Textalyzers- Cops can now search your cell phone, roadside.

How would you like for cops to be able to search your cell phone just because you are driving a car?  That might become a reality in the coming months.  In an article first published on filevine.com, cell phone use has been linked to an increase in car accidents, and to counter that, bills have been passed that make cell phone usage illegal behind the wheel.  However, some officers have complained that it takes too long to prove cell phone use.  So, to aid the process, a device known as the “Textalyzer”, has come into play.    

               The Textalyzer allows an officer to plug into your phone and after only 90 seconds know what apps have been used recently.  The device can see call logs, contacts, calendar, text messages, and media files.  Obviously, this seems invasive, and laws like this run into 4th Amendment issues. (the Fourth Amendment prohibits unreasonable searches and seizures, and is designed to protect citizens from overbroad and intrusive searches, without probable cause or a warrant) In fact, the United States Supreme Court rather recently addressed the issue of cell phone searches and warrants in Riley v. United States, where the majority opinion held that, generally, searches of cell phones are unconstitutional unless a warrant is obtained.  Despite this, if the textalyzer becomes legal to use, then after every single car accident in the United States, in theory, law enforcement would have the power to take your phone and find out exactly what you have been doing, even if you haven’t used your cell phone.  So, what you were doing in the car, that day on your phone would be able to be seen by all parties involved in any car accident.          

Now, why would this be allowed?  Officers say that obtaining a search warrant is too hard and burdensome for every car crash, especially since you must get a judge and sometimes a prosecutor involved.  It’s a fair point.  In another recent Supreme Court Case, the use of a breathalyzer as a part of implied consent laws was questioned.  The majority said that it would take too long to get a warrant after every accident, so refused to draw a bright line to burden law enforcement in every case where a breath test is sought.  If the Textalyzer is viewed in a similar manner, then its use will probably be allowed.  But, the Textalyzer is not the breathalyzer. 

A breathalyzer is enforced as a part of the implied consent law, which means that when someone accepts issuance of a driver’s license, that person gives consent to take a breathalyzer test when required to after being pulled over, or after an accident, or that person automatically can lose his/her driver’s license.  The Textalyzer is not currently listed as a part of any implied consent (or similar) law.  So, a new law would have to be passed that mimics the implied consent laws for the Textalyzer to be put into practice.  But, even if one argues that the Textalyzer is fair and should be used, a whole new set of problematic circumstances arise that are dissimilar from the implied consent of a breathalyzer.  No one can deny having breath, and some courts agree that giving a breath test does not constitute a search under the Fourth Amendment.  In the case of the Textalyzer, what if someone claims to not own or have a cell phone.  The officer cannot simply search his or her car.  So, the request for a search warrant would have to take place on the spot.  What if the driver’s phone was being used by a passenger?  What if the driver is using GPS?  Clearly, the Textalyzer has too many deficiencies in its practical use to allow its application.

               But, despite the obvious issues, in New York, a bill allowing the use of a Textalyzer has made it out of committee.  This bill includes the suspension of the driver’s license if he refuses to allow the Textalyzer.  This doesn’t mean it will pass, and it probably won’t.  But, we will have to wait and see.

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