Pretty much everyone knows that it is illegal and dangerous to drive while using a cell phone. Unfortunately, plenty of people still talk and text on their cell phones without even using hands free solutions. A “textalyzer” is a proposed piece of technology that would allow police to see if someone has recently used their cell phone in order to help police fight this crime the way they fight drunk driving. But Fallbrook defense attorneys and others worry that textalyxer devices are a violation of the Fourth Amendment.
The basis of the problem lies in the fact that when people get in accidents or are pulled over for erratic driving, police often want to know if the driver was using a cell phone behind the wheel, but unless they saw the driver using a cell phone, they can’t write them up for breaking the law. Since the Supreme Court has ruled that police cannot search a cell phone without a warrant, police often have no way to prove if a person was or was not on their cell phones before causing an accident or while they were driving in a distracted manner. The textalyzer aims to work around this problem by allegedly protecting a person’s privacy while pulling information to see if a cell phone was recently used before an accident or traffic stop. But the ACLU and criminal lawyers in Escondido agree that there are far too many problems with such devices.
To start with, these devices, like the breathalyzers being used to detect marijuana use, are proprietary software, which means the companies making them will not allow civil liberty groups, criminal defense attorneys or even government employees to see how they work. In the case of textalyzers, that’s trusting a private company with a lot of very sensitive personal data with no guarantee that the software is actually keeping that data secure. Additionally, while the companies manufacturing such devices claim the driver can keep the cell phone in their hands during the search since officers just have to plug the device in to use it, that won’t always be the case -for example, if the driver is injured. If the officer is left to plug in the device, can the phone’s owner be certain the officer didn’t illegally search their cell phone without a warrant?
Aside from that, the devices leave too many unanswered questions to ensure a person was actually using a cell phone before being pulled over or getting in an accident. Just because the phone was being used doesn’t mean the driver was breaking the law. The devices don’t specify if the driver used a hands free device or if another person in the vehicle was using the cell phone. Without being able to answer these questions, the device isn’t able to verify that a person was using their cell phone in a dangerous and illegal manner.
For the time being, textalyzers have too many issues to be used by the police, but that doesn’t mean that any time an officer breaks the law if he has searched your phone. Remember that if you give police permission to search your property, no warrant is needed. All it takes is for you to say “yes” after an officer asks to look at your call log and you have given her permission to search your phone. Everything you say can be used against you as well, so if you try to defend yourself by explaining that you were just fast forwarding a song playing on your phone or that you were just looking at a map on your phone, you just admitted that you broke the law by using your phone without a hands free device. That is why you should always say as little as possible during a traffic stop and to tell the police that you would like to have your San Marcos criminal defense attorney present before answering any questions.
As an extra precaution, drivers should always have their phone password protected and they should protect their rights by never consenting to a search of their phone, car or person.
If you have any questions about illegal searches or protecting your rights during a traffic stop, Rancho Bernardo criminal lawyer Peter M. Liss can help. Please call (760) 643-4050 to schedule a free initial consultation.
Creative Commons Image by Mirko Tobias Schäfer