Ill-advised State Senate Bill would let N.J. cops search cell phones after crashes

Everyone knows that a distracted driver on busy roads is a danger to himself and to others.  In the past, loud music and talking passengers even have proven to be cause enough for some horrific accidents. The emergence of a new danger, a driver who is texting or talking on his phone, is growing to such an epidemic that law enforcement has equated it with driving under the influence.  We see television commercials and public announcements that show a driver was in the middle of writing or reading a text when they were killed or killed others, and authorities are now considering a drastic way to address this problem.

The New Jersey state senate is considering a bill that would allow police to search through a motorist’s cell phone at the scene of a car crash – without a warrant – to determine if the driver was talking or texting during the accident.  The law requires officers to have “reasonable grounds” the driver was using the phone before they make the search.  It is already illegal in New Jersey for drivers to use hand-held cell phones while driving.

According to the New Jersey Division of Highway Traffic Safety there were 1,840 handheld cell phone-related crashes in 2011 in the state.  This resulted in six deaths and 807 injuries.

While the push for increased public safety is understandable, this proposal is causing concern with advocates of privacy rights.  The ACLU’s state chapter and a spokesman for the New Jersey representative of the National Motorists Association have voiced concerns.  There is, of course, support for the bill too, notably from law enforcement, who state that some phones delete texts automatically, which explains the need to view the phone immediately.

It is likely that this, or similar legislation, will eventually have to be heard at the U.S. Supreme Court as at the heart of the matter is a citizen’s 4^th Amendment rights and their expectation of privacy.  Rutgers School of Law-Newark professor George Thomas has compared the proposal to when a police officer sees an open liquor container. Thomas stated that an officer does not need a warrant to seize the open container, and that the 4^th Amendment requires an office have probable cause before seizing evidence of a crime.

Here are some of the problems with this legislation. An open container of alcohol at a crash site does give probable cause for seizure. It is, by definition, a violation in itself. However, does the mere existence of a cell phone do the same? Most motorists keep phones accessible in the car while driving, rather than in a pocket or bag. That phone would be visible at the scene of a crash or motor vehicle violation. However, whereas the open container is itself a violation of the law, the mere possession of a cell phone is not.  Police should be required to get a warrant.  The concern about automatically deleted texts is likely overblown as well given law enforcement’s ability to subpoena phone records if a criminal case is lodged against a defendant.   To allow this encroachment on a person’s privacy rights because it is easier than issuing a subpoena, and absent probable cause, flies in the face of the reason for the 4^th Amendment to the Constitution—restraint of the government from unwarranted intrusion into our private lives.

Also, what is the difference, in this context, between law enforcement having ‘reasonable grounds’ that the driver used a cell phone immediately prior to a crash, and ‘probable cause’ to believe they had done so? Also, the basis for quick cursory stops and pat-downs for instance, is ‘reasonable suspicion, not reasonable “grounds.” Why the slight of change in language?

Lastly, is the statute defined specifically so that a police officer may only look at the text fields and email fields? For how long? This appears to be overreach, and a matter of convenience to law enforcement, rather than a necessity. It is always easier, let’s say, to firmly question a defendant about a crime without a warrant and without an attorney present. And it is certainly easier for law enforcement to order that the trunk of the car, or your home, be opened to them, rather than get a warrant from a judge. But our founding generation mistrusted government, and made firm boundaries to restrain government, even when crimes are committed. Moreover, as a cell phone is one of the main methods of communication today— a search and review of a person’s phone, without a warrant, and without probable cause, is an “unwarranted” intrusion into exclusive, privately held space.