How A Shoddy Distracted Driving Bill Could Let Cops Take Your Cellphone

Jan. 20, 2016 (Mimesis Law) — When the Supreme Court articulated its much lauded holding in Riley v. California regarding warrantless searches of cell phones, my Fault Lines colleague Scott Greenfield wasn’t completely enthusiastic.

While Riley shuts down the search incident to arrest exception as to computers, there remains a laundry list of others still to be tried. Exigency immediately came to the top of the list, and I can’t wait to hear the government’s efforts to manufacture an argument to show how every search is exigent. Hey, it worked with cars, right?

Vermont’s legislators may have manufactured an argument through Riley under the guise of “combating distracted driving.”

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.

The bill, H. 527, introduced by Rep. LaLonde, a former lawyer and judicial clerk without consideration of what’s “fair game,” creates an “implied consent” element into 23 V.S.A. § 1095(b), the current statute banning the “handheld use of portable electronic devices while driving.” If the bill is passed, the current statute will be amended to reflect that every person driving in Vermont implicitly consents to a search of his or her “portable electronic device” by a law enforcement officer for the limited purpose of determining if the driver violated the ban.

When commencing a traffic stop, the officer would inform the driver of Vermont’s ban, and ask to search the device. If the driver refused consent, he or she would receive a citation for about $200 and a couple of points would be added to the driver’s record.

It’s a watered down version of Vermont’s “implied consent” statue providing an officer with the authority to administer a breathalyzer, blood test or “evidentiary test” when investigating a potential DUI.

LaLonde’s rationale in shrugging off Supreme Court precedent is the old “public safety” chestnut.

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

Granting Rep. LaLonde’s argument that distracted driving is a problem meriting remediation, he’s missing one critical point: data on a cell phone doesn’t go away like alcohol does as it metabolizes.

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… 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.

And police adore traffic stops, since they carry the potential “to lead to much more serious investigations that ultimately take dangerous criminals off the street.”

LaLonde, in the introduction of his bill, has ultimately admitted he doesn’t even know where the line will fall between protecting the public and not violating an individual’s Fourth Amendment rights.

[E]ven LaLonde said he isn’t sure if the bill can “thread the needle” between giving law enforcement better tools and protecting privacy.

People elected Martin LaLonde to the Vermont House of Representatives, so he must perform his job and propose laws, even if those laws are ridiculous and potentially unconstitutional. Legislators do this every day. When proposed laws seek to strip Constitutional rights from citizens clearly articulated by Supreme Court precedent, those lawmakers should be called to task, even if the law is proposed in the name of “public safety.”

Ken White explains at Fault Lines why proposed laws threatening Constitutional rights need extra scrutiny.

Constitutional rights come in a bundle. You may not see the whole bundle; you may only see the particular stick you are holding at any given moment, like free speech or the right to counsel or the right to be free from unreasonable searches. But the bundle is there, and the thread holding it all together is thin. If you pull on your favorite stick too hard trying to separate it, the whole thing falls apart.

Martin LaLonde’s not terribly concerned about the bundle’s demise, though.

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.

It bothers the rest of us, Martin. It bothers your constituents, the lawyers in Vermont representing defendants your shoddily crafted bill would create, the lawyers outside Vermont who care about Constitutional rights and the judges who will hear appeals cases on this if your bill is passed. You should know better, Martin, and that’s what bothers the rest of us.

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