Can Police in Florida Scan or Swipe My Credit Card for Evidence?

Questions concerning what law enforcement officers can or can’t do with your personal property during police encounters hinge largely on Fourth Amendment protections. However, technology often evolves faster than our legal systems, and this can lead to a lag in clear answers when these issues arise. Here, our Fort Lauderdale criminal defense lawyers review the existing legal framework that governs police access to credit card information and other financial data during police encounters. 

Basic legal protections pertaining to personal property, personal information and privacy largely centers on the Fourth Amendment. The Fourth Amendment to the U.S. Constitution protects individuals against "unreasonable searches and seizures" and typically requires that warrants be based on probable cause. These protections extend to personal effects, which courts have consistently interpreted to include financial instruments like credit cards.

Similarly, Article I, Section 12 of the Florida Constitution mirrors the Fourth Amendment but has been interpreted by Florida courts to provide additional protections in some circumstances. However, since 1982, this section has been amended to conform with U.S. Supreme Court interpretations of the Fourth Amendment.

There are a few different types of credit card searches police can conduct, depending on what they’re investigating. They can either scan the magnetic stripe on the card for basic information or they can seek records of transactions. The two are handled differently by the courts. 

The question of whether an action by police/the government of scanning the magnetic strips of lawfully-seized credit, debit or gift cards to access the information encoded therein is a “search” within the meaning of the Fourth Amendment is one with which many courts have grappled. 

To understand why this matters, we need to first consider what information can be gleaned through this process. Typically, the front and/or back of a card will have the cardholder’s first and last name, the card number, the expiration date and the security code. This information is contained on the magnetic stripe as well. However, sometimes those magnetic stripes can be manually re-coded to contain fraudulent information - something that wouldn’t be recognized unless the card is scanned by a card reader. This is a form of identity theft, which is the most likely reason a law enforcement officer would be trying to scan card information. 

Numerous rulings by federal appellate courts have held that scanning a lawfully seized card is not a “search” within the context of the Fourth Amendment. These rulings have not been without sharp critique among legal scholars, though, who argue it is an infringement of privacy rights and therefore requires a warrant. 

The transactions linked to those cards, however, are not typically something that can be gleaned from scanning that magnetic stripe. That is something that, without your express consent, would require a warrant signed by a judge establishing probable cause. 

In the 2014 U.S. Supreme Court ruling in Riley v. California, justices established that police generally need a warrant to search digital information on a cell phone seized during an arrest. The Court recognized that digital devices contain large amounts of privacy information, deserving of Fourth Amendment protection. That reasoning has been extended by courts to other digital storage devices, including credit card magnetic stripes or the financial data contained on credit cards.

Despite the general requirement for a warrant, police may lawfully scan or swipe credit cards under specific circumstances:

If an individual voluntarily consents to have their credit card scanned, police may do so without a warrant. However, consent must be freely and voluntarily given, not coerced.

Under Florida law, when a person is lawfully arrested, police may search their person and the area within their immediate control. While this allows police to seize credit cards, State v. Bates suggests that a separate warrant is still needed to scan the magnetic stripe.

While officers may seize credit cards in plain view if they have probable cause to believe they are evidence of a crime (e.g., cards with altered numbers), this does not necessarily extend to scanning the magnetic stripe or obtaining records of the financial transactions connected to those cards without additional legal justification.

In emergency situations where evidence might be destroyed, lives are at risk, or a suspect might escape, police may have grounds to conduct warrantless searches, including potentially scanning credit cards.

When an individual is arrested in Florida, law enforcement agencies follow standardized inventory procedures for personal property, including credit cards. Per Florida Statute § 901.21, these procedures must include:

• Documentation of all personal property
• Safe storage of property
• Return of property upon release (unless held as evidence)

Items believed to be evidence of a crime, including credit cards potentially used in fraud, may be retained by law enforcement according to Florida Statute § 705.105. However, this statute requires:

• Proper documentation
• Chain of custody maintenance
• Eventual return of property if not used in prosecution or if no longer needed as evidence

Under Florida Rules of Criminal Procedure 3.190(h), defendants can file motions to suppress evidence obtained through unlawful searches and seizures, including improperly obtained credit card information.

The Right to Financial Privacy Act (RFPA) and Florida's own financial privacy laws generally require a legal process before financial institutions can disclose customer records to government authorities. However, these protections are separate from physical credit card searches.

Under the "third-party doctrine," information voluntarily shared with third parties (like banks) traditionally receives reduced Fourth Amendment protection. However, recent U.S. Supreme Court decisions like Carpenter v. U.S. suggests a narrowing of this doctrine for certain types of digital information.

To obtain financial records in Florida, law enforcement typically must:

1. Demonstrate probable cause
2. Specifically identify the information sought
3. Show relevance to an ongoing investigation
4. Obtain judicial approval through a proper warrant

Individuals contacted by law enforcement regarding potential financial crimes should consult with a defense attorney before any interview for several critical reasons:

1. Protection against self-incrimination: Attorneys can advise on Fifth Amendment rights and prevent damaging admissions.
2. Evaluation of search legality: Legal counsel can assess whether searches of credit cards or financial records were properly conducted.
3. Strategic response development: An attorney can help formulate responses that protect the client's interests.

Perhaps most importantly, a defense attorney can advise on whether to consent to searches. Many individuals unknowingly waive their constitutional rights by consenting to searches that police could not otherwise conduct without a warrant.

If credit card information was obtained improperly, a Broward criminal defense attorney can:

1. File motions to suppress the evidence
2. Challenge the chain of custody
3. Contest probable cause determinations
4. Identify procedural violations in warrant applications

So while courts have established some important protections, the legal landscape continues to evolve with technology.

What remains clear is that individuals facing inquiries about financial matters, credit card fraud, or any situation where law enforcement seeks access to financial instruments should immediately consult with qualified criminal defense counsel. Early legal representation often makes the critical difference in protecting constitutional rights and ensuring that any evidence gathered against a defendant is obtained properly and lawfully.

If you have been arrested in Broward County, call The Ansara Law Firm in Fort Lauderdale today for your free initial consultation at (954) 761-4011.