Many states have made it illegal to use a cell phone while driving, but it’s often difficult for police to prove an offense was committed unless they see a driver with his phone in hand. And if a driver refuses to admit phone use behind the wheel, Fourth Amendment protections require the cops to get a warrant before looking through the phone for proof.
In Vermont, that privacy measure may be on its way out. A bill in the state legislature would give police permission to conduct warrantless cell phone searches by the side of the road:
Mission creep, as it turns out, is not confined to military operations. The Vermont House is considering legislation that seeks to enhance enforcement of the state’s 2014 ban on distracted driving by permitting police to search drivers’ portable electronic devices without a warrant. It is hard to overstate how bad an idea this is, no matter what difficulties law enforcement authorities are currently experiencing in cracking down on those who are foolish or reckless enough to engage in texting or making cell phone calls while driving.
The potential for abuse here is huge, and that worry is compounded for Vermonters by the fact that the bill’s sponsor, State Representative Martin LaLonde (D-South Burlington), says he hasn’t “really thought about” (actual quote) exactly what his own proposal would allow police to do.
Let’s do that thinking for him.
First, the bill itself doesn’t specify cell phones; it says “handheld use of portable electronic devices.” That’s a broad category that could easily include laptops, tablets, and e-readers. All would be fair game for warrantless roadside searches in Vermont if a police officer arbitrarily decides you looked distracted behind the wheel.
Second, the bill announces that “a person operating a motor vehicle on the highways of this State impliedly consents to an enforcement officer’s search of his or her portable electronic device.” Uh, no. Driving in Vermont does not—or should not—mean automatic surrender of your electronic privacy. This is a huge overreach of government authority, a massive trade of liberty for a potentially minor gain in security.
Third, the bill also says that the search would be for the “limited purpose of enabling the officer to determine a violation of distracted driving laws”—but come on. If a cop is scrolling through your texts looking at the time stamps, he’s going to be able to read the content of those texts, too. He’s going to be able to see embarrassing personal messages—or texts that mention things like, say, your marijuana use.
Does anyone really believe this authority won’t be abused or used as an excuse to harass drivers?
And fourth, though the bill would allow drivers to refuse a search, refusal means an automatic traffic violation with the same price tag as distracted driving itself. In other words: either give up your constitutional right to privacy or you will definitely be fined a minimum of $100.
“Yes, a warrantless search is easier, but ease of access by no means trumps the Constitution’s prohibition against unreasonable search and seizure,” a Vermont newspaper editorialized about the bill. “Even the current U.S. Supreme Court, which is hardly unfriendly to the claims of law enforcement, has unanimously recognized that portable electronic devices contain such a trove of personal information that they fall squarely within the Fourth Amendment’s protections.”
Distracted driving is dangerous. But it’s not grounds for throwing out the Fourth Amendment.