Full opinion text
MEMORANDUM OPINION AND ORDER JAMES 0. BROWNING, District Judge. THIS MATTER comes before the Court on: (i) Defendant Kehinde Oguntoyinbo’s Motion to Suppress, filed January 23, 2013 (Doc. 95) (“Motion to Suppress”); and (ii) Agreed Order to Join in Defendant Oguntoyindo’s [sic] Motion to Suppress, filed March 4, 2013 (Doc. 109). The Court held an evidentiary hearing on February 26, 2013. The primary issues are: (i) whether the warrantless reading of magnetic strips on the backs of credit and debit cards by United States Secret Service agents violates the Fourth Amendment of the United States Constitution’s prohibition against unreasonable searches and seizures; (ii) if the warrantless reading of the magnetic strips violates the Fourth Amendment, whether the evidence discovered by reading the cards fits within the inevitable-discovery doctrine’s exception to the exclusionary rule; and (iii) given that the information discovered from the reading was used in a search warrant application, whether the warrantless reading of the magnetic strips requires the Court to exclude the evidence found in execution of the search warrant as fruit of the poisonous tree. The Court will deny the Motion to Suppress. The Secret Service agent’s scan of the magnetic strip on Defendants Oladipo Alabi’s and Kehinde Oguntoyinbo’s credit and debit cards to read the electronically stored account information contained in the strips, when the agent already physically possessed the cards, did not violate the Defendants’ Fourth Amendment rights. Scanning the credit and debit cards’ magnetic strips to read the account information was not a government invasion of a constitutionally protected area and thus not a Fourth Amendment search under the trespass-based search analysis, which the Supreme Court of the United States used in its two most Fourth Amendment search cases: Florida v. Jardines, — U.S.-, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), and United States v. Jones, — U.S.-, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). The government’s scan of credit and debit cards’ magnetic strips is also not a Fourth Amendment search under the reasonable-expectation-of-privacy approach in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), because, given that the financial institutions which issue credit and debit cards encode the same information on all credit and debit cards — account information identical to the account information embossed on the card’s exterior — and given that the electronically stored account information is necessarily disclosed to private parties when credit and debit cards are used as intended, the scan does not implicate a legitimate privacy interest. Regardless whether the scan violated the Fourth Amendment, however, the evidence that the Secret Service found in the cards’ scan is admissible under the inevitable-discovery doctrine. Moreover, because the evidence was derived from an independent source as there was probable cause without information gleaned from the credit and debit cards’ scan, and because the officers’ objectively reasonable reliance on the search warrant brings the search under the good-faith exception to the exclusionary rule, the Court will not exclude the evidence that law enforcement discovered while executing the search warrant. FACTUAL BACKGROUND Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed.R.Crim.P. 12(d) (“When factual issues are involved in deciding a [pretrial] motion, the court must state its essential findings on the record.”). This Memorandum Opinion and Order’s findings of fact shall serve as the Court’s essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual’s confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir.1982) (“[U]nder Rule[ ] 104(a) ..., the district court ‘is not bound by the Rules of Evidence except those with respect to privilege.’ ”) (quoting United States v. Matlock, 415 U.S. 164, 174, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed. R.Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.”). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269 (“The purpose of the suppression hearing was, of course, to determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant’s rights under the Fourth and Fifth Amendments. In this type of hearing the judge had latitude to receive it, notwithstanding the hearsay rule.”); United States v. Garcia, 324 Fed. Appx. 705, 708 (10th Cir.2009) (unpublished) (‘We need not resolve whether Crawford [v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ]’s protection of an accused’s Sixth Amendment confrontation right applies to suppression hearings, because even if we were to assume this protection does apply, we would conclude that the district court’s error cannot be adjudged ‘plain.’ ”); United States v. Ramirez, 388 Fed.Appx. 807, 810 (10th Cir.2010) (unpublished) (“It is beyond reasonable debate that Ramirez’s counsel were not ineffective in failing to make a Confrontation Clause challenge to the use of the confidential informant. The Supreme Court has not yet indicated whether the Confrontation Clause applies to hearsay statements made in suppression hearings.”). Cf. United States v. Hernandez, 778 F.Supp.2d 1211, 1226 (D.N.M.2011) (Browning, J.) (concluding “that Crawford v. Washington does not apply to detention hearings”). 1. New Mexico State Police Officer Chester Bobbitt was patrolling Interstate 40 near Tucumcari, New Mexico, on April 6, 2011, at 8:20 a.m. when he saw a 2010 Toyota Camry with expired California license plates driving eastbound. See Motion to Suppress at 1; Government’s Memorandum in Opposition to Defendant Oguntoyinbo’s Motion to Suppress at 1, filed February 7, 2013 (Doc. 96) (“MTS Response”); Transcript of Hearing at 25:13-26:10 (taken Feb. 26, 2013) (Kochersberger, Vela) (“Tr.”) (both parties proffer as factual evidence the factual background provided in their briefs and agree that, except for the locations where the state police officer is alleged to have found the cards, the facts are undisputed). 2. The Defendants were traveling in a rental car, the Toyota Camry, eastbound on Interstate Highway 40 near Tucumcari, New Mexico. See Motion to Suppress at 1. 3. The rental agreement was in Oguntoyinbo’s name alone. See MTS Response at 2. 4. At approximately 8:20 a.m., Bobbitt initiated a traffic stop of Oguntoyinbo’s vehicle. See Motion to Suppress at 1; MTS Response at 1. 5. Bobbitt engaged his lights and siren, and pulled Oguntoyinbo’s vehicle over. See MTS Response at 1. 6. There were two men in the Toyota Camry. See MTS Response at 1. 7. Oguntoyinbo was the driver. See MTS Response at 1. 8. Alabi was the passenger. See MTS Response at 1. 9. Oguntoyinbo presented a driver’s license and the rental agreement for the vehicle to Bobbitt. See MTS Response at 1-2. 10. Bobbitt gave Oguntoyinbo a traffic warning and told him that he was free to leave. See MTS Response at 2. 11. At some point during this routine traffic stop, Bobbitt obtained Oguntoyinbo’s limited consent to search his rental vehicle and luggage. See Motion to Suppress at 1-2. 12. Alabi also consented to the search of the vehicle and luggage. See MTD Response at 2. 13. As a result of the search, Bobbitt seized, among other things, thirty-one credit and debit cards from the Defendants possession. See Motion to Suppress at 2; MTS Response at 2 (“Officer Bobbitt found that, between the two defendants, they possessed approximately 31 credit and debit cards.”). 14. Bobbitt also seized: (i) approximately sixty-seven Wal-Mart cash cards valued at $1,650.00; (ii) approximately $5,673.00 in cash; (iii) two laptop computers; (iv) six cellular telephones; (v) a bundle of paperwork which contained a list of approximately 500 names with birth dates, Social Security numbers, addresses, and telephone numbers; and (vi) two Louis Vuitton bags. See Search Warrant and Search Warrant Application at 9, filed February 7, 2013 (Doc. 96-1) (“Search Warrant Application”). 15. Bobbitt then arrested the Defendants on state charges related to identity theft. See MTS Response at 2. 16. The Defendants were then transported to the New Mexico State Police station located in Tucumcari, where they were detained. See Motion to Suppress at 2; MTS Response at 2 (“Bobbitt transported Oguntoyinbo and Alabi to a New Mexico State Police facility to process their arrests and to conduct an inventory search.”). 17. Following the Defendants’ arrest, Bobbitt relinquished custody of the credit/debit cards to the Department of Homeland Security, Immigration, and Custody Senior Special Agent Christine Brital. See Motion to Suppress at 2; MTS Response at 2-3. 18. Brital then transported the credit/debit cards to the United States Secret Service Albuquerque Regional Office and gave the credit/debit cards to Special Agent Nick Jonte. See Motion to Suppress at 2; MTS Response at 3. 19. It was not until April 7, 2011, that Jonte proceeded to scan and search each of the individual credit and debit cards to obtain the electronic information on the magnetic strips. See Motion to Suppress at 2; MTS Response at 3. 20. Credit/debit cards contain information on the fronts of the cards, usually including the institution which issued the card, and embossed lettering and numbering indicating the cardholder’s name, the card number, and the expiration date. See MTS Response at 3 (noting that a “name, account number and name of issuing financial institution [i]s embossed on the front of the card.”). 21. Credit/debit cards also generally contain a magnetic strip on the back of the card containing data. See Tr. at 19:1-4 (Kochersberger, Vela) (Q: “The magnetic strips that you were demonstrating on the machine those are contained on credit cards as you demonstrated right?” A: ‘Yes, sir.”); Wikipedia entry for Magnetic Stripe Card at 3-4, printed February 25, 2013 (United States’ Hearing Exhibit 3); Tr. at 18:5-6 (Court) (admitting into evidence United States’ Hearing Exhibits 1-5). 22. Driver’s licenses also generally include the magnetic strip used on the back of credit/debit cards. See Tr. at 19:5-12 (Kochersberger, Vela) (Q: “And you also demonstrated they are contained on most driver’s licenses these days, right?” A: “[T]o the best of my knowledge just [what] the instruction manual said[:] in California____” Q “There was a magnetic strip on the back of your New Mexico driver[’]s license as well?” A: “That’s correct.”); Wikipedia entry for Magnetic Stripe Card at 5 (“The data stored on magnetic stripes on American driver’s licenses is specified by the American Associate of Motor Vehicle Administrators.... Not all states use a magnetic stripe on their driver’s licenses....”). 23. The magnetic strip on the back of a credit/debit card contains three tracks on which data may be stored. See Model 5607 Magnetic Stripe Card Reader/Verifier Instruction Manual at 1 (United States’ Hearing Exhibit 2); Wikipedia entry for Magnetic Stripe Card at 2, 3. 24. The magnetic strip on the back of a credit/debit card generally contains two tracks of stored data, which includes, among other information, the following: (i) the primary account number; (ii) the card-owner’s name; and (iii) the expiration date. See Tr. at 7:12-14 (Vela); id. at 14:20-15:2 (Vela adopting, under oath during direct examination, proffer of evidence before he was sworn in). See also Wikipedia entry for Magnetic Stripe Card at 3-4. 25. The electronically-stored information in the magnetic strip that appears on the Model 5607 Magnetic Stripe Card Reader/Verifier’s display is identical to the information on the front of the credit card, reflecting the cardholder’s name, account number, and the card’s expiration date. See Tr. at 8:19-19:1 (Vela, Gerson); id. at 14:16-19 (Gerson, Vela). 26. The Card Reader/Verifier is used to verify that the information on a card’s magnetic stripe is the same as the information on the outside of the credit/debit card. See Tr. at 11:20-12:3 (Court, Vela); id. at 14:20-15:2 (Vela adopting, under oath during direct examination, his testimonial evidence given before he was sworn in); Model 5607 Magnetic Stripe Card Reader/Verifier Instruction Manual at 1. 27. The Card Reader/Verifier is able to read and display on its screen alphanumeric data contained on a card’s magnetic strip as long as the data fit within the Card Reader/Verifier’s character limitations. See Tr. at 98:21-99:8 (Court, Ger-son). 28. Because credit and debit cards use only two of the three available lines for data storage, the Card Reader/Verifier and card readers at stores do not read the third line of data. See Tr. at 89:13-18 (Court, Gerson) (“[I]f I understand the mechanics of this [magnetic strip and card reader] you can put some information on there that would not be read by the card reader.” A: “I believe that’s correct yes____And so it would be a good place to store some information that you wanted to keep from people because they would not ... thin[k] to look there.”). 29. Cash registers at stores use a different card reader which scans the information off of the back of the magnetic strip each time a card is swiped through the reader to facilitate the financial transaction by sending that information to the card-issuer so that the issuer can charge the cardholder’s account. See Tr. at 47:1-13 (Gerson) (noting that “the clerk at Albertson’s” grocery store uses a card scanner to scan information, and “when we use credit cards in everyday life to conduct a financial transaction ... we ... slide it through some kind of a reading device,” which “read[s] one or another of the lines that are on the back of that card ... and then send[s] information to the financial institution that is the supposed issuer of that card in order to find out if there’s money in the account.... ”). 30. When a person makes a purchase at a store using a credit or debit card, the card information that is printed on the credit or debit card receipt is the information scanned from the card’s magnetic strip. See Tr. at 47:15-23 (Gerson) (“[T]he clerk who’s using a machine like this ... would still be able to see that information ... printed out on the receipt that comes out ... independent of the transaction .... ”). 31. Driver’s licenses for the State of New Mexico contain a magnetic stripe on the back. See Tr. at 19:10-12 (Koehersberger, Vela) (Q: “There was a magnetic strip on the back of your New Mexico drivers licenses as well?” A: “That’s correct.”). 32. Driver’s licenses for the State of California have magnetic stripes on the back, which contain information that the Model 5607 Card Reader/Verifier is capable of reading. See Tr. at 20:5-8 (Kochersberger, Vela) (Q: “The California one is capable of being program[med]; is that correct?” A: “Fr[om] what the instruction ... [manual] said here that the California DMV [] will read it, so [yeah].”); Model 5607 Magnetic Stripe Card Reader/Verifier Instruction Manual at 2. 33. The information contained on the magnetic stripe is programmable, meaning that the information was programmed and stored there electronically. See Tr. at 20:18-21:7 (Kochersberger, Vela) (discussing the various magnetic stripes that are encoded with different information, such as information on the back of a hotel room key that allows entrance into a particular room, or a security card that allows access to a particular building or room in a building). 34. With an appropriate device, the information programmed on a magnetic stripe can be “reencoded” — programmed with different information. Tr. at 21:17-25 (Kochersberger, Vela) (Q: “[I]f you have the appropriate device you can actually erase that information from the credit [card and] put other information on it, right?” A: “To my knowledge you could do that, you could it’s called reencoding.” Q: “[T]hat’s the issue in this case is that some of the cards you believe were reencoded with information different than how it came from the issuer right?” A: “That is correct.”). 35. To enable a person to commit credit card theff/fraud, the original information on the back of a credit or debit card is replaced with the data taken from another person’s card’s magnetic strip, so that the card is still able to be processed by a card reader, but is processed to a person’s account other than the cardholder identified on the front of the reencoded card. See Tr. at 73:14-74:16 (Gerson) (explaining that a person presents a credit card to a store clerk, then if the clerk asks for identification, the person will show his or her own license, which contains the same name as embossed on the front of the card, and then “the clerk would then run the credit card through a reader that sends the billing information off to the bank. The bank doesn’t see what’s on the front of the credit card nor what’s [on] the driver’s license,” so it can charge the purchase to a person different from the cardholder named on the front of the card). 36. Out of the thirty-one erediVdebit cards found in the Defendants’ possession, nine cards contain different information on the magnetic strips than reflected on the fronts of those cards. See MTS Response at 4; Spreadsheet of Card-swipe Verification Results at 1 (United States’ Hearing Exhibit 4); Tr. at 18:5-6 (Court) (admitting into evidence United States’ Hearing Exhibits 1-5); Tr. at 15:20-16:9 (Gerson, Vela) (Q: “[Is Exhibit 4] a the spreadsheet that you or other Secret Service agents created to compare what was on the front of the credit cards in the case to what was on the magnetic strip on the back of the credit cards?” A: “That is correct.” Q: “And does this spreadsheet also identify by highlighting which cards had a discrepancy between what was embossed on the front of the card and the information that was encoded on the magnetic strip?” A: “That is correct.”). 37. There is no evidence that any of the thirty-one credit and debit cards found in the Defendants’ possession have been used. See Tr. at 43:10-15 (Samore) (noting that the factual allegations in the case are “that the credit cards were taken off the person of each gentleman and had never been used....”) 38. The information obtained from the magnetic strips was later included in the Search Warrant Application to obtain a search warrant for the search of four cellular telephones and two laptop computers seized in the initial search of the rental vehicle. See Motion to Suppress at 2; MTS Response at 4-5; Search Warrant Application at 10. 39. The other items obtained in the search of the rental vehicle, along with descriptions where the items were found, were also included in the Search Warrant Application. See Search Warrant Application at 9. 40.The search was not necessary to protect the officer’s safety or preserve evidence at the scene. PROCEDURAL BACKGROUND The Defendants move the Court for an order suppressing all evidence discovered as a result of the April 7, 2011, warrantless search of electronic information stored on the magnetic stripes on the thirty-one credit and debit cards seized from Oguntoyinbo’s vehicle. See Motion to Suppress at 1; Agreed Order to Join in Defendant Oguntoyindo’s [sic] Motion to Suppress at 1. In his motion, Oguntoyinbo asserts that the United States Secret Service agents’ warrantless reading of magnetic stripes on the backs of credit and debit cards violated the Fourth Amendment’s prohibition against unreasonable searches and seizures, and that the Court should suppress all the evidence derived from reading the magnetic stripes. See Motion to Suppress at 1. Oguntoyinbo argues that he possessed an expectation of privacy in the information electronically stored on his credit cards’ magnetic strips. See Motion to Suppress at 2. He asserts that Jonte violated his privacy rights by searching the magnetic strips on the backs of the cards with the card reader, contending that “[searching a credit card’s magnetic strip is no different than searching any device that saves or stores digital data.” Motion to Suppress at 2-3. He asserts that Jonte needed a search warrant to scan for this data, because the magnetic strips on the backs of credit and debit cards are capable of storing a person’s most private and sensitive personal information, including, for example, a name, address, or social security number: “As an electronic repository for personal data, the Defendant clearly had a reasonable expectation of privacy in his credit cards and the information stored on them.” Motion to Suppress at 3. Oguntoyinbo notes that he was not able to locate any binding or persuasive authority, but points to a case from the United States District Court for the Southern District of Florida from 2009, in which a United States Magistrate Judge opined that there is no reasonable expectation of privacy in a credit card number, which, he asserts, provides little help here. See Motion to Suppress at 3 n. 1 (citing United States v. Medina, 2009 WL 3669636, at **10-11 (S.D.Fla. Oct. 24, 2009), rev’d on other grounds sub nom. United States v. Duarte, 2009 WL 3669537 (S.D.Fla. Nov. 4, 2009)). Oguntoyinbo argues that Jonte’s warrantless search is invalid and unconstitutional, as it cannot be justified by any exception to the warrant rule. See Motion to Suppress at 3. He asserts that the search-incident-to-arrest exception to the warrant requirement cannot justify the search, because the circumstances here clearly indicate that mining the data stored on the cards’ magnetic strips cannot reasonably be said to be consistent with the “purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.” Motion to Suppress at 3 (quoting Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009)). Oguntoyinbo contends that, in light of this exception’s purposes, the exception cannot justify the warrantless search of the data on the cards, because “the exception cannot be used to justify the warrantless search of personal property when that property is already in the exclusive control of the government because officer safety and destruction of evidence are no longer valid concerns at that point.” Motion to Suppress at 4 (citing United States v. Rollins, 190 Fed.Appx. 739, 743 (10th Cir.2006) (unpublished)). Oguntoyinbo argues that there are two circumstances here that clearly preclude finding that scanning the magnetic strips on the back of the cards was a search incident to his arrest: (i) that the search was not contemporaneous, as it occurred over twenty-four hours after the cards had been taken into the government’s possession; and (ii) unlike a cellular telephone or a pager, the information on a magnetic strip is relatively permanent, as it can only be altered by the intentional act of one with physical possession of the card. See Motion to Dismiss at 5. Oguntoyinbo thus asks the Court to find the search in which the United States scanned the information from the magnetic strips on the backs of the cards per se unreasonable and invalid, and suppress all evidence obtained as a result of the search. See Motion to Dismiss at 5. On February 7, 2013, the United States filed the MTS Response, asking that the Court deny the Motion to Suppress. See Doc. 96. The United States asserts: [T]he government asks the Court to find that the reading of the magnetic strips on the backs of the credit and debit cards obtained from the defendants did not constitute a Fourth Amendment search at all. In the alternative, the government asks the Court to find that, if reading the backs of the cards was a search, doing so without a warrant was reasonable. Moreover, ... the Court should find that the evidence derived from reading the cards should not be suppressed, because it would in any event have inevitably been discovered. Finally, the Court should find that, even if the information about the magnetic strips were struck from the search warrant application, the application would have amply made out probable cause, such that the fruits of the warrant should not be suppressed, either. MTS Response at 5-6. The United States argues that reading the magnetic strips did not constitute a search for Fourth Amendment purposes, because, they assert, it lawfully came to possess the cards, and because, “[w]hen physical objects come lawfully into the hands of law enforcement, no warrant is necessary before the police may subject them to examination.” MTS Response at 5 (citing Josh Goldfoot, The Physical Computer and the Fourth Amendment, 16 Berkeley J. Crim. L. 112 (2011)). The United States uses blood as an example of a physical object which, once lawfully in the government’s possession, can be further examined without a warrant. See MTS Response at 7. It refers the Court to the United States Court of Appeals for the Ninth Circuit’s decision in United States v. Snyder, 852 F.2d 471, 474 (9th Cir.1988), in which the Ninth Circuit held that “the seizure and separate search of the blood was a single event for Fourth Amendment purposes,” even though the blood was tested two days after it was seized. MTS Response at 7. The United States asserts: “Blood is not a special case. The same rule — permitting officers to forensically examine lawfully seized objects — applies to camera film, clothing, cars, carpet fibers, purses, paper, videotapes, [and] the defendant’s hands____” MTS Response at 8-9. The United States points to Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), to support its position that its scan of the information from the cards’ magnetic strips did not violate the Constitution, as the Supreme Court of the United States in Kyllo v. United States does not implicate the use of technology which is “in ‘general public use’ ” and also because Kyllo v. United States involved the search of a home, and the Supreme Court “ ‘ha[s] said that the Fourth Amendment draws a firm line at the entrance to the house.’ ” MTS Response at 9 (quoting Kyllo v. United States, 533 U.S. at 40, 121 S.Ct. 2038). The United States contends that “[t]he device used by the Secret Service agents is one that is in general public use, as it is used by practically all merchants who accept payment by credit or debit cards.... Moreover, the reading of the magnetic strips revealed no details of Oguntoyinbo’s home (or anyone else’s).” MTS Response at 10. The United States argues that, even if the government’s reading the information from the cards’ magnetic strips constitutes a search, Oguntoyinbo lacks standing to object to the search, because he had no reasonable expectation of privacy in the “thing or the place searched.” MTS Response at 11. The United States contends that, to show standing, Oguntoyinbo must demonstrate that he had a subjective privacy in the area search and that his subjective expectation must be one that society is prepared to recognize as reasonable, and he can demonstrate neither. See MTS Response at 11 (citing United States v. Anderson, 154 F.3d 1225, 1229 (10th Cir.1998)). First, it argues that Oguntoyinbo lacks a subjective expectation of privacy, because the magnetic strip’s purpose is to be read by credit card processing readers, which is the act that the United States performed here. See MTS Response at 11 (citing, as a comparison, United States v. Bermudez, 2006 WL 3197181, at *13 (S.D.Ind. June 30, 2006)). Second, the United States contends that, regardless whether Oguntoyinbo had some subjective expectation of privacy, it is not one that society would recognize as reasonable, because, as the information contained in the magnetic strip — if unaltered — is the same as that on the front of the card, society would not recognize as reasonable an expectation of privacy in information that is publicly disclosed unless criminally altered. See MTS Response at 12 (citing United States v. Medina, 2009 WL 3669636, at **10-11). The United States also asserts that, because many cardholder agreements provide that the card remains the property of the issuing financial institution and/or prohibit using the card for any illegal transaction, society cannot recognize as reasonable an owner’s expectation of privacy in information contained in a card’s magnetic strip. See MTS Response at 13. The United States takes issue with Oguntoyinbo’s assertion “that ‘searching a credit card’s magnetic strip is no different than searching any device that saves or stores digital data,’ ” MTS Response at 14 (quoting Motion to Suppress at 2-3), asserting: “This claim is factually incorrect. ... ‘[T]he 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.’ ” MTS Response at 14 (quoting United States v. Medina, 2009 WL 3669636, at *10). The United States argues that, if the Court determines that there was a search, and that Oguntoyinbo has standing to allege a Fourth Amendment violation, the Court should find that a warrant was not required, because the search was reasonable. See MTS Response at 15-16. According to the United States, the search was reasonable, because, on the one hand, the intrusion into a person’s individual privacy in scanning the back of their card to glean information printed on the front is minimal, while, on the other hand, the government’s legitimate interest in preventing and prosecuting credit card fraud is substantial. See MTS Response at 16. The United States additionally asserts that, although in this case there was likely enough information on which the United States could have obtained a warrant to scan the cards before doing so, in many cases, requiring law enforcement officials to obtain a warrant before doing so would come at the cost of using a scanner to develop probable cause in credit card cases. Imposition of a warrant requirement would accordingly impose a significant impediment to the government’s legitimate interest in investigating and prosecuting access device fraud. MTS Response at 16. The United States argues that, should the Court conclude that the scan of the cards was a search that violated Oguntoyinbo, although information obtained from the scan was used in the search warrant application, the Court should nevertheless find the search warrant sufficient without this information. See MTS Response at 17. The United States points out that, apart from the information obtained by the scanning the credit and debit cards, the state trooper, pursuant to the Defendants’ consensual search of the vehicle, found in the car’s trunk: “approximately 67 WalMart cash cards valued at approximately $1650.00; approximately $5673.00 in cash; two laptop computers; and a bundle of paperwork which contained a list of approximately 500 names with birth dates, Social Security numbers, addresses, and telephone numbers.” MTS Response at 17. It asserts that the application would have demonstrated probable cause without including the information gleaned from the cards’ scans: The application would have established the defendants’ possession of a list of the birth dates, Social Security numbers, addresses, and phone numbers of approximately 500 people, multiple Wal-Mart cash cards, and a large quantity of credit cards, not all of which were in their own names. The application also set out the experience of the investigator that white collar criminals store financial records in their electronic devices. MTS Response at 18. The United States asserts that the Court should therefore deny the Motion to Suppress to the extent that it requests the Court to suppress any other evidence seized during the warrant’s execution. See MTD Response at 18 (citing United, States v. Kennedy, 131 F.3d 1371, 1377 (10th Cir.1997)). The United States argues that the search warrant was obtained in good faith, as Vela had no reason to believe that scanning the credit and debit cards was a Fourth Amendment search, or that a warrant was necessary to perform the scan. See MTS Response at 18. It asserts: “His inclusion of this information in the warrant application was done in good faith, and his execution of the warrant was done in the honest belief that the warrant was duly issued upon a proper showing of probable cause.” MTS Response at 18. The United States contends that, under the good-faith exception to the warrant requirement that the Supreme Court articulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), even if the Court finds that the search warrant stripped of the information gleaned from the cards’ scans is insufficient for probable cause, the Court should not suppress the fruits of the warrant. See MTS Response at 19. According to the United States, the information gleaned from the cards’ scan would have inevitably been discovered, because “[h]ad the government known that a warrant was required to conduct this examination, it would have included the cards among the items to be searched listed in the warrant application,” and, because there was probable cause for the search warrant to issue without this information, the cards would have been scanned along with the search of the laptop and cellular telephones pursuant to the warrant. MTS Response at 19-20 (citing United States v. Morales-Ortiz, 376 F.Supp.2d 1131 (D.N.M.2004) (Browning, J.)). The United States argues that, if the Court were to conclude otherwise, the Court would violate the “reasoning behind [the inevitable-discovery] exception to the exclusionary rule ... [as] the exclusionary rule was never intended to place law enforcement officers and prosecutors in a worse position than they would have been had the unlawful search not occurred.” MTS Response at 20. The United States thus asks the Court to find that the information is admissible under the inevitable-discovery doctrine’s exception to the Fourth Amendment warrant requirement. See MTS Response at 20-21. On February 22, 2013, Oguntoyinbo filed his Defendant Kehinde Oguntoyinbo’s Reply in Support of Defendant’s Motion to Suppress. See Doc. 105 (“MTS Reply”). Oguntoyinbo contends that he possessed an expectation of privacy in the information stored on the credit and debit cards that the United States searched, and that the warrantless search of those cards was “per se” unreasonable unless justified by an exception to the warrant requirement, none of which apply. MTS Reply at 1. He argues that he has standing to assert the Fourth Amendment violation, because he had a reasonable expectation of privacy “in the personal information electronically stored on the magnetic strips of his credit cards.” MTS Reply at 1. Oguntoyinbo asserts that a person has a reasonable expectation of privacy “in an electronic repository for personal data,” whether owned or borrowed, and his credit cards were an electronic repository for personal data. MTS Reply at 2 (quoting United States v. Morales-Ortiz, 376 F.Supp.2d at 1139). He contends that, regardless whether the credit and debit cards were his property or the issuing financial institution’s property, he had a reasonable expectation that the “items would be free from governmental invasion.... ” MTS Reply at 3 (citing United States v. Chan, 830 F.Supp. 531, 534-35 (N.D.Cal.1993)). According to Oguntoyinbo, society recognizes this privacy interest in the information stored on magnetic strips as reasonable, which is evidenced through the protections society accords to this information, by requiring the person using the card, rather than the store clerk or merchant, to scan the card. See MTS Reply at 3. Additionally, he points out: “Online merchants pay large sums of money to guarantee the highest degree of security to their customers during the checkout process over the internet, and often advertise the level of encryption they offer to customers.” MTS Reply at 3. Oguntoyinbo argues that the high-tech process used to scan the information in the magnetic strip on the back of the cards constitutes a search for Fourth Amendment purposes, and the Court should reject the United States’ argument it is not, because it flies in the face of established law. See MTS Reply at 4. He contends: The Government’s classification of the scanning and reading of the ... cards seized from the Defendant as merely an “examination” rather than a “Fourth Amendment search” is both inaccurate and contrary to established legal principles. The Government’s contention, taken to its logical end, would mean that a warrant would never be required to retrieve digitally stored information from private cell phones, pagers, hard drives, or any other electronic storage device, a proposition which is simply not true. MTS Reply at 4 (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Oguntoyinbo asserts that the case law that the United States cites in support of its contention that the government does not need a search warrant to examine physical objects when those objects are legally in its possession are inapposite, as they are based on the courts’ holdings that “a second warrant” is not required to examine objects already obtained via a first search warrant. MTS Reply at 4-5 & n. 3 (quoting United States v. Snyder, 852 F.2d at 474; State v. Petrone, 161 Wis.2d 530, 468 N.W.2d 676, 681 (1991); People v. Patterson, 217 Ill.2d 407, 299 Ill.Dec. 157, 841 N.E.2d 889, 908 (2005)). He argues that, to equate the hightech scan of a card’s magnetic strip to obtain personal information with conducting a blood test or developing a film roll “ignores the realities of electronic storage and the quantity and variety of information that can be stored on such devices.” MTS Reply at 5. He points out that “[t]he Tenth Circuit has explicitly addressed concerns with oversimplifying the connection between electronically stored information and other physical objects when applying the Fourth Amendment.” MTS Reply at 5-6 (citing United States v. Carey, 172 F.3d 1268, 1275 (10th Cir.1999); United States v. Walser, 275 F.3d 981, 986 (10th Cir.2001)). Oguntoyinbo argues that Kyllo v. United States, rather than supporting a finding that there was not an unreasonable search, supports a finding that the United States’ scan of the cards here was an unreasonable search, because “an electronic repository for personal information is more akin to a virtual warehouse of private information.” MTS Reply at 6. He asserts that, whereas the Supreme Court in Kyllo v. United States was concerned with technology breaking the barrier between a person’s serious privacy interest in the contents of their home, so here, according to Oguntoyinbo, scanning the personal information contained within the cards’ magnetic strips uses technology to invade otherwise very personal private information. See MTS Reply at 6. Oguntoyinbo argues that no exception to the general rule requiring a warrant justifies the warrantless search of the credit and debit cards, and the search is invalid. See MTS Reply at 7. He reasserts that the search does not fit within the search-incident-to-arrest warrant exception, because the United States cannot reasonably contend that its scan of the cards was “required to prevent the destruction of evidence.” MTS Reply at 7-9 (citing United States v. Park, 2007 WL 1521573, at **8-9 (N.D.Cal. May 23, 2007)). Oguntoyinbo contends that neither can the scan fit into the inventory search exception, because the policy behind the inventory search is to protect against allegations of theft while the arrestee is detained. He contends that the information contained on a card’s magnetic strip is not reasonably subject to theft unless the card itself is physically stolen. See MTS Reply at 9 (citing United States v. Park, 2007 WL 1521573, at *10). He asserts that, whereas the United States argues that the search of the information stored on the cards need only be reasonable, this test is not the standard under Fourth Amendment. See MTS Reply at 10. According to Oguntoyinbo, “[t]he Supreme Court has made clear a warrantless search is presumed invalid and ‘per se unreasonable under the Fourth Amendment, unless it can be justified by one of the limited exceptions to the warrant requirement.’” MTS Reply at 10 (quoting Katz v. United States, 389 U.S. at 356, 88 S.Ct. 507). He contends that, because the search does not fit under one of the limited exceptions, the Court should suppress all evidence relative to the search. See MTS Reply at 10. Oguntoyinbo next argues that the United States failed to satisfy the inevitable discovery doctrine’s requirements to allow for the evidence’s admission. See MTS Reply at 10. Oguntoyinbo contends that the United States must show that the evidence would have been lawfully discovered and that the lawful means to discover the evidence were being actively pursued before the illegal conduct occurred. See MTS Reply at 10 (citing United States v. Souza, 223 F.3d 1197, 1199 (10th Cir.2000)). He asserts: To assist this determination, the Tenth Circuit adopted the following factors: 1) the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search; 2) the strength of the showing of probable cause at the time the search occurred; 3) whether a warrant ultimately was obtained, albeit after the illegal entry; and 4) evidence that law enforcement agents “jumped the gun” because they lacked confidence in their showing of probable cause. MTS Reply at 10 (quoting United States v. Cunningham, 413 F.3d 1199, 1203-04 (10th Cir.2005)). According to Oguntoyinbo, the United States’ contention that, if it would have known it needed a warrant to scan the cards, it would have gotten a warrant, is inapposite. He asserts that the United States cannot meet its burden to show inevitable discovery, because it is uncontested that the government did not seek a warrant for the information stored on the cards’ magnetic strips before it searched them, and thus cannot show that it was pursuing lawful means to obtain the evidence at the time it unlawfully discovered information. See MTS Reply at 11. Oguntoyinbo thus asserts: “The Defendant’s Fourth Amendment rights were violated by the government when it initiated a warrantless search of the Defendant’s personal data stored on the magnetic strips of each of his credit/debit cards. Consequently, all evidence obtained as a result of the illegal search must be suppressed.” MTS Reply at 11. At the hearing on the Motion to Suppress, Oguntoyinbo asserted that “[t]he Government within the standing argument gets bogged down on the fact ... [that the magnetic strip on a credit card] only contains the information that you can see with your eyes on the front of the credit card.” Tr. at 28:16-20 (Kochersberger). His position, he stated, “is that the ... magnetic strip on the credit card is no different than any other form electronic storage media, and that could be your laptop computer, the computer on your desk. That’s a more complex storage media, but that is electronic ... storage media as well.” Tr. at 28:21-29:2 (Kochersberger). The Court asked whether it makes a difference that a person takes their credit card and hands it to a cashier for the express purpose that the cashier’s machine will read the information stored on the magnetic strip, whereas people do not take their personal computers to multiple other places, and hand them to multiple other people with the expectation that those people will then read the personal information stored inside the computer. See Tr. at 29:3-13 (Court). Oguntoyinbo responded that he agrees with the Court that there is a difference in a person’s ordinary credit card, but that if a person changes the use to which that person puts his or her credit card, and changes the information stored on the credit card to reflect something other than what the issuer originally put on the magnetic strip, and if that person no longer gives that particular card to others, that person now maintains a reasonable expectation of privacy in that particular card, just as they would a personal computer holding electronically stored information. See Tr. at 29:14-30:4 (Oguntoyinbo). The Court asked, while there may be people that have a credit card that they do not use, whether it would be proper or wise to draw a constitutional line designed for that rare person carrying around a credit card for purposes other than the regular and intended use of a credit card in commerce. See Tr. at 30:5-12 (Court). Oguntoyinbo responded that he did not think a constitutional line should be drawn at credit cards, because the magnetic strip on the backs of credit cards is virtually identical to the magnetic strip on driver’s licenses and other cards. See Tr. at 30:13-22 (Kochersberger). The Court asked how drawing a line that treats all credit cards as the same, regardless whether the person intended it to be personal or used it normally in the stream of commerce, is distinguished from how the Fourth Amendment draws many such lines with regard to property. The Court noted, for example, that a person who has tinted his or her car windows, so that it is very difficult to see into the vehicle, still has the same expectation of privacy in the interior of their car as does one who drives a convertible. See Tr. at 30:23-31:10 (Court). Oguntoyinbo responded that, while such a rule “makes sense,” drawing the line and saying that there is no reasonable expectation of privacy in the information contained in the magnetic strip on one’s credit card forecloses for the future what may be a very good way to store personal information that a person may want to conceal, such as an email account password, because it is a place very few people would think to look for such sensitive information. Tr. at 31:11-32:1 (Kochersberger). In response to the Court’s inquiry what information a person could store on a magnetic strip, given its limitations, Oguntoyinbo responded that, just as the strip is able to hold a person’s name, account number, expiration date, and some other alphanumeric data, a person could store their computer passwords, their social security number, or other sensitive alphanumeric information that one may need or forget. See Tr. at 33:9-34:5 (Kochersberger). Oguntoyinbo asserted that the storage medium is not the important issue on which to focus, but rather the law draws a distinction at the user’s intention in storing the information: once a person electronically stores information on electronic storage media, that person has a reasonable expectation of privacy in that storage medium. See Tr. at 34:15-35:7 (Kochersberger). The Court asked whether the rule for which Oguntoyinbo is advocating makes the situation analogous to implementing a rule that, as long as a person did not store anything on his or her cellular telephone with the intention to keep it private, then it would be permissible for the government to search the telephone, but if that person intentionally stored personal information, the government could not. See Tr. at 35:22-36:7 (Court). Oguntoyinbo responded that is not the rule for which he is advocating. See Tr. at 36:8-9 (Kochersberger). He added that, whereas a person loses any privacy interest in their cellular telephone call and cellular number when they make a call, the evidence in the case establishes that he had not used any of the thirty-one cards that the United States scanned. See Tr. at 37:6-7 (Kochersberger). The Court asked Oguntoyinbo whether he would be making the same expectation of privacy argument if he had used one of the cards. See Tr. at 37:8-12 (Court). He responded that he would be making the same argument. See Tr. at 37:13-15 (Kochersberger). He noted that, because society and the financial industry treat the information stored on cards’ magnetic strips so sensitively and restrictively, there is a reasonable expectation of privacy in the information. Oguntoyinbo also noted that is not the main issue in this case, as there is no evidence that he used any of the cards that the United States scanned in this ease. See Tr. at 37:13-38:4 (Kochersberger). The Court asked whether it would then be a breach of privacy if a cashier at the grocery store had a credit card and was able to check when swiping the card that the information in the magnetic strip matched the information on the front of the card. See Tr. at 39:5-13 (Court, Kochersberger). Oguntoyinbo responded: I think that when you give the card to the cashier you would expect that the cashier is going to put it through some device that’s going to read the information on the card, and I think insofar as your relationship with the cashier and with the merchant goes I think you’re giving up that privacy to that merchant, but I think it’s ... reasonable to expect that it stops there with the with respect to the credit card transaction given all of the regulation involved with the privacy of those type of numbers. Tr. at 39:16-24 (Kochersberger). The Court asked whether Fourth Amendment law distinguishes between different third-parties — whether a person can have a reasonable expectation of privacy only from the government, but not from other persons. See Tr. at 39:25-40:11 (Court). Oguntoyinbo responded only that the Court should consider the extent of the disclosure of information, noting that there is a different expectation of privacy in a credit card in one’s wallet when compared with a credit card that someone may have posted to the internet for viewing by anyone that might wish to view the information. See Tr. at 40:12-22 (Kochersberger). Oguntoyinbo asserted that the scope of a person’s disclosure of information in which the person holds a reasonable expectation of privacy is important to analyzing the scope of the expectation of privacy. See Tr. at 40:19-41:5 (Kochersberger). In response to the Court’s question whether he had anything else to add to the standing argument, Oguntoyinbo responded that, whereas he believes the United States is arguing that a person does not have a reasonable expectation of privacy in a credit card’s account number, he is arguing that a person has a reasonable expectation of privacy in electronically stored information contained on an electronic storage medium, including the magnetic strip on a card. See Tr. at 41:15-41:24 (Kochersberger). He added that a person’s reasonable expectation of privacy does not change if the property in which the electronic information is stored is borrowed. See Tr. at 41:25-42:9 (Kochersberger). He asserted that, although a credit or debit card’s magnetic strip typically does not hold personal information, it can, and that it is a medium on which a person can store personal information electronically supports finding a reasonable expectation of privacy in the information stored there. See Tr. at 42:12-17 (Kochersberger). Alabi added that he agrees with all of the points that Oguntoyinbo raised and believes that it is important the cards had not ever been used before the police seized them. See Tr. at 43:10-14 (Samore). He asserted that, even if the Court finds that a person does not have a reasonable expectation of privacy in the information stored on a credit or debit card’s magnetic strip, because this information is disclosed as soon as a card is used, it makes even more important that the cards in this case had never been used, as it shows that the Defendants had not disclosed the information stored on the cards. See Tr. at 43:14-20 (Samore). The Court asked the United States whether it saw a weakness in its argument that the Defendants lack standing to allege a Fourth Amendment violation, given that it was the third argument in its brief rather than the first. See Tr. at 45:1-6 (Court). The United States asserted that it does not believe that there is a weakness in its standing argument, but rather “preferís] that the court rule ... [that] this was not a search at all and therefore we don’t even need to get into the elements of standing under the Fourth Amendment.” Tr. at 45:7-11 (Gerson). The United States asserted that, Oguntoyinbo, in contending that he had a reasonable expectation of privacy in the information contained in the cards’ magnetic strips, conflates the two elements necessary for a reasonable expectation of privacy elements into one element. See Tr. at 46:4-7 (Gerson). It argued: “It may be that some criminal who [reencodes] a credit card may personally have a subjective expectation that the criminally derived [information] that he’s encoded into a card is confidential.” Tr. at 46:7-11 (Gerson). The United States asserted that the Court should conclude that society would not recognize as reasonable an expectation of privacy of information stored in a manner that is used by and benefits only criminals. See Tr. at 46:11-16 (Gerson). It argued that the “whole point of having a credit card is to make use of it for financial transactions, and the only way that these credit cards get used nowadays ... is for the card to get fed[ ] through a card reader for the purposes of facilitating whatever the financial transaction may be.” Tr. at 46:17-23 (Gerson). The United States submitted that, because consumers widely use credit and debit cards, and because the information contained on the cards’ magnetic strips is disclosed to the stores automatically each time they use them, society would not recognize as reasonable an expectation in such information’s privacy. See Tr. at 47:24-48:5 (Gerson). According to the United States, the danger that a person may accidently use a card on which he or she stores his or her personal information, thus disclosing such sensitive information, shows the reality that the only people interested in changing the information contained on a card’s magnetic strip are criminals who intend to use that information for fraudulent and criminal purposes. See Tr. at 48:6-11 (Gerson). The United States added that a card’s magnetic strip is not a device that the Court should find is subject to privacy expectations, as it is, realistically, not at all similar to a USB drive, a CD-ROM, a DVD, a cellular telephone, or a laptop computer. See Tr. at 48:12-24 (Gerson). Additionally, according to the United States, the rule for which Oguntoyinbo lobbies turns upside-down the law. To create a rule that protects as private information on a credit card until it has been used, the United States argues, protects criminals only, as “[i]t would be perverse to say that the Fourth Amendment protects that kind of conduct, the reencoding of credit cards into other peoples!’] account names and other peoples!’] account numbers, but that it does not protect the privacy of ordinary users of ordinary unreencoded credit cards.” Tr. at 50:2-12 (Gerson). The United States pointed out that, in California at least, there is a law that allows police officers to read a third line of the data on California driver’s licenses’ magnetic strips, allowing officers to ensure that the cardholder is the same person to whom the state issued the card, and that if the Court were to adopt a rule precluding the government from reading the data on magnetic strips without a warrant, such a rule would likely invalidate that law. See Tr. at 51:1-5 (Gerson). The United States asserted that, if a person possesses a credit or debit card, which looks like a bank or other such financial institution issued the card, a person cannot have a reasonable expectation of privacy on the information contained on the magnetic strip, as that information, unless criminally altered, is encoded there by the issuing institution and is the same information reflected on the front of the card, in plain view when the person uses the card at the store or otherwise takes it out of his or her wallet. See Tr. at 52:1-7 (Gerson). The Court asked whether it should draw the line at a card that appears to be issued by a financial institution, given that it has read about the ability to store medical records on a similar cards. See Tr. at 52:8-16 (Court). The United States responded that the card appearing to be one issued by a financial institution is a “critically important factor.” Tr. at 52:17-18 (Gerson). It stated that, while a person has no reasonable expectation of privacy in the information contained on a credit or debit card, the Court should not foreclose the ability to maintain an expectation of privacy in the magnetic strips on all cards, as such a rule may encompass cards such as medical cards on which storage of information which society recognizes as reasonably private may prove beneficial and be widely used in the future. See Tr. at 52:18-53:2 (Gerson). The United States also pointed out that medical records stored on cards’ magnetic strips are not accessible by the government using the Model 5607 Card Reader/Verifier, which was used in this case and is used by law enforcement generally, as it is only capable of reading information from credit and debit cards and driver’s licenses. See 53:2-11 (Gerson). Oguntoyinbo responded that, while he agrees that the information which may be stored on the magnetic strip is limited, he disagrees that it is necessarily limited to only the same information that would be present on credit and debit cards and licenses. See Tr. at 54:22-55:1 (Kochersberger). He asserted that, if the cards at issue in the case were reencoded with the alphabet, for instance, there is no evidence that the Model 5607 Card Reader/Verifier would not be able to read the alphabet printed on the cards. See Tr. at 55:1-12 (Kochersberger). He noted that a person can reencode any number of things onto the back of these cards as long as it fits within the magnetic strip’s alphanumeric and length restrictions. See Tr. at 55:13-16 (Kochersberger). He contends that, because this is true, credit and debit cards, as well as driver’s licenses, are thus electronic storage media, in which society recognizes as reasonable a person’s expectation of privacy for information stored on such media. See Tr. at 55:16-22 (Kochersberger). Oguntoyinbo asserted: Making exceptions based on the label that’s placed on the digital media is a difficult road to go down. If I place all of my medical records on a DVD that has the little mermaid written on it, do I not have the reasonable expectation of privacy because I put the label of a major motion picture on the front of it even though it does contain my medical records? If I’ve reused a flash drive that I got at a legal convention that has the name of a bank on it, is that flash drive [now] subject to any kinds of Government intrusion just because it has the name of a bank on it, or if I wrote on [a legal file] “nothing private here, go ahead, look at it ... [?]” Tr. at 55:23-56:8 (Kochersberger). Oguntoyinbo argued, rather, that what is determinative for purposes whether society will recognize as reasonable an expectation of privacy in information stored on electronic storage media is whether the person to whom the information belongs gives out that private information. See Tr. at 56:9-15 (Kochers