Constitution.com

What Bill of Rights? New Law Would Allow Police to Search Drivers’ Cell Phones Without Warrant

Vermont bill H.527, proposed by Democrat state representative Martin LaLonde from South Burlington, would make it lawful for police to be able to search drivers’ cell phones without having to secure a warrant first.

Many states have strict texting and driving laws ostensibly to promote public highway safety. If a cop spots someone driving while apparently handling an object that may or may not be a phone, that’s all the cop needs to pull over that driver and ticket him for texting and driving. However, a driver may contest the charge and tell the cop that he wasn’t texting. Perhaps he was drinking a soda or reaching for a cigarette. The officer may then ask to see the driver’s phone to see if he’s lying. In response, the driver may refuse to hand over his phone without a search warrant.

This Vermont bill would make it so that the cop could check the phone’s text log to see if the driver was in fact texting, all without having to go through the trouble of securing a warrant.

And it wouldn’t be limited to cell phones. It would apply to any “portable electronic device” and any kind of texting – even hands-free, voice-activated texting. USA Today reported:

Lawmakers want to make it easier for officers…to enforce Vermont’s 2014 ban on using hand-held devices while on highways. They’re asking Vermonters to give up some of their privacy in exchange for safer roads. But even the chief sponsor of the bill said he hasn’t “really thought about” what, exactly, would be fair game for a warrantless search under his bill.

H.527, introduced by Rep. Martin LaLonde, D-South Burlington, would allow law enforcement officers to see a driver’s phone or other electronic device, to see if it was being used. LaLonde said he doesn’t intend for police to be able to take a person’s phone back to his squad car and rummage through it.

“Essentially, it’s ‘show me your text log,’” he said.

[…]

No other state allows warrantless searches to combat phone use while driving.

This dramatic expansion of implied consent comes with serious problems, said Allen Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union.

“It’s hard to believe this won’t be found unconstitutional,” he said, calling the bill “vague and over-broad.” The bill also is vague when it comes to the justification for the stop. A person could be sneezing, he said.

Let’s say a man sneezed while driving on a highway, and a cop got a split-second view of him and suspected that he might have been texting and driving. If he pulled him over, but the driver denied texting and driving, the cop would ask to see the driver’s phone to check his logs. If the driver refused to hand over his phone, citing the need for the cop to get a search warrant, the cop can just charge the guy anyway. It would be like refusing a breath test at a DUI checkpoint. Refusing one of those means you’re obviously guilty.

In talking about his proposed legislation, representative LaLonde even referenced court precedent about DUI breathalyzer tests in the context of implied consent. The idea is that if you’re driving on public highways, that in and of itself is the consent the police need to force you to take a breath test. Refusing breath tests is held as evidence against you. LaLonde contends that implied consent should also apply to distracted driving.

While many of us would agree that this is a violation of the 4th Amendment, even more than that is the fact that texting and driving laws themselves – as well as those pertaining to speeding, red light and stop sign violations, even DUI laws – are regulative laws, instead of punitive ones. The primary purpose for regulative laws is not to promote safety, but to bring in revenue.

Philip Hodges

Phil has been writing about outrageous news and politics since 2012.

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