Forgot your password?
typodupeerror
Cellphones Privacy Transportation Your Rights Online

Proposed NJ Law Allows Cops To Search Phones At Crash Scenes 397

Posted by Soulskill
from the or-they-could-just-ask-the-NSA dept.
New submitter WML MUNSON sends this quote from NJ.com: "License, registration and cell phone, please. Police officers across New Jersey could be saying that to motorists at the scenes of car crashes if new legislation introduced in the state Senate becomes law. The measure would allow cops — without a warrant — to thumb through a cell phone to determine if a driver was talking or texting when an accident occurred. It requires officers to have 'reasonable grounds' to believe the law was broken. There were 1,840 handheld cell phone-related crashes in New Jersey in 2011, resulting in 807 injuries and six deaths, according to the state Division of Highway Traffic Safety. 'Think about it: The chances of the cop witnessing the accident are slim to none,' said the bill’s sponsor, state Sen. James Holzapfel (R-Ocean), who has worked as a county and municipal prosecutor. '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?'"
This discussion has been archived. No new comments can be posted.

Proposed NJ Law Allows Cops To Search Phones At Crash Scenes

Comments Filter:
  • Yes (Score:5, Insightful)

    by OverlordQ (264228) on Tuesday June 11, 2013 @03:41PM (#43977391) Journal

    Then he’s got to do what? Subpoena the service to see if the phone was actively used or not?

    Yes. Yes he does.

    • Re:Yes (Score:5, Funny)

      by bobstreo (1320787) on Tuesday June 11, 2013 @03:42PM (#43977415)

      Then he’s got to do what? Subpoena the service to see if the phone was actively used or not?

      Yes. Yes he does.

      Or maybe they could submit a request to the NSA.

      • Re:Yes (Score:4, Funny)

        by Anonymous Coward on Tuesday June 11, 2013 @04:08PM (#43977733)

        No, that might breach national security. All he needs is a broad warrant that covers all the metadata of anyone communicating inside New Jersey, renewed practically automatically every 90 days. These sorts of things are easy and totally legal, I hear.

        • Re:Yes (Score:5, Insightful)

          by cayenne8 (626475) on Tuesday June 11, 2013 @04:54PM (#43978375) Homepage Journal
          Err....don't most people lock their phones with a code? Nothing here says you have to give the cop the fucking number to unlock the phone if he asks for it.

          He can look at mine all here wants, but he needs a warrant for me to even THINK about unlocking it for him.

          I also disabled notices from showing to the lock screen, so he's not going to see anyone texting me or calls or notices for things either unless I were to unlock it for him/her.

          • by perpenso (1613749) on Tuesday June 11, 2013 @08:19PM (#43980243)

            He can look at mine all here wants, but he needs a warrant for me to even THINK about unlocking it for him.

            Keep in mind that driving is considered a privilege and not a right in the U.S. To get your license you had to agree to certain things, like submitting to a breath analysis if requested. Refuse to do so and they can revoke your license. They will probably handle phone unlocking in a similar manner, you refuse, they revoke you license.

      • I would tend to agree with you – but let me play the Devil’s Advocate.

        Crashing your car is not a crime. Most crashes fall into the fender bender category. In no-fault states they don’t even bother figuring out who cause a multi-car crash.

        Driving your car impaired (drunk, texting, whatever) is a crime. Crashing your car while impaired even more so. You pay for everybody’s repair plus jail time.

        When a cop shows up to determine cause of the crash, how do they determine if the crash was

        • by Jawnn (445279)

          . If a person was texting? How then? Subpoena everybody’s phone on the off chance that there might have been texting? (Not sure if that would clear probably cause.). If not, then would the “no texting” law have any real teeth?

          The absence of skid marks, or a very short skid mark before impact, is compelling evidence of impairment. I have been rear-ended, while waiting in the traffic lane for a pedestrian to clear a driveway, by an idiot who hit me like he never even saw me. Never hit the brakes. He was not drunk. He most certainly was "distracted" and I am totally OK with a LEO "asking" for his phone in that case. I am also OK with his report documenting the circumstances and those being used as probably cause for subpoena.

        • how do they determine if the crash was caused by impaired driving

          The same way he determines whether you just committed a murder, or whether you have anti-government sentiments:

          He doesnt.

          The job of a police officer is not to exhaustively determine that no crime was committed. If he wants to do so, he needs reasonable suspicion and generally a warrant.

      • Re:Yes (Score:5, Insightful)

        by girlintraining (1395911) on Tuesday June 11, 2013 @04:14PM (#43977803)

        Or maybe they could submit a request to the NSA.

        Not really necessary. TFA:

        It requires officers to have 'reasonable grounds' to believe the law was broken.

        Officer A: "Hey Lou, you see that cell phone?"
        Officer B: "Yeah man, I do."
        Officer A: "And the car's wrecked, right?"
        Officer B: "Sure is, Lou."
        Officer A: "Well there you have it. Reasonable grounds. Cell phone in plain site at the scene of an accident. No different than finding a beer bottle in the back seat and 'reasonably' concluding he could have been drunk..."
        Officer B: "Sounds like a plan. Hey, you know we can't ordinarily go into glove boxes without a warrant, but I think I might have heard something vibrating in there!"
        Officer A: "Could be a cell phone. Better open it up and look."
        Officer B: "It sure could man... it sure could... hey, isn't it so much easier not having to ask anyone before we do whatever the hell we feel like these days?"
        Officer A: "Sure is! Checks and balances, audits, constitutional freedoms... they were just slowing us down all these years."

    • by Arker (91948)

      Assuming he has a reason to need that information in the first place.

      Which seems a huge assumption. What happened to figuring out which car actually caused the accident? Do they no longer teach that in police academies these days?

      • Re:Yes (Score:5, Interesting)

        by gnick (1211984) on Tuesday June 11, 2013 @04:10PM (#43977759) Homepage

        What happened to figuring out which car actually caused the accident?

        Doesn't always matter entirely. If the victim of a car accident was breaking the law, but driving fine, he could still be in trouble. We had an incident in town where everyone who saw the wreck was pointing at one person as being at fault, but the guy who got hit was drunk. Guess who got cuffs?

        In this case, the person causing the accident may get some leniancy by pointing out that the person was driving illegally and could have avoided the accident had he not been.

        • Re:Yes (Score:4, Insightful)

          by Arker (91948) on Tuesday June 11, 2013 @04:18PM (#43977845) Homepage

          This is exactly the kind of idiocy that I was thinking of.

          "We had an incident in town where everyone who saw the wreck was pointing at one person as being at fault, but the guy who got hit was drunk. Guess who got cuffs?"

          • by gnick (1211984)

            I didn't say it was right, I just pointed out the way it is. You cause a fender bender, you've got a little bit of trouble to deal with. You get caught drunk behind the wheel, regardless of how you got caught, pose for your mug shot.

            • Re: (Score:2, Interesting)

              by Arker (91948)

              "I didn't say it was right, I just pointed out the way it is. You cause a fender bender, you've got a little bit of trouble to deal with. You get caught drunk behind the wheel, regardless of how you got caught, pose for your mug shot."

              And once that insanity was accepted the slippery slope to the destruction of the 4th amendment was only a matter of time.

        • Re:Yes (Score:5, Insightful)

          by Bill_the_Engineer (772575) on Tuesday June 11, 2013 @04:26PM (#43977941)

          Doesn't always matter entirely. If the victim of a car accident was breaking the law, but driving fine, he could still be in trouble. We had an incident in town where everyone who saw the wreck was pointing at one person as being at fault, but the guy who got hit was drunk. Guess who got cuffs?

          There is a good chance that the correct person at fault was noted on the accident report. Regardless of the cause of the accident, the drunk was still breaking the law and needed to be arrested.

        • by njnnja (2833511)

          I don't know, I have a very strong Bayesian prior that the drunk driver is the cause of an accident when that drunk driver is involved in an accident. Eyewitness testimony is fraught with possible errors so unless there is something stronger like video or a black box recorder I don't think you could convince me that the sober person was the cause of the accident (even with a preponderance of the evidence standard)

          But merely the existence of a cell phone near the accident should mean almost nothing - almos

    • Re:Yes (Score:4, Interesting)

      by Synerg1y (2169962) on Tuesday June 11, 2013 @03:46PM (#43977479)

      And that's only if he has court admissible probable cause to believe that cell phone usage was a factor.

      My counter proposal: Sen. James Holzapfel drives to every single crash scene in New Jersey and personally apologies to the people who crashed for trying to introduce such a law and personally ensures their cell phones are dirt free and sparkly, replacing any broken ones.

      • by houghi (78078)

        And that's only if he has court admissible probable cause to believe that cell phone usage was a factor.

        Admissible probable cause? There was a crash. There was a phone. Done.

        • Admissible probable cause? There was a crash. There was a phone. Done.

          You have a finger, we found a gun three blocks from your house. Obviously that's probable cause to toss your apartment looking for drug stashes.

          When you are able to see how your statement is equally absurd you may rejoin the conversation. Until then please stop trying to erode my rights.

        • Re:Yes (Score:4, Insightful)

          by kwbauer (1677400) on Tuesday June 11, 2013 @05:07PM (#43978543)

          Somebody ran into me while I had a phone on my belt and after everything stopped moving I pull my phone out to let people know I'll be a bit late is probable cause that I am at fault.?!? Serious cognitive issues there houghi.

    • Exactly! Yes they should get subpoenas. Is there some reason why police need to urgently check this at the scene? Worried that a driver would walk away from the crash and ten minutes later be speeding down the road while texting?

      He could at least add a terrorist threat angle to this bullshittery.

      • by suutar (1860506)
        in fact, they should do so anyway. A lot of folks know how to clear their on-phone text/call history, after all.
    • Re:Yes (Score:4, Insightful)

      by Erbo (384) <obreerbo@g[ ]l.com ['mai' in gap]> on Tuesday June 11, 2013 @04:01PM (#43977637) Homepage Journal
      Right in one.

      AMENDMENT IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      • Officer: What is your passcode to unlock your phone.
        Driver: I decline to provide you that information as it would potentially violate my rights as outlined by the fifth amendment.

    • by ruin20 (1242396)
      The cell network can't tell if you're preparing a text message, only if you sent one. Actively using a phone is largely dependant on the phone's state, not the networks. Especially with smart phones. I can read comics, play games, watch videos, and if they are stored locally on the phone, the network would be unable to tell you. I'm pretty sure if I wrecked someone elses car that I would kill all the processes on my phone, may initiate a wipe to factory settings.
      • by Aaden42 (198257)

        So how's the officer to tell if that pending (unsent) message was typed while I was driving, an hour before I got in the car, or while I was standing on the side of the road waiting for police to arrive? Never mind about when I downloaded that cat picture that made me laugh so hard I crashed...

        See also: Forcing defendants to turn over their encryption keys & passwords. My phone auto-locks. Please do try to guess the password (not a piddly four-digit pin) 10 times.

    • Re:Yes (Score:5, Funny)

      by fuzzyfuzzyfungus (1223518) on Tuesday June 11, 2013 @04:09PM (#43977753) Journal

      But, but... Due Process is hard! *tearful face*

      • If law enforcement is unable to figure out how to follow due process, does anyone expect they're smart enough to figure out any of the smartphone operating systems out there?

        "Citizen! Hand me your phone! And then explain to me how to unlock it. Then show me where the text messaging is. Where is the notification section? I have an iphone. What's cyanogenmod? Explain to me the difference between facebook notifications, SMS, google talk, google chat, google voice, e-mail, and twitter. Prove to me th
    • Then heâ(TM)s got to do what? Subpoena the service to see if the phone was actively used or not?

      Yes. Yes he does.

      According to a recent Federal court decision, indeed he does. He must have probable cause.

    • The most reasonable thing to do is to put into law that if the drivers own mobile phones or mobile data service that by procedure they will subpoena the service providers to see it the devices where actively used up to 10 or 15 minutes before the accident, or more time if the time of the accident is hard to be determined, in the same vein that there are done basic checks to see if the drivers are DUI.

  • by h4rr4r (612664) on Tuesday June 11, 2013 @03:41PM (#43977401)

    So what do they do with my locked and encrypted device?

    I surely cannot be compelled to remember the password after being in an accident. The trauma could easily explain why I can't remember.

    • Silly human. They can take blood from you if they suspect you are DUI. What makes you think they can't compel you due to "dangerous texting and driving". Think of the children.
      • They can take blood from you, if they arrest you, using other probably cause to establish the need to arrest. They cannot take your blood pre-arrest.

        • by g0bshiTe (596213)
          I think you meant probable cause, probably.
    • That's ok. If it's anything like my wife's phone, any idiot could see the finger smudges and retrace the sequence that unlocks it. She's practically worn a grove into the screen.

    • by Bill_the_Engineer (772575) on Tuesday June 11, 2013 @03:53PM (#43977561)

      They'll just get the logs from the carrier by subpoena which is what they should be doing in the first place. Unless you were the only person in the car, they will also have to prove that you used the phone while driving.

      The law is totally worthless and up for abuse. First they would need to establish an accurate time when the accident took place. I'm sure an accurate time will be recorded while they wait the 10 minutes for the police to arrive. Better not use the phone after the accident, they may think that the call or text happened just prior to the accident and it would be up to you to prove otherwise (e.g. "I usually call may insurance agent AFTER an auto accident").

      Yet another case of the 4th amendment being torn to shreds: DNA and now possible call records all without a warrant!

      • Assuming the air bags deploy, there is almost certainly a record of the time of deployment in the car's on-board computer (assuming a recent enough car).

    • by isorox (205688)

      I surely cannot be compelled to remember the password after being in an accident. The trauma could easily explain why I can't remember.

      Lucky you don't live in the UK [wikipedia.org]

  • The point... (Score:5, Insightful)

    by frozentier (1542099) on Tuesday June 11, 2013 @03:44PM (#43977443)
    The point that there's almost no chance the cop saw the violation is exactly why they should NOT be able to go through the device. What "probable cause" could they POSSIBLY have to think the phone caused the accident if the they didn't witness the person actually using it?
    • I guess they could ask the other driver if the other guy was on the phone. If they get a yes then they would have probable cause.
      • by MasseKid (1294554)
        If the other driver was aware enough of the other car to see if he was on the phone or not, there probably isn't an accident in the first place. The reasons that accidents aren't more common is because the second driver avoids the mistake of the first driver. The obvious exceptions to this is getting rear ended at a stop light, however looking behind you, inside the passenger compartment (not just recognizing there is a vehicle there), to see if the guy is on the phone or not, is not exactly a common occu
        • If the other driver was aware enough of the other car to see if he was on the phone or not, there probably isn't an accident in the first place.

          Not true, I've seen it often. Fortunately laying on the horn has saved my bacon. Usually I'm stopped (stop sign, parking lot, etc.) or on the highway and some idiot is about to drift into my car.

          Just the other month some young woman in an Escalade almost plowed into me in a parking lot. I couldn't move my car because there were people in front and behind me.

          She was coming at me perpendicularly, looking down at her phone just plowing forward, driving THROUGH the parking spaces like they weren't even there.

          • by Golddess (1361003)

            I couldn't move my car because there were people in front and behind me.

            She was coming at me perpendicularly, looking down at her phone just plowing forward, driving THROUGH the parking spaces like they weren't even there.

            Makes me wonder how many pedestrians she nearly clipped...

    • by chrismcb (983081)

      What "probable cause" could they POSSIBLY have..

      None. That is why they are introducing this law. IF they had probably cause, they wouldn't need this law.

  • by Lord Apathy (584315) on Tuesday June 11, 2013 @03:46PM (#43977485)

    I thought the Supreme Court had all ready ruled that the pigs can't search your phone with out a warrant.

    • by OverlordQ (264228)

      IIRC that was the Florida Supreme Court, doesn't really affect New Jersey although it probably gives some good talking points to laywers for a case.

  • Not very usefull (Score:5, Insightful)

    by Nidi62 (1525137) on Tuesday June 11, 2013 @03:50PM (#43977537)

    Unless you can accurately identify exactly what time the wreck happened, there is no way to tell if someone was texting when the crash happened. They sent a text a minute or 2 ago? "Officer, I sent that while stopped at a red light", or "I was in a store, I sent that text before I drove off in my car". If you get a text right after the crash, better not read it, as the police could assume that you were reading the text when you wrecked.

    Also:

    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?'"

    Yes, that is what he should do. You know, actual police work. What exactly constitutes "reasonable grounds" to search the phone? The phone is laying in the car? The person has the phone in their hand? Ever pass a wreck on the side of the road? People always have their phones out to call for a wrecker, or their insurance, or their family. Unless the person flat out says they were looking at their phone, I cannot think of any type of evidence that would provide "reasonable grounds" to suspect phone use.

    • Unless you can accurately identify exactly what time the wreck happened, there is no way to tell if someone was texting when the crash happened.

      Given the ever-increasing level of techology in cars, I'd be surprised if the on-board computer doesn't have a record of when the crash occurred.

      • by Nidi62 (1525137)

        Unless you can accurately identify exactly what time the wreck happened, there is no way to tell if someone was texting when the crash happened.

        Given the ever-increasing level of techology in cars, I'd be surprised if the on-board computer doesn't have a record of when the crash occurred.

        If they have the time to look at the on-baord computer, then they have time to get a warrant for the phone records

  • Bluetooth? (Score:5, Interesting)

    by RedShoeRider (658314) on Tuesday June 11, 2013 @03:51PM (#43977551)
    Yes, officer, I was on the phone. On my NJ-approved Bluetooth-based hands-free communication device.

    Oh, you want to see the headset? Sorry, it's integrated into my car.

    The text message? My car reads them back to me though the stereo. I wasn't looking at the screen.



    Cops have a hard enough job, and there are already enough laws on the books. More laws do not fix stupidity, nor does increasing the punishment afterward fix the damage that was done.
    • While I realize that in many places hands-free is still allowed (here too) there is quite a bit of research that shows that it's still a significant distraction to the driver.

      I'd personally be fine with a rule that if a vehicle is travelling above a certain speed (20mph for example) then they shouldn't be allowed to talk on the phone at all. Might be hard to enforce though.

  • by CanHasDIY (1672858) on Tuesday June 11, 2013 @03:51PM (#43977553) Homepage Journal

    Find where: jobTitle= (cop || police officer)

    Replace with: jobTitle= (judge && jury && executioner)

  • There's a difference between the proper duties of a police officer and what is described here.

    A police offer exists to serve and protect. This describes procedures to fish for charges. Society has naught to gain from giving cops the authority to search mobile phones without a warrant.

    • A police offer exists to serve and protect.

      Not according to the SCOTUS [nytimes.com]

    • by dywolf (2673597)

      probably cause. its even in the 4th amendment.
      checking a phone at the scene of an accident to determine if its a relevant factor inthe accident is well within in.
      it is a narrow scope, so scrolling though vacation photos wouldnt be covered. but the general idea of checking for texts or messges etc that match the time of the accident is well within probable cause.

  • by erroneus (253617) on Tuesday June 11, 2013 @04:03PM (#43977675) Homepage

    All those anti-gun people should start realizing that if you want a gun-free society, you should start with disarming police officers [cbslocal.com] first because they seem to be at least as large a threat as civilians... and in my opinion, more of a threat since they seem to have a much more 'entitled' sense of firearm use.

    And if you agree we can't disarm the police, why should the remaining population be rendered helpless against the police and others? Sorry, but I just can't get past the natural right to self-defense and self-preservation.

    Anyway... off-topic right? But when I hear "NJ Cop" this story comes to mind. As for searching phones at the scene? Sorry. The best they should be able to do is request the phone number of their device and let them subpoena the phone company for activity on the phone "on or about the time of the accident." Should be perfectly acceptable and will yield far more accurate reporting.

  • If the collision has been determined to be an accident, then by definition the driver isn't at fault [nytimes.com]. And if the driver isn't at fault, then what's the purpose of searching the driver's phone?
    • What about when the pig is searching my phone at the accident he comes across the text my brother sent me about the 5 kilos of weed he scored? Or the notes I made when I buried the body. or the bank account numbers to my secret millions that I've stolen?

  • by whoever57 (658626) on Tuesday June 11, 2013 @04:07PM (#43977721) Journal

    This tends to re-inforce my idea that politicians are generally objectively stupid -- they probably have a high social intelligence, but very poor analytic skills.

    In this case, this is probably the worst time to introduce such a bill. Wait until the furor about the NSA has died down (the US population has a short span of attention for such issues) and then introduce it. But right now? Pure, unbridled stupidity.

  • by tekrat (242117)

    And after he thumbs through your cell phone, he can arrest you, and then take a DNA sample. All without your consent.

    Land of the free? Who are we trying to kid? nobody takes it seriously.

    I've just understood "immigration reform" -- make it so abysmal to live here that even the Mexicans don't want to cross the border anymore.

  • 1) There's no mention in the summary or TFA that the cell phone will be perused at the scene of the accident. Just that it will be confiscated.
    2) Anyone else seen "Air Crash Investigation"? The investigators check all data available for the cause of accident.

    That second one is a killer. If I'm driving a Toyota and I hear that there's been lots of accidents in other Toyotas, I want to know the cause of those accidents. Toyota brakes failing or idiots texting.
  • Check that, FUCK no. As a new NJ resident this is stupid. What if the text was "written" hands free using Siri, etc? How exactly do you know crash times? What if it wasn't a deadly accident and someone made a phone call right after. It could be argued that you were on the phone before the crash, depending on whose clock you time the accident on. What if your cellphone has a password? Can they then compel you at the scene to give it up? I wouldn't. :P
  • by organgtool (966989) on Tuesday June 11, 2013 @04:30PM (#43978005)
    In addition to all of the good comments posted above, it is still possible to make calls and send text messages legally through bluetooth headsets, car synchronization systems, etc. And there is currently no way to prove you were using the headset/sync system during the time of the crash which means that there would be strong evidence that you were doing something illegal and weak/non-existent evidence that you were doing it legally.
  • How will this prove or disprove anything, what if I say get in an accident and prior to their arrival I say delete my text and call histories. I realize they can just get a warrant for my records but still then they would have to do it legally.

    Perhaps they just gave me an idea for a new app for iPhone and Droid, with 1 button push you can wipe your phones call and text history, I'll call it the FUCK YOU NJ POLICE app.
  • I am as rabidly anti phone use in the car as anyone you'll ever meet. But this is way beyond reasonable.
  • Subpoena the service? Yes, absolutely that is what the officer has to do. Because in the time it takes him to arrive at the scene, the driver could have deleted his logs, making the exercise misleading and useless. Sorry, but that's the way it goes when you pass these kinds of laws that are virtually unenforceable.

  • >> then heâ(TM)s got to do what? Subpoena the service to see if the phone was actively used or not?'"

    Wait make cops follow due process? Thats outrageous. Whatever next...

An age is called Dark not because the light fails to shine, but because people refuse to see it. -- James Michener, "Space"

Working...