United States v. Eric-Arnaud Briere DE L'Isle
2016 U.S. App. LEXIS 10345
| 8th Cir. | 2016Background
- Traffic stop on June 20, 2014 for following too closely; officer smelled marijuana, canine alerted, vehicle searched; defendant arrested after resisting.
- Officers seized a large stack of credit, debit, and gift cards from a duffle bag in the trunk; Secret Service scanned the cards’ magnetic strips.
- Scanning showed ten American Express cards had blank magnetic strips despite bearing defendant’s name; many other cards had account data for unrelated AmEx accounts — indicating re-encoding/counterfeiting.
- Defendant charged with possession of 15+ counterfeit/unauthorized access devices (18 U.S.C. § 1029); moved to suppress post-deadline, arguing warrantless scanning violated the Fourth Amendment.
- District court treated the late motion on the merits and denied suppression, holding that reading magnetic strips is not a Fourth Amendment search; jury convicted and defendant appealed only the Fourth Amendment issue.
Issues
| Issue | Plaintiff's Argument (Briere) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Whether scanning card magnetic stripes is a Fourth Amendment "search" | Scanning accesses stored account data and thus implicates a reasonable privacy interest requiring a warrant | Reading stripes is like observing information on the card’s exterior or using a non-intrusive authenticity check; no protected expectation of privacy | Scanning was not a Fourth Amendment search — affirmed |
| Whether defendant had a subjective expectation of privacy in stripe data | Briere contends he expected the stripe data to remain private | Govt argues card use necessarily discloses stripe data to third parties (sellers), negating privacy | Court found no protected privacy interest society would recognize |
| Whether society should recognize an objective expectation of privacy in stripe data that differs from front-of-card info | Briere: if stripes are rewritable they can hold private data; society may recognize privacy in rewritable digital storage | Govt: stripes ordinarily mirror front-of-card data and often reveal contraband (counterfeit), so no legitimate privacy interest | Court held no objective reasonable expectation given stripes normally duplicate visible info and here revealed contraband |
| Whether the discovery of contraband via scanning can retroactively justify the search | Briere: the legality of a search cannot be based on what it uncovers; need factual development on technological ability to rewrite stripes | Govt: scanning revealed possession of counterfeit cards (contraband), and revealing contraband does not implicate privacy | Court rejected the argument that revealed contraband creates a legitimate privacy interest and affirmed denial of suppression |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (establishes subjective and objective expectation-of-privacy test)
- Florida v. Jardines, 569 U.S. 1 (trespass theory: physical intrusion is a search)
- United States v. Jones, 565 U.S. 400 (trespass and expectation-of-privacy frameworks)
- Illinois v. Caballes, 543 U.S. 405 (sniff tests that reveal only presence of contraband are not searches)
- United States v. Jacobsen, 466 U.S. 109 (government conduct that does not compromise a legitimate privacy interest is not a search)
- Riley v. California, 573 U.S. 373 (reasonableness and digital data; warrants generally required for digital storage)
- Kyllo v. United States, 533 U.S. 27 (consider future technological capabilities when assessing privacy)
- Walter v. United States, 447 U.S. 649 (viewing lawfully possessed storage media can implicate Fourth Amendment)