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Posted: 7/30/2009 2:18:07 PM EST
Will there ever come a time when patrol officers automatically seize and check cellular telephones (or other similar devices) to determine the cause of MVAs (e.g. texting or talking while operating the motor vehicle)?

What right to privacy can a motorist invoke to keep a patrol officer from seizing and checking the device?

If the patrol officer cannot seize and check the device at the scene, then couldn't the investigators just later serve a subpoena to the service provider?

Under what circumstances do patrol officers currently administer sobriety tests when conducting vehicle stops?

Discuss.
Link Posted: 7/30/2009 2:54:13 PM EST
Need a search warrant.
Link Posted: 7/30/2009 4:19:33 PM EST
Originally Posted By RDP:
Need a search warrant.


This.
Link Posted: 7/30/2009 4:20:54 PM EST
Originally Posted By FLATFOOT762:
Originally Posted By RDP:
Need a search warrant.


This.


Yup.
/thread.
Link Posted: 7/30/2009 6:15:53 PM EST
Kind of jump from one topic to another.

It's not an issue of privacy it's that whole pesky 4th amendment thingy.

Field tests are done when one believes that a driver is impaired or shows signs of intoxication.

Link Posted: 7/31/2009 1:57:36 AM EST
Same rules apply as to any search.

Search warrant
Consent (probably best bet to try in the field)
Plain view
Search incident to arrest (probably can't apply to looking 'inside' a phone, especially with Gant v. AZ)
etc etc

Is a cell phone considered a 'locked container'? For example, let's use a vehicle crash possibly caused by inattention while texting. Phone is laying open on the floorboard, in plain view, with a half-written text message still on the screen. Could the Carroll doctrine apply here? As long as the phone isn't 'locked' where you'd need a pass code to open it, could you then manipulate the phone's software to see the message, any other recent message history, etc? Just throwing it out there for discussion.
Link Posted: 7/31/2009 3:41:33 AM EST
[Last Edit: 7/31/2009 3:43:42 AM EST by jjc155]
if the accident is bad enough (major injury or death) I would seize the phone as evidence if I had info that the phone played a part. I would then write up a search warrant and get it authorized for the phone and phone records. You'll need to outline what info you have that the phone was involved. If it's "I just want to look to make sure" our prosecutor's would likely not authorize a SW on that.

If the accident was more minor I would simply get the cell number from the person and then write up a 2703(d) affidavit for incoming/outgoing call and text data (this includes time/date of call/text) and subscriber info, get it signed and then send it to the cell provider they usually will have the info back to you in about a week. If you really felt froggy you could include tower numbers and sectors to use to put the phone in the general area of the crash, which would be nice especially if you do not have a willing "suspect" who may say that their phone was not with them at the time of the crash.

J-

eta: as for the field sobrieties, when I was on the road I would administer them whenever I felt that the subj had been drinking either thought observations of driving, observations of the subject or through the subject's own admission or any combo of these.

Link Posted: 7/31/2009 3:47:39 AM EST
Originally Posted By pevrs114:

Is a cell phone considered a 'locked container'? For example, let's use a vehicle crash possibly caused by inattention while texting. Phone is laying open on the floorboard, in plain view, with a half-written text message still on the screen. Could the Carroll doctrine apply here? As long as the phone isn't 'locked' where you'd need a pass code to open it, could you then manipulate the phone's software to see the message, any other recent message history, etc? Just throwing it out there for discussion.


I would think that anything on the screen would be fair game but as soon as you start to manipulate the phone (pressing keys, scrolling through messages, etc) that would become a search. So if the phone is open and you have to press a button to get the screen out of a screen saver or to turn the screen back on, like on my phone the screen goes black after about 10 secs if left open and you have to hit any key to get it back on. I would think that would be viewed as a search. I would however use the message that was showing as PC in my SW for the rest of the stuff in the phone.

Just my take on it.
J-
Link Posted: 7/31/2009 4:04:19 AM EST
Originally Posted By jjc155:
Originally Posted By pevrs114:

Is a cell phone considered a 'locked container'? For example, let's use a vehicle crash possibly caused by inattention while texting. Phone is laying open on the floorboard, in plain view, with a half-written text message still on the screen. Could the Carroll doctrine apply here? As long as the phone isn't 'locked' where you'd need a pass code to open it, could you then manipulate the phone's software to see the message, any other recent message history, etc? Just throwing it out there for discussion.


I would think that anything on the screen would be fair game but as soon as you start to manipulate the phone (pressing keys, scrolling through messages, etc) that would become a search. So if the phone is open and you have to press a button to get the screen out of a screen saver or to turn the screen back on, like on my phone the screen goes black after about 10 secs if left open and you have to hit any key to get it back on. I would think that would be viewed as a search. I would however use the message that was showing as PC in my SW for the rest of the stuff in the phone.

Just my take on it.
J-


I definitely agree that pressing any buttons would then become a 'search'. I guess my question is does the Carroll doctrine apply here, which would allow a warrantless search of the phone if PC that evidence of contributing wreck factors were contained inside?

I've heard with most narcotics cases, a SW is necessary to go through a suspect's phone, however I've seen on a regular basis it done without a SW. What, if any, are the justifications for a warrantless search of a drug suspect's phone? (Much more common search than texting while driving, I would imagine)
Link Posted: 7/31/2009 8:41:41 AM EST
Originally Posted By pevrs114:
Originally Posted By jjc155:
Originally Posted By pevrs114:

Is a cell phone considered a 'locked container'? For example, let's use a vehicle crash possibly caused by inattention while texting. Phone is laying open on the floorboard, in plain view, with a half-written text message still on the screen. Could the Carroll doctrine apply here? As long as the phone isn't 'locked' where you'd need a pass code to open it, could you then manipulate the phone's software to see the message, any other recent message history, etc? Just throwing it out there for discussion.


I would think that anything on the screen would be fair game but as soon as you start to manipulate the phone (pressing keys, scrolling through messages, etc) that would become a search. So if the phone is open and you have to press a button to get the screen out of a screen saver or to turn the screen back on, like on my phone the screen goes black after about 10 secs if left open and you have to hit any key to get it back on. I would think that would be viewed as a search. I would however use the message that was showing as PC in my SW for the rest of the stuff in the phone.

Just my take on it.
J-


I definitely agree that pressing any buttons would then become a 'search'. I guess my question is does the Carroll doctrine apply here, which would allow a warrantless search of the phone if PC that evidence of contributing wreck factors were contained inside?

I've heard with most narcotics cases, a SW is necessary to go through a suspect's phone, however I've seen on a regular basis it done without a SW. What, if any, are the justifications for a warrantless search of a drug suspect's phone? (Much more common search than texting while driving, I would imagine)


I would think that what a cell phone "is" would have to be defined then. Is it indeed a "container" or not. I always err on the side of caution and go with the SW.

J-

Link Posted: 7/31/2009 12:35:12 PM EST
Link Posted: 7/31/2009 8:20:45 PM EST
Originally Posted By pevrs114:
Originally Posted By jjc155:
Originally Posted By pevrs114:

Is a cell phone considered a 'locked container'? For example, let's use a vehicle crash possibly caused by inattention while texting. Phone is laying open on the floorboard, in plain view, with a half-written text message still on the screen. Could the Carroll doctrine apply here? As long as the phone isn't 'locked' where you'd need a pass code to open it, could you then manipulate the phone's software to see the message, any other recent message history, etc? Just throwing it out there for discussion.


I would think that anything on the screen would be fair game but as soon as you start to manipulate the phone (pressing keys, scrolling through messages, etc) that would become a search. So if the phone is open and you have to press a button to get the screen out of a screen saver or to turn the screen back on, like on my phone the screen goes black after about 10 secs if left open and you have to hit any key to get it back on. I would think that would be viewed as a search. I would however use the message that was showing as PC in my SW for the rest of the stuff in the phone.

Just my take on it.
J-


I definitely agree that pressing any buttons would then become a 'search'. I guess my question is does the Carroll doctrine apply here, which would allow a warrantless search of the phone if PC that evidence of contributing wreck factors were contained inside?

I've heard with most narcotics cases, a SW is necessary to go through a suspect's phone, however I've seen on a regular basis it done without a SW. What, if any, are the justifications for a warrantless search of a drug suspect's phone? (Much more common search than texting while driving, I would imagine)


A lot of our guys used to do that to suspect's phones during arrests/stops to "gather intel" about who the person was calling...............a couple guys got bit on the behind and had a pack of cases tossed out because of that. Now the procedure is to obtain the number of the phone, then prepare a subpoena duces tecum, get it approved by a judge, and get the info from the provider. Of course, since there always has to be a dumba@@ somewhere, if the A/S won't tell you the number, I know of one guy who thought he'd be clever and just call himself with the perp's phone to get the number...............that turned out to be a bad idea on a couple levels.
Link Posted: 7/31/2009 8:41:26 PM EST
Your person can be searchefd while just being detained for the "safety of the officer" with no warrant needed.
Link Posted: 8/1/2009 3:07:40 AM EST
Originally Posted By AssaultRifler:
Your person can be searched while just being detained for the "safety of the officer" with no warrant needed.


But does such a search extend to actually looking into the contents of a cell phone? What would that have to do with officer safety?
Link Posted: 8/1/2009 3:08:52 AM EST
Link Posted: 8/1/2009 3:15:10 AM EST
The problem with this is that the first thing somebody is going to do after beingi in an accident is call somebody (their wife, husband, whatever) to tell them they've been in an accident and to come get them. You're going to have to have pretty exact time of accident information to distinguish between the call for help and a call that might have distracted the driver.
Link Posted: 8/1/2009 6:12:30 AM EST
[Last Edit: 8/1/2009 6:16:13 AM EST by jjc155]
Originally Posted By Bladeswitcher:
The problem with this is that the first thing somebody is going to do after beingi in an accident is call somebody (their wife, husband, whatever) to tell them they've been in an accident and to come get them. You're going to have to have pretty exact time of accident information to distinguish between the call for help and a call that might have distracted the driver.


Or in your subpoena, 2703(d) affidavit or SW you ask for a whole days worth of records and use the numbers that are on the records to figure out what they were doing at/about the time of the accident.

J-
Link Posted: 8/1/2009 6:15:42 AM EST
Originally Posted By hrt4me:
Originally Posted By AssaultRifler:
Your person can be searched while just being detained for the "safety of the officer" with no warrant needed.


But does such a search extend to actually looking into the contents of a cell phone? What would that have to do with officer safety?


Exactly, i think you would be very hard pressed to convince a judge at a walker hearing that your needed to look through a suspects phone to ensure your safety or the safety of the public. Very little problem in my mind with securing the cell phone in that scenario (we can all recall seeing Officer Safety bulletins about "cell phone guns" etc) but to actually look through the phone is asking for trouble with out consent or some other highly exigent circumstance.

J-

Link Posted: 8/1/2009 10:43:53 AM EST
There are exceptions to needing a search warrant. There are programs for cell phones such as the blackberry and iphone that you can remotely wipe the phone. Maybe one could articulate that destruction of evidence is going to occur. Would that fly in regards to a traffic accident? I doubt it but anything's possible.
Link Posted: 8/2/2009 4:49:18 AM EST
[Last Edit: 8/2/2009 4:50:06 AM EST by jjc155]
Originally Posted By jadams951:
There are exceptions to needing a search warrant. There are programs for cell phones such as the blackberry and iphone that you can remotely wipe the phone. Maybe one could articulate that destruction of evidence is going to occur. Would that fly in regards to a traffic accident? I doubt it but anything's possible.


the info could be wiped from the phone itself but not from the providers mainframes. The actual content of the texts/calls would not be nessecary for an accident investigation just the dates/times and direct (incoming/outgoing) of the texts/calls. This info is maintained on the providers databases for up to 6 months and some times longer. Actual content of texts is maintained on the providers databases for up to 7 days for cell texts and as Kwame Kilpatrick (former mayor of detroit) found much longer for computer to text pager type systems.

But for an accident investigation like the OP was talking about all you need that the accident occured at aprox 0100hrs and the phone records show that there are incoming and outgoing text messages from the phone from 1230 to 0102hrs , doesnt matter what the actual content of the texts are, just that the driver was possibly texting at the time of the crash.

As for the phones being wiped remotely, all you have to do is wrap the phone in a double wrap of heavy duty tin foil, that kills the signal (works the same as a feraday bag for much cheaper) just make sure that you either have a charger run into the phone or a data usb cable to charge off of your computer as the reduction of the signal causes the phone to ramp up its power to try to grab a signal and runs the battery down quick. Computer and cell investigations are one of the things that I am responsible at my dept.

J-

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