United States v. Hillaire , 857 F.3d 128 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-1692
UNITED STATES OF AMERICA,
Appellee,
v.
JERVIS A. HILLAIRE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
James S. Hewes for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
May 18, 2017
BARRON, Circuit Judge. Jervis A. Hillaire challenges
his conviction for conspiracy to commit access-device fraud on the
ground that the District Court erred in denying his pretrial
suppression motion. We affirm.
I.
Hillaire, along with his co-defendant, Gyadeen P.
Ramdihall, was indicted in federal court in the District of Maine
on February 25, 2014, for conspiracy to possess and use counterfeit
access devices with intent to defraud, see 18 U.S.C. § 1029(a)(1),
(a)(3), (b)(2); id. § 371, as well as several related counts.
Specifically, Hillaire was also indicted for (1) possession of
counterfeit access devices, and aiding and abetting such
possession; (2) use of counterfeit access devices, and aiding and
abetting such use; and (3) wire fraud, and aiding and abetting
wire fraud. See 18 U.S.C. § 1029(a)(1), (a)(3); id. § 1343; id.
§ 2. Before their trial, Hillaire and Ramdihall submitted motions
to the District Court to suppress evidence and statements that had
been obtained in the previous months in connection with three
traffic stops.
Two of the stops occurred in Maine, on September 6, 2013
and January 24, 2014, respectively, and were carried out by local
law enforcement. The other stop occurred in Ohio, on October 10,
2013, and was carried out by state law enforcement. The evidence
Hillaire and Ramdihall sought to suppress included seventeen
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credit cards that were found in the trunk of a rental car during
the Ohio traffic stop on October 10, 2013, as well as the
information that law enforcement obtained from those cards by
swiping the cards' magnetic strips through a card reader.
After a two-day suppression hearing, the District Court
denied Hillaire's and Ramdihall's motions to suppress the evidence
obtained from the three traffic stops. Hillaire then conditionally
pled guilty to conspiracy to possess and use counterfeit devices
in violation of 18 U.S.C. § 1029(a)(1) and (a)(3).1 He reserved
his right to appeal from the District Court's denial of his
suppression motion. He was sentenced to 13 months' imprisonment
and three years' supervised release, and ordered to pay $17,987.56
in restitution. He now appeals the District Court's denial of his
motion to suppress the evidence obtained from the October 10, 2013
traffic stop in Ohio. We review the District Court's legal
conclusions de novo and its factual findings for clear error.
United States v. Belton, 520 F.3d 80, 82 (1st Cir. 2008).
II.
We recounted the facts relevant to the Ohio stop at
length in United States v. Ramdihall, which is also decided this
day, and so we need not do so here. See United States v. Ramdihall,
1Ramdihall also conditionally pled guilty to conspiracy to
possess and use counterfeit devices in violation of 18 U.S.C.
§ 1029(a)(1) and (a)(3).
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No. 15-1841, slip op. at 19-21 (1st Cir. May 18, 2017). Unlike
Ramdihall, Hillaire was a passenger in the car, rather than its
driver. But, when a police officer makes a traffic stop, both the
driver of the vehicle and the passengers within it are seized
within the meaning of the Fourth Amendment. Thus, if the seizure
is unlawful, as Hillaire contends it was, he has standing to seek
the suppression of the seizure's fruits. Brendlin v. California,
551 U.S. 249, 257 (2007); see also United States v. Starks, 769
F.3d 83, 89 (1st Cir. 2014). Nevertheless, Hillaire's challenge
to the lawfulness of the seizure fails on the merits for the
reasons already provided in Ramdihall. See Ramdihall, slip op. at
21-32. And, as there was no unlawful seizure, the evidence that
Hillaire seeks to suppress obviously does not constitute the fruits
of an unlawful seizure.
III.
All that remains for us to consider with respect to
Hillaire's challenge to the denial of his suppression motion is
Hillaire's contention that the District Court erred in concluding
that the warrantless swiping of the credit cards through the card
reader was constitutional.2 We find no merit in this challenge,
either.
2In pressing this argument, Hillaire argues that under United
States v. Almeida, 748 F.3d 41 (1st Cir. 2014), and United States
v. Campbell, 741 F.3d 251 (1st Cir. 2013), he has standing to
challenge the search of the "items seized" -- i.e., the credit
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Hillaire contends that the District Court erred because
credit cards are "analogous to cell phones" -- which generally
cannot be searched without a warrant, Riley v. California, 134 S.
Ct. 2473 (2014) -- due to the capacity of the magnetic strips on
credit cards to store "personal digital data." In support of the
argument, Hillaire asserts that the magnetic strips on credit cards
store "confidential financial information" and "data concerning
merchandise purchased," including "locations where the credit card
was used" and "types of merchandise purchased." The only evidence
presented on the matter in the District Court, however, showed
that, except when magnetic strips are altered for criminal
purposes, the magnetic strips "contain[] only the card number and
the expiration date, which [are] routinely given to retailers and
[are] visible on the front of the card."3 Thus, this aspect of
his challenge fails as well.
cards -- in this case, notwithstanding that he was only a passenger
in the vehicle. But, given that the challenge has no merit, we
need not decide whether he has standing to bring it.
3 See United States v. DE L'Isle, 825 F.3d 426, 432-33 (8th
Cir. 2016) (finding no reasonable expectation of privacy in credit
card strips because, "in the normal course, all of the information
found in the magnetic strips on . . . credit cards is identical to
the information in plain view on the front of the cards"); United
States v. Bah, 794 F.3d 617, 633 (6th Cir. 2015) (finding no
reasonable expectation of privacy in credit card strips under Riley
because the information stored on the strips, "unless re-encoded,
would more or less match that provided on the front and back of
the card"), cert. denied sub nom. Harvey v. United States, 136 S.
Ct. 561 (2015); United States v. Alabi, 943 F. Supp. 2d 1201, 1286-
87 (D.N.M. 2013) (finding no reasonable expectation of privacy in
credit card strips because, unless the credit cards are fraudulent,
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IV.
For the foregoing reasons, we affirm.
"[t]he information disclosed in scanning credit and debit cards'
magnetic strips is limited to the same information that the
exterior of the card discloses"), aff'd on other grounds, 597 F.
App'x 991 (10th Cir. 2015).
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