IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Case No. 15-1316
UNITED STATES OF AMERICA
Plaintiff-Appellee,
vs.
ERIC-ARNAUD BENJAMIN BRIERE DE L’ISLE
Defendant-Appellant
AMENDED BRIEF OF APPELLEE

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
The Honorable John M. Gerrard, United States District Court Judge
UNITED STATES OF AMERICA
Plaintiff-Appellee
DEBORAH R. GILG
United States Attorney
District of Nebraska
and
WILLIAM W. MICKLE, II #18130
Assistant U.S. Attorney
100 Centennial Mall North
487 Federal Building
Lincoln, NE 68508-3865
(402) 437-5241

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 SUMMARY AND STATEMENT REGARDING ORAL ARGUMENT
A jury found Eric-Arnaud Benjamin Briere DE L’isle (Briere) guilty of
possessing 15 or more counterfeit or unauthorized access devices, with intent to
defraud. He appeals and argues the district court erred when it denied his motion
to suppress in which he raised a Fourth Amendment challenge to law
enforcement’s purported “search” of the magnetic strips on the back of credit, debit
and gift cards found in his possession.
Briere waived his challenge to the credit card evidence because his motion
to suppress was untimely filed, and the district court found he articulated no good
cause to excuse the untimely filing. The court, however, decided the motion to
suppress, without a hearing, so as not to delay trial. The district court did not err in
denying Briere’s motion to suppress because Briere had no legitimate expectation
of privacy in the information. The retrieval of the information did not constitute a
“search” for Fourth Amendment purposes. Even if it is assumed the search was
illegal, any evidence obtained from the magnetic strips was admissible under the
inevitable discovery doctrine.
The United States suggests the record and briefs of the parties sufficiently
apprise the Court of the issue presented in this appeal, and oral argument is not
necessary to decide the issue.

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 TABLE OF CONTENTS
SUMMARY AND STATEMENT REGARDING ORAL ARGUMENT ...............i
TABLE OF CONTENTS ........................................................................................ ii
TABLE OF AUTHORITIES ................................................................................. iii
STATEMENT OF THE ISSUES.............................................................................1
STATEMENT OF THE CASE ................................................................................2
SUMMARY OF THE ARGUMENT ....................................................................12
ARGUMENT .........................................................................................................13
I. Briere has Waived his Challenge to the Credit Card Evidence................13
II. The District Court properly held the Scanning of the
Magnetic Strips on the Back of the Credit, Debit, or Gift Cards
was Not a “Search” for Fourth Amendment Purposes. ...........................14
CONCLUSION ......................................................................................................27
CERTIFICATE OF FILING AND SERVICE ......................................................28
CERTIFICATION OF VIRUS SCAN ..................................................................28
CERTIFICATE OF COMPLIANCE .....................................................................29

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 TABLE OF AUTHORITIES
Cases
California Bankers Ass'n v. Shultz, 416 U.S. 21 (1974) ..........................................23
Clarke v. Neil, 427 F.2d 1322 (6th Cir. 1970) .........................................................17
Florida v. Jardines, 133 S. Ct. 1409 (2013) ............................................................16
Illinois v. Caballes, 543 U.S. 405 (2005) ............................................. 16, 17, 20, 21
Nix v. Williams, 467 U.S. 431 (1984) ......................................................................24
Riley v. California, 134 S. Ct. 2473 (2014) .............................................................16
United States v. Alabi, 597 F. App'x. 991 (10th Cir. 2015) .................................1, 25
United States v. Alabi, No. CR 11-2292 JB, 943 F. Supp. 2d 1201
(D.N.M. Apr. 30, 2013) ................................................................ 1, 18, 19, 20, 21
United States v. Allen, 713 F.3d 382 (8th Cir. 2013)...........................................1, 24
United States v. Anderson, 688 F.3d 339 (8th Cir. 2012) ........................................15
United States v. Chavez, 902 F.2d 259 (4th Cir. 1990) ...........................................14
United States v. Conner, 127 F.3d 663 (8th Cir. 1997) ...........................................24
United States v. Duarte, 2009 WL 3669537 (S.D. Fla. Nov. 4, 2009)....................17
United States v. Green, 691 F.3d 960 (8th Cir. 2012) .............................................13
United States v. Hollins, 685 F.3d 703 (8th Cir. 2012) ...........................................15
United States v. Jacobsen, 466 U.S. 109 (1984)................................... 17, 20, 21, 24
United States v. Jones, 132 S. Ct. 945 (2012) .........................................................16
United States v. McManaman, 673 F.3d 841 (8th Cir. 2012)..................................24
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 United States v. Medina, No. 09-20717-CR, 2009 WL 3669636
(S.D. Fla. Oct. 24, 2009) ............................................................... 1, 17, 18, 21, 22
United States v. Riley, 684 F.3d 758 (8th Cir. 2012) ...............................................15
United States v. Robbins, 682 F.3d 1111 (8th Cir. 2012) ........................................15
United States v. Salgado-Campos, 442 F.3d 684 (8th Cir. 2006) ................ 1, 13, 14
United States v. Smith, 715 F.3d 1110 (8th Cir. 2013) ............................................15
United States v. Snyder, 852 F.2d 471 (9th Cir. 1988) ............................................17
Statutes
18 U.S.C. §§ 1029(a)(3) .............................................................................................4
U.S. Const. amend. IV .............................................................................................16
Rules
Fed. R. Crim. P. 12(b)(3) .........................................................................................13
Fed. R. Crim. P. 12(c)(3) .........................................................................................14
Fed.R.Crim.P. 12(e) .................................................................................................14

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 STATEMENT OF THE ISSUES
I.

Whether Briere waived his challenge to the credit card evidence.
United States v. Salgado-Campos, 442 F.3d 684 (8th Cir. 2006)

II.

Whether the district court properly held the scanning of the magnetic
strips on the back of the credit, debit, and gift cards found in Briere’s
possession was not a “search” for Fourth Amendment purposes.
United States v. Alabi, No. CR 11-2292 JB, 943 F. Supp. 2d 1201 (D.N.M.
Apr. 30, 2013)
United States v. Allen, 713 F.3d 382 (8th Cir. 2013)
United States v. Alabi, 597 F. App’x. 991 (10th Cir. 2015) (unpublished)
United States v. Medina, No. 09-20717-CR, 2009 WL 3669636 (S.D. Fla.
Oct. 24, 2009)

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 STATEMENT OF THE CASE
The Stop and Search
Seward County, Nebraska, Sheriff’s Sergeant Michael Vance was
conducting interdiction efforts on Interstate 80 in Seward County, Nebraska, on
June 20, 2014. He had parked his cruiser in the “cross over,” and was operating
stationary radar for westbound traffic. (TR 28:4-29:10).1 At approximately 5:00
p.m., he saw a gray vehicle traveling westbound immediately behind a semi-tractor
trailer. As the two vehicles passed his location, Sgt. Vance estimated the gray
automobile to be traveling less than one car length behind the semi-tractor trailer,
at approximately 70-73 miles per hour. (TR 29:11-31:19). After several other
vehicles passed his location, Sgt. Vance pulled his cruiser into westbound traffic
and caught up with the gray vehicle, a Nissan with Georgia license plates, and
stopped the vehicle. (TR 32:2-33:17).
As Sgt. Vance stood outside the vehicle at the doorpost of the driver’s door,
he explained why he stopped Briere, the sole occupant, for following the semitractor trailer too closely. As Sgt. Vance stood outside the car, he could smell the
odor of burnt marijuana coming from within the car, and saw three air fresheners
on the rearview mirror and dashboard air vents. (TR 35:9-16). From his training

The transcript from the October 27 through 29, 2014, trial is located at District
Court Docket (DCD) filings 80, 81, and 82, and is referred to as “TR”.
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 and experience, Sgt. Vance knew multiple air fresheners often were used to mask
the odor of illegal controlled substances. (TR 35:20-36:1).
Briere came to Sgt. Vance’s vehicle where he was given a warning citation
for following too closely to the semi-tractor. Based upon Briere’s demeanor and
answers to Sgt. Vance’s questions, the sergeant deployed his canine, which alerted
to the possible presence of illegal controlled substances within the vehicle. (TR
36:22-40:11). As Sgt. Vance began to search the trunk of the rental vehicle, Briere
got out of the police cruiser, and came toward Sgt. Vance, telling the sergeant he
would not let him search the vehicle and trunk. After a brief scuffle, Briere was
handcuffed and placed into the rear seat of the cruiser of another deputy who had
come to assist. (TR 43:6-46:3).
Sergeant Vance and two other officers then resumed their search of the
rental vehicle. No narcotics were found. They discovered and seized 51 credit, gift,
and debit cards in a duffle bag located in the vehicle’s trunk. (TR 46:4-47:3). Ten
of the cards were American Express credit cards, all bearing Briere’s name, with
different account numbers embossed on the fronts of the cards. (TR 49:24-50:16).
A number of the debit and gift cards also had account numbers embossed on them,
but none bore Briere’s name. Some of the cards were in wrapping utilized by the
issuing company to display the cards in retail stores. (TR 53:22-61:24). The
officers also located clothing, a roll of duct tape, garbage bags, cartons of Newport
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 cigarettes, and other miscellaneous items within the car. Briere was transported to
the Seward County Jail. He declined to be interviewed. (TR 47:10-48:19).
Briere was arrested on state charges of assault and resisting arrest. As the
investigation continued, agents of the U.S. Secret Service and Department of
Homeland Security/Homeland Security Investigations scanned the plastic cards
taken from Briere’s rental vehicle. (TR 90:3-92:13). The agents discovered the
magnetic strips on the back of the 10 American Express credit cards in Briere’s
name contained no account holder identification or account information which
exists on legitimate American Express cards when they are issued. (TR 92:1798:13). The agents also provided the embossed account numbers and scanned
account information to American Express, VISA, and MasterCard representatives,
to attempt to determine whether the embossed account numbers on the front of the
cards matched the information on the magnetic strips on the back of the cards. (TR
243:12-244:16).
Motion to Suppress
A single-count indictment was filed on July 22, 2014, charging Briere with
possession of 15 or more counterfeit and unauthorized access devices, in violation
of 18 U.S.C. §§ 1029(a)(3) and (c)(1)(A)(i). (DCD 14). He entered a not guilty
plea at his July 31, 2014, arraignment, and the magistrate filed a progression order
requiring any pretrial motions to be filed on or before August 29, 2014. (DCD 24).
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 On October 23, 2014, Briere filed a Motion to Suppress (DCD 41) and a
supporting brief (DCD 42) asking the district court to enter an order “suppressing
any and all credit card evidence discovered by law enforcement after seizing
several credit cards from the Defendant.” (DCD 41, p. 1). He contended the credit
card evidence should be suppressed because the search of the information
contained on the cards’ magnetic strips “was done without a warrant or an
exception to the warrant requirement, and as such, a violation of the Fourth
Amendment prohibition against unreasonable searches and seizures without a
warrant.” Id., p. 2.
The district court held that Briere’s motion was filed “well out of time”, and
that he “articulated no good cause to excuse the untimely filing.” (DCD 45, at p.
1). The court, however, examined the motion on the merits, and found the reading
of the magnetic strips on the back of the credit, debit, or gift cards was not a
“search” for Fourth Amendment purposes. (DCD 45). The case proceeded to trial.
Trial
United States Secret Service agent Nicholas Wadding testified he was
assigned to the Omaha resident office, and received training in the investigation of
credit card and identity theft violations. (TR 85:22-87:20). He explained that the
plastic cards have three tracks of information or data on the magnetic strips located
on the back of the cards. The first track is the credit card number; the second track
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 has the card holder’s name; and the third track contains data specific to the
institution. (TR 87:21-88:5). The embossed or raised card holder and account
number on the front of the cards should match the information on the magnetic
card on the back of the card. (TR 88:10-89:2). “Re-coding” is a term used to
describe the re-writing of the track of information or data on the magnetic strips on
the back of cards with stolen credit card numbers. (TR 89:3-18).
Agent Wadding examined the cards seized at the June 20, 2014, traffic stop.
He compared the embossed account numbers on the front of some of the cards with
the account numbers coded onto the magnetic strips on the back of the cards to
determine whether the numbers matched. (TR 90:10-92:13). The scans of Exhibits
2-11, the American Express credit cards with different account numbers and in
Briere’s name, were found to contain no information or data on the strips. (TR
92:17-98:13; Appx 01-10.)2 Agent Wadding scanned Exhibit 23, a Parker’s
PumpPal card, and Exhibit 25, a QuikTrip card with printed account numbers on
them, and found the account and account holder information on the magnetic strips
did not match the printed account numbers, and were linked to legitimate
American Express accounts (TR 98:14-102:10; Appx 11-12).

The government’s Appendix submitted with this brief is referred to as “Appx.”
Legitimate card holder information contained within the Appendix has been
redacted where applicable.
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 Agent Wadding also examined Exhibits 31-47, American Express gift cards,
Exhibits 48-58, VISA and MasterCard debit and gift cards issued by US Bank,
USAA, Wells Fargo, and other financial institutions, and Exhibit 59, a Subway gift
card. He discovered the account and account holder information for Exhibits 31-47
and Exhibit 59 were linked to legitimate American Express credit card holders.
(TR 102:14-108:14; 106:21-108: 18; Appx 13-29, 41). Exhibits 48-58, the seized
VISA and MasterCard debit cards, were found to have account information for
legitimate VISA and MasterCard account holders. (TR 103:9-106:20; Appx 3040).
Peter Grimm, a fraud investigator with American Express testified that
American Express issues credit cards that extend a customer a line of credit against
which she/he can purchase goods and services. The card holder charges purchases
on the card and pays the balance at the end of the month or billing period. (TR
120:21-121:15). Mr. Grimm confirmed the magnetic strip on the back of
American Express and other credit cards includes the account number, name of the
account holder, and corporate data which should match the information located on
the face of the cards. (TR 125:16-126:11).
Mr. Grimm found the absence of encoded data on the magnetic strips of
Exhibits 2-11, the American Express credit cards, to be significant in that all credit
cards issued by American Express have account numbers and account information
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 on them when issued. Mr. Grimm also found the 10 credit cards, all with Briere’s
name embossed on them, to be significant in that American Express had no
existing accounts with Briere. (TR 127:7-19; 136:9-137:18; Appx 1-10).
Mr. Grimm contrasted gift cards which can be either encoded with a fixed
dollar amount to be used to purchase items, or “reloaded” or re-used with
additional funds placed onto the cards. Legitimate American Express credit cards
always have the card holder name, account number, and expiration date embossed
on the front of the cards, while gift cards may or may not have that embossed
information on the front of the cards. However, Mr. Grimm stated the account
number and other identifying information for all legitimately issued gift and credit
cards matches the identifying information encoded onto the magnetic strips on the
back of the plastic cards. (TR 138:21-141:2). Gift cards re-encoded with account
information not originally on the magnetic strips on the back of the cards were
counterfeit cards. (TR 141:3-6).
Mr. Grimm testified neither Exhibit 23, the Parker’s PumpPal card or
Exhibit 25, the Quiktrip card were issued by American Express, but had legitimate
American Express account information for cardholders living in Texas and New
Jersey re-encoded on the magnetic strips. (TR 141:10-144:1; Appx 11-12). The
magnetic strip on the back of Exhibit 59, the Subway gift card, also had been reencoded with account information of a legitimate American Express credit card
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 holder living in Massachusetts. (TR 144:11-150:1; Appx 41). Exhibits 31-47, the
American Express gift cards, had also been re-encoded with account information
of legitimate American Express credit card holders living in New York, Florida,
New Jersey, North Carolina, Ohio, and Arizona. (TR 150:4-154:11; Appx 13-29).
Mr. Grimm conducted a search of American Express proprietary database
records for the American Express gift cards (Exhibits 31-47), and identified the
retail merchants where the cards had been shipped and whether the gift cards had
been used or presented for use to purchase merchandise. (TR 158:12-167:9; Appx
13-29). See also Exhibit 71; Appx 69-71). He also testified about his search of the
business records of American Express company, which he reviewed and utilized to
organize, chronologically (Exhibit 69) and by card number (Exhibit 70), the
legitimate credit card account numbers for Exhibits 23, 25, 31-47, and 59, where
and when those cards were used, and the merchandise purchased with the reencoded cards (TR 167:17-178:10; Appx 65-68).
Lisa Tennyson, a financial crime investigator with Wells Fargo Bank,
testified Wells Fargo Bank issues credit cards, and some of the branches also issue
gift cards. She identified Exhibits 49 and 51 as VISA cards with magnetic strips
on the back of the cards that had been re-encoded with legitimate card holder and
account information for Wells Fargo customers, other than Briere, who lived in
California and Florida. (TR 181:18-183:9; 185:10-189:8; Appx 31, 33).
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 Stephanie Kincaid, a financial crimes investigator with Kroger Food Stores,
Atlanta, Georgia, testified she reviewed surveillance video for Kroger Store #259
in Atlanta, Georgia, and identified Briere entering the store (Exhibits 66A-66O;
Appx 47-61) and completing three transactions on June 16, 2014 (Exhibits 67A,
67B, 67C; Appx 62-64) using a re-encoded American Express credit card (Exhibit
36; Appx 18) and the Subway re-encoded gift card (Exhibit 59; Appx 41) (TR
193:17-210:22; 213:5-22) to purchase a seaside combo, vegetables, an energy
drink, and three Visa gift cards (Exhibits 67A, 67B, 67C; Appx 62-64).
Jared Richardson, a district supervisor of Kum & Go, a convenience store
chain, testified he reviewed footage from surveillance cameras located in Kum &
Go store #37 in Gretna, Nebraska, for purchases made at the store by two males on
June 14, 2014, utilizing American Express gift cards with re-encoded magnetic
strips (Exhibits 63A, 64A, 64B, 64C, 64D, 36, 37, and 47) which were seized from
the trunk of Briere’s rental vehicle on June 20, 2014. (TR 214:19-218:6; Appx 4246; 18-19; 29). The three American Express gift cards were used to purchase
energy drinks, gasoline, alcohol, soda, and Newport cigarettes. (TR 220:10223:24).
Eric Cardiel, an agent of the Department of Homeland Security/Homeland
Security Investigations, testified persons who use re-encoded cards make
purchases with the cards, and also attempt to legitimize the money, building layers
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 of transactions to disguise the illegal source of the money (i.e., stolen credit card
account numbers). (TR 230:15-236:9). He testified he contacted American
Express and the banking institutions that issued the VISA and MasterCards seized
from Briere’s rental vehicle, including Wells Fargo Bank, and provided the
account numbers and account information obtained from the magnetic strips on the
back of the cards. (TR 244:5-16).
Briere testified in his defense. He spoke of his education in Paris and
Switzerland, his employment with the French Ministry of Labor, the post office,
and as a salesman with Christian Dior. He first came to the United States to visit
in 2008, and returned 10 times traveling to a number of states during his visits. (TR
266:8-270:19). He bought the credit, debit, and gift cards while he was in France,
from an unknown person who contacted him over the internet, and brought the
cards with him when he returned to the United States in May 2014. He said he was
traveling to Kearney, Nebraska to meet his half-brother from Belgium, to watch a
soccer game when he was stopped by Seward County Sheriff Sgt. Vance. (TR
287:13-24). He claimed he was using the cards lawfully, not knowing the cards
were associated with other peoples’ accounts. (TR 283:6-25).
On October 29, 2014, the jury returned a guilty verdict against Briere.
(DCD 57). On January 23, 2015, Briere was sentenced to the custody of the
United States Bureau of Prisons for a term of 15 months, to be followed by 3 years
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 of supervised release. (DCD 68). Briere was also ordered to make restitution in
the amount of $4,736.53, and pay $12,723.57 in costs incurred during the trial.
(DCD 62, 68).
Briere filed a timely Notice of Appeal on February 5, 2015, contesting his
conviction. Neither his brief nor ours addresses a sentencing issue. (DCD 72).
SUMMARY OF THE ARGUMENT
Briere raised his challenge to a law enforcement agent’s scanning of
magnetics strips on the back of 51 credit, debit and gift cards in an untimely
motion to suppress, filed in violation of the pretrial progression order, and four
days before the beginning of trial. His failure to comply with the court’s order
constitutes a waiver of his claim.
The agent’s scanning of the magnetic strips was not a Fourth Amendment
search. Briere had no expectation of privacy in the information contained on the
back of the contraband cards, and the agent’s scan of the cards revealed only
whether the cards were legitimate or fraudulent. Even if the agent’s actions were
unconstitutional, the evidence obtained from the magnetic strips was nevertheless
admissible under the inevitable discovery doctrine. Briere’s conviction should be
affirmed.

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 ARGUMENT
I.

Briere has Waived his Challenge to the Credit Card Evidence.
A.

Standard of Review

Waived claims are unreviewable on appeal. United States v. Green, 691
F.3d 960, 963-64 (8th Cir. 2012). This court “will reverse a decision declining to
consider an untimely pretrial motion only for an abuse of that discretion.” United
States v. Salgado-Campos, 442 F.3d 684, 686 (8th Cir. 2006).
B.

Argument

Briere filed his Motion to Suppress and supporting brief on October 23,
2014. (DCD 41, 42). Earlier, on July 31, 2014, the magistrate judge entered a
Progression Order requiring that all pretrial motions be filed on or before August
29, 2014. (DCD 24). Briere filed no pretrial motions within the time permitted
under the Progression Order, and the Motion to Suppress, filed almost 60 days
after the deadline and four days before the beginning of trial, was untimely and in
violation of the court’s Progression Order.
Pursuant to Rule 12(b)(3), Fed. R. Crim. P., any defense, objection, or
request, including to suppress evidence, not raised by a court’s pretrial deadline, is
considered untimely unless the party shows good cause. In Salgado-Campos, the
defendant appealed the district court’s denial of his motion to extend time for filing

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 of pretrial motions, finding the motion to have been filed out of time, and without
good cause to justify an extension.
Under Rule 12(c) of the Federal Rules of Criminal Procedure, a court
may set a deadline for the filing of pretrial motions. If a party fails to
file a pretrial motion before that deadline, the party waives that issue.
See Fed.R.Crim.P. 12(e). However, the district court has the
discretion to excuse the waiver upon a showing of good cause for the
delay. Id. We will reverse a decision declining to consider an
untimely pretrial motion only for an abuse of that discretion.
Salgado-Campos, 442 F.3d at 686 (citations omitted).3
Briere has made no showing to demonstrate his tardiness “was due not to
negligence, oversight, or laziness.” United States v. Chavez, 902 F.2d 259, 263-64
(4th Cir. 1990). While the district court decided the motion on its merits, it noted
“[t]he alternative to summarily deciding the motion to suppress would simply be
denying it as untimely.” (DCD 45, n.1). The denial of Briere’s untimely motion
was not an abuse of discretion, and Briere’s conviction should be affirmed.
II.

The District Court Properly Held the Scanning of the Magnetic
Strips on the Back of the Credit, Debit, or Gift Cards was Not a
“Search” for Fourth Amendment Purposes.

Briere argues the cards contained account balances for legitimate American
Express credit card holders, therefore, this information is the type of information
concerning a legitimate privacy interest pursuant to Supreme Court precedent.

3

Federal Rule of Criminal Procedure 12(e) was amended, effective December 1,
2014, and was relocated to Fed. R. Crim. P. 12(c)(3). See Fed. R. Crim. P.
advisory committee’s note (2014 amends.).
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 (Briere Br., pp. 10-12). He further argues he had an expectation of privacy in the
information on the magnetic strips because he had not used all of the cards found
in his possession. (Briere Br., pp. 9, 11-12). Briere’s arguments are without merit,
and should be rejected by this Court.
A.

Standard of Review

This Court reviews a denial of a motion to suppress de novo, and any
associated factual findings for clear error. See United States v. Smith, 715 F.3d
1110, 1114 (8th Cir. 2013) (quoting United States v. Hollins, 685 F.3d 703, 705
(8th Cir. 2012)). In its review, this Court gives “due weight” to the inferences of
investigators and the district court. United States v. Robbins, 682 F.3d 1111, 1115
(8th Cir. 2012). This Court “may affirm the district court’s denial of a motion to
suppress on any ground the record supports.” United States v. Anderson, 688 F.3d
339, 343 (8th Cir. 2012). “We will affirm the denial of a suppression motion unless
we find that the decision is unsupported by the evidence, based on an erroneous
view of the law, or the Court is left with a firm conviction that a mistake has been
made.” United States v. Riley, 684 F.3d 758, 762 (8th Cir. 2012) (citation and
internal quotation marks omitted).

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 B.

Argument
1.

The Scanning of the Credit, Debit, and Gift Cards was not a
Search Within the Meaning of the Fourth Amendment.

The Fourth Amendment protects the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. The touchstone of the Fourth Amendment is
reasonableness. Riley v. California, 134 S. Ct. 2473, 2482 (2014). Where a search
is undertaken by law enforcement officials to discover evidence of criminal
wrongdoing, reasonableness typically requires a judicial warrant. Id. “In the
absence of a warrant, a search is reasonable only if it falls within a specific
exception to the warrant requirement.” Id. See also DCD 45, p. 2.
To establish a Fourth Amendment violation, a defendant must prove either a
common-law trespass, United States v. Jones, 132 S. Ct. 945, 949-54 (2012), or “a
legitimate expectation of privacy” in the place searched. Id. at 952 (“reasonableexpectation-of-privacy test has been added to, not substituted for, the common-law
trespassory test”). A Fourth Amendment search takes place under the trespass
theory when the government gains evidence by physically intruding on a
constitutionally protected area. See Florida v. Jardines, 133 S. Ct. 1409, 1417
(2013). “Official conduct that does not ‘compromise any legitimate interest in
privacy’ is not a search subject to the Fourth Amendment.” Illinois v. Caballes,

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 543 U.S. 405, 408 (2005) (quoting United States v. Jacobsen, 466 U.S. 109, 123
(1984)).
Where defendants sought to suppress examination results while conceding
that the examined object’s seizure was lawful, their arguments have failed. See
e.g., Jacobsen, 466 U.S. at 122-23 (field test to determine whether lawfully seized
powder was cocaine was not a search within the Fourth Amendment); United
States v. Snyder, 852 F.2d 471, 474 (9th Cir. 1988) (no additional warrant required
to forensically examine blood legally obtained); Clarke v. Neil, 427 F.2d 1322,
1325 (6th Cir. 1970) (”We do not consider the laboratory examination of a suit
after its seizure by police to constitute a search within the meaning of the Fourth
Amendment.”)
In United States v. Medina, No. 09-20717-CR, 2009 WL 3669636 (S.D. Fla.
Oct. 24, 2009), adopted in part and rejected in part on other grounds sub nom,
United States v. Duarte, 2009 WL 3669537 (S.D. Fla. Nov. 4, 2009), the
magistrate judge succinctly defined the purpose of the magnetic strips:
The 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. On a
legitimate card the information will match. A credit card reader
merely verifies the information that cannot be read by the naked eye.
Using a credit card reader to verify that information is analogous to
swiping a driver’s license (featuring a magnetic strip with
biographical information encoded therein) through a police vehicle
computer to run a background check. It is analogous to using an
ultraviolet light to detect whether a treasury bill is authentic…”
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 Id. at *10.
In this case, the district court emphasized the “effectively identical facts”
outlined by the court in United States v. Alabi, No. CR 11-2292 JB, 943 F. Supp.
2d 1201 (D.N.M. Apr. 30, 2013). There, the court concluded no search occurred
when law enforcement read the magnetic strips on the back of fraudulent credit
cards because (1) it did not involve a physical intrusion, and (2) it did not violate a
reasonable expectation of privacy. (DCD 45, p. 3) (citing Alabi, 943 F. Supp. 2d
1201); Medina, 2009 WL 3669636. Here, the scanning of the magnetically-coded
information on the credit and debit cards did not constitute a physical intrusion of a
constitutionally protected area. The government already had lawful possession of
the credit and debit cards. “[R]eading and displaying virtual data encoded on a
track does not involve any physical invasion or penetration of space.” Alabi, 943
F. Supp. 2d at 1265.
Briere claims he had a legitimate privacy interest in the cards he did not
actually use. He cites Alabi to support his position. (Briere Br., p. 9). In Alabi,
“[t]here [was] no evidence that any of the thirty-one credit and debit cards found in
the Defendants’ possession [had] been used.” Alabi, 943 F. Supp. 2d at 1213. See
also id. at 1221-22, 1275.
Initially, Briere could not have an expectation of privacy in the 10 American
Express credit cards with different account numbers which bore his name. Agent
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 Wadding and Peter Grimm both testified the magnetic strips on the back of those
cards contained no cardholder and account information. (TR 92:17-98:13; 136:9137:9). Certainly, Briere cannot have an expectation of privacy in the lack of
information on those cards.
Briere could also not have had a subjective expectation of privacy in the
account information on the magnetic strips on the back of the other debit and gift
cards. Certainly, Briere cannot assert an expectation of privacy in someone else’s
account information. Also, the whole purpose of the magnetic strip, whether on a
legitimately issued card or a fraudulently re-encoded card, is for the magnetic strip
to be read by a credit card processing device. That is how the card, legitimate or
fraudulent, is used to make purchases or obtain cash advances. There is no reason
to fraudulently re-encode the back of the cards except for the purpose of presenting
it for payment for goods, services, or cash. Because Briere knew the magnetic
strips would be read by a processing device when he used the cards, he cannot
have had a subjective expectation of privacy therein.
Even if Briere may have some expectation of privacy in the unused cards,
this interest is not one society is prepared to endorse. The Alabi court concluded
the defendants met their burden regarding the subjective component of the two-part
reasonable expectation of privacy analysis – that at the time of the search they
maintained a subjective expectation of privacy in the electronic information on the
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 31 unused cards’ magnetic strips. Alabi, 943 F. Supp. 2d at 1275.4 However, the
court proceeded to analyze the second step of the test – whether the subjective
privacy interest was “legitimate”, that is, one society is prepared to accept as
legitimate. Id. at 1275-87. The court concluded that it was not:
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.
Id. at 1287.
Because an interest in possessing contraband is not legitimate,
“governmental conduct that only reveals the possession of contraband
‘compromises no legitimate privacy interest.’” Caballes, 543 U.S. at 408 (quoting
Jacobsen, 466 U.S. at 123). The expectation of privacy that certain facts will not
come to law enforcement’s attention is not an interest in privacy that society is
The district court commented on this finding regarding the unused cards: “To
find a subjective expectation of privacy, the Court would need to believe that
[Briere] never intended to reveal the information encoded on the magnetic strip—
that is, that he never intended to use the cards, despite his name being on them.
That is a dubious proposition, but the Court will give [Briere] the benefit of the
(minimal) doubt.” (DCD 45, p. 4, n.2). The Alabi court also indicated that it was
indeed, “reluctant” to accept the assertion that defendants 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.” Id. at 1275.
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 prepared to consider reasonable. See Caballes, 543 U.S. at 408-09; Jacobsen, 466
U.S. at 122-23.
This case presents an intersection of those principles—that is, between
the principle that there is no legitimate privacy interest in alreadyknown information, and that there is no legitimate privacy interest in
contraband. And “[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.” Alabi, 943 F. Supp. 2d at 1280. Scanning a card to read
the account information reveals only the same information that would
be revealed in a private search when the card was used as intended. Id.
at 1281; see Medina, 2009 WL 3669636, at *10-11. And the only time
the account-holder’s information (as opposed to such details as the
lender’s routing information) would not also be revealed by a cursory
examination of the surface of the card would be when it was
inconsistent—that is, when the card was counterfeit and contraband.
Alabi, 943 F. Supp. 2d at 1282; see Medina, 2009 WL 3669636, at
*10.
(DCD 45, p. 5).
The government proved at trial that Briere used a number of the cards to
make purchases. The district court correctly found Briere had no legitimate
expectation of privacy in the magnetic strips on the credit and debit cards. Briere
simply cannot establish his expectation of privacy is one society is willing to
recognize as reasonable. An expectation of privacy regarding the information
encoded on the magnetic strip on the back of the cards is not objectively
reasonable. The data contained on the magnetic strip – so long as the card had not
been tampered with – should be precisely the same information that appears on the
face of the card. The purpose of the magnetic strip is not to keep the data private.
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 The purpose is to enable merchants to use a card scanner (similar to the one used
by the Secret Service) to transmit the account information to the issuer of the card
quickly and accurately, and thereby complete a financial transaction. “It would
indeed by [sic] ironic that the government’s investigation of that harmful economic
fraud would be stifled by an identity thief’s invocation of privacy in the very same
card numbers that he is not supposed to have.” Medina, 2009 WL 3669636 , at
*11.
The only additional information Agent Wadding learned by scanning the
cards through the card reader, that was not apparent on the face of the card, was
whether the card had been altered – that is, whether the information on the
magnetic strip matched the information on the face of the card, or whether it had
been changed so the possessor of the card could defraud either the account holder
or the card issuer, or both. Briere did not have a privacy interest in the cards he did
not use.
Briere also argues “Agent Wadding testified that the information held in the
magnetic strips on the back of American Express Cards includes credit card
information and account balances for credit card holders.” (Briere Br., p. 10)
(emphasis added). See also Briere Br., p. 11. Briere misinterprets Agent
Wadding’s testimony. During that portion of the trial, Agent Wadding testified
regarding Visa debit cards:
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 Q. Do you know whether or not they’re all issued by Visa or are there
other issuing agencies?
A. There’s other issuing agencies. The banks have the financial
backing to cards. So Visa and MasterCard as well as American
Express is the conduit -- let me go -- and I apologize with this.
So the financial -- the money comes from banks. So American
Express is a little bit unique because they actually have the credit card
information and they hold the account balances for credit card
holders.
(TR, p. 103-104). When agent Wadding described how American Express
maintained credit card information and account balances for card holders, he was
not referring to the information held in the magnetic strips on the back of
American Express cards. Rather, the testimony referred to American Express as
different from VISA, MasterCard, and others that serve as “sponsoring”
organizations and issue the cards, and the banks and financial institutions that
provide financial backing for the credit and debit cards. Agent Wadding was
identifying American Express as unique in that it is both a “sponsoring” and
issuing agency, and provides both financial backing for the account and also issues
the plastic. (TR 103:9-104:17). Briere’s argument and reasoning under California
Bankers Ass’n v. Shultz, 416 U.S. 21 (1974) is, therefore, without merit.
The scan of the cards revealed only whether the cards were legitimate or
fraudulent. Because there is no legitimate privacy interest in possessing fraudulent
credit cards, the scan of the credit cards was not a search subject to the Fourth
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 Amendment. Jacobsen, 466 U.S. at 122-23 (“chemical test that merely discloses
whether or not a particular substance is cocaine does not compromise any
legitimate interest in privacy”). This Court should affirm the district court’s
holding that the scanning of the credit, debit, and gift cards did not constitute a
search within the meaning of the Fourth Amendment.
2.

The Exclusionary Rule Should not Apply to the Evidence
Obtained from Scanning the Credit and Debit Cards
Because the Secret Service Agent Inevitably Would Have
Obtained the Evidence.

Even if this Court were to hold the agent’s actions constituted an illegal
search, any evidence obtained from the magnetic strips nevertheless was
admissible under the inevitable discovery doctrine. “If the government ‘can
establish by a preponderance of the evidence that the information ultimately or
inevitably would have been discovered by lawful means . . . [then] the evidence
should be received.’ ” United States v. Allen, 713 F.3d 382, 387 (8th Cir. 2013)
(quoting Nix v. Williams, 467 U.S. 431, 444 (1984)). For the exception to apply the
government must show “(1) a reasonable probability that the evidence would have
been discovered by lawful means in the absence of police misconduct, and (2) an
active pursuit of a substantial, alternative line of investigation at the time of the
constitutional violation.” Id. (citing United States v. Conner, 127 F.3d 663, 667
(8th Cir. 1997)). See also United States v. McManaman, 673 F.3d 841, 846 (8th
Cir. 2012).
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 The district court noted the government would have almost certainly been
able to show the evidence would have been inevitably discovered: “[e]ven without
reading the magnetic strips, police were able to confirm the nature of the
contraband by checking the information on the front of the cards with the financial
institutions that purportedly issued them.” (DCD 45, p. 6, n.3). See also DCD 1.
The Alabi case offers further guidance on this issue. On January 20, 2015, the
Tenth Circuit affirmed the district court’s denial of the defendant’s motion to
suppress the evidence obtained from the cards. See United States v. Alabi, 597 F.
App’x. 991 (10th Cir. 2015) (unpublished). The court found that, even assuming
the warrantless examination of the cards’ magnetic strips constituted an illegal
search, the evidence was admissible under the inevitable discovery doctrine. Id. at
998-1000. The court then analyzed the facts under the four factors recognized by
the Tenth Circuit in determining the applicability of the inevitable discovery
doctrine. Id. at 998-99.
In the instant case, the officers who recovered the evidence from Briere’s
rental vehicle knew at the time of his arrest he possessed 51 credit, debit, and gift
cards of various types issued by various financial institutions and organizations.
Some of these cards were in cardboard packaging used to display the cards in retail
stores. Also included were 10 American Express credit cards with different
account numbers embossed on them, which all bore Briere’s name. The officers
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 actively pursued their investigation as to the legitimacy of the cards and whether
the cards were evidence of a state or federal crime. Central to that determination
was whether the information contained on the magnetic strips of the credit, debit,
and gift cards was the same as the account and account information that appeared
on the faces of the plastic cards, and whether the cards were the property of Briere
or, more likely, innocent card holders.
Had they not scanned the cards through the Secret Service card reader, the
officers would have pursued their investigation through the alternative line of
investigation by contacting the issuing banks, financial institutions, and agencies.
Indeed, Agent Cardiel testified he did exactly that, to confirm the account holders’s
identity and account information they had obtained from their scan of the cards
(TR 243:12-244:16).
As the district court noted:
Even without reading the magnetic strips, police were able to confirm the
nature of the contraband by checking the information on the front of the
cards with the financial institutions that purportedly issued them. See filing
1. And second, “evidence should be suppressed only if it can be said that the
law enforcement officer had knowledge, or may be properly charged with
knowledge, that the search was unconstitutional.” It is unlikely that the
“search” conducted here was the sort of “deliberate, reckless, or grossly
negligent conduct,” or “recurring or systematic negligence” that the
exclusionary rule is intended to deter.

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 (DCD 45, p. 6, n.3) (citation omitted). Even if it is assumed the scan of the cards
constituted an illegal search, the evidence is admissible under the inevitable
discovery doctrine. 5
CONCLUSION
For the reasons set forth above, Briere’s conviction should be affirmed.
Respectfully submitted,
UNITED STATES OF AMERICA
DEBORAH R. GILG
United States Attorney
District of Nebraska
By:

s/ William W. Mickle, II
WILLIAM W. MICKLE, II #18130
Assistant United States Attorney
487 Federal Building
100 Centennial Mall North
Lincoln, NE 68508
(402) 437-5241
Email: william.mickle@usdoj.gov

The government notes that in the “Conclusion” section of his brief, Briere
mentions that he should be “resentenced without the career criminal enhancement.”
(Briere Br., p. 12). This enhancement, however, was not applied to Briere’s
sentence. See TR 347:5-22.
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 CERTIFICATE OF FILING AND SERVICE
I hereby certify that on June 19, 2015, the foregoing was electronically filed
with the Clerk of the Court for the Eighth Circuit Court of Appeals using the
CM/ECF system. A paper copy was served on the following participants in this
case by U.S. Mail, postage prepaid on June 18, 2015:
Chad Wythers
The Berry Law Firm
2650 North 48th Street
P. O. Box 4554
Lincoln, NE 68504
s/ William W. Mickle, II
WILLIAM W. MICKLE, II
Assistant United States Attorney

CERTIFICATION OF VIRUS SCAN
Pursuant to Rule 28A(h)(2) of the Eighth Circuit Rules of Appellate
Procedure, I hereby certify the full text of the Appellee’s Amended Brief has been
scanned for viruses, and is virus-free.
Dated: June 19, 2015.
s/ William W. Mickle, II
WILLIAM W. MICKLE, II
Assistant United States Attorney

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 CERTIFICATION OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), I hereby
certify that this brief complies with the type-volume limitation provided in Rule
32(a)(7)(B)(i) and, relying on the word processor word count feature, contains
6,314 words. The brief was created using Microsoft Word 2010.
Dated: June 19, 2015.
s/ William W. Mickle, II
WILLIAM W. MICKLE, II
Assistant United States Attorney

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