court my client last august received a six month since as you know for possession of fifteen more unauthorized access devices he received that sentence after a conditional guilty plea conditional guilty plea was conditional because he had raised by a motion to suppress the same two issues that are before the court so those issues are in simple forms whether the warrantless seizure of the gift  of gift cards was constitutionally permissible and whether the subsequent in depth electronic search of the contents of the gift cards was constitutionally permissible in the absence of a war at the motion to suppress hearing the evidence was presented by the arresting officer in the trial court's findings and conclusions he failed to recognize the court failed to recognize the difference bag that's what the evidence that's that's what the testimony so what what the court concluded was that the hand into the bag for purposes of seeing or or searching the contents of the bag was  the bag that's the search that's that's what he consented to the officer said what's in the bag he has in the bag that's barely concealed to search what's in the bag to see what's in the back you know the words for officer safety this is why you would want to ask this is wh sees the gift cards so that's when he starts asking questions about the gift cards but again going back to the government's response of whether or not that was consent to seize the bag when they say three things consent to search was supportive of consent to seize that he voiced no objection to the seizure and that he sat in the tory well we all know how this comes down because it's in the record what's in the back ok i'm going to take this back i need you  content of a by this concert to see what's in the back not based on these facts i would also point out the additional facts that the officer never requested consent to seize that if you're going to ask for consent to search and you decide to take them you should ask for consent to cvs we need to distinguish the difference between search and seizure again the trial court jumbled these two separate issues together as did the arresting officer the arresting officers testimony was basically well he handed me the bag and therefore when i asked if i could see what's inside there for his consenting to the seizure that's just not true and that's really the main point of this issue is is consent to search the content of the bag equal to consent to caesar and our position is it is not because the constitution clearly says those are two separate rights so the standard of review that this court has course is clear error and the question becomes the truck or clearly erewhon it included that consent to search was with equal to consent to seize and argument is that was clear because those are not what you want to see the the seizure of the bag could also have been accomplished through probable cause so if i may i'd like to address that issue in the record on appeal page one thirty three the officers testimony was he felt that he did not have probable cause to search the car this was after he contents of the bag the hundred forty three gift cards he did not feel that that was sufficient evidence of the crime had been there was about to be committed that allowed him to search the car he testified so if the legality of the gift card was immediately apparent which is what is required then he should have felt that he had the right to search the car he also he felt that  he did not have probable cause to at that time to seize the gift card so if the legality of the gift cards was readily apparent he showed itself that he could have seized them without the consent but he asked for consent to search and felt that was consent to seize he was confused as well as the importance if you recall in the brief excuse me seven the driver had no driver's license there was no visible license plate under the talented circumstances but in the facts together they must not  passenger he had equal access to that bag that was the bag was under the passenger seat that's where the passenger was and the driver said we buy cars and sell them namely above jointly possess them so that's where he had standing to and two more factors he found relevant or that gift cards were purchased from a third party and there was no receipt well the officer in his testimony says you know i wouldn't expect somebody who bought gift cards from a third party to have receipt so how can we even they had an outstanding warrant for simple possession of marijuana they had items in the car that they purchased and one of the fellows had one that's really that's really what the question boils down to was their problem because now this is a dyno review that if the court will do and some of the questions that i would ask the court to consider is this in analyzing these factors number one did did race come into play on this these were two african americans in the car late at night this was a white officer i mean you're very i'm sorry i mean your br gets it well i'm sorry it's in the original motion to suppress it was pointed out with particulary but it's not in your brief to us i don't recall if it was or not robert's not in there you can argue it which would be issue number two on the electronic search if i may address that now and the question becomes did the appellant have a reasonable expectation of privacy in the electronic content of the gift cards that's the issue there there is there's no evidence in the record that there was or was not personal information on the gift card so we start with f they have because of your burden to establish a reasonable expectation of privacy so it is no evidence of our personal information isn't that kind against you it does cut against me but it's not it's not dispositive of that because there is some information in the records support that there was a reason it's based expectation of privacy number one gift cards have a certain amount of money that's on them that's personal information it's nobody's business whether or not somebody goes to a place like nick torrey secrets and buys two thousand dollars worth of gift cards that's something that some maybe personal some back so the amount of money on a gift card is personal the type of gift card to the person has that something personal what you how you spend your money is is personally it's not subject to someone else's interest it's public information it's present on the good morning ma'am please the court would like to begin by discuss seen the seizure aspect of the case and then turn to the second issue on reasonable expectation of privacy on page ten of our brief we set out the officers testimony specifically the officer is asked did you feel that any of the passengers or the driver consented you to consent to you seizing those gift cards yes the driver did the operator the vehicle consented to the season of the gift cards all right after you after he handed you the gift cards in that video and agreed to the search did you present him with an inventory for them yes i did i think the record is quite clear that there was a valid knowing consent in this case by someone who is properly in position to give that permission and i don't believe quite merrily speaking that the defendant in this case can challenge the consent given by his codefendant but even if he could i think it's quite clear from the record that voluntary knowing consent was given to the seizure and subsequent search of those gives us no attempt  to hide and ownership interest also didn't they supposedly on them together there is testimony that we got them from a third party that's correct or so to the extent that there is a recognized ability for a passenger to challenge the seizure it i think in this case at least gives way to in the end analysis to the fact that the kohen are could properly give consent and that at that officer was free to take those items and so the answer the question was the officer saw ice cube spilt on the floor of the car which raised suspicion when he looked in the car and then he saw the bag and it tucked underneath there was he could not see what was in there and it was clearly only after the defendant the driver excuse me handed him the bag and he looked inside that he determined what was in there and what was in there was one hundred and forty three gift cards and so i can get to a couple of cases that later talk about how one hundred forty three gift cards in and of themselves at least one court in the box case which is cited in our brief court found that there is probable cause to believe that fraudulent activity is afoot that coupled with the fact that they say we buy them from a guy we don't have or see it's one of the passengers obviously has the passenger has a warrant out for his arrest was in position to exercise to maintain a control over those cards and he provides an inventory right at that moment to the defendant so i believe that the seizure was either number one pursuant to consent and number two view exception right and probably caused a seizure relying on the plain view exception or were i believe that we're relying on the totality of the circumstances in particularly the number of the cards and the attendan surrounding what the officer had learned i understand to get to probable cause but how what's the reason why there's not a warrant requirement for seizing the assuming there's no consent i understand you're saying there's can sample assuming there's no consent i thought you were relying on the plain view doctrine which says if you have probable cause to believe it's incriminating evidence you can seize it without a warrant you know well and a traffic stop such as this i believe that the officer upon seeing what he believes to be contraband based upon his training and experience can seize an item on the roadside without a warrant for the automobile exception well that's true that's for search what cases are you relying on that say that if you have that you're relying on the plainview exception well i believe that the obvious or can see an item based upon his experience and training that he recognizes under the circumstances would be criminal activity and of course he has to do an inventory of that item as well and on the roadside there i suppose it would be technically possible but i don't think it would be required  were these guys go i thought they didn't oh i do a search when you take the call turner was arrested and taken to jail he was i believe i don't believe he was free to go they had they did they take the car that's an inventory search usually the car was fall back argument that the ouster based on his experience and training and there are cases in fact there's never been one case that i could find on this area that has found that an officer couldn't  see the contraband that is gift cards credit cards they lump them together by the way very often you'll find credit card debit card and gift cards all in the same bag this case is just a little bit unusual because they're all gift so they were able to link them up to the having obtained those cards that the testimony they bought them from another individual it's false and so the scheme as i understand it is that you replace the magnetic information with different information stolen credit card number ange the amount right yes exactly and so number one i believe we have consent and number two i believe we have probable cause to believe that we have  contraband and that the officer can seize contraband that he recognizes in his presence turning to the reasonable expectation of privacy there are a host of cases that ha ve addressed virtually this exact issue and there's a recent case from june eight called delisle it's out of the eighth circuit that is probably closest to on point but it really is a collection of law that has come before so it's not particularly new and so the main thing regarding the expectation of privacy is that with the gift card there is literally no personal information to you the defendant or any citizen on that card it is simply the information necessary to complete the transaction when you present the card to the merchant and anything that you knowingly have to display is not subjectively reasonable that you would have an expectation of privacy in the information that you would have to convey there is no information that would be u individual that they would have any reason to have an expectation what is exactly on the gift card and i know credit cards i'd like your name and address i believe saying that's not a gift card what is on the give column what i read in the case is that there are three magnetic lines on any reader and basically there's going to be an internal account number for the merchant and pin number also contained on the card the cases are clear at least as to debit credit and gift cards they kind of lump them together that none of the information contained on the main magnetic strip is different from the information that's contained on the front of the card in fact you can complete a credit card transaction by just use the information on the front of the card which is the account number the expiration date the name of the individual and the three digits the id code and so  do not that's correct your honor there is no name associated with the good card they are unique they are not unique to an individual they are simply unique to the merchant that sells them to the public  of the circumstances i think i think it's quite clear that no court has ever recognize an expectation of print privacy at least that society is willing to recognize  lea reasonable even if the defendant had a subjective interest society is just not prepared to go there finally to the extent that the cards contain fraudulent information the courts have never recognize and it reasonable expectation of privacy in what would essentially be a contraband card because the information itself in this case for example were the cards had been altered a criminal defendant has no reasonable expectation of privacy that their criminality will not be discovered that it's that's part of what the courts of essentially held that that that is part of the analysis you would not have a reasonable expectation of privacy in regarding the issue of it and whether or not driver consented to the seizure of the record pill page one twenty nine is that the examination of the officer by the government in this case and he's asked did you feel you were giving consent just to seize the items and he said yes but then the the government attorney  well he handed you the gift cards that showed in the video and he agreed to your search so even in that instance there makes you know consent to search and consent to see so it's just to argue because the seizure had already taken place i seized it sign here now you're supposed to object you've already seized it you don't that's after the fact on the reasonable expectation of privacy  information imbedded in the gift card what indication is that the average person one even knows what information is on there or to knows that you're able to actually change that information if you get some type of technology i don't know the answer to that but i do know this and we all know this and this was argued in my briefs on credit cards and debit cards that the banks have now put chips in their while to protect the personal information within the debit  credit card so to draw an analogy that gift cards and debit cards and credit cards don't have personal information that's not true it does why would we put the chip there and again we're guessing that there's no person  make a card with a chip than it is with the it is on the list but it has some personal information on that's why we have chips but again a different kind of card that's not right but well with gift cards again is it say i want this hundred all that's one person but that that's that's not the government the government has no right to look into that that without a warrant ok that's that's that's our position