New Jersey State Senator James Holzapfel is proposing legislation that would allow police officers to confiscate and search through a driver’s phone after he or she has been involved in a car accident. According to the legislation, the officer must have reason to believe that the driver was talking or texting when the crash occurred. The question is what reasonable suspicion other than an accident would there be? Unless the officer witnessed the driver on the phone texting or speaking without a hands- free device, the grounds for such a search lacks any validity.
The Fourth Amendment states:
“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.”
Making the case that a cell phone must be seized and searched just because someone was involved in a car accident does not hold up to this stand. To state the officer must have “reasonable suspicion” needs clarification.
What is considered reasonable, if the suspect was in a crash and had a cell phone in the vehicle? This opens up a whole other can of worms. What if someone sends a text while in a parking lot, then puts the phone down pulls out into traffic only to be hit? The time of the collision will not be exact; in fact, police will have a vague window of 3 minutes to go from. The citizen was not on the phone, but if an officer was to check, they would have sent the text close to the time of collision.
Does this driver get falsely charged? Another issue more common than not, is that of two occupants. Will this only apply if you are alone in the vehicle? It is not uncommon for a phone that belongs to the driver to be handed to the passenger to text someone. If they are involved in a collision while the passenger is texting, does the driver take the heat because the phone is theirs?
Besides the above-listed issues, there has been past controversies involving police seizure of cell phones and officers looking where they shouldn’t. Cell phones today are pocket computers. Even text messages can contain images of a private nature, which may include intimate images between a husband and wife.
The following was reported by a man seeking legal advice after he was arrested on allegations of possession of stolen property.
“I was arrested for possession of stolen property (Which I had receipts for). While in the back seat of the police car the 8 cops passed my phone and camera around looking at nude pics of my wife. When I commented to one of the officers that those were our personal property and I did not want them looking at the pic, he laughed and said we will look at whatever we want. When I got out of jail I checked my Verizon online account and there were text picture/slide show sent to personal phones while I was arrested. When I filed a report the officer told me I shouldn’t have had them on my phone. I know this is not right but is it illegal?”
While this may be hard to accept, this is a reality that people face when their phones are seized. While most police officers have good intentions, we are not infallible, and it is important we do our part to protect the Fourth Amendment at all cost, even if it means working a little harder in the field. Situations like the above are unbecoming of the uniform, and breaks trust between the police and the community.
This legislation creates more problems than it solves, and in the end, brings law enforcement no closer to knowing if a driver was at fault or not due to using their phone. The room for error and lack of precise timing is too great. The only way to achieve this would be to match up a black box time of impact with that of the phone records. Even then, there is no need or urgency that would require an officer search text messages at the scene of the accident and view its content including what may be very private images.
If the police do, in fact, have reasonable suspicion, they can subpoena the cell provider for detailed records that will show all outgoing text messages. This bill is not well thought out, is unconstitutional, and infringes privacy while doing nothing to secure the safety of the community.
Nick is a former Arizona police officer and deputy. He is a Kaplan University Counter Terrorism and Homeland Security major, recently graduating with highest honors. Nick is a member of The National Society of Collegiate Scholars, the Golden Key International Honor Society, Alpha Betta Kappa Honor Society, and Alpha Phi Sigma Criminal Justice Honor Society. He has appeared as an expert commentator on Fox News Radio, and has been published in academic journals as well as Police One.
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