for the search warrant it later executed to search the cellular telephones and laptops that the state trooper found in the Defendants' car. Thus, if the scan violated the Defendants' Fourth Amendment right to be free from unreasonable searches, and the exclusionary rule prevents the United States' subsequent use of the information found during the cards' scans, it is possible that the search warrant, and all the evidence found because of the search warrant, including the information in the search of the computers and cellular telephones, is excluded as "fruit of the poisonous tree." United States v. Martinez, 696 F.Supp.2d 1216, 1239, aff'd, 643 F.3d 1292 (10th Cir. 2011) ("[A] defendant may ... suppress any ... evidence deemed to be `fruit of the poisonous tree,' (i.e., evidence discovered as a direct result of the unlawful activity), by showing the requisite factual nexus between the illegality and the challenged evidence.") (quoting United States v. Olivares-Rangel, 458 F.3d 1104, 1109 (10th Cir.2006)). If the search warrant application was sufficient without the information obtained from the officers' scan of the Defendants' credit and debit cards, however, then the search of the items listed in the search warrant was not unconstitutional, as the probable cause came from an independent source, and the information found is therefore not the fruit of the poisonous tree. See United States v. Rey, 663 F.Supp.2d 1086, 1104 (D.N.M.2009) (Browning, J.) ("[E]vidence that is obtained based upon information unrelated to an unlawful search is not fruit of the poisonous tree."); Segura v. United States, 468 U.S. at 814-15, 104 S.Ct. 3380 (holding that, although the search warrant at issue was based upon illegally obtained evidence, because "information possessed by the agents before" the illegal seizure provided sufficient probable cause for the warrant to issue, their knowledge "constituted an independent source for the discovery or seizure of the evidence," and the evidence was not fruit of the poisonous tree).
Supreme Court precedent suggests that, as long as the unlawful search or seizure was not the motivating factor in seeking the search warrant, a search warrant based on evidence known to officers before apart from an unlawful search or seizure fits under the independent-source doctrine. In Segura v. United States, the Supreme Court's holding that the independent-source doctrine precluded exclusion of the evidence seized pursuant to the search warrant turned on the fact that the warrant was based on information obtained before the unlawful search. See 468 U.S. at 814, 104 S.Ct. 3380 ("None of the information on which the warrant was secured was derived from or related in any way to the initial entry into petitioners' apartment; the information came from sources wholly unconnected with the entry and was known to the agents well before the initial entry"). The Supreme Court has also stated that a source for a warrant would not be genuinely independent "if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant." Murray v. United States, 487 U.S. at 542, 108 S.Ct. 2529
The Court's inquiry here is directed at determining whether the physical evidence discovered in the Defendants' car provided law enforcement probable cause to apply for the search warrant that issued in the case. The Supreme Court held in Segura v. United States that law enforcement's knowledge apart from the unlawful search is an independent source sufficient to preclude the exclusionary rule's application. Because the Secret Service's scan of the credit and debit cards' magnetic strips happened after law enforcement officers found all of the physical evidence in the Defendants' trunk, but before the United States submitted the search warrant application, law enforcement's knowledge derived only from the physical evidence in the trunk is an independent source here. Thus, if the physical evidence found in the car provides probable cause for the search warrant for the computers and cellular telephones, it provides an independent source for the search warrant.
The Tenth Circuit has stated that probable cause requires "more than mere suspicion but less evidence than is necessary to convict." United States v. Burns, 624 F.2d at 99. The consensual search of the Defendants' trunk produced the following physical evidence: (i) approximately sixty-seven Wal-Mart cash cards valued at approximately $1650.00; (ii) approximately $5673.00 in cash; (iii) two laptop computers; (iv) a bundle of paperwork which contained a list of approximately 500 names with birth dates, Social Security numbers, addresses, telephone numbers; and (v) thirty-one credit and debit cards, five of which had names other than the Defendants'. See Warrant Application at 9. The list of approximately 500 names with birth dates, Social Security numbers, addresses, and telephone numbers, in conjunction with thirty-one credit cards with four different names on the fronts of the cards would provide an officer with "more than mere suspicion" that the Defendants had committed or intended to commit, or at least aid and abet, aggravated identity theft. See 18 U.S.C. § 1028(a)(1) (defining aggravated identity theft) ("Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years."); 18 U.S.C. § 1029(a) (defining fraud activity in connection with access devices) ("Whoever ... (3) knowingly and with intent to defraud possesses fifteen or more devices which are counterfeit or unauthorized access devices," or conspires to do the same). The totality of the physical evidence found in the trunk, given the multiple credit and debit cards, the numerous Wal-Mart cash cards, the cash on hand in the trunk, two laptop computers, and the list is "sufficient ... to warrant" a reasonable person to believe that the "offense [of identity theft and/or credit card fraud] has been or is being committed." Mocek v. City of Albuquerque, No. CIV 11-1009 JB/KBM, 2013 WL 312881, at *43 (D.N.M. Jan. 14, 2013) (Browning, J.) ("Probable cause ... exists only when the `facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.'") (quoting United States v. Valenzuela, 365 F.3d 892,
Even if the scan of the Defendants' credit and debit cards was a Fourth Amendment search, and the search warrant was thus invalid because it lacked probable cause without the information discovered in the cards' scan, the exclusionary rule does not exclude the information found searching the computers and cellular telephones in execution of the search warrant, because the good-faith exception applies. "When police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted `in objectively reasonable reliance' on the subsequently invalidated search warrant." Herring v. United States, 555 U.S. at 142, 129 S.Ct. 695 (citing United States v. Leon, 468 U.S. at 922, 104 S.Ct. 3405). See United States v. McCane, 573 F.3d at 1044 ("[T]he good-faith inquiry `is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances.'") (quoting Herring v. United States, 555 U.S. at 145, 129 S.Ct. 695).
The Supreme Court in Herring v. United States concluded that negligent bookkeeping was no reason to exclude evidence found when an officer executed, in good-faith, an arrest warrant that had been recalled, but for which the database had not been updated to reflect the recall. See 555 U.S. at 137-38, 129 S.Ct. 695. As the Court has noted, the Supreme Court was guided in reaching its decision by the punitive policy behind the exclusionary rule and was thus "focused on whether exclusion under the circumstances of that case would have a substantial deterrent effect on the complained-of unconstitutional conduct." United States v. Martinez, 686 F.Supp.2d at 1205 (citing Herring v. United States, 555 U.S. at 144-46, 129 S.Ct. 695). Concluding that penalizing negligent bookkeeping would not further the deterrent purpose behind the exclusionary rule, the Supreme Court held that, in light of the negligent mistake of the law enforcement employee, the officers' good-faith reliance on the warrant excepted the evidence from exclusion under the exclusionary rule. See Herring v. United States, 555 U.S. at 146, 129 S.Ct. 695. The Supreme Court in Herring v. United States held that objectively reasonable reliance on a warrant that is later invalidated excepts the evidence discovered from
In conclusion, the Court determines that the Secret Service's scan of the Defendants' credit and debit cards' magnetic strips when the credit and debit cards' were lawfully in law enforcement possession was not a Fourth Amendment search under either the trespass-based approach or the alternative Katz v. United States reasonable-expectation-of-privacy approach. Even if the scan was a search, however, the search did not violate the Defendants' Fourth Amendment rights, because it was reasonable under the circumstances. Regardless whether the scan violated the Fourth Amendment, the evidence found in the scan of the cards is admissible under the inevitable-discovery doctrine. Moreover, the Court will not exclude the evidence that law enforcement discovered in the execution of the search warrant for the cellular telephones and laptop computers, which the state police seized during the consensual search of the Defendants' car. That there was sufficient probable cause without information gleaned from the credit and debit cards' scan, and the officers' objectively reasonable reliance on the search warrant, brings the search pursuant to the warrant under the good-faith exception to the exclusionary rule.
Tr. at 99:4-8 (Gerson).
Katz v. United States, 389 U.S. at 351-52, 88 S.Ct. 507. The Supreme Court appears to have changed course in its two most recent opinions on Fourth Amendment searches. In Florida v. Jardines, the particular place at which the search occurred weighs heavily on the Supreme Court's holding, reasoning that "[t]he [Fourth] Amendment establishes [as] a simple baseline .... protections `when the Government does engage in a physical intrusion of a constitutionally protected area.'" 133 S.Ct. at 1414 (original alterations and original emphasis omitted) (emphasis added) (quoting United States v. Knotts, 460 U.S. 276, 286, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (Brennan, J., concurring)). See United States v. Jones, 132 S.Ct. at 951 ("Katz did not erode the principle `that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.... Katz did not narrow the Fourth Amendment's scope.'"). The Court thus concludes that, while it may be true that the analysis does not turn on the place searched, the Court's prior statement — "the Supreme Court has vigorously asserted that the proper analysis under the Fourth Amendment is not whether the place searched is a `constitutionally protected area,'" Kerns v. Bd. of Comm'rs of Bernalillo Cnty., 888 F.Supp.2d at 1219-may no longer accurately reflect the Supreme Court's recent reversion to property-based analysis as a Fourth Amendment analysis baseline.
