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RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0164p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

MAMADOU BAH (14-5178); ALLAN MARCUS 

HARVEY (14-5179), 

Defendants-Appellants. 

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Nos. 14-5178/5179 

Appeal from the United States District Court 

for the Eastern District of Tennessee at Greeneville. 

No. 2:13-cr-00048—J. Ronnie Greer, District Judge. 

Argued: June 19, 2015 

Decided and Filed: July 24, 2015 

Before: ROGERS and MCKEAGUE, Circuit Judges; SARGUS, Chief District Judge.*

_________________ 

COUNSEL 

ARGUED: Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN 

TENNESSEE, INC., Knoxville, Tennessee, for Appellant in 14-5178. Jonathan Sevier Cave, 

THE CAVE LAW FIRM, PLLC, Greenville, Tennessee, for Appellant in 14-5179. Suzanne 

Kerney-Quillen, UNITED STATES ATTORNEY’S OFFICE, Greeneville, Tennessee, for 

Appellee. ON BRIEF: Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN 

TENNESSEE, INC., Knoxville, Tennessee, for Appellant in 14-5178. Jonathan Sevier Cave, 

THE CAVE LAW FIRM, PLLC, Greenville, Tennessee, for Appellant in 14-5179. Suzanne 

Kerney-Quillen, UNITED STATES ATTORNEY’S OFFICE, Greeneville, Tennessee, for 

Appellee. 

 *

The Honorable Edmund A. Sargus, Chief United States District Judge for the Southern District of Ohio, 

sitting by designation.

>
Nos 14-5178/5179 United States v. Bah, et al. Page 2 

_________________ 

OPINION

_________________ 

 ROGERS, Circuit Judge. This case addresses whether an individual has a reasonable 

expectation of privacy in the magnetic strips on credit cards. On May 23, 2013, Morristown 

Police Corporal Todd Davidson stopped a rental vehicle driven by Mamadou Bah for speeding in 

a construction zone. During the traffic stop, officers placed Bah under arrest for driving on a 

suspended license and detained passenger Allan Harvey for “investigatory purposes” after 

discovering approximately 72 credit, debit, and gift cards in the rental car’s glove compartment 

and trunk. Bah and Harvey filed motions to suppress evidence of the credit, debit, and gift cards 

and cell phones found in the car in district court, alleging that the officers had violated their 

Fourth Amendment rights by: (1) unlawfully searching the rental car in which Bah and Harvey 

were driving, incident to Bah’s arrest; (2) scanning the magnetic strips on numerous credit, debit, 

and gift cards found inside the vehicle, without first obtaining a warrant; (3) performing a 

warrantless search of a Blackberry cell phone; and (4) unlawfully detaining Harvey following 

Bah’s arrest. The district court denied their motions, and Bah and Harvey appeal. Because 

Harvey does not have standing to contest the search of Bah’s rental vehicle, Harvey was 

reasonably detained during the traffic stop, the warrantless search of Bah’s Blackberry did not 

taint the subsequent cell phone searches conducted pursuant to a warrant, and scanning the 

magnetic strips of credit and gift cards was not a search, the district court properly determined 

that neither Bah nor Harvey’s Fourth Amendment rights were violated. 

On May 23, 2013, Morristown Police Corporal Todd Davidson stopped a white Nissan 

Altima for traveling 56 miles per hour in a 35-mile-per-hour construction zone. Davidson 

approached the vehicle and found Mamadou Bah in the driver’s seat and Allan Marcus Harvey 

reclined in the front passenger seat, “as if he [had been] taking a nap.” Bah gave Davidson his 

license and documentation on the Hertz rental vehicle, and Davidson returned to his cruiser to 

perform a background check. While running the background check, Davidson observed Harvey 

“fumbling around the passenger’s side compartment as if he was either trying to conceal 
Nos 14-5178/5179 United States v. Bah, et al. Page 3 

something or retrieve something.”1 Because Harvey’s movements made Davidson nervous,2

Davidson called for back-up. 

Before back-up arrived, the records check revealed that Bah’s license had been 

suspended. Consequently, Davidson prepared to arrest Bah, pursuant to police regulation 

General Order 500.49. Additionally, because Bah was the only driver listed on the rental 

agreement, Davidson decided to tow the vehicle. Once Officer Derrick Johnson responded to the 

scene, and Davidson briefed him on the situation, Bah was arrested and secured in Davidson’s 

police cruiser. Johnson then ordered Harvey to step out of the vehicle, patted him down, and 

asked for Harvey’s identification. 

After Harvey exited the vehicle, Davidson searched it. Bah’s initial arrest report referred 

to the search as one conducted incident to Bah’s arrest; during the motion to suppress hearing, 

however, Davidson testified that he had simply conducted an inventory search as required by 

department policy. According to Davidson, General Order 200.04-B allows an officer—

provided there is lawful justification to impound the vehicle—to “conduct an inventory search of 

the contents of the vehicle and all containers therein.” In addition to searching the glove 

compartment and trunk, Davidson requested a K-9 sniff because the car was a rental; Davidson 

did “not want the next renter or lessee of the vehicle to be caught with something that they didn’t 

know was in the vehicle.” 

During the search, Davidson found a damaged Blackberry cellular phone in the driver’s 

side door pocket, two cellular phones in the center console between the passenger and driver 

seats, an iPhone in the passenger side door pocket, several cartons of cigarettes in the back seat, 

four credit, debit, or prepaid gift cards in the passenger glovebox, and a large quantity of 

 1

The magistrate judge found that the video of the traffic stop corroborated Davidson’s testimony, stating: 

 As [Davidson] called in Bah’s drivers license information to his dispatcher and then awaited the 

results of his inquiry, he could easily see into the passenger compartment of the Altima. The 

passenger, defendant Harvey, was in constant motion, moving from side to side, twisting and 

turning; his head would drop from time to time. The movements were so constant, so extensive, 

and so lengthy, it immediately seized the attention of this magistrate judge as the video was 

viewed. 

(Emphasis added.) 

2

Davidson stated several times during the motion to suppress hearing that Harvey’s movements concerned 

him. In particular, Davidson felt “uneasy about the stop,” and was so concerned that he didn’t “know if [Harvey] 

was retrieving a weapon [or] hiding something.” 
Nos 14-5178/5179 United States v. Bah, et al. Page 4 

additional cards in a plastic bag in the trunk of the vehicle, inside a bag that Harvey said 

belonged to Bah. Upon discovering approximately 68 credit, debit, and gift cards in the trunk, 

Davidson “felt that the investigation needed to be furthered[, and] . . . needed to involve an 

investigator with the police department.” Davidson then advised Harvey that, although he was 

“not under arrest,” he was being placed in “temporary custody.” Bah and Harvey were then both 

transported to the Morristown Police Department in handcuffs,3 where four more cards were 

found in Bah’s wallet, and five additional cards were found in Harvey’s wallet. Johnson later 

found five additional cards in the back seat of the police cruiser in which Harvey had been 

transported to the police department for further investigation. 

At the police department, Detective Tracy Bowman and Corporal Gary Bean examined 

the items from the rental vehicle and contacted Special Agent Kevin Kimbrough of the 

Tennessee Highway Patrol, who had experience with identity theft investigations. Bowman and 

Johnson—while waiting for Kimbrough and without a warrant—looked at a text message and 

several photographs on the unlocked Blackberry cellular phone. The photographs depicted “a 

large amount of cash,” “what appeared to be marijuana,” and a “skimming device,” which can be 

used to re-encode magnetic strips. The locked cellular phones were not examined. When 

Kimbrough arrived, another officer showed him the photographs from the Blackberry cellular 

phone. 

Kimbrough—also without a warrant4

—then used a magnetic card reader, or “skimmer,” 

to read the information encoded on the magnetic strips of 18 credit, debit and gift cards (those 

 3

Police procedure required that all individuals transported in the back seat of a police cruiser be 

handcuffed. 

4

At the motion to suppress hearing, Kimbrough described the process of reading the cards as a “search” 

because the data on the strips could not be seen with the “naked eye.” Nevertheless, he believed that he did not need 

a search warrant to scan the magstripes. Kimbrough explained: 

I have personally met with Helen Smith with the U.S. Attorney’s office on previous cases where 

we had discussed whether or not the search warrants were required for the searching of these 

credit/debit cards, whether or not that constitutes a search that’s required by search warrant, 

[and . . .] my understanding from me consorting with the U.S. Attorney’s office [is that] we do not 

have to have a search warrant to search these cards. 

Later in the hearing, however, Secret Service Agent Allen testified that scanning the magstripes on the cards was not 

a search. He reasoned: “They’re not a computer. They’re not a phone. They’re not a device. In four different 

judicial districts that I’ve been in for the last 15 years, that’s never been considered a search of any kind.” 
Nos 14-5178/5179 United States v. Bah, et al. Page 5 

cards not found in the car’s trunk5). A skimmer is a device similar to that used at gas stations, 

restaurants, and grocery stores to read the “magstripe,” or magnetic strip, on cards. The 

magstripe of any credit, debit, or prepaid gift card typically contains limited, unique information: 

an account number, bank identification number (the six-digit number that identifies a particular 

financial institution), the card expiration date, the three digit “CSC” code, and the cardholder’s 

first and last name. With the exception of the bank identification number and a “few other 

additional, unique identifiers,” the information stored on the magstripe mirrors that provided on 

the front and back of the card. The magstripe does not typically contain an individual’s birth 

date, social security number, mailing address, blood type or other personal data. Because 

financial transactions may be conducted using only the data printed on the front and back of a 

card, accessing the information stored on the magstripe is not always necessary to make a 

charge. An encoding device is required to change, or re-encode, the data on a magstripe. 

Upon scanning the 18 cards, Kimbrough found that a “majority, if not all” of the 

magstripes had been re-encoded so that the financial information they contained did not match 

the information printed on the front and backs of the cards. Bah and Harvey were then taken into 

custody and transported to the Hamblin County Jail. 

In total, officers recovered 86 cards from Bah, Harvey and their vehicle: four cards in the 

glove compartment, 68 cards in the trunk, four cards in Bah’s wallet, five cards in Harvey’s 

wallet, and five cards in the back seat of Johnson’s cruiser after he had transported Harvey. 

Secret Service Special Agent Doug Allen determined that all 68 of the cards seized from the 

trunk of the rental vehicle had been re-encoded. The re-encoded account numbers had been 

either stolen or compromised, and a number of the associated accounts had already incurred 

fraudulent charges. 

Based on his determination that the magstripes had been re-encoded with compromised 

or stolen account numbers, Allen obtained a federal search warrant for the cellular telephones 

seized following the traffic stop. The warrant affidavit did not refer to any of the information 

officers had already viewed on the Blackberry cellular phone. On May 30, 2013, Bah and 

 5

The cards scanned included: (1) four cards found in Bah’s wallet; (2) four cards found in the glove 

compartment; (3) five cards found in Harvey’s wallet; and (4) five cards found in the back of the patrol car after 

Harvey had been removed.
Nos 14-5178/5179 United States v. Bah, et al. Page 6 

Harvey were charged with production, use, or trafficking in counterfeit access devices, and later 

indicted. 

Both Bah and Harvey moved to suppress the evidence obtained from the rental vehicle, 

arguing that the search could not be justified as a search incident to Bah’s arrest under the rule of 

Arizona v. Gant, 556 U.S. 332 (2009). Bah further alleged that the officers, by looking at images 

on his cell phone and scanning the magstripes on the cards without first obtaining a warrant, had 

performed unlawful searches.6 Harvey further contended that he had been unreasonably detained 

during the stop. 

The United States replied that: (1) the search of the rental vehicle was a valid inventory 

search, not a search incident to arrest; (2) even assuming arguendo that the search was unlawful 

under Gant, the motion should nevertheless be denied because the seized items would have been 

inevitably discovered after the vehicle had been towed, impounded and inventoried; (3) under 

United States v. Wurie, 728 F.3d 1 (1st Cir. 2013), the defendant’s cellular phone was properly 

searched incident to arrest and a warrant was later obtained to search the other cell phones; 

(4) the scanning of the magstripes did not constitute an unlawful search because there was no 

reasonable expectation of privacy in the data contained on the magstripes; and (5) because 

Harvey was properly detained during the pendency of the records check, he was also properly 

detained—until the officers could confirm or dispel their suspicions of his involvement in 

criminal activity—after Davidson discovered a large quantity of credit/debit/gift cards in the 

vehicle. 

After a lengthy suppression hearing, the magistrate judge recommended that the district 

court deny Bah and Harvey’s motions to suppress. First, crediting Davidson’s and Johnson’s 

testimony, the magistrate judge found that the vehicle search was a valid inventory search. The 

judge explained: 

Officer Davidson testified that the Altima had to be towed and impounded 

because: 

 6

Harvey did not specifically challenge the cell phone and magstripe “searches” in his initial motion to 

suppress. However, in his “Reply to United States’ Response to Allen Harvey’s Motion to Suppress,” Harvey 

attempted to distinguish United States v. Alabi, 943 F. Supp. 2d 1201 (D.N.M. 2013), a case that held that reading 

the magnetic strips of a credit/gift card did not constitute a search. 
Nos 14-5178/5179 United States v. Bah, et al. Page 7 

(1) Bah was under arrest. For obvious reasons, he could not drive the car. 

(2) In any event, Bah did not have a valid drivers license; 

(3) No one other than Bah was an authorized driver under the Hertz rental 

contract, and the officers could not unilaterally amend the contract to allow 

someone else to drive the car; 

(4) Harvey could not drive the vehicle because he was not an authorized driver 

and his license also was suspended; and 

(5) Both men were from New York and obviously had no “friends or relatives” in 

the Morristown area. 

Defendants’ argument that Officer Davidson’s true motive was to search the 

vehicle for evidence of a crime, and not merely to inventory it prior to its towing 

and impoundment, is rejected. Officer Davidson’s testimony regarding his 

motivation in performing a search of the car is supported by the physical facts. . . . 

The car simply could not stay where it was. . . . And Bah could not move it, and 

neither could Harvey. 

The judge also, sua sponte, concluded that Harvey lacked standing to contest the search of the 

rental vehicle because Bah was the only authorized driver. 

 Second, the magistrate judge rejected Bah’s contention that retrieving data from the 

magstripes constituted a search, because “[a]n owner or possessor of a credit, debit, or gift card 

has no reasonable expectation of privacy in the data encoded on the magnetic strip.” Third, the 

magistrate judge refused to suppress evidence from the cellular phones because, even assuming 

that the initial warrantless search of Bah’s cell phone had been unlawful, a warrant was 

ultimately obtained without any reference to the allegedly improperly collected information. 

And fourth, the magistrate judge found Harvey’s detention reasonable. The magistrate judge 

reasoned: 

If it be assumed for the sake of argument that there was no probable cause to 

arrest Harvey until Agent Kimbrough scanned the credit cards, then Harvey’s 

investigative detention for that period of time was reasonable under the 

circumstances. Under those circumstances, the police moved with both diligence 

and dispatch. Indeed, they did all that they could do. But, assumption aside, the 

police already had sufficient probable cause to arrest Mr. Harvey; the scanning of 

the cards by Agent Kimbrough was merely icing on the probable cause cake. 

Perhaps there is an incredibly profligate spender in this country who legitimately 

has in his possession eighty-six credit, debit, and gift cards, but it is unlikely. The 

extraordinary number of credit cards in the car, coupled with Harvey’s frenzied 

movements as Officer Davidson was calling in the information to his dispatcher, 
Nos 14-5178/5179 United States v. Bah, et al. Page 8 

constituted probable cause to believe that the cards were stolen or fraudulent and 

that Harvey was involved. 

After conducting de novo review, the district court adopted the magistrate judge’s factual 

findings, overruled Bah and Harvey’s objections and denied the suppression motions. 

Bah and Harvey entered conditional guilty pleas to “produc[ing], us[ing], and 

traffic[king] in counterfeit access devices, in violation of 18 U.S.C. § 1029(a)(1) and 

(c)(1)(A)(i).” They preserved, however, their rights to appeal the denials of their respective 

suppression motions. The district court then sentenced them to ten months’ imprisonment each, 

and this appeal followed. 

On appeal, both Bah and Harvey allege that (1) the warrantless searches of the magnetic 

strips on the credit/debit/gift cards violated their Fourth Amendment rights; and (2) the court 

erred in failing to suppress information obtained from the seized cell phones. Harvey 

additionally contends that his detention—following Bah’s arrest—was unreasonable, and that the 

court erred in finding that the officers conducted a valid inventory search of the rental vehicle. 

As an initial matter, Harvey—a passenger with no possessory interest in the rental 

vehicle—does not have standing to directly contest the legality of the vehicle search on Fourth 

Amendment privacy grounds.7

 Courts have routinely held that passengers who have no 

expectation of privacy or possessory interest in a stopped vehicle do not have standing to 

challenge the validity of a subsequent search of that vehicle on Fourth Amendment privacy 

grounds. See, e.g., United States v. Decker, 19 F.3d 287, 288−89 (6th Cir. 1994); United States 

v. Ellis, 497 F.3d 606, 612 (6th Cir. 2007); United States v. Ghoston, No. 11-20098 Ma/P, 2012 

WL 1391967, at *3 (W.D. Tenn. Feb. 27, 2012); United States v. Villaverde-Leyva, No. 1:10-

CR-035-RWS/AJB, 2010 WL 5579825, at *15 (N.D. Ga. Dec. 9, 2010). 

Though Harvey does not have standing to contest the legality of the vehicle search, he 

may nevertheless contest the legality of his detention. Passengers have standing to contest the 

lawfulness of their seizure, Brendlin v. California, 551 U.S. 249, 251 (2007), and—in doing so—

argue that evidence found during an ensuing vehicle search “should be suppressed as fruits of 

 7

Bah, the only individual authorized to drive the rental car, does not challenge the legality of the vehicle 

search, effectively conceding that the officers had performed an “inventory” search prior to towing the vehicle.
Nos 14-5178/5179 United States v. Bah, et al. Page 9 

illegal activity,” Ellis, 497 F.3d at 612 (internal quotations and citation omitted). Harvey, 

however, cannot show that the credit cards found in the vehicle should be excluded as the fruits 

of his unlawful detention for two reasons: (1) the initial traffic stop was lawful; and (2) the credit 

cards found in the vehicle were not the “fruits” of Harvey’s continued detention. In contesting 

their seizure, passengers often argue that the initial stop was unlawful or that the officers 

impermissibly expanded the scope and duration of their detention during the traffic stop. See, 

e.g., Brendlin, 551 U.S. at 251; Ellis, 497 F.3d at 612. First, Harvey does not contend—nor can 

he—that the initial stop was unlawful. Officer Davidson stopped the vehicle in which Harvey 

was a passenger after observing it traveling 56 miles per hour in a 35-mile-per-hour construction 

zone. Second, even assuming that Harvey’s continued detention while Officer Davidson 

searched the car was unlawful—a premise refuted below—Harvey still cannot show that the 

evidence discovered in the vehicle was the “fruit” of his unlawful detention; rather, the cards 

found in the vehicle were the “fruits” of Bah’s arrest for driving on a suspended license and the 

subsequent need to tow and inventory—pursuant to standard police operation procedures—the 

vehicle. Stated another way, if we were to suppose that at the time of Bah’s arrest, the police had 

indicated that Harvey was free to leave, the cards in the vehicle would still have been discovered 

because they were located in a car rented and controlled by Bah (who had been arrested), a car 

over which Harvey had no control. Ultimately, because Harvey’s continued detention was not 

the cause of the search of Bah’s rental vehicle and Harvey does not contest either the legality of 

the initial stop or Bah’s arrest, Harvey cannot show that the credit, debit and gift cards found 

during the vehicle search should be suppressed as the fruits of his unlawful detention. 

Harvey does, however, have standing to contest the reasonableness of his prolonged 

detention and argue that the cards found in his wallet and those found in the back seat of Officer 

Johnson’s police cruiser should have been excluded. Harvey’s pre-arrest detention, however, 

was reasonable in light of the totality of the circumstances because the officers—during the 

course of the traffic stop—had both reasonable suspicion and probable cause to continue 

Harvey’s investigative detention and, in any event, pursued their investigation diligently and 

without undue delay. The Fourth Amendment prohibits only unreasonable searches and 

seizures. U.S. Const. amend. IV. To determine whether a search was “unreasonable,” a court 

must consider the “totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33, 39 (1996). 
Nos 14-5178/5179 United States v. Bah, et al. Page 10 

Here, after Officer Davidson initiated the traffic stop, the legality of which Harvey does not 

contest, Officer Davidson had two lawful reasons for asking Harvey to exit the vehicle and 

provide identification even after Bah had been arrested. First, Officer Davidson had observed 

Harvey “fumbling around the passenger’s side compartment,” which gave Officer Davidson 

reasonable suspicion that Harvey could be armed or trying to hide a weapon in the vehicle. 

Officer Davidson’s fear for officer safety, in turn, afforded him the right to ask Harvey to exit the 

vehicle and provide identification, and to conduct a protective sweep of the passenger 

compartment. “‘A concern for officer safety permits a variety of police responses in differing 

circumstances, including ordering a . . . passenger out of a car during a traffic stop, . . . and 

conducting pat-down searches upon reasonable suspicion that they may be armed and 

dangerous.’” United States v. Campbell, 549 F.3d 364, 372 (6th Cir. 2008) (quoting Bennett v. 

City of Eastpointe, 410 F.3d 810, 822 (6th Cir. 2005)) (emphasis in original). Concerns for 

officer safety also permit an officer to “‘ask the detainee a moderate number of questions to 

determine his identity and to try to obtain information confirming or dispelling the officer’s 

suspicions.’” Id. (quoting United States v. Butler, 223 F.3d 368, 374 (6th Cir. 2000)). “[I]f an 

officer possesses a reasonable suspicion that a suspect is armed and dangerous, he may conduct a 

brief protective sweep of the suspect’s vehicle, so long as that search is constrained to places 

where a weapon may be hidden.” United States v. Graham, 483 F.3d 431, 439−40 (6th Cir. 

2007). 

Second, Officer Davidson was planning to conduct an inventory search in accordance 

with City of Morristown General Orders 500.51, ¶ 6, and 200.04B, ¶ I.1.a, before having the 

vehicle towed, which would necessarily require that Harvey exit the vehicle. Inventory searches 

of vehicles subject to impoundment are permitted, provided the scope of the inventory search is 

authorized by standardized police procedures. Colorado v. Bertine, 479 U.S. 367, 371, 374−76 

(1987). Thus, the officer’s request that Harvey exit the vehicle and provide identification—and 

the subsequent search of the passenger compartment—was not unreasonable under the 

circumstances. 

Once Officer Davidson discovered four credit, debit, and gift cards in the glovebox—the 

same area where Davidson had previously observed Harvey “fumbling around”—and 68 credit, 
Nos 14-5178/5179 United States v. Bah, et al. Page 11 

debit, and gift cards in the trunk during the inventory search, the officers had probable cause to 

arrest Harvey on suspicion of identity theft. Probable cause is a common-sense concept defined 

by the “practical considerations of everyday life on which reasonable and prudent men, not legal 

technicians, act.” Maryland v. Pringle, 540 U.S. 366, 370 (2003) (internal quotations and 

citation omitted). “The probable-cause standard is incapable of precise definition or 

quantification into percentages because it deals with probabilities and depends on the totality of 

the circumstances.” Id. at 371. As the magistrate judge explained, the record here suggests that 

Officer Davidson, upon finding such a large quantity of cards, had “probable cause to believe 

that Harvey at the very least jointly possessed them with Bah and that they were fraudulent”: 

[T]he police already had sufficient probable cause to arrest Mr. Harvey; the 

scanning of the cards by Agent Kimbrough was merely icing on the probable 

cause cake. Perhaps there is an incredibly profligate spender in this country who 

legitimately has in his possession eighty-six credit, debit, and gift cards, but it is 

unlikely. The extraordinary number of credit cards in the car, coupled with 

Harvey’s frenzied movements as Officer Davidson was calling in the information 

to his dispatcher, constituted probable cause to believe that the cards were stolen 

or fraudulent and that Harvey was involved. 

Even though the officers chose not to arrest Harvey until after the cards had been scanned at the 

station, the officers nevertheless had probable cause to detain him at the scene of the traffic stop, 

thus justifying his continued detention and transport to the police station. As a result, the cards 

found in Harvey’s wallet and in the back seat of the police cruiser were properly admitted. 

Harvey contends, however, that there was a brief period during the traffic stop when the 

officers had neither reasonable suspicion nor probable cause to detain him: the time between 

when Officer Davidson concluded his search of the passenger compartment, having found no 

weapons, and Officer Davidson’s search of the trunk. However, a review of the traffic stop 

video does not support such a finding. Harvey is asked to exit the vehicle and provide 

identification approximately ten minutes into the traffic stop. At 10:22, Officer Johnson 

conducts a weapon check of Harvey and at 11:16, calls in Harvey’s license information for a 

background check. Around 12:25, Officer Davidson begins the inventory search on the driver’s 

side, and between 13:51 and 15:15, searches the passenger compartment. It is not until 16:03 

that Officer Davidson mentions that Harvey’s license was not valid—thus concluding the 

identification check—though, on the basis of poor quality audio, the officers may have learned of 
Nos 14-5178/5179 United States v. Bah, et al. Page 12 

Harvey’s suspended license as early as 13:10. Officer Davidson then starts his search of the 

trunk at approximately 15:30, after Harvey had already informed the officers that he had a bag in 

the trunk. Officer Davidson searches Harvey’s bag until approximately 19:45. Shortly 

thereafter, Officer Davidson discovers the debit, credit, and gift cards in the other bag in the 

trunk. 

Under Harvey’s logic, officers had neither reasonable suspicion nor probable cause to 

detain him between 15:15—the end of Officer Davidson’s search of the passenger 

compartment—and 20:05 (the point at which the cards were found), a time period of at most five 

minutes. Harvey, however, ignores two key facts. First, Officer Davidson had reasonable 

suspicion to detain Harvey for investigatory purposes after he found four credit/debit/gift cards 

in the glove box—the area where Harvey had previously been “fumbling around.” In fact, at 

18:40, while still conducting a search of Harvey’s bag in the trunk, Officer Davidson asked 

Harvey about the cards found in the glove box, showing particular interest in the fact that one of 

the cards had not yet been activated. Harvey’s furtive movements in the area where the cards 

were found and the fact that one of the cards had not yet been activated, provided the reasonable 

and articulable suspicion of criminal activity needed to justify Harvey’s further investigatory 

detention. “[O]nce the purpose of the traffic stop is completed, a motorist cannot be further 

detained unless something that occurred during the stop caused the officer to have a reasonable 

and articulable suspicion that criminal activity was afoot.” United States v. Urrieta, 520 F.3d 

569, 574 (6th Cir. 2008) (internal quotations and citation omitted). And given that the 

“investigatory detention” lasted at most five minutes, the record supports finding that the officers 

diligently pursued their investigation under the circumstances. “In assessing whether a detention 

is too long in duration to be justified as an investigative stop, . . . it [is] appropriate to examine 

whether the police diligently pursued a means of investigation that was likely to confirm or 

dispel their suspicions quickly.” United States v. Sharpe, 470 U.S. 675, 686 (1985) (citation 

omitted). 

Second, less than fifteen seconds after Officer Davidson completed his search of the 

passenger compartment, and before Officer Davidson began a search of the trunk, Harvey 

informed the officers that one of the bags in the trunk belonged to him. In light of this 
Nos 14-5178/5179 United States v. Bah, et al. Page 13 

information, it would have been reasonable for the officers to assume that Harvey did not intend 

to leave without his belongings. It follows that Harvey’s continued detention as Officer 

Davidson searched Harvey’s backpack for weapons was reasonable, particularly given Harvey’s 

furtive movements and Officer Davidson’s concerns regarding officer safety. The 68 credit, 

debit and gift cards were found almost immediately after Officer Davidson completed his lawful 

search of Harvey’s bag. The record does not support finding that Harvey’s continued detention 

for the five contested minutes was unreasonable. 

Harvey mistakenly relies on Rodriguez v. United States, 135 S. Ct. 1609 (2015), a case in 

which the Supreme Court recently held that, absent reasonable suspicion, police officers cannot 

prolong a traffic stop—even for seven to eight minutes—solely to conduct a dog sniff. Harvey 

cites Rodriguez to argue that his continued detention following Bah’s arrest for “the purposes of 

an ‘inventory search’ of the trunk was unlawful.” (Emphasis added.) Yet, in so arguing, Harvey 

minimizes the facts of his case and fails to acknowledge meaningful, factual distinctions between 

his detention and that described in Rodriguez. For instance, unlike in Rodriguez where the 

officers extended the traffic stop—without any individualized suspicion—after all tasks tied to 

the traffic infraction had been completed, id. at 1614, 1616, the officers here had reasonable 

suspicion to continue Harvey’s detention: during the protective sweep of the passenger 

compartment—which Harvey in his Rule 28(j) Letter apparently concedes was lawful—they 

found four credit, debit and gift cards, including one which had not yet been activated, in the 

glove box where Harvey had been “fumbling around.” Thus, Harvey was not detained for “the 

purposes of an ‘inventory search,’” a search that would have been conducted even if Harvey had 

been released, but rather to permit the officers to confirm or dispel their suspicions surrounding 

the cards. Second, where the police officers in Rodriguez refused to let Rodriguez leave after the 

citation had been issued, much of Harvey’s continued detention resulted from his decision to 

inform the officers that he had a bag in the trunk. 

The warrantless scans of the magnetic strips on the credit, debit, and gift cards also did 

not violate Bah’s and Harvey’s Fourth Amendment rights because the scans did not constitute a 

“search.” The Fourth Amendment provides, in pertinent part, that “[t]he right of the people to be 

secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, 
Nos 14-5178/5179 United States v. Bah, et al. Page 14 

shall not be violated.” U.S. Const. amend. IV (emphasis added). No “search” occurred when 

law enforcement read the magnetic strips on the backs of the fraudulent cards because: (1) the 

scans did not involve a physical intrusion of a constitutionally protected area—as required under 

the trespass-based search analysis; and (2) the scans did not violate the cardholders’ reasonable 

expectations of privacy under Katz v. United States, 389 U.S. 347 (1967), and cases following 

Katz. 

First, the scans of the magnetic strips of the credit and gift cards did not involve physical 

intrusions into constitutionally-protected areas. As the district court in United States v. Alabi, 

943 F. Supp. 2d 1201 (D.N.M. 2013) explained,8

 “both United States v. Jones[, 132 S. Ct. 945 

(2012)] and Florida v. Jardines[, 133 S. Ct. 1409 (2013)] involved situations in which ‘the 

Government obtain[ed] information by physically intruding’ into an area,” either by physically 

attaching a GPS device to a private individual or invading the curtilage of an individual’s home 

to conduct a dog sniff. Alabi, 943 F. Supp. 2d at 1265 (citation omitted). “[S]liding a card 

through a scanner to read virtual data[, however,] does not involve” any such physical invasions. 

Id. Thus, when law enforcement officers lawfully possess credit, debit or gift cards, scanning the 

cards to read the virtual data contained on the magnetic strips involves no physical penetration of 

constitutionally protected space. Id.

Second, even assuming for the sake of argument that Bah and Harvey hold a subjective

expectation of privacy in the magnetic strips9

—strips that include their account number, a bank 

identification number, the card’s expiration date, a three digit “CSC” code, and, at times, the 

cardholder’s first and last name10—neither Bah nor Harvey holds a reasonable expectation of 

 8

The Tenth Circuit affirmed this district court judgment in United States v. Alabi, 597 F. App’x 991 (10th 

Cir. 2015), holding that the evidence obtained from reading the magnetic strips on the credit card was admissible 

under the inevitable discovery doctrine. Id. at 1000. The court did not address “whether the scan of the strips 

constituted a search for Fourth Amendment purposes, and, if so, whether that search was reasonable.” Id.

9

This is far from clear. As the court in Alabi noted, “courts have invoked [the subjective expectation 

prong] to hold that a person’s disclosure of something in which the person asserts he or she has a reasonable 

expectation of privacy precludes finding the manifestation of such a subjective belief.” 943 F. Supp. 2d at 1274. 

Though there is no evidence definitively proving that Bah and/or Harvey had yet used any of the magnetic strips on 

the credit cards to purchase goods, Agent Allen testified at the motion to suppress hearing that some of the 

associated accounts had already incurred fraudulent charges. It is possible that, had Bah and Harvey already

knowingly used the credit cards in public, they would fail to meet even the subjective prong of the Katz test. 

10At oral argument, counsel for Bah and Harvey both contended that the “most private” information 

disclosed when officers scan a gift/credit/debit card is the amount of money remaining on the cards. The parties did 

not, however, raise this argument in their briefs and, in any event, we do not find the argument persuasive. After all, 
Nos 14-5178/5179 United States v. Bah, et al. Page 15 

privacy in the magnetic strips. Because the information on the magnetic strips, with the possible 

exception of a “few other additional, unique identifiers,” mirrors that information provided on 

the front and back of a physical credit, debit or gift card, and the magnetic strips are routinely 

read by private parties at gas stations, restaurants, and grocery stores to accelerate financial 

transactions, such an expectation of privacy is not one that society is prepared to consider 

reasonable. Courts “must determine whether the [individual’s] subjective privacy interest is 

‘legitimate,’ by analyzing whether it is an ‘interest in privacy that society is prepared to consider 

reasonable.”’ Alabi, 943 F. Supp. 2d at 1275 (quoting Illinois v. Caballes, 543 U.S. 405, 409 

(2005)). 

Every court to have addressed this question has reached the same conclusion. Some 

courts have stressed that there can be no reasonable expectation of privacy in an account 

number—and consequently, magnetic strip—that is routinely shared with cashiers every time the 

card is used. For instance, in United States v. Medina, No. 09-20717-CR, 2009 WL 3669636 

(S.D. Fla. Oct. 24, 2009) (rev’d on other grounds), the court emphasized that “the credit card 

holder voluntarily turns over his credit card number every time he uses the card,” and then found 

that there is “no expectation of privacy in that number.” Id. at *11. The court in United States v. 

Briere de L’Isle, No. 4:14-CR-3089, 2014 U.S. Dist. LEXIS 151078 (D. Neb. Oct. 24, 2014), 

likewise suggested that “[s]ociety is not prepared to accept as legitimate an asserted privacy 

interest in information that any member of the public may see.” Id. at *7. 

Other courts have emphasized the fact that the scan of the magnetic strip reveals little—to 

potentially nothing—that cannot be viewed on the front and back of the physical card; 

consequently, these courts have reasoned that once law enforcement personnel have lawful, 

physical possession of the card, the scan does not constitute a separate “search.” In Medina, for 

instance, the court explained: 

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 

 officers in lawful possession of an individual’s wallet can count the money present. The additional information 

provided by a scan of a gift card—namely, that an individual spent a specific amount of money at a specific store—

is not a meaningful distinction, particularly given that the store is disclosed on the face of the card. 
Nos 14-5178/5179 United States v. Bah, et al. Page 16 

the naked eye. Using a credit card reader to verify that the information matches 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, an act that even Defendant does not contend 

constitutes a separate “search.” 

2009 WL 3669636, at *10. The court in Alabi similarly reasoned: 

 Issuing financial institutions store on their credit and debit cards’ magnetic strips, 

when they issue a credit or debit card to a cardholder, the same information on 

every card that they issue: one character and then the account information 

identical to the account information embossed on the front of the front of the card. 

 [ . . .] 

 A privacy expectation in the account information on credit and debit cards’ 

magnetic strips—separate and beyond the credit and debit cards themselves—is 

[thus] not objectively reasonable. 

943 F. Supp. 2d at 1279−80. 

 Finally, other courts focus on the fact that a scan of the magnetic strip will usually only 

disclose the presence or absence of activity that is not legal. The reasonable-expectation-ofprivacy test in concept “presupposes an innocent person,” Florida v. Bostick, 501 U.S. 429, 438 

(1991), and “government conduct that only reveals the possession of contraband compromises no 

legitimate privacy interests.” Briere de L’Isle, 2014 U.S. Dist. LEXIS 151078, at *9 (citing 

Caballes, 543 U.S. at 408−09). The Alabi court thus reasoned: 

 Similar to a drug sniff alerting the handler only to the presence of narcotics—

information about illegal activity—scanning credit and debit cards to read the 

information contained on the magnetic strips, when law enforcement already has 

physical possession of the cards, will disclose “only the presence or absence of” 

illegal information: either the information disclosed is the same information on 

the outside of the credit and debit cards, or is information about a different 

account, used to commit credit card fraud. . . . Such a limited investigatory 

technique to quickly and obviously provide information whether the payment 

form is being used criminally . . . does not violate the Defendant’s right to be 

secure in their person, house, papers, or effects. 

943 F. Supp. 2d at 1271, 1273. The question presented here lies at “an intersection . . . between 

the principle that there is no legitimate privacy interest in already-known information, and . . . no 

legitimate privacy interest in contraband.” Briere de L’Isle, 2014 U.S. Dist. LEXIS 151078, at 
Nos 14-5178/5179 United States v. Bah, et al. Page 17 

*9. In light of those principles, when law enforcement has lawful physical possession of the 

credit, debit and gift cards—as the officers did here—there is no separate privacy interest in the 

magnetic strip beyond that in the cards themselves. 

 Two arguments raised by Harvey and Bah deserve a brief response. First, Harvey 

contends that because he did not “voluntarily relinquish[] the data by offering it for use to obtain 

a good in return,” the reading of the magnetic strip was a search. Bah, somewhat similarly, 

appears to suggest that, because the average American, “[w]hen arrested for a suspended license 

. . . would not anticipate law enforcement going through their wallet and swiping anything with a 

magstripe through a reader,” the scans were unlawful searches. It is true that neither Harvey nor 

Bah “consented” to the scans or “relinquished” their cards in the course of a financial 

transaction; however, because law enforcement here came into lawful possession of the cards, as 

outlined above, Bah and Harvey retained no additional privacy interest in the magnetic strips. 

Second, because the magnetic strip on a credit card does not contain the same quality or 

quantity of personal information that can be found on cell phones, computers, or cassette tapes, 

the reasoning underlying the Court’s recent opinion in Riley v. California, 134 S. Ct. 2473 

(2014), does not apply. In holding that cell phones generally cannot be searched without a 

warrant, the Riley Court focused on the “quantity and quality of personal information that can be 

obtained from a modern smartphone, and the expectation of privacy that an individual may have 

in such information.” Briere de L’Isle, 2014 U.S. Dist. LEXIS 151078, at *10−*11 (discussing 

Riley). “Modern cell phones,” the Court explained, “implicate privacy concerns far beyond those 

implicated by the search of a cigarette pack, a wallet, or a purse.” Riley, 134 S. Ct. at 2488−89. 

The cell phone’s storage capacity alone permits “[t]he sum of an individual’s private life [to] be 

reconstructed through a thousand photographs labeled with dates, locations, and descriptions” 

and “collects in one place many distinct types of information—an address, a note, a prescription, 

a bank statement, a video.” Id. at 2489. 

No such concerns are present here. The storage capacity of the magnetic strip of a credit, 

debit or gift card pales in comparison to that of a computer hard drive, cell phone, or even 

audiocassette. According to Bah, each magstripe contains three data strips which hold only 

79 alphanumeric characters, 40 numeric characters, and 107 numeric characters, respectively. 
Nos 14-5178/5179 United States v. Bah, et al. Page 18 

Given the magnetic strip’s limited storage capacity, a reading of it—even assuming it had been 

re-encoded—would not allow officers to reconstruct an individual’s private life. Further, the 

evidence stored on the strip—which, unless re-encoded, would more or less match that provided 

on the front and back of the card—is not the highly personal information an individual would 

expect to keep private, especially after the physical card is in the lawful possession of law 

enforcement or a cashier. In fact, as the court in Briere de L’Isle explained: 

A credit card’s stored information, unlike a smartphone’s, is intended to be read 

by third parties. That is the only reason for its existence. There is simply no basis 

to extend Riley to digital information that literally has no purpose other than to be 

provided to others to facilitate financial transactions. 

2014 U.S. Dist. LEXIS 151078, at *11; see also Alabi, 943 F. Supp. 2d at 1284. It is true, as Bah 

contends, that warrants are required to listen to the contents of cassette tapes and “magnetic 

storage media” requests are often included in warrant applications; Bah, however, fails to 

appreciate that the magnetic strip on a credit, debit, or gift card, given its limited storage capacity 

and tendency to contain only that information that would already be known to an individual in 

lawful possession of the physical card, is readily distinguishable from storage media where the 

contents are often truly unknown. Our holding today is limited in scope—addressing only the 

ability of police enforcement to conduct warrantless searches of the magnetic strips on credit 

cards, gift cards and debit cards—and we do not address hypothetical magnetic strips of the 

future that may have greater storage capacity and tend to store more private information. 

Finally, the initial, warrantless search of Bah’s damaged Blackberry cell phone incident 

to Bah’s arrest was unconstitutional, a point conceded by the United States in light of the 

Supreme Court’s recent opinion in Riley v. California, 134 S. Ct. 2473 (2014). “[A] warrant is 

generally required before [a cell phone] search, even when a cell phone is seized incident to 

arrest.” Id. at 2493. 

Despite the Fourth Amendment violation, however, the district court properly denied Bah 

and Harvey’s motions to suppress because the officers’ initial, unconstitutional search of the 

Blackberry did not taint the subsequent cell phone searches conducted pursuant to the later-
Nos 14-5178/5179 United States v. Bah, et al. Page 19 

obtained search warrant.11 Here, the magistrate judge’s determination of whether to issue the 

warrant was not tainted by the illegally obtained evidence because Officer Allen intentionally 

omitted any discussion of such evidence from the warrant affidavit,12 relying instead on the 

results of the scans of the magnetic strips of Bah’s and Harvey’s counterfeit cards to establish 

probable cause. In analogous—though not identical—situations where tainted evidence is 

actually included in the warrant affidavit, courts have found that its “mere inclusion . . . does not, 

by itself, taint the warrant or the evidence seized pursuant to the warrant,” such that exclusion is 

automatically required. United States v. Reilly, 76 F.3d 1271, 1282 n.2 (2d Cir. 1996) (internal 

quotation marks and citation omitted). Instead, in determining whether to apply the exclusionary 

rule, courts remove the illegally obtained fact from the affidavit and “consider[] whether there is 

still sufficient information to establish probable cause” for the search. United States v. Davis, 

430 F.3d 345, 357−58 (6th Cir. 2005); see also Reilly, 76 F.3d at 1282 n.2. By omitting the 

tainted evidence from the warrant affidavit, Officer Allen voluntarily removed—ex ante—the 

“illegally obtained facts” and permitted the magistrate judge to make an untainted probable cause 

determination. Because neither Bah nor Harvey argues that the warrant affidavit failed to 

establish probable cause in the first instance, exclusion is not warranted. 

We are, however, troubled by the officer’s failure to inform the magistrate judge that, 

prior to the warrant application, separate officers had conducted a warrantless search of the 

Blackberry. A review of the particular circumstances of this case, however, supports finding that 

the omission here was made in good faith—in an attempt not to taint the warrant application, 

rather than as a means to conceal unlawful police conduct.13 In particular, the officers here 

conducted the warrantless cell phone search at a time when the law regarding the 

 11Neither Bah nor Harvey argues that absent the warrantless search of the Blackberry, the officers would 

not have applied for a warrant to search the cell phones in the first instance. Consequently, we do not address 

whether the images found on the Blackberry “tainted” the officers’ decision to seek a search warrant in the first 

instance. 

12Bah concedes that “[t]he taint of the warrantless search of the cell phone would be nullified by a search 

warrant, provided the warrant’s affidavit of probable cause did not contain information obtained during the 

warrantless search of the phone or otherwise obtained in violation of the Fourth Amendment’s protections”; Harvey 

does not so concede, contending instead—without citation to authority—that a later-obtained warrant can never cure 

an initial, unlawful search. We can find no support in our precedent for this bald assertion.

13Under different circumstances, however, where the officers’ good faith is less evident or evidence 

indicates that it was standard police practice to obtain warrants only after finding—through unlawful, warrantless 

searches—incriminating evidence, the outcome might very well differ. 
Nos 14-5178/5179 United States v. Bah, et al. Page 20 

constitutionality of warrantless cell phone searches incident to arrest was unsettled.14 Officer 

Johnson and Detective Bowman appear to have genuinely believed that cell phone searches 

incident to arrest were constitutional. When Agent Kimbrough—who believed a warrant was 

required—requested that the cell phones be powered off until a warrant could be obtained, 

however, Johnson and Bowman immediately complied. Agent Allen then obtained a search 

warrant to search all four cell phones, relying on an affidavit that did not contain any information 

from the warrantless search of the Blackberry. Though the warrantless cell phone search was 

later found unconstitutional, the officers’ overall conduct suggests a desire to afford Bah and 

Harvey their Fourth Amendment protections. In this particular set of facts, to find exclusion 

warranted would do nothing more than impose a “costly toll upon truth-seeking and law 

enforcement objectives” and “offend[] basic concepts of the criminal justice system” by “letting 

guilty . . . defendants go free,” without a true deterrent effect. Herring v. United States, 555 U.S. 

135, 141 (2009) (internal quotation marks and citations omitted).

The judgments of the district court are affirmed.

 14As the magistrate judge explained on August 8, 2013: 

There is a split of authority on this issue [of whether a warrant was required to search a cell phone 

incident to arrest]. The First Circuit holds that the police may not search the contents of a cell 

phone without first obtaining a search warrant, United States v. Wurie, [728 F.3d 1] (1st Cir. 

2013). The Fifth and Seventh Circuits have held that a cell phone in the possession of an arrestee 

may be searched by the police without a warrant as incidental to the arrest; see, United States v. 

Finley, 477 F.3d 250 (5th Cir. 2007), and United States v. Ortiz, 84 F.3d 977 (7th Cir. 1996). The 

Sixth Circuit has not yet addressed the issue.