Police Blotter: Is it legal to use an alias anymore?

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One commits unlawful possession of access devices "by knowingly possessing, trafficking in, publishing or controlling an access device without the consent of the issuer, owner or authorized user and with the intent to use or distribute that access device." "Without the consent of the issuer, owner or authorized user" is not defined or explained. An "access device" is defined as:

any card, token, code, account number, electronic serial number, mobile or personal identification number, password, encryption key, biometric identifier or other means of account access, including a cancelled or revoked access device, that can be used alone or in conjunction with another access device to obtain money, goods, services, computer or network access or any other thing of value or that can be used to initiate a transfer of anything of value...

As enacted, however, Sec. 13-2316.01 does not state that it bars knowing possession of another person's access device but rather simply bans possession of an access device "without the consent of the issuer, owner or authorized user and with the intent to use or distribute (it)." Thus, the statute does not expressly say that it prohibits possession of access devices that belong to another person...

The instant case does not fall within the typical situation in which a defendant possesses the access devices issued to or belonging to another individual without that person's consent but with intent to use them to cause a loss or harm. Rather, defendant possessed a driver's license, checks, and bank cards issued in the name of an alias, and the evidence showed that he had only used the checks and bank cards to access his own money in bank accounts he had opened using the alias.

Although he may have obtained or opened the bank accounts by representing himself as Peter Reynolds, he had not stolen any of the cards or checks, and none of the cards or checks belonged to a separate person named Peter Reynolds. Thus, even though the name "Peter Sharma" did not appear on the devices, defendant was not in possession of devices belonging to another person with the intent to use the devices to access accounts belonging to that other person and to cause any harm or loss.

In this case, no evidence showed that defendant ever used the bank cards or checks in his possession to obtain property or services without paying for such property or services or to access accounts belonging to anyone but himself. Instead, the evidence showed that he intended to be bound for the goods and services he obtained and in fact in the past had used the devices to access his own accounts and to obtain goods and services for which he routinely paid.

The State nevertheless argues that the issuers of the checks and bank cards would not have consented to providing these access devices to defendant if they had known he was Peter Sharma and thus he held them without the issuers' consent. But we are unpersuaded that the reference to "without consent" intended anything more than to prohibit one from possessing, with an intent to use them, stolen or forged bank cards, checks, or other access devices. Here, the issuers had voluntarily and through their routine business practices provided defendant with an appropriate device to gain access to his own account.

Furthermore, defendant used the devices, as the issuers had intended, to access his own accounts. If we accept the State's argument, the issuers' mistaken belief about defendant's true identity transformed their voluntary and routine provision of the access devices either into involuntary provision of the devices or a revocation of their consent that he possess the devices. The State points to no statutory language, history or goal to support such a construction.

An additional consideration persuades us that the legislature did not intend to outlaw possession of access devices unless the owner and the authorized user and the issuer all consented to such possession. For example, if a man allowed his cousin to use his credit card to purchase goods or services because of his cousin's youth or poor credit history, the cousin would knowingly possess the card with the owner's and authorized user's consent and with intent to use the card, but he also would be in possession of the card without the issuer's explicit consent. We do not think the legislature intended to sweep within the reach of Sec. 13-2316.01 the cousin's authorized possession and intent to use the card. The State's interpretation would cut an unnecessarily wide swath and criminalize perfectly innocent or legitimate possession of access devices without achieving any law enforcement purpose.

The banks that issued the access devices to defendant did so in order for him to use the devices and to gain access to the very accounts he had opened or owned. Because the evidence does not support a finding that defendant possessed the access devices "without the consent of the issuer, owner, or authorized user," we reverse the conviction for unlawful possession of access devices.

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