Carter: Cell Phone Searches

Jan 19, 2016

Recently, legislation was introduced to strengthen Vermont’s ban on cell phone use while driving. Studies have shown that using a cell phone while driving may be more dangerous than driving under the influence of alcohol.

And since protecting Vermonters from unsafe driving practices is a worthwhile goal, a law aimed at giving police more tools to prevent the use of cell phones while driving makes sense. However, the legislation as proposed goes far beyond that goal and threatens privacy rights as defined by the U. S. Supreme Court.

H.527 has several potentially unconstitutional and interconnected flaws. First, the legislation provides that Vermonters automatically consent to warrantless searches of their “portable electronic devices” simply by driving on Vermont roads. While no Court has directly reviewed such a waiver of constitutional rights in the context of cell phones, analogous cases indicate that H.527 would face an uphill battle in the courts.

In Chimel v. California, the U.S. Supreme Court explained in the context of a home search that when police arrest someone they may perform a warrantless search to protect material evidence or the officer’s safety. But once an individual has been detained on suspicion of texting while driving, neither the officer’s safety nor the evidence of the infraction are at risk. So in keeping with the fundamental requirements of the Fourth Amendment, it would seem police should get a warrant before searching the contents of a driver’s phone.

More recently, in Missouri v. McNeely, the court held unanimously that police may not automatically order a blood test on someone they’ve lawfully arrested for driving under the influence. Rather, unless there are exigent circumstances, law enforcement must get a warrant – a decision which indicates that drivers do not waive all their constitutional rights simply by getting behind the wheel. Thus, providing for warrantless cell phone searches based on implied driver consent seems to be constitutionally problematic.

Perhaps most telling is a recent quote from Chief Justice Roberts regarding the protection of our privacy in the age of smart phones. In Riley v. California, Roberts is quoted as saying that "Modern cell phones... with all they contain and all they may reveal... hold for many Americans the privacies of life. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”

It seems to me that while the goal of safer roads is a worthy one, H.527 as proposed is imprecise and may indeed infringe upon the Constitution.