Written by Caitlyn Jaile
IMAGINE the following scenario: you are involved in a car accident and police arrive at the scene. Upon arrival, they begin to inspect the damage and ask for your license and registration. Next, they demand to see your cellphone. You wonder what the officer would find when looking through your phone? Would the officer find photographs of your children? Would the officer find confidential work e-mails meant for your eyes only? Could he uncover evidence of a completely unrelated crime you may have committed? How do you react? Are you shocked at the officer’s blatant request to search, arguably your most private possession, or, do you comply with the officer and willingly hand over the device holding access to personal e-mails, phone numbers, bank accounts, and photos? If given the option to deny or comply with the officer’s request, a reasonable person would likely refuse to hand over his or her cellphone for examination. However, pending the passage of NJ Bill No. 2783 this option would not exist and the mandatory search of one’s cellphone following a car accident would become a routine practice in the State of New Jersey. Consequently, this bill violates the U.S. Constitution’s Fourth Amendment ban on unreasonable search and seizures and violates a motorist’s right to privacy in his or her cellphone.
STOP TEXTS, STOP WRECKS. The introduction of NJ Bill No. 2783, by New Jersey Senator James W. Holzapfel (R. Ocean), comes at a time when states are beginning to enact stricter texting and driving laws with the goal of minimizing the number of driving-while-distracted accidents. The National Safety Council estimates that in 2011 at least 23 percent of all traffic crashes, or at least 1.6 million crashes each year, involved drivers using cellphones. In a country where at any given daylight moment approximately 660,000 drivers are using cellphones or other electronic devices while driving, the need for stringent texting-while-driving laws is apparent.
NJ BILL No. 2783. Introduced on May 20, 2013, NJ Bill No. 2783 has two main provisions. First, the Bill increases penalties for texting-while-driving. Under the proposed bill, a person who sends a text message while driving would be subject to a $300 fine and two motor vehicle penalty points on his or her license. In addition, a person who causes an accident because he or she is sending a text message is subject to a three-month license suspension.
The second provision of the Bill permits police officers to confiscate a motor vehicle operator’s cellphone under certain circumstances.
NJ Bill No. 2783: “Whenever an operator of a motor vehicle has been involved in an accident resulting in death, bodily injury, or property damage, a police officer who reports to the scene of the accident may confiscate the operator’s hand-held wireless telephone if, after considering the facts and circumstances surrounding the accident, the officer has reasonable grounds to believe that the operator involved in the accident was operating a hand-held wireless telephone” while driving a motor vehicle
This provision specifies that whenever an operator is involved in an accident “resulting in death, bodily injury, or property damage” a police officer who reports to the scene of that accident can confiscate the operator’s hand-held wireless telephone if, “after considering the facts and circumstances surrounding the accident,” the officer has “reasonable grounds to believe” the operator involved in the accident was using a hand-held wireless telephone. Upon confiscating the operator’s cellphone, the reporting police officer may review the cellphone’s call data history to determine whether the cellphone was actually in use at the time of the accident.
THE CONTROVERSY. Cellphones have become more than just a means of communication; even the most basic cellphone now functions as a small computer, providing access to a number of different applications. As a result, courts have had to analyze and expand the Fourth Amendment’s protection to encompass cellphones. These analyses examine the constitutionality of the search of a cellphone’s data and content-based information, including any reasonable expectations of privacy a cellphone user might have.
The Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized[/box]
In order to determine whether an individual possesses a reasonable expectation of privacy, courts apply a two-prong test. This test (“Katz test”) was introduced in Justice Harlan’s concurrence in Katz v. United States. First, a court should ask whether the individual exhibits “an actual expectation of privacy.” This is the subjective prong of the test. Second, a court should ask whether that subjective expectation is “one that society is prepared to recognize as ‘reasonable.’” This is the objective prong of the test. If both prongs of the Katz test are met, a reasonable expectation of privacy exists and any violation of that privacy without a warrant is a violation of the Fourth Amendment and thus, unconstitutional.
A DRIVER’S REASONABLE EXPECTATION OF PRIVACY IN A CELL PHONE. Since the first cases addressing the constitutionality of warrantless cellphone searches, courts have addressed the privacy of cellphones with increasing frequency. As cellphone use has become more prevalent, the way in which cellphones are used has also expanded. Therefore, when considering the legality of searching a cellphone’s contents, one must consider first, whether a phone’s owner has a reasonable expectation of privacy in the general contents of the phone and second, whether some information on the phone is subject to a reasonable expectation of privacy while other information is not.
Though cellphones contain addresses and phone numbers similar to those found in a traditional address book, an item that is entitled to a lower expectation of privacy, today’s cellphones are more similar to computers, which are entitled to a heightened expectation of privacy due to the personal nature of the data they can hold. The court in State v. Smith held that, while cellphones are not completely analogous to computers, “their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of privacy in the information they contain.” This case supports an individual’s objective expectation of privacy, an expectation that society is willing to recognize. Further, because individuals hold their cellphones out to be private, for example, by storing a cellphones in a case or requiring a password to access a cellphone’s contents, it is evident that an individual possesses a subjective expectation of privacy in his or her cellphone. Therefore, because an individual does posses a reasonable expectation of privacy in a cellphone and its contents, a warrant must be procured if the cellphone is to be searched and NJ Bill No. 2783 would be unconstitutional
DO THE EXCEPTIONS APPLY TO BILL No. 2783? Though the Fourth Amendment explicitly requires that a warrant be procured for a search or seizure to be reasonable, inherent in the Amendment’s text are a number of exceptions to the warrant requirement. Generally, these exceptions include: the search incident to lawful arrest exception, the plain view exception, the consent exception, the stop and frisk exception, the automobile exception, and the emergencies/hot pursuit exception. Beginning with the most obvious, the search incident to arrest exception would not support an officer’s warrantless search and seizure of a driver’s cellphone under the Bill because there would be no arrest to trigger the exception. Currently, texting and driving is not an arrestable offense in any state. Moreover, if another crime has been committed during or immediately after the accident, police officers must believe the cellphone contains evidence of that crime in order to search it. Because the seizure of a cellphone under the search incident to arrest exception must directly stem from the underlying crime, the seizure of the cellphone for any other un-arrestable crime, such as texting-while-driving, is invalid.
Further, an application of the automobile exception in support of NJ Bill No. 2783 would also be improper. First, the evidence needed to prove a driver was texting-while-driving at the time of an accident is not the kind of evidence that can simply disappear or be destroyed. Coding information, the information that reveals only the identity of a party to a communication without disclosing the subject matter of the communication, can easily be obtained through a subpoena of the phone’s records even after a vehicle drives away or if the cellphone owner deletes the information from the cellphone itself. Thus, a simple subpoena of the cellphone provider’s records would provide police officers with the same information a warrantless search of the cellphone would without violating the driver’s Fourth Amendment rights.
THE CONSTITUTION PREVAILS. With over 1,840 cellphone related crashes in New Jersey alone, states are understandably beginning to propose drastic legislation to curb what has become a grave safety issue. However, no matter how dangerous or prevalent texting-while-driving has become, legislation proposed to curb this problem cannot violate an individual’s constitutional rights. Both a subjective and objective reasonable expectation of privacy exists in one’s cellphone. Therefore, in order for a warrantless search of the contents of a driver’s cellphone following an automobile accident, as proposed by NJ Bill No. 2783, to be valid, the search must fall under an accepted Fourth Amendment exception. No Fourth Amendment exception is applicable to make an officer’s actions under NJ Bill No. 2783 constitutionally valid. Therefore, NJ Bill No. 2783 should be rejected.
