Searching the Virtual Glove Compartment: Police Searches of Connected Cars
By: Gregory Brown, Jr.
You have just been pulled over by the police. After you hand the officer your license and registration, the officer notices your baseball cap with a picture of a marihuana leaf. The officer asks if you have been smoking marihuana, and you quickly answer “no.” Nonetheless, the officer places you in handcuffs and searches inside your vehicle. The officer finds no marihuana, so she uses your car’s touchscreen display to access your text messages and call history. The officer finds the following text-message exchange between you and a contact named “Rott”:
With this information, the officer searches your car’s trunk. She finds 700 grams of marihuana and places you under arrest for criminal possession of marihuana.
Situations like the one above will become more prevalent due to the rise of Connected Cars. Connected Cars are automobiles that have Internet access and contain a variety of sensors, which allow the car to “send and receive signals, sense the physical environment around them, and interact with other vehicles or entities.” Connected Cars will account for an estimated 380 million vehicles on the road by 2021.
In 2011 alone, the United States Department of Justice found that more than 21.6 million drivers—10% of all American drivers—were involved in a police-initiated traffic stop. That same year, over 750,000 traffic stops in the United States resulted in vehicle searches.
The Supreme Court has provided less privacy protection to vehicles because of their inherent mobility and their ability to be used for transportation; this lesser expectation of privacy permits the warrantless searches. For example, an officer may search a vehicle without a warrant if she has probable cause to believe that the automobile contains contraband, but this automobile exception has traditionally been limited to the finite physical space of the vehicle itself, such as the trunk and glove compartment.
Since the digital data on a Connected Car may not be located in the physical car itself, there is a new legal question in applying the Fourth Amendment to Connected Cars: whether a warrantless search of the physical areas of the Car also permits a search of the digital data on the Car. To protect the privacy interests of Connected Car users, the Supreme Court should require police to obtain a warrant before searching digital data on a Connected Car. Requiring a warrant would be consistent with recent Supreme Court rulings about technology and the Fourth Amendment. Without a warrant requirement, the immediate searches of Connected Cars would be a backdoor circumvention of the existing warrant requirement for cell-phone data searches. In Riley v. California (2014), the Court held that police officers must obtain a warrant before searching the digital information located on a cell phone. In Riley, the Court emphasized that a search of digital information on a cell phone implicates greater individual privacy interests than a simple physical search. Cell phones implicate greater privacy interests due to their large storage capacity, the variety of information they can store, and the possibility that a search may extend beyond the data on the phone itself. In other words, advances in technology have continued to change society’s reasonable expectations of privacy. The Court’s ruling about the data on cell phones suggests that any device with similar capabilities should also be subject to a warrant requirement.
To determine whether a person exhibited a reasonable expectation of privacy, a two-prong test was laid out in Katz v. United States (1967). Applying the second prong to Connected Cars presents challenges; namely, “whether that expectation of privacy is one that society is prepared to accept as reasonable.” On one hand, the Connected Car is a vehicle, which is normally subject to a lesser expectation of privacy. On the other hand, with all the data it contains and can reveal, Connected Cars hold “the privacies of life” and should implicate greater privacy interests.
The Riley court delineated three potential variables in finding that cell phones implicate greater privacy interests: their large storage capacity, the variety of information they can store, and the possibility that a search may extend beyond the data on the phone itself. These variables are integral characteristics of a Connected Car.
Connected Cars have a large storage capacity. Connected Cars can store the data they collect on the Car onto a special hard drive; these hard drives typically hold about 200 gigabytes of data. For comparison, a single gigabyte of data holds about 75,000 hard-copy pages.
Connected Cars also store a wide variety of information. Aside from operational data and potential crash events, Connected Cars also record geographical location through GPS tracking. Connected Cars and cell phones both contain GPS tracking capabilities. Various trips to the synagogue, strip club, and abortion clinic could provide intimate details about the Car-owner’s life.
Moreover, a data search on a Connected Car might extend beyond the data on the Car itself. This is especially true with cell-phone integration. With Apple CarPlay and Android Auto, car owners have direct and indirect access to the data stored on their phone. Thus, on balance, a Connected Car is more like a cell phone instead of a plain physical vehicle.
Critics argue that the warrant requirement will deter officers from pursuing low-level offenders, but their concern is misguided. First, the warrant requirement does not prevent police officers from searching the physical vehicle under circumstances that warrant it. Second, police may still justify a warrantless search of data on a Connected Car if exigent circumstances exist. Third, several states now have judges on-call 24/7 to sign warrants. Finally, recent technological advances have made it easier to obtain a warrant. For example, more than thirty states currently allow electronic warrant applications by telephone, email, and Skype.
As technology advances, there will be a greater need for our continued commitment to the Fourth Amendment, and Connected Cars will be the next test case after cell phones. The Supreme Court should continue the direction it took in Riley and require a warrant for digital data on Connected Cars.