}

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United States v. Eric-Arnaud Benjamin Briere DE L’Isle – U.S. Court of Appeals, Eighth Circuit

November 20, 2015

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1316
___________________________
United States of America
Plaintiff – Appellee
v.
Eric-Arnaud Benjamin Briere DE L’Isle
Defendant – Appellant
____________
Appeal from United States District Court
for the District of Nebraska – Lincoln
____________
Submitted: November 20, 2015
Filed: June 8, 2016
____________
Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.
____________
BEAM, Circuit Judge.

Eric-Arnaud Benjamin Briere DE L’Isle appeals the district court’s
denial of his motion to suppress information discovered by law enforcement after officers
seized credit, debit, and gift cards from DE L’Isle’s vehicle and scanned the cards’
magnetic strips. Despite DE L’Isle’s untimely motion to suppress, the district court
examined the merits of the motion and concluded that reading the magnetic strip on
the back of a credit, debit, or gift card was not a search within the meaning of the
Fourth Amendment. For the reasons discussed below, we affirm.

http://media.ca8.uscourts.gov/opndir/16/06/151316P.pdf

I. BACKGROUND

On June 20, 2014, Sergeant Michael Vance stopped DE L’Isle for following too
closely to a semi-tractor trailer. When the officer approached DE L’Isle’s car, he
smelled burnt marijuana and saw air fresheners inside the car. DE L’Isle accompanied
Sergeant Vance to his police cruiser where DE L’Isle was given a warning citation for
following too closely. Sergeant Vance then deployed his canine, which alerted to the
presence of controlled substances inside the vehicle. When Sergeant Vance began
searching the vehicle, DE L’Isle approached him and told him he could not search the
vehicle. After a brief struggle between DE L’Isle and Sergeant Vance, DE L’Isle was
handcuffed and placed into the backseat of the police cruiser.

Sergeant Vance and two other officers completed the search. No narcotics were
found, but they seized a large stack of credit, debit, and gift cards located in a duffle
bag in the trunk of DE L’Isle’s car. DE L’Isle was subsequently arrested for assault
and resisting arrest. United States Secret Service agents then scanned the seized cards
and discovered that the magnetic strips on the back of the cards either contained no
account information or contained stolen American Express credit card information.
Ten of the cards were American Express credit cards with DE L’Isle’s name on the
front. The magnetic strips on the back of these ten cards, however, were “empty”;
there was no information at all in the magnetic strips. At least one card, card 23, was
a Parker’s PumpPal Club gas debit card, and card 25 was a Quik Trip prepaid card.
The magnetic strips on the back of these cards had account information linked to
legitimate American Express credit card accounts. Cards 31 through 47 were
American Express gift cards. The magnetic strips on these cards contained credit card

-2-

information from legitimate American Express customers. Cards 48 through 58 were
Visa debit cards, Visa gift cards, and a Mastercard. The account information encoded
on the magnetic strips of these cards also corresponded to American Express credit
accounts. Card 59 was a Subway gift card with American Express credit card
information encoded in the magnetic strip. However, none of the American Express
account information on any of the cards was DE L’Isle’s. In fact, he had no existing
accounts with American Express.

As a result, DE L’Isle was charged with possession of fifteen or more
counterfeit and unauthorized access devices, in violation of 18 U.S.C. §§ 1029(a)(3)
and (c)(1)(A)(i). He pled not guilty, and on July 31, 2014, the magistrate judge filed
a progression order requiring that pretrial motions be filed on or before August 29,
2014. On October 23, 2014, De L’Isle filed a motion to suppress asking the district
court to suppress any evidence discovered when law enforcement scanned the
magnetic strips on the seized cards. He argued that the search of the information in
the magnetic strips of the cards was done without a warrant or a warrant exception and
thus violated his Fourth Amendment right to be free from unreasonable searches. The
district court noted that his motion was untimely. However, the court considered the
merits of the motion and held that “based on the law,” DE L’Isle’s motion lacked
merit 2.

Thus, the district court denied the motion to suppress without a hearing,
ultimately holding that “reading the magnetic strip on the back of a credit, debit, or
gift card is not a ‘search’ for Fourth Amendment purposes.”
________________
2 Pursuant to Federal Rule of Criminal Procedure 12(c)(1), the magistrate judge
issued a progression order requiring all pretrial motions be filed on or before August
29, 2014. DE L’Isle did not file his motion to suppress until October 23, 2014. Thus,
the district court would not have abused its discretion if it had denied the motion
solely on the basis of untimeliness. United States v. Salgado-Campos, 442 F.3d 684,
686 (8th Cir. 2006) (“If a party fails to file a pretrial motion before that deadline, the
party waives that issue.”).

http://media.ca8.uscourts.gov/opndir/16/06/151316P.pdf