Editorial: Don’t allow police to scan cellphones after wrecks

Textalyzer allows police to scan cellphone (NBC pix)

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

     — Fourth Amendment

 The urge to dictate how other people behave or misbehave apparently is irresistible.

There are already laws on the books prohibiting drivers from using cellphones while driving unless a hands-free system is employed. Now the Nevada Legislature is considering a bill, Assembly Bill 200, that would allow police at the scene of an accident to use an electronic device to determine whether a driver was, in fact, using such a device at the time of an accident. The bill would allow the suspension of one’s driver’s license for refusing to comply.

A company called Cellebrite says it has created something it calls a Textalyzer — like a breathalyzer, get it? — that will detect whether a phone was in use. The company says the device would only determine a user’s activity and what type of activity, such as hands-free or not, and would not reveal phone numbers or text messages.

Distracted driving is, well, distracted driving. The hair splitting over the type of distracted driving is irrelevant. One could be changing the radio, eating a sandwich, combing one’s hair or yelling at the screaming brat in the back seat.

The result is all the same, as well as the responsibility as shown by the evidence at the scene of the accident.

AB200, despite all the reassurances to the contrary, is unnecessary and poses too great a threat to the right to be secure in one’s person and personal effects without a properly issued search warrant.

“We can’t give the government the power to peer into everybody’s digital lives indiscriminately, because that might create a bigger problem than the one we’re trying to solve in the first place,” NBC News recently quoted Neil Richards, a law professor at Washington University in St. Louis who’s an expert in privacy and civil liberties, as saying about the use of such devices by police. “The way to do it is if the police suspect a case of distracting driving, they go and they get a warrant and they compel the records from the service provider.”

Who is to say what an officer might extract once the phone is handed over.

The Nevada American Civil Liberties Union has expressed opposition to AB200. “The ACLU of Nevada strongly opposes AB200 which would allow law enforcement to utilize experimental technology that would infringe on the Fourth Amendment and privacy rights of Nevadans without obtaining a warrant,” The Nevada Independent has quoted ACLU of Nevada Policy Director Holly Welborn as saying.

With all the guns, non-lethal arms, body cameras and other devices police are forced to lug around, there is no need to add an expensive and as-yet unproven cellphone scanning device.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

21 comments on “Editorial: Don’t allow police to scan cellphones after wrecks

  1. Bruce Feher says:

    There you go again Tom! You keep mentioning that old relic, what’s it called again? Oh yeah, the Constitution.
    No one needs that anymore, until they do.

  2. Anonymous says:

    I’m as pro 4th Amendment as they come I think but I have to say,mass using that what they say is true about what this device reveals, along with what seems like an non obtrusive means of obtaining the information, that the issue is whether the search is “reasonable”.

    I mean, merely looking at the cell phone is “a search” but yet no one is denying the right of the government officials to use their own eyes to see the cell phone.

    My knee jerk is to be against this stuff but it’s not easy.

  3. Bill says:

    The mere existence of a cell phone in a vehicle after an accident will obstrusively trigger many police officers to intrusively “search” for information on the telephone.

    For once, the ACLU and I are in full agreement.

  4. Rincon says:

    Does a cop need a search warrant to search your body for evidence of alcohol consumption? How much evidence is needed for them to stop you for a field sobriety test? Are roadblocks designed to nab suspects in a major crime or as a screen for drunk drivers Constitutional? Forcing people to stop their vehicles in order to take a peek inside seems more unreasonable than checking the activity of a cell phone when one considers that in the former situation, there is zero evidence of illegal activity by the motorist. A major crash with no other reasonable explanation though, is evidence that the offending driver may indeed have committed a crime.

    Perhaps a reasonable compromise would be to allow a cell phone search in cases where the phone is on the floor of the driver’s side of the vehicle whose driver appears to be at fault. Phones not in use would usually be in the driver’s pocket or on the passenger seat, so being on the driver’s side floor suggests probable cause.

  5. Bill says:

    Constitutional rights still apply in a roadblock situation. The police are permitted to stop you briefly, but they may not search you or your car unless they have probable cause that you’re under the influence of drugs or alcohol or you agree to the search. The exception is U.S.border crossing.

    Even if stopped at a traffic roadblock, , you are not required to answer police questions. If the police want to seize and search a mobile telephone, let them get a warrant. It was not uncommon when law enforcement took a harsher look at drug possession, that in a traffic stop situation, there were a lot of “dropsy” cases where the police would testify that they observed the defendant “drop” something and upon further examination, under the car seat or nearby, the “something” was determined to be drugs.

  6. Rincon says:

    Probable cause is evidence that a crime has been committed. Is not a cell phone on the floor of the driver’s side after an unexplained accident evidence of recent use? There aren’t very many ways it could wind up there without it being in the hand or lap of the user at the time of the wreck. In addition, the device only tells cops if the phone was being used at the time of the accident. It’s hard to imagine any way that information could be used against an innocent driver, yet in a random stop, something as vague as the smell of beer or pot along with what a police officer considers nervous behavior can be construed as probable cause, leading to a complete search of the car on a fishing expedition. That’s a lot more invasive than querying a cell phone.

    Your point about dropsy cases is well taken. Similar abuse of Constitutional rights seems far fetched using a device that only reveals the recent use of a cell phone.

  7. The device may or may not only reveal whether the phone was in use, but once the cop has the phone in his or her hand, what mischief might they do?

  8. Bill says:

    The mere presence of a cell phone in an auto should not constitute probable cause to believe that the accident was caused by “distracted” driving. Mere talking on a portable telephone is not an offense, so long as that telephone is not hand held.

    Most people, to comply with the law, now have Blue Tooth or some other connection that permits hands free telephone conversation when the cell phone is mounted on the dash other place.

  9. Rincon says:

    Your point is well taken. I forgot that cell phones can be used in speaker mode – part of my being a dinosaur, I guess. Unless it is known whether or not the speaker function was in use, then the device is worthless in the first place, so I would be against use of it. If that information is obtainable, then my original position stands.

    As for the mischief a cop might do, although it is possible, the risk of having that occur must be weighed against the risk of allowing thousands of offenders get off scot free (is that politically incorrect these days?) after injuring or killing others through their negligence, and denying adequate compensation to many due to underinsurance or no insurance situations, It should be kept in mind that police already have access to quite a bit of information about us. I suspect only a very few would risk their job in order to…what?…take a look at some driver’s contact list or maybe some texts or Emails? Very few phones contain much easily obtained valuable information, unless maybe I’m being a dinosaur again. The rare person who has highly secure information should password protect his phone anyway. If they don’t, I think cops are the least security concern in that case, since cell phones are commonly lost and stolen.

  10. If someone causes an accident, it matters not why they were distracted. They are at fault.

  11. Anonymous says:

    Of course it matters why they were distracted Thomas that’s why the standard for torts is at least in part based on whether a person was acting reasonably at the time their actions resulted in a harm to someone else.

    Saving a new born baby from harm which distracted a driver and resulted in an accident is far more likely to be seen as reasonable than snorting coccaine off the dashboard.

  12. Steve says:

    “Saving a new born baby from harm”
    Is not an issue if the driver is obeying the law in the first place….the baby should be securely strapped into a car seat fastened to the rear seat, hence out of reach of the driver in the first place.
    Of course, anyone finding a need to attend to the baby would pull to the side of the road first, right?
    Same as texting, eh?
    Distracted driving is evident w/o any more “tools” for law enforcement to abuse.

    smh

  13. Bill says:

    It is presently unlawful in Nevada and many other jurisdictions to use a hand held cell phone while driving a motor vehicle on the public highways. The proposed law is about giving police the right to seize and search any telephone device found in the vehicle at the time of an accident. It is a law designed to permit warrantless searches of telephones and telephone records in a criminal, not a civil, action and without probable cause as to whether or not “distracted driving” was a proximate or contributing cause of the accident.

  14. Anonymous says:

    “Thomas Mitchell on April 9, 2019 at 8:42 am
    If someone causes an accident, it matters not why they were distracted. They are at fault.”

    “Anonymous on April 9, 2019 at 9:26 am
    Of course it matters why they were distracted Thomas that’s why the standard for torts is at least in part based on whether a person was acting reasonably at the time their actions resulted in a harm to someone else.

    Saving a new born baby from harm which distracted a driver and resulted in an accident is far more likely to be seen as reasonable than snorting coccaine off the dashboard.”

  15. Steve says:

    “Saving a new born baby from harm which distracted a driver”

    Can’t happen because babies are legally required to be strapped in a car seat fastened to the rear seat.

    smh

    Police don’t need more “tools” they will abuse. In fact, they need fewer and this one needs to go first. Forfeiture needs to be outlawed.

  16. Bill says:

    The standard is not a whether a person who commits an injury for which the law provides a remedy in tort act “reasonably but rather whether the act or omission complained of was purposeful or negligent and resulted in the harm alleged.

  17. Anonymous says:

    “Negligence is perhaps the most commonly asserted cause of action in the United States. “Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances.” BLACK’S LAW DICTIONARY 716 (Abridged 6th ed. 1991). Simply, it is conduct below that which society considers reasonable. When such unreasonable conduct is the proximate cause of injury to another person or his property, the actor may be liable in tort for negligence.
    What constitutes unreasonable conduct typically is not defined by statute but, rather, is a question of fact to be determined by the finder(s) of fact. An exception may exist where instances of misconduct are frequent and so obviously unacceptable that the law imposes a rebuttable presumption of negligence. For example, the law may presume that a rear-end motor vehicle accident results from the negligence of the driver in the car hitting the vehicle in front of him.”

    Of course it matters why a driver was distracted when determining fault for the accident (accident being a key word here since if intention were involved it couldn’t be legitimately described as an accident)

  18. Steve says:

    If there is need for such determination, get a warrant for the phones records from the service provider.

    There is no need for yet another “tool” police can and will abuse.

  19. Rincon says:

    Since the device can only say when the phone had been in use, can someone please give me an example of how an innocent person might suffer if the device is allowed to be used?

  20. Anonymous says:

    Well as we all “learned” recently Rincon, while climate change is “fake news” wind causes cancer.

    So perhaps that has something to do with it?

  21. Steve says:

    Thank goodness, this is about to be moot.
    That bill, like all bad ideas, is very likely going to die in committee.

    Police simply do not need anymore “tools” they will abuse.

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