Bill would force you to give police phone after accident

New Jersey legislators propose allowing police to examine your cell phone without a warrant in the event of being stopped. This is in response to texting and driving incidents.

Proof needed? CBS New York Screenshot by Chris Matyszczyk/CNET

You may feel that everyone wants to peek inside your cell phone just at the moment.

Please, therefore, allow me to make you a little more insecure.

State legislators in New Jersey would very much like to make it easier for the police to go through your cell phone, should you be in any way involved in an accident.

The wording of their proposal -- Bill S 2783 (PDF) -- is quite precise in its breadth:

Whenever an operator of a motor vehicle has been involved in an accident resulting in death, bodily injury or property damage, a police officer may confiscate the operator's hand-held wireless telephone if the officer has reasonable grounds to believe that the operator was operating a hand-held wireless telephone while driving.

So imagine that you are driving west over the George Washington Bridge, past Fort Lee (where "dangerous" walking while texting is banned) and you're heading for the joys of Hackensack when, say, someone hits you from behind.

Even if only the person who hit you is injured and the accident was not your fault, it seems that your cell phone still might be taken by police without a warrant.

Well, you might have been driving too slowly because you were texting and somehow caused the car behind to hit you.

As CBS New York reports, some drivers believe that this proposal is wise. Others wonder about its slightly tangential relationship with the Constitution.

Republican State Sen. James Holzapfel introduced the bill as an attempt to curb the rampant progress of texting and driving.

Yet the Fourth Amendment does offer protection against unreasonable search and seizure.

It's one thing to want to seize an object in obvious view. It's quite another not only to take a cell phone, but then to pore through it in search of alleged evidence.

The painful moments with bills like this so often come with the interpretation of the word "reasonable."

How might a police officer "reasonably" suspect that texting and driving had taken place? The mere presence of a cell phone near the driver would prove nothing.

Many drivers put their phone in their cup holders or elsewhere near them.

Holzapfel, however, told the New Jersey Star-Ledger: "Think about it: The chances of the cop witnessing the accident are slim to none. He's dispatched, and by the time he gets there -- unless they're unconscious and the phone is in their hands, or some passenger says they were on the phone -- then he's got to do what? Subpoena the service to see if the phone was actively used or not?"

Will this mean that every cell phone in a car after an accident represents some sort of probable cause?

And what if messages have been deleted, either manually or automatically?

Some legal scholars believe that this issue may have to be decided by the Supreme Court.

Privacy seemed once to be something easily defined. These days, it's more of struggle.

 

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