If you’ve been stopped by a police officer and are subject to a search of your person or vehicle, the police may find a lot of things. One thing you may not think will attract any notice is your credit, debit, or other cards. But typically, if you are in possession of a large number of cards, the police may consider this grounds for suspicion that you have committed identity theft.
Photo by Anna Shvets
Is swiping a card a search?
The fourth amendment to the Constitution prohibits unreasonable search and seizure. This means the police must have “probable cause”, or a good reason to suspect you of a crime, in order to be able to search you or your property for evidence. In the case of credit cards, the relevant question is whether swiping or scanning the card amounts to a search.
What the Courts Say
In 2016, a federal appeals court heard the case of United States v. De L’Isle. The defendant in this case was pulled over by a police officer for tailgating. When the officer approached the car, he claimed to have smelled marijuana, which allowed him to search the car for drugs. No drugs were found, but the officer did find 51 credit, debit, and gift cards in a duffel bag in the trunk. Ten of the cards had the defendant’s name on them; the rest did not.
The cards were given to the Secret Service, who scanned them and found that the magnetic strips on the back of the credit cards did not contain any encoded account information, which legitimate cards would have. Based on this, the defendant was charged and convicted of possession of counterfeit devices.
The 8th Circuit Court of Appeals ruled that swiping these cards was not a Fourth Amendment violation, because the magnetic strip should contain the same information that is already plainly visible on the front of the card. The defendant was ruled to have no expectation of privacy regarding this information, because by trying to use the card he would consent to releasing the information.
Later in 2016, the 5th Circuit Court of Appeals ruled on a similar case. In this case out of Texas, two men were pulled over and asked for their IDs. The officer found that the passenger was the subject of an outstanding warrant, and he was arrested. While in the process of doing this, the officer noticed a bag partially under the passenger seat that appeared to have been pushed under the seat in an attempt to hide it. 143 gift cards were found in this bag, with no receipt, and turned out to be altered. The court ruled that it was legal to scan them.
It is important to note, however, that the courts found no violation in these cases due to the fact that the cards were found as part of a legal search, and were found under suspicious circumstances. This doesn’t mean that a police officer can just demand that you hand over your credit cards in case they might be fake.
What to Know About Credit Card Searches
Federal appeals courts have ruled multiple times that it is entirely reasonable for police officers to swipe credit, debit, or gift cards found under suspicious circumstances, like having dozens of them under different names hidden in bags. However, the police need to have had probable cause for a search to find these in the first place. They can’t just scan every card in your wallet to check for fakes. If you need legal assistance in a credit card case or believe you have been the subject of an illegal search, attorney Parikh can help.