<< Miller and Apprendi | Main | Thou Shalt Not Crash Thy Car Into Graven Monuments >>

Consenting to a Search of Your Phone by Driving

A bill is working its way through the New York Senate that has this curious provision:

[E]very person who operates a motor vehicle in the state shall be deemed to have given consent to field testing of his or her mobile telephone and/or personal electronic device for the purpose of determining the use thereof while operating a motor vehicle.
Times certainly are changing.


If I were a resident of New York, I would be tempted to write to the Secretary of State and the head of the DMV a letter stating that the advance "presumption" of my consent is incorrect, and in fact I do NOT consent except if, and to the extent, I am asked and expressly give consent at the time.

I don't think you could find a judge who would buy this, but you might.

Alternatively, if this thing actually passes, you could file an action for declaratory and injunctive relief the next day and very likely prevail.

This is similar to implied consent laws. When you drive, you consent to a blood-alcohol test, whether you consent or not. (No, I'm not in favor of drinking while driving, but I do value the Fourth Amendment--as a former cop I only did field sobriety tests if I already knew that I had enough probable cause for an arrest; the field sobriety tests for me were merely evidence of intoxication.)

Either consent to a warrantless search of your blood or your phone or drive. You can't have it both ways. I don't know of anyway to revoke consent other than not drive, because revoking consent comes with its own punishment (driver's license suspension or revocation), based on on "probable cause" shown to a bureaucratic hearing officer and not proof beyond a reasonable doubt before a judge or jury.

It is almost impossible to do anything today without conditions imposed by the state. For example, "administrative warrants" don't require any probable cause. The "probable cause" is reasonable regulations governing such warrants, and the Supreme Court agrees.

With more stealthy encroachment, the legislature could require consent to search of the glove box for drugs because driving implies you will consent if the legislature says you consent. In California, the legislature has declared that the mere presence of a firearm is probable cause that it is loaded. Ordinarily, the Constitution "determines" what is probable cause, not the legislature.

A few years ago, the California legislature proposed legislation that vehicles can be randomly stopped in designated "high crime areas" to search for guns. At least it quickly died. But, with the current Supreme Court, I'm not so sure random vehicle stops are still going to violate the Constitution.

Pretext stops are another example of stealthy encroachment and are one step closer to random stops, just as physical arrests for fine-only offense have been approved by the Supreme Court are one step closer to other violations of the Fourth Amendment.

a bipartisan group of NY Senators attempt to find a solution to the 14% rise in vehicle crashes and 8% rise in fatalities from vehicle collisions (see Sec. 1 of the bill) and the pro-criminal, "Amerika stinks" crowd shows their true colors by whining about their consent when they choose to engage in the privilege of driving. I'm sure Evan Lieberman, the 19-year who was killed in a car crash and who "Evan's Law" is named after, would have loved to read Bill's hypothetical letter telling the state he is not bound by democratically enacted legislation. I think this local article about Evan speaks better to the issue than I could:

"He had a whole future ahead of him, but Evan Lieberman never had the chance to live it. The 19-year-old college freshman from Chappaqua had been in the backseat of his friend's car when it sailed over the center line and slammed into an oncoming Jeep. "Evan spent 30 days in the hospital before we eventually lost him right in front of our eyes," said Ben Lieberman, Evan's father. The records show the driver's phone had been in use, though cops had no way to prove that he was texting at the time of the crash, so he was never charged. "At first I thought it was a faulty investigation, but then I realized there's just no police protocol in place," Ben said."
- http://abc7ny.com/news/family-hopes-textalyzer-and-evans-law-will-stop-distracted-driving/1610596/

Scott Greenfield, at "Simple Justice: A Criminal Defense Blog" is correct that:

"Texting while driving, or distracted driving as its being called, isn’t a mysterious problem. It’s stupid and incredibly dangerous, and reflects the sort of selfishness that costs people their lives. It’s unlawful in New York, as it should be. Sorry, but your need to text “lol” plus an emoji is not worth my child’s life."
- https://blog.simplejustice.us/2016/04/12/evans-law-just-not-a-big-deal/

Evan's law would provide a new tool for law enforcement to draw upon to determine if a cell phone was in use immediately prior to a vehicle crash. It would assist victims, like Evan, in getting the justice they deserve following such a horrendous tragedy.

I am amazed that this blog, which recently hosted the following post:

"Criminal Justice Legal Foundation filed a brief in a companion case to Birchfield arguing that a motorist's statutorily implied consent to submit to a search of his or her breath, blood, or urine after lawful arrest for suspicion of DUI falls within the consent exception to the Fourth Amendment's warrant requirement. We argued that requiring all law enforcement officers to secure a warrant after lawful arrest is impractical due to the vast differences in resources in some jurisdictions. We also argued that it was reasonable for a state to mandate consent as an alternative to a warrant as a condition of using its public roadways. The public's interest in protecting innocent people and keeping drunkards off the roads is significant in comparison to the privacy interests of an arrested motorist who made the choice to drink and drive."

is now scoffing at the idea of allowing law enforcement to use new technology in furtherance of the public's interest in protecting innocent people and keeping distracted drivers off the roads. This interest is clearly significant in comparison to the privacy interests of an arrested motorist who made the choice to text and drive.

Nope, not scoffing at the use of new technology. I am suggesting that the Fourth Amendment issue needs to be approached carefully if New York wants its statute upheld.

We won in Birchfield and its companion cases on breath but lost on blood, and I suspect the degree of intrusiveness in the search of a cell phone would be more like blood.

Move forward, but carefully. Doesn't look like they are doing that yet.

"I'm sure Evan Lieberman, the 19-year who was killed in a car crash and who 'Evan's Law' is named after, would have loved to read Bill's hypothetical letter telling the state he is not bound by democratically enacted legislation."

1. It's really hard to read hypothetical letters.

2. The legislation has not been enacted, democratically or otherwise, and may never be because of the concerns expressed by the Birchfield majority (Alito, J.).

3. If legislation declared that I am purple, I would still be the same color I am now.

4. The idea that driving is a privilege is a necessary legal fiction, but still a fiction (and still legal).

5. The ubiquitous use of cell phones, and the huge amount of information they contain, makes warrantless access to them a quite problematic exercise, notwithstanding the undoubted importance of the government's interest, cf. Riley v. California (Roberts, CJ, for a unanimous Court). This difficult balancing cannot be made to go away by getting worked up about it.

6. I will make haste to tell my pals that I have turned into a mushy defense lawyer.

In my view, the issue is the wording of the statute. For "the purpose of determining the use thereof" is quite broad and is not limited to an incident where serious bodily injury has occurred due to a motor vehicle accident.

Leave a comment

Monthly Archives