Proposed law would allow warrantless cell-phone searches

USA Today – by Jess Aloe

BARRE CITY, Vt. – On a cold, sunny Thursday afternoon, Deputy Jean Miguel Bariteau of the Orange County Sheriff’s Department spots the driver of a red hatchback using his cell phone. When Bariteau pulls him over, it’s a straightforward call to write a ticket. He saw the driver use his phone, and the young man behind the wheel admits it.

If the man behind the wheel had denied violating Vermont’s distracted driver law, checking the phone records would have helped the deputy make his case. But a search like that requires a warrant.  

Lawmakers want to make it easier for officers like Bariteau 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.

But opponents say the proposal goes too far, and even LaLonde said he isn’t sure if the bill can “thread the needle” between giving law enforcement better tools and protecting privacy.

LaLonde’s bill is an amendment to the 2014 ban, and like that act, it refers to “portable electronic devices.” Opponents worry this could lead to searches of tablets and laptops as well as phones. LaLonde said he’s primarily concerned about texting, but cares more about the “activity” of distracted driving, no matter what the device.

Unprecedented move

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.

Computers and cell phones have become devices that hold tons of personal information. A police officer could pull over someone who had glanced down momentarily, demand to search his or her phone, and discover private medical information, Gilbert said.

In 2014, the U.S. Supreme Court held that searching the contents of a phone without a warrant is unconstitutional.

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 bill also expands the definition of texting to include voice-activated texting, which is no less distracting than texting by hand, according to the Vermont Highway Safety Alliance.

In Gilbert’s view, there’s also a significant difference between a breathalyzer and a phone search: Alcohol metabolizes, and drunkenness doesn’t last. Phone data doesn’t get digested, so police can easily get a warrant if they want to look inside a phone.

“There’s no need to break down one of the most fundamental protections we have in our lives,” he said.

LaLonde’s bill is not the only one that tackles the issue of implied consent as it relates to driving. Another proposed bill would amend the implied consent provision of Vermont’s existing drunk driving law so that a test would be required of a driver who was involved in a collision that caused a serious injury or death. As the law reads now, police need reasonable suspicion that the driver has alcohol or drugs in his system to administer a breathalyzer.

Legislative theme

Highway safety is becoming a “theme” the House is tackling this year, LaLonde said. According to the Vermont Highway Safety Alliance, distracted driving causes 24 percent of crashes. There were over 50 fatal accidents on the state’s roads last year, and close to 2,000 injuries.

The House Judiciary Committee is scheduled to hear testimony about the bill on Tuesday. Even if his bill goes nowhere, expanding implied consent could remain on the table.

Distracted driving is one of the biggest public safety issues facing Vermont, LaLonde said, and detection and enforcement are proving difficult.

LaLonde said he ran his bill by the Legislative Counsel’s office and David Cahill, who at the time was the executive director of the Department of State’s Attorneys and Sheriffs. Cahill was recently sworn in as a state’s attorney.

Cahill said he hadn’t seen the most recent language in the bill.

“Distracted driving is relatively new to all of us and we’re still learning about it,” he said. He agreed with the ACLU’s position that police should be required to get a warrant to access personal information stored on a phone. He said LaLonde’s proposal may not be the answer.

“We may be headed toward treating a smartphone like an open bottle of alcohol,” he said. Having a phone out, instead of in a glove box or in the trunk, is too tempting, he said.

Members of law enforcement also expressed hesitations about the bill. 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.

It’s easy, he said, for people to say they weren’t texting when they’re pulled over. They say they were reaching for a cigarette or a soda. Often, his deputies have to give a warning instead of a ticket since they can’t prove distracted driving.

Bohnyak would like to see more emphasis on educating drivers about the dangers of texting while driving. High-visibility enforcement — which combines an increased police presence with a media campaign — has been shown to reduce distracted driving in states like Connecticut, California and New York, according to studies done by the Governors Highway Safety Association.

“But it boils down to money,” Bohnyak said, adding that his department sees crashes daily, and lots are related to texting or being on a cell phone.

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.

As for Rep. LaLonde, he said the idea of a cop asking to see his phone doesn’t bother him.

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

Follow Jess Aloe on Twitter: @jess_aloe 

http://www.usatoday.com/story/news/nation-now/2016/01/17/warrantless-cell-phone-searches/78938740/