Legislator Thinks Warrantless Cell Phone Searches The Best Way to Combat Distracted Driving

by Tim Cushing
Techdirt
Jan. 25, 2016

The Supreme Court's Riley decision made it clear: law enforcement cannot search cell phones without a warrant. Seems pretty straightforward. Cell phones aren't mere "containers" -- they contain a great deal of information that has historically been afforded a reasonable expectation of privacy. Get a warrant.

Rep. Martin LaLonde of Vermont feels this is just too much privacy, especially when there's distracted driving that needs to be punished.

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.

By "see," LaLonde means "look at web activity, text messages, recent phone calls or anything else that might indicate the phone was in use." All without a warrant, and based on nothing more than an officer's suspicion that the driver may have been "distracted."

LaLonde, another legislator who seems to have little grasp of the particulars of his trade (other laws, the Constitution) says this won't be an excuse for police to go "rummaging" through drivers' phones. In support of this assertion, he states that he has no idea what limits will be in place or how any of this will actually work.

[T]he 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.

Here's a stab at narrowing the search.

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

Whatever the fuck that is. To figure out whether or not a driver has been texting, the officer will have to look at a few messages. What if the officer comes across a message that sounds like code for a drug deal? Would it be considered "plain sight," what with the law authorizing a quick peek at recent activity?

No man is an island, it has been said. LaLonde may be the exception.

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

LaLonde is trying to equate distracted driving with impaired driving. While the tragic outcomes of these two behaviors may be similar, the evidence gathered is worlds apart.

LaLonde said he looked at the precedent of breathalyzer tests. Anyone who drives a vehicle on a highway in Vermont is implied to have given consent to take a breath test if an officer suspects him of driving drunk. Refusing to do so can be introduced as evidence in a criminal proceeding.

Under LaLonde’s bill, a driver who refuses police access to his phone would get the same penalty he’d get if he was, in fact, texting.

The privacy impact of giving police carbon dioxide and giving police access to a cell phone aren't comparable. While the originating actions could both result in criminal charges, only one would allow officers to access a wealth of personal information without a warrant. There's only so much abuse an officer can perform with a breathalyzer. An unlocked phone, though? That's a fishing expedition waiting to happen.

It's not just civil liberty advocates and people with common sense that have problems with LaLonde's proposal. Local law enforcement officials don't seem particularly enamored with the legislation either.

Orange County Sheriff Bill Bohnyak, president of the Vermont Sheriffs Association, said he would support the bill, though he doesn’t want to infringe on anyone’s rights.

Thanks for the 4thA hat tip, Sheriff. That's mighty thoughtful, especially for someone who also heads the local law enforcement union. But why would you support a bill you think might infringe on people's rights? Are you hoping the Supreme Court will reverse its decision in the next few months? Or are you expecting the War on Terrorism to strip away what's left of the Fourth Amendment now that the War on Drugs has had its way with with for four decades?

One of Bohnyak's deputies has his own concerns about the bill… but they're strictly logistic.

Deputy Bariteau, who spends hours patrolling the roads of Orange County looking for distracted drivers, said he’s concerned about some of the practical aspects of LaLonde’s proposal. For example, he said, there are a lot of different phones out there, and officers might not know how to use all of them.

“If you make a law, it’s gotta be enforceable for us,” he said.

Warrantless cell phone searches are pretty much illegal, but the only thing bothering the deputy is that some phones might go unsearched because of a lack of officer skillz.

Finally, LaLonde defends his proposal by offering up the stupidest, most asinine defense of privacy violations: the "I, for one, welcome our new privacy-violating law enforcement overlords" cliche.

“Personally, if I’m in a car and I’ve been text messaging, I should expect narrow privacy,” he said.

Here's an idea: if you expect less privacy, then behave accordingly. Hand over your phone along with your license and registration and sign the search consent form. Enjoy your self-imposed lowered expectation of privacy on a one-to-one basis. Don't forget to ask officers to search your trunk, glove compartment and anus, Rep. LaLonde, because those are all places people have been known to hide contraband and you're certainly not carrying any of that, right? Be the hero Vermont neither wants nor deserves. But don't force it on your constituents.