Proposed Bill Allows Warrantless Cell Phone Searches

Proposed Bill Allows Warrantless Cell Phone Searches

By SANDY CHO and FINNE MURPHY

On Jan. 8, Senator Martin LaLonde (D) of South Burlington introduced bill H.527, an amendment to the 2014 ban on using electronic devices while driving on the highway. This bill allows policemen and other law enforcement officers to inspect phones and other electronic devices without a search warrant. Usually issued by a judge or higher legal authority, search warrants are normally required for officers to perform intrusive searches otherwise violative of the suspect’s privacy.

If the bill passes, Vermont police officers may take an electronic device away from a driver and check any text messages and other phone logs in order to determine if it had been in use while the vehicle was in motion.

According to the bill, anyone driving on the highway in Vermont “impliedly consents to an enforcement officer’s search of his or her portable electronic device” in order to see if the driver was distracted. If the driver does not agree to the search, he or she will be charged as if he or she had actually been using the device illegally. This includes texting through voice-activated applications, which is considered just as distracted by the Vermont Highway Safety Alliance.

To some extent, the search is comparable to a breathalyzer test. Just as Vermont drivers are implied to have given consent to a phone search, they are implied to have given consent to a breath test if an officer suspects them of driving drunk. Refusing to submit to a search can be introduced as evidence in a criminal proceeding. However, because blood alcohol content is time sensitive, and phone records are not, critics argue that the new bill overreaches.

“There’s no need to break down oneof the most fundamental protections we have in our lives,” said Allen Gilbert, Executive Director of the Vermont chapter of the American Civil Liberties Union, in an interview with the Burlington Free Press.

Warrantless searches are most concerning when a driver appears distracted but was not actually using a mobile device. These ambiguous circumstances underscore the weaknesses of the bill, adding to the likelihood that it will be rejected as unconstitutional.

The Supreme Court declared in 2014 that it is unconstitutional to search a mobile device without a warrant, due to the troves of personal information contained in such equipment. Nevertheless, Vermont would be the first state to introduce a bill bypassing the requisite search warrants on the road.