Lawmakers introduced a bill last week that would make it against the law for drivers to refuse to allow police to search their cell phones without a warrant. The searches would be “for the limited purpose of enabling the officer to ascertain whether the operator violated” Vermont’s law against using handheld electronics while driving, according to the legislation.
The bill’s lead sponsor, Martin LaLonde, sits on the House Judiciary Committee. The committee’s vice chairman and one other member signed on as cosponsors. LaLonde says the bill is his attempt to make Vermont’s distracted driving laws more enforceable.
He said he introduced the proposal after hearing from a constituent who uses Vermont’s roads as a motorcyclist, who “raised a concern that he was seeing still a lot of use of handheld devices. Texting, et cetera.”
After talking to police and doing some research, LaLonde said he was convinced law enforcement officials need a better way to catch people using handheld electronics while driving.
“We have the laws on the books, but we’re having difficulty with detection and enforcement of those laws,” he said. “This [bill] was one idea to try to get at that issue, at that problem underlying the enforcement of these laws.”
LaLonde’s bill would make it so that drivers using Vermont roads would implicitly, as a result of driving on public roads in Vermont, consent to a search of their electronics.
"We have the laws on the books, but we're having difficulty with detection and enforcement of those laws." - Rep. Martin LaLonde
Vermont’s law against the use of handheld electronics while driving went into effect in October 2014, and lawmakers clarified it last year to ensure drivers don’t check their phones while waiting at a stop sign or red light.
The latest bill is designed to make Vermont’s distracted driving laws easier for police to enforce, but civil liberties advocates call it government overreach. Allen Gilbert, the executive director of the Vermont chapter of the American Civil Liberties Union, said the bill has major implications for Vermonters’ right to privacy.
“It might be the definition of what ‘vague and over-broad’ means,” he said. The legal threshold officers would have to meet, Gilbert says, gives police a great deal of discretionary power to search through what could be troves of personal data about a driver.
“I mean a phone is no longer a device used to make a telephone call; it’s a fairly sophisticated computer that also has the capability of making phone calls for you,” he said. “The U.S. Supreme Court in a case that was decided just last term – a case called Riley – they determined that cell phones are categorically different from other kinds of searches, and that a cell phone contains, I’m looking at a quote, ‘a digital record of nearly every aspect of their lives from the mundane to the intimate.’”
Gilbert says the ruling in that case, which was unanimous, shows that courts are sensitive to the privacy issues surrounding law enforcement searches of electronic devices.
He also says the way LaLonde’s bill is written – encompassing any “portable electronic device in the driver’s possession” – cell phones aren’t the only thing police might be able to search.
“That could be a computer that I have in my briefcase or on the seat next to me in my car,” Gilbert said. “In addition to a cell phone I might have in addition to an iPod I might have.”
LaLonde says there’s already precedent under which anyone driving on Vermont roads has given “implied consent” to a search of sorts. He says his proposal is modeled after drunk driving laws. Drivers using Vermont roads are implicitly consenting to roadside breathalyzer testing, and anyone refusing to be tested can be prosecuted for it.
Gilbert says there are key differences between drunk driving and using a cell phone behind the wheel: evidence of the latter offense generally isn’t being digested by the suspect, and police already have a way of getting the information they’d need to prove a driver was using a cell phone.
"It's possible for police already to get this information, but they want to be able to get it in an easier fashion, and we just think that short-circuiting the fourth amendment is not right." - Allen Gilbert, Vermont ACLU
“In this particular instance, the thing that the bill is trying to address – it’s possible for police already to get this information [with a warrant],” Gilbert said. “But they want to be able to get it in an easier fashion, and we just think that short-circuiting the fourth amendment is not right. People have a right to privacy and we have to protect that.”
Police regularly apply for and receive search warrants that allow them to search cell phones, and officers can also get incriminating cell phone use data from wireless carriers.
According to the proposed legislation, officers would be required to have “reasonable grounds to believe that the operator violated” the law against the use of handheld electronics while driving in order to search a driver’s phone – or any other
Gilbert said he thinks it is questionable to give police the power to search such devices just because a police officer determines, without any oversight, that a driver seems distracted.
LaLonde said he's not going to move forward with the proposal, however, if privacy continues to be a concern.
"If we can't implement that without unduly impeding reasonable expectations to privacy then I wouldn't be in favor of putting this forward," he said. "But this is something that I think deserves being fully vetted and fully explored as one possible avenue to help our detection and enforcement of our underlying distracted driving laws."
If the bill becomes law, drivers who refuse to allow officers to search their device would be subject to a fine of $100 to $200 for the first offense, but police would not be empowered to take possession of devices without permission.
The proposal says officers’ testimony about what they found in a roadside search of a driver’s electronic device is admissible as evidence against the driver.
