Police Performing Warrantless Cellphone Searches After Car Crashes? Yep, There’s a Bill for ThatBy: Josh Wolford - June 14, 2013
Hey guys, meet my new favorite terrible state bill.
Narrowly beating out the Internet Posting Removal Act, an Illinois bill that’ll make your head spin, comes a bill to modify New Jersey state law to permit police officers to confiscate and search a driver’s cellphone when they are involved in an accident – simply if they feel the accident may have been caused by texting/talking while driving.
The bill, SB 2783, was proposed by Republican Senator James W. Holzapfel – a former lawyer who served as a county prosecutor.
Here’s the actual text from the bill:
(New section) Whenever an operator of a motor vehicle has been involved in an accident resulting in death, bodily injury, or property damage, a police officer who reports to the scene of the accident may confiscate the operator’s hand-held wireless telephone if, after considering the facts and circumstances surrounding the accident, the officer has reasonable grounds to believe that the operator involved in the accident was operating a hand-held wireless telephone while driving a motor vehicle in violation of section 1 of P.L.2003, c.310 (C.39:4-97.3).
Upon confiscating the telephone, the police officer may review the hand-held wireless telephone’s call history data in order to determine whether the motor vehicle operator was in violation of section 1 of P.L.2003, c.310 (C.39:4-97.3) at the time of the accident. After reviewing the call history data, the law enforcement officer shall return the hand-held wireless telephone to the motor vehicle operator. Any information contained in the call history data that indicates that the motor vehicle operator was in violation of section 1 of P.L.2003, c.310 (C.39:4-97.3) shall be included in the police report in accordance with R.S.39:4-131.
FYI, any mention of “P.L.2003, c.310 (C.39:4-97.3)” refers to the statue banning to use of wireless devices (non-hand-free) while operating a motor vehicle in the state of New Jersey.
With the overbroad “accident resulting in death, bodily injury, or property damage” clause, you can already see the abuse of power. Look closely. Can you see it? I’m no alarmist or anything, but when the police can, without a warrant, browse the contents of my iPhone with no restrictions just because I happened to get in a fender bender – call me crazy, but that doesn’t take me to my happy place.
The ACLU of New Jersey has already said that this bill doesn’t come close to passing constitutional muster:
“Our State and Federal Constitutions generally require probable cause before authorizing a search, particularly when it comes to areas that contain highly personal information such as cellphones,” said Alexander Shalom of the ACLU-NJ. “The legislature cannot authorize searches unless there is probable cause, therefore the bill is likely susceptible to a constitutional challenge.”
That’s putting it nicely.
The bill was introduced on May 20th and has yet to see any additional action. It’s been referred to the Senate Law and Public Safety Committee – which I truly hope is code for “the nearest trash can.”