Hypothetical: Auto accident, should police be able to scan at-fault driver's cell phone?

[Skip Intro]

Poll question: Hypothetical: Auto accident, should police be able to scan at-fault driver's cell phone?

Just reading that a bill is to be introduced to require states to ban the craziness of texting while driving, :applause: and started imagining myself in an accident caused by some idiot trying to drive and text at the same time. Hopefully no one would be hurt, but I would be pissed beyond belief to know the person who just smacked into my car did so because he/she was trying to text and drive. It's just such a stupid thing to do, almost akin to drinking and driving, imho, and I almost think there should be a special penalty for the idiot. But how would you know?

So, as scary a thought as it is, I began to wonder, should police be allowed to confiscate any visible cell phone of the driver at fault, and either check recent texts in the phone's memory, or take the phone as evidence? I assume anyone in an accident not injured or worse would be talking on their cell phone, so the presence of one would be obvious. Of course, then the question arises, if one is not, would police have the authority to search the vehicle? Maybe examination of any phone and any search would need to be only by consent. Or maybe such search powers would only come into play if there are injuries? This is scary territory, I know, but if indeed I'm either with a damaged car or on my way to the hospital because of some idiot texting and driving, I'd want to know, and I'd want that person to face some pretty harsh penalties.

So how do you know other than someone at the scene finding out?

[floridablue]

1. Not No, But HELL NO !!!!!

Fault is determined by the Courts, not the police.

[Canuckistanian]

2. Show me a warrant, copper

My cell phone is a part of my life, with MANY personal details in it.

I can see powers like this abused VERY quickly.

[Gormy Cuss]

10. Warrant is exactly right.

A judge should make the decision, not a local cop.

[Realityhack]

18. The judge should decide on what?

wither the police can search for a cell phone on scene and obtain the number?
Or wither they can read all the messages?

Are you expecting a judge to approve a warrant to determine if a cell phone is on the scene at all or what the number is? If so how do you propose that would work?
If the officer can't even call out using your phone to determine the number how is that reasonable?

If a witness saw you texting that constitutes probable cause does it not?

[Gormy Cuss]

39. Yes, whether the police can search the cell phone itself on scene.

If a witness saw me texting then the police can search for the phone. Looking at the contents (or accessing the record of calls/texts) should be up to a judge.

[Realityhack]

42. I have no problem with that.

But I DO have a problem with the police not being able to cease the phone or obtain the phones number.

Basically I think we agree on the issue. But it seems some people here think the police shouldn't even be able to search for your phone, even if there are witnesses, etc.

[Tesha]

31. Correct. I picked "other" for just this reason. (NT)

[Realityhack]

16. It is called probable cause

If a witness saw someone texting (at fault or not) it would be probable cause to at least get the phone in hand to obtain the number so records can be obtained from the carrier.

[Johonny]

17. not to be stupid but

They really don't need the phone. I'm pretty sure the phone company has all your records. They can clearly get a warrant to obtain the records if they can show a judge probable cause. The only reason for the phone I guess is if the person has a uncompleted text still on the phone. But what driver knowing the law wouldn't push send?

[Realityhack]

21. Two reasons for having the phone.

Uncompleted message.
Determine the phone number for certain. People have pre-paid phones, borrowed phones, etc.

And they would need to be able to search for a phone on the scene of course.

As for the driver pushing send... why would they push send if they knew the carrier records could be obtained? Better not to. If you can search for an uncompleted message on the scene before it is deleted... then send or no send they are likely to be caught.

[Johonny]

30. what if he had it in his pocket?

would you allow them to frisk the accident victim? Strip search them? The person might be injured an auto accident just accord. I'm pretty sure if I'm the police I don't want the headache of strip searching accident victims to make sure they had no cell phone on them at the time of the crash. It might sound a little stupid in court.

[Realityhack]

33. So?

Strip searching an injured person? You are creating a straw man.
If a witness saw them with a gun the police would frisk them correct?
We are talking about legal permission to search the person, like basic empty your pockets, poke around the car with a flashlight.
And the police do not HAVE to exercise their ability to search for something. They can chose not to for any number of reasons.
And the officer can always have the paramedics retrieve any phone if they are coming which would be the case for serious injuries.

Witness: Driver A was texting on his cell when the accident happened.
Driver A: I don't even have a cell phone on me.
Cop: Checks car, asks Driver A to empty his pockets or frisks him. Alternatively asks paramedics to tell him if they find a cell phone.

Not unreasonable IMO.

[Johonny]

50. where do you draw the line?

I think the actual officer that posted on this thread is a much more sane post. I'll go with his word. As the school principal that strip searched a girl over prescription medication found out, there are somethings that just don't look good in the newspaper. I think it's clear your the type of person that would strip search a person to see that they had a cell phone and I'm pretty sure most people if it got to that point would take a pass. Cell phone = gun will make me chuckle all night.

[Realityhack]

53. WTF?

"I think it's clear your the type of person that would strip search a person to see that they had a cell phone"
Where in the fuck did you get that idea? The actual cop was pointing out that an officer can cease the phone and I am sure that includes making the suspect turn it over from their pocket or prove that lump isn't a cell phone.
You will notice I also agreed with him.

As for your statement quoted above I think you owe me an apology.

[Nicholas D Wolfwood]

3. That depends, to me, on whether the ban would make texting while driving...

a crime or just moving violation. If it's a crime, police would already have the right to seize and search your cell phone if they had reason to believe a crime is committed. Otherwise, no, that's going way too far.

[KDFW]

13. A moving violation -is- a crime. A misdemeanor.

I've personally witnessed THREE accidents caused by morons typing on their gadgets...non-injury crashes but easily could have been. I want the book thrown at these jerks.

[LeftinOH]

4. Police already do sobriety checks (even when there hasn't been an accident);

texting (and talking on a handset.. but *especially* texting) impair driving to a dangerous degree. Too often I see people flying across 2 or 3 lanes of busy traffic while they're chatting on the phone. As for texting -WTF? The very notion that people do this is horrifying.

[Maine-ah]

5. a girl I worked with crashed her truck into a tree

not only was she texting, but she was also drunk at the time. Damn good thing she only injured herself and didn't kill anyone.

The stupid thing though, is they never nailed her for the OUI, or the texting. The accident was cited as "driver inattention".

[mwb970]

8. Driving while drunk *and* texting!

That reaches a level of irresponsibility I can't even imagine. If they only killed themselves that might be all right, but they often take innocent lives in payment for their selfishness and immaturity.

I almost hate to ask, but is Europe (including France) ahead of us on this like they are on everything else?

[NashVegas]

6. I Don't Think They Should Be Able to Touch the Phone W/Out Consent At ALL

But they should be able to access your cell phone records pertaining to the approximate time of the accident within a 5-minute time frame. That's regardless of whether or not you say you're at fault: many people will lie outright.

[paulsby]

7. as a cop who has investigated more than one (to put it mildly) collision

you can seize ANY sort of evidence, if you have probable cause to do so. otherwise, no.

iow, if a witness can say they saw the person texting, then you could seize it. otherwise no.

or the driver admitted to texting while driving, etc.

there is already ample case law (at least here in the 9th circuit) that save exigency, consent, or abandoned property doctrines, you CANNOT start looking through the contents of a cell phone's use/memory w/o a warrant. which is as it should be.

now this is not to say that the cops could not contact the cell phone carrier and ask them if the person's records indicate any texts at a certain time. that is entirely different than searching the cell phone. and you are not asking for the contents of a text, just whether a text was sent. that would probably pass constitutional scrutiny. i'm not aware of any cases on that point, though.

[Realityhack]

14. Thank you for that reasonable well informed post.

I think some people here are way off base on this and being completely reactionary.

For example why on earth could an officer NOT look at your cell phone if you gave permission? Here officer see I wasn't texting... um.. sorry I can't look at that. WTF?

And if a witness claims the driver was texting.. how would that not be probable cause to at least search for a cell phone and get a warrant for the records from the carrier as to wither any text was sent at that time?

And I completely agree with you on the contents of the messages.

But I don't even see a poll option for 'it is appropriate if there is probable cause' or 'they should be able to demand the carrier records as to wither any text was sent at that time' anything remotely similar.

Your post was very well thought out and reasonable. Thank you.

[paulsby]

15. good points

"For example why on earth could an officer NOT look at your cell phone if you gave permission? Here officer see I wasn't texting... um.. sorry I can't look at that. WTF"

correct. that would fall under the consent to search doctrine. well established.
edited to add: and contrary to what many people believe, the cops job is not to incriminate people. it's to gather evidence. if you can provide exculpatory evidence to the cops, like showing your phone to prove you WEREN'T texting.

in serious collisions i have had people volunteer (no evidence they were dirnking) to take a PBT just so if the case ever went to civil court later, they could put a kibosh to any claims they had been drinking. that's smart.

"And if a witness claims the driver was texting.. how would that not be probable cause to at least search for a cell phone and get a warrant for the records from the carrier as to wither any text was sent at that time?"

it would. the two-prong test used in many jurisdictions is called aguilar-spinelli. 1st question: what is the basis of the informants knowledge. iow, was he in a place etc. where he would have been able to see this. 2nd question: what is the veracity of the informant. if he is willing to name himself and provide a signed statemnet, absent evidence to the contrary, he is presumed reliable.

thanks for the props btw.

[Realityhack]

23. More good points. n/t

[HopeHoops]

9. They can get a warrant for the cell phone records.

The records will clearly show whether or not there was activity on the driver's phone at the time of the accident.

[Realityhack]

22. Except they need to determine if a phone was present what the number is.

So they still need to be able to search for a phone and obtain the number for certain.
If a witness says they were texting I think that would be plenty to obtain such information.
And I do not think it would be unreasonable to pass a law that created implied consent for the officer to search for a phone and obtain the number and then the records to determine if a law against texting was broken leading to the accident. This of course implies the creation of such a law not just under the current law or a general anti-texting law.

[Donnachaidh]

11. we were next to a car that got slammed in the back by a person talking on a cell

His car was hit so hard he was slammed into the guy in front, who was pushed into an intersection. The person who caused the accident was a sheriff, on a cell phone. She was so involved with her call she struck and injured the first guy, caused another car to be thrown into a busy intersection. That guy was lucky that cars weren't heading towards him at full tilt when that happened.

I voted YES. And I own a cellphone, too. When you have people distracted from driving by conversations, you have MORE accidents. There's a simple enough solution -- don't want your cell checked or confiscated? Then don't drive and use the damned thing. If the call is important enough to take, pull over and get out of traffic.

[FarCenter]

12. In investigating train crashes, etc, the police have gotten the texting info from wireless carriers

This is the billing data that shows sender, receiver and time of the message. It is readily available from the carriers billing systems. They can also get the billing information for voice calls, possibly for other data transmissions.

[guitar man]

19. not without a warrant

and fault is determined by the courts, not the police

[michreject]

20. Make it like drunk driving

implied consent.

[-..__...]

24. Blackmailing bastards.

Congress can't pass an actual law banning texting while driving without infringing on 10th amendment rights... so, they get around it by
saying "we can't force you to comply with this law, but if you don't, you'll lose federal highway funding".

Ohhh..and to answer the original question; no, cops should not be allowed to seize and search a persons cell phone.

As others have posted... fault can be determined by a judge issuing a subpoena for the cell phone records.

And yes... texting (and talking on a non-hands free cell phone), while driving should be illegal.

[Realityhack]

26. Um.

"As others have posted... fault can be determined by a judge issuing a subpoena for the cell phone records."

And the counter point was made that the judge can not search the scene to see if a phone is present and determine its number so nothing can be subpoenaed.
Furthermore you are ignoring a concept called probable cause. A warrant is not needed for every search ever conducted.

Fault is still determined by a judge/jury. The issue is wither the officer on scene can collect evidence and/or write up a moving violation.

[-..__...]

29. Determining if a phone was present.

Does anyone know if the communications companies can determine (through records), when and where a cell phone was used by determining the location of the nearest cell tower?

Scenario...

Accident occurs at intersection of Main and Maple at 12:00.

Police/accident investigators have reason to believe the driver at fault might have been on a cell phone at the time, but no cell phone
is observed by officers at the scene.

Police obtain phone records for calls that were directed through the cell tower nearest Main and Maple between the hours of 11:59 - 12:01.

Records show that a call was placed by the suspect at that time and location.

[Realityhack]

34. Placed 'by the suspect'

So if the phone is pre-paid with no name the phone company reports the call or doesn't?
If the driver was using someone elses phone at the time?

Much simpler to look up the call/message record for a specific number found on the scene.

This does not preclude looking up any other phone number registered to the driver or other further investigation if a phone was not found especially for a particularly bad accident (example death involved) but it would be a very simple easy place to start.

If the driver was observed waving a gun at the time of the accident we would frisk for the gun and search the car right? How is a cell phone so different?

[Xithras]

25. In California the police can already take your cellphone without a warrant.

It rarely happens, but there have already been a few cases where people got belligerent with officers while getting texting tickets, so the officers seized the phones as evidence. It's perfectly legal.

If the person wants to fight the ticket, the phone can be analyzed (without a warrant, since it's evidence in a court case at that point) to determine whether it was in use just before the ticket was issued. If the person pays the ticket, the court will return the phone once the ticket is discharged.

[Realityhack]

27. How is anyone voting for option 1????

Option 1 excused the officer looking at your cell phone *with your permission* how are so many people justifying that answer?

My opinion is that it is just reactionary. Anyone have a justification for why they think that is not OK?

[ecstatic]

28. Not necessary. In fatal accidents, phone records are checked

when the court is deciding whether to pursue criminal charges. One lady got in serious serious trouble here in Georgia because she was texting right before causing an accident that killed 5 people. Georgia does NOT play when it comes to driving fatalities. Even if its your car equipment that isn't functioning properly (i.e. bald tires), you could go to jail!

[Realityhack]

35. I disagree. That makes some poor assumptions IMO

1. You are only talking about serious accidents. No reason why the officers should not be able to simply check for texting for more minor accidents if there is reason to suspect it and write it up as a moving violation or have it influence who is at fault.

2. What if the phone is not registered to the driver? Borrowing someones phone or a pre-paid phone without a name attached? A check of the drivers phone would reveal nothing in either of those cases but if a phone was taken on the scene and that number ran it would result in seeing the text.

[MindPilot]

32. Other--I think this would have to be an implied consent law like BAC.

Under ordinary circumstances I could not be compelled to submit to a test of my blood because I would be providing evidence to incriminate myself -- a clear violation of the Fifth Amendment.

So to get around the constitutional issue, if I want to drive I have to agree to provide my BAC when I'm suspected of DUI as a condition of having a license.

Cell phone records would probably fall in the same category.

[Realityhack]

36. That would be a good way for the law to opperate. n/t

[BlooInBloo]

37. It's always amusing watching Americans advocate for giving up their own Constitutional rights.

[Realityhack]

47. Um...

how is making it illegal to text and drive giving up our constitutional rights?
How would making it possible for an officer to search for a phone given probable cause that a crime was committed with it be unconstitutional?

[Telly Savalas]

52. If you hold the original copy of the constitution up to a lamp

you can see the invisible ink where its says:

"It is my inalienable right to act on whatever fucked up irrational urge I get no matter how destructive it may be to those with whom I share this planet."

Every good libertarian knows this.

[Skip Intro]

51. Huh?

:shrug:

[4lbs]

38. In CA, officers can search your car's trunk or search your cell phone if they pull you over.

If you get pulled over for a broken tail light, or not wearing a seat belt, they have the PC to search your car or your cell phone.

That's part of the already established seat belt law, and the new cell phone law, passed in CA.

Thus, in California, if you get into an auto accident, be prepared to surrender your cell phone. All they need to do is check the phone number, and ask the wireless carrier if the phone was actively being used at the time of the accident. They don't actually need to read any of the text messages, or listen to any calls. They just want to know if the phone was actively transmitting during the accident.

[Realityhack]

40. Wait....

they can search your trunk after pulling you over for a moving violation?
That doesn't sound correct/constitutional at all. I can't see how there would be an implied consent to check on anything being transported by vehicle.
Didn't the CHP get in a boatload of trouble over that a while back?

[4lbs]

41. Yes, if they feel there's a need to. Getting pulled over for speeding doesn't automatically mean

that they'll ask you to pop the trunk.

However if you get pulled over for speeding or not wearing a seat belt, and then act suspicious (nervous, eyes shifting away, quick breathing or sweating), then they have the PC to ask you to open your trunk, or search your car, without having to wait for a warrant.

They can also ask for your cell phone now, if you behave suspiciously when they pull you over.

Get into an accident, forget it, your car and phone will be heavily scrutinized.

[Realityhack]

44. That is a bit diffrent than what you originally implied

They are still claiming probable cause which is different than just being able to legally search the trunk no matter what.
In which case the PC can still be thrown out later in court and the whole case potentially dismissed.

Sounds to me like they are pushing PC way past the limit and need to be rained in heavily.

[4lbs]

48. Oh yeah, sorry if I implied automatic searches just for being pulled over.

However, yes, it does appear they've expanded the powers of probable cause to search someone's car or person.

[Realityhack]

49. In that case they are way out of line...

and need to be reeled in again. I remember CHP getting in a bunch of hot water some years back for similar practices. It is stupid and does not serve justice. Besides which someone with a good lawyer could probably get away with a dead body in their trunk and have the whole case thrown out based on that kind of flimsy 'probable cause'.

[SoCalDem]

43. Why not just have a "both hands on wheel" law, and be done with it

or have new cars come with kill switches for cell phones when the ignition is on.. Pull over and the phone is enabled.. start the car and it's dead.. no phone no text no talk..just drive

[Realityhack]

45. 'kill switches for cell phones' huh?

Ignoring the technological problems... you think passengers should be unable to call too?
And that two hands on the wheel thing... no more manual transmissions? Try getting people not to even sip a drink or change radio stations in the car.

Honestly I don't think you thought those through very thoroughly.

[nadinbrzezinski]

46. Officers already do under plain sight rules

they cannot ask, but if you volunteer the phone as well, they can too.