Should police officers be able to seize your cell phone after a crash?

Posted at 8:08 PM, Jun 10, 2013
and last updated 2013-06-10 20:55:39-04
Newark and Jersey City, NJ (PIX11) – If a stranger were to ask you to let them see some of the content on your cellphone, what would your reaction be?  It’s precisely the question that PIX11 News asked of at least a half dozen drivers in New Jersey, selected at random, in light of a new bill before the legislature.

“I would say, ‘Get out of here,'” was service van driver Issa Tandja’s response.  Ruth Rodriguez answered similarly.  “Most likely [I would say] no,” she said.  “That’s private.”

However, when PIX11 News changed the question slightly, and asked what drivers’ reaction would be if a law enforcement officer told them to show them their cellphone’s content, drivers’ reaction was very different.

“I would think that would be reasonable,” Rodriguez said, in sharp contrast to her response to the first question.  “A lot of people are on their phones [while driving],” she explained, “and it may be the reason for the crash.  So I would give it.”

“It’s pretty good,” said motorist Jose Vasquez about the idea of handing over his cellphone to an officer in order to prove he had not been texting while driving.  “Especially for accidents and stuff like that.”

In fact, the majority of people surveyed unscientifically by PIX11 News said they would not mind turning over their cellphones to police right after a crash as part of an investigation to determine whether or not they had been texting while driving just before the collision.  That’s exactly what New Jersey State Senator James Holzapfel is proposing in a new bill before the legislature.

“I’m actually somewhat surprised that so many people are saying, ‘Yes, I’d turn over that information,'” said Jenny Carroll, an associate professor at Seton Hall Law School, who has practiced or taught in two of three states whose courts have ruled on this issue on which she is one of the country’s foremost scholars.

Carroll said that, based on her experience, people are much less likely to give up their phones to the government in a real life situation.  Specifically, she cited the Fourth Amendment to the U.S. Constitution, which upholds “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” for which a warrant can’t be issued, except “upon probable cause.”

“We as citizens don’t have to put out information to law enforcement unless we choose to do so,” Carroll said.  “We can’t be compelled by the state to do so.”

The two states where the courts have ruled on this issue, and in which Prof. Carroll has practiced, have been split in their rulings.  Ohio’s supreme court ruled that temporary cellphone seizure after crashes is constitutional.  Washington State’s highest court to have ruled on the issue concluded that the practice is unconstitutional.  Florida’s supreme court also deemed the practice unconstitutional.

In New Jersey, the American Civil Liberties Union is calling for Garden State legislators and jurists to go the way of Washington and Florida.  “The legislature cannot authorize searches unless there is probable cause,” the ACLU said in a written statement.  “Therefore, the bill is likely susceptible to a constitutional challenge.”  

In other words, it appears that legal conclusions about this issue are so varied that it’s likely to end up in one place, according to legal expert Jenny Carroll of Seton Hall Law.  

“I think it’s an issue the U.S. Supreme Court will have to weigh in on,” Prof. Carroll told PIX11 News in an interview.  “When [it will hear the case], I can’t tell you, and the outcome I can’t predict, but it will be looked at.”

While she is convinced that the nation’s highest court will weigh in on the subject of police being able to seize cellphones after a car crash, one person who did not weigh in on the topic for this story was State Sen. Holzapfel, the sponsor of the bill.    His press secretary, Kate Cocozza, told PIX11 News that she would ask the state senator if he was available for comment on Monday.  He did not respond to the request.