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The Supreme Court’s “Cell Phone” Case: The End of the “Texting While Driving” Ticket?

Wednesday’s evening news began in dramatic fashion.  The anchor’s declaration was sensational……and utterly stupid.  “THE U.S. SUPREME COURT RULES THAT POLICE MAY NOT SEARCH YOUR CELL PHONE!” he exclaimed.   Of course the police can search your cell phone.  The police can search anything — remember what a cavity search involves?

 

And the police will always be able to search anything so long as it advances their investigation of a crime.  In Riley v. California, the Supreme Court ruled that the police are not allowed to search the contents of your cell phone, except in the rarest of circumstances, WITHOUT a search warrant.  In other words, the police cannot examine the contents of a cell phone simply because they have arrested the cell phone’s owner.

 

For example, let’s say the police pull someone over for speeding, that person happens to be a felon, and the police discover a handgun on the passenger-side floorboard.  The police are going to arrest that person for being a felon in possession of a firearm.  As they arrest him, they are going to search his person, as they are permitted to do whenever they arrest someone.  If the police find a cell phone in his pocket, they can remove it and keep it (seize it), but the Supreme Court has ruled that they are not allowed to look through the contents of the cell phone until they obtain a search warrant based on probable cause.   So what does this have to do with North Carolina’s texting while driving statute?  Here is the statute:

 

Offense. – It shall be unlawful for any person to operate a vehicle on a public street or highway or public vehicular area while using a mobile telephone to:

 

(1)        Manually enter multiple letters or text in the device as a means of communicating with another person; or

(2)        Read any electronic mail or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored in the device nor to any caller identification information.

How are the police to know whether you were actually texting (dangerous), or looking at caller id (equally dangerous)?  They look at your texts, and when you were sending/receiving those texts.  After Riley v. California, the police can’t look through your texts without a search warrant.  So how can you get ticketed for texting while driving post-Riley?  The officer asks you, “were you texting and driving?” and you say “yes.”  Or the officer asks you, “may I search your cell phone?” and you say “yes.”

But consider the following scenario (two assumptions will be made: 1)  that the driver was texting, and 2) that the driver doesn’t commit a Class 2 misdemeanor by lying to the officer):

Officer: “Were you texting just now when you passed my patrol car?”

Driver: “I’m going to exercise my Fifth Amendment right against self-incrimination.”

Officer: “May I look in your phone?”

Driver: “No.”

The officer can still give you a ticket, but the DA will have a hard time proving the case at trial.  But before you decide that you are a constitutional expert with immunity to text while driving,  consider the following scenario as well:

Officer: “Were you texting just now when you passed my patrol car?”

Driver: “I’m going to exercise my Fifth Amendment right against self-incrimination.”

Officer: “May I look in your phone?”

Driver: “No.”

Officer: “Ok.  I’m going to put your phone here in this little bag that protects its memory from being remotely wiped.  I’m then going to take it downtown so I can get a search warrant from the magistrate.  You can follow me and pick it up once that’s done.”

The preceding scenario opens a whole can of worms which I won’t get into, but the point is: you just lost your cell phone for half a day.  Don’t text and drive.