Proposed NJ Law Allows Cops To Search Phones At Crash Scenes 397
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?'"
Yes (Score:5, Insightful)
Yes. Yes he does.
Re:Yes (Score:5, Funny)
Yes. Yes he does.
Or maybe they could submit a request to the NSA.
Re:Yes (Score:4, Funny)
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)
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.
You refuse to unlock, they revoke you license (Score:4, Informative)
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.
Asserting your rights is not without consequences (Score:3)
"You have the right to remain silent..." ring a bell with you?
"Driving is a privilege not a right", ring a bell? They will probably revoke your license if you refuse, as various states may do with respect to breath analysis. Asserting your rights is not always without consequence. Keep in mind that you entered into a "contract" with the state to obtain your "driving privilege". That contract obligates you to do certain things upon request.
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"Driving is a privilege not a right", ring a bell? They will probably revoke your license if you refuse, as various states may do with respect to breath analysis. Asserting your rights is not always without consequence. Keep in mind that you entered into a "contract" with the state to obtain your "driving privilege". That contract obligates you to do certain things upon request.
Reminds me of what happened to Amanda Bynes, the actress. A cop pulled her over on suspicion of being under the influence. She claimed that was trying to escape the paparazzi which was even then clicking away. The cop insisted on a field test and she refused, stating that she would be willing to submit a blood test at the station instead. The cop insisted and she continued to refuse, citing the paparazzi presence and refusing to 'perform' in front of them. The cop didn't care and she got arrested and as the
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If someone died or was severely injured in an auto accident then I don't think that the burden for a warrant should be too hard to come by, and they should only need to see the window in which the vehicle was moving just before the accident, and if there were any end-user applications transmitting data outbound, like SMS or e-mail or the l
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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
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. 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.
Re:Yes (Score:4, Funny)
Wait so now they are checking our pants?
I thought this was about phones not our under pants.
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That's why I drive Comando!
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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:4, Informative)
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Actually, many (most?) states there are fewer hassles about a non-LEO citizen shooting someone than for LEOs. As long as the shooting is justified; like stopping an immediate threat of death or great bodily harm.
So, no cops can't legally shoot people that I am not also legally able to shoot.
As for LEO exemptions... The post you responded to was correct but that doesn't negate the point I think g0bshiTe was trying to make. If it is so dangerous, why are cops doing it.
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The cop "investigates" by trying to identify people who are actively breaking that law. Cops do not have a general power to do investigation without a court order or at least reasonable cause.
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In my state – and I think most states – cops are required to investigate all car accidents that cause more than $2,500 (I think that is the number) in damages. So almost any fender bender. Primarily this is to determine fault, create a paper trail for the insurance company (to cut down on insurance fraud), etc.
While at the scene they try to figure out what was the cause. Poor design of signs, wet road, accident, one of the drivers being blind drunk. I am not saying that they are going to start a
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I'm not saying his general point is wrong, I'm saying he's fearmongering by over exaggerating the actual law's penalties for texting (speed ticket grade) in which he is offensively wrong.
And.. you don't really understand the difference between a DUI and a speeding ticket do you? Your rights are quite different in each respective scenario.
Putting texting in the same category as DUIs is equally ignorant and stupid.
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There are studies showing that the impairment to driving are similar with both cases/activities.
Frankly, most people I've seen, self included, can drive better after a few drinks than they can texting and driving, but that is purely anecdotal.
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Putting texting in the same category as DUIs is equally ignorant and stupid.
As the other two posters above have pointed out, texting while driving is demonstrably as or more dangerous than driving while impaired.
With a DUI, you get possible jail time, heavy fines, loss of driving privilege, court mandated counseling, etc. If you get a ticket for texting while driving, it's a $50 ticket and you're on your way.
You can argue that DUI penalties are too extreme all you want, but you can't do so before you consider how lax the penalties are for texting while driving.
effectively it is, though perhaps not legally (Score:2)
There are numerous studies that show that a driver who is texting is at least as degraded in terms of driving ability as one who is just over the legal limit for alcohol.
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Before arguing, you should understand what impaired driving actually refers to http://en.wikipedia.org/wiki/Driving_under_the_influence [wikipedia.org] .
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According to that site, eating = impaired driving as well: http://www.ncbi.nlm.nih.gov/pubmed/22931176 [nih.gov]
Also the first wiki link calls it distracted driving, which is different from impaired, so lets stick with that.
You can educate yourself on why you're a horrible driver at: http://www.distraction.gov/ [distraction.gov]
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In that case, we'd better give cops the authority to perform exploratory laparotomy surgeries too, so they can check for the presence of recently eaten food.
Re:Yes (Score:5, Insightful)
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."
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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)
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)
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?"
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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.
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"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)
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.
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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)
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.
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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)
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.
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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.
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Re:Yes (Score:4, Insightful)
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.
Fifth Amendment (Score:2)
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.
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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)
But, but... Due Process is hard! *tearful face*
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"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
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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.
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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.
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It's sort of normal to expect a tug of war between law enforcement and the judicial system. Ie, the law enforcement wants broader powers and the judicial system wants to keep law enforcement in check. It sort of works most of the time, except when the judicial system drops the ball and stops pulling on the rope.
OK,here it is good luck with the encryption (Score:4, Insightful)
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.
Re: OK,here it is good luck with the encryption (Score:2)
Re: OK,here it is good luck with the encryption (Score:5, Informative)
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.
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In Texas, and I suspect other states, refusal to blow into a breathalyzer is grounds for arrest and then forcible draw of blood. The probable cause for this is that you refused to breathe into a breathalyzer.
True in Arizona. Plus refusing to take a sobriety test (they give you a list of options, so you have to refuse all of them) is an automatic 1 year license suspension even if you are not convicted of a DUI. And then they can still arrest you and/or a judge will issue a warrant for your blood.
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I think it's because these states were incorporated after the constitutional convention, and thus the bill of rights doesn't apply to them.
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In Texas, and I suspect other states, refusal to blow into a breathalyzer is grounds for arrest and then forcible draw of blood. The probable cause for this is that you refused to breathe into a breathalyzer.
At the very least, "probable cause" should mean that it is more likely than not that the search will turn up incriminating evidence sufficient to justify the violation. I would push for "beyond reasonable doubt" myself—or else hold those responsible for the search accountable for false arrest, assault, theft, etc. in the event they fail to prove their case, just as if the search was unauthorized and they were acting on their own as private citizens.
Is there reason to think that a blood test would show
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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.
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Hmmm, wouldn't that be hacking or unauthorized access?!?
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Re:OK,here it is good luck with the encryption (Score:5, Insightful)
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!
accurate time not hard (Score:2)
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).
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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)
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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.
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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...
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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.
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The thing about phone records is that they distinguish between calls to 911 and calls to Susan.
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yeah
say 911 call comes in at 10:23am
cell phone records show one of the drivers was on a 30 minute long call ending at 10:22 and the location data shows his phone moving at 70mph
Warrant? (Score:3)
I thought the Supreme Court had all ready ruled that the pigs can't search your phone with out a warrant.
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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)
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.
time of wreck should be doable (Score:3)
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.
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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)
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.
hands-free not actually safer (Score:2)
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.
Find/Replace (Score:4, Funny)
Find where: jobTitle= (cop || police officer)
Replace with: jobTitle= (judge && jury && executioner)
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http://www.pslweb.org/liberationnews/news/lapd-terrorizes-community-in.html [pslweb.org]
Regardless of how you feel, it can and does happen.
There's a difference (Score:2)
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.
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A police offer exists to serve and protect.
Not according to the SCOTUS [nytimes.com]
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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.
I'm more concerned about NJ cops shooting me (Score:4, Insightful)
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.
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Does England also have a 2nd Amendment? Do citizens have as many guns as they do in the U.S.?
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You should probably disarm the criminals first.
Unreasonable search and seizure (Score:2)
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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?
Stupid politicians. (Score:3)
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.
And after... (Score:2, Troll)
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.
Give the guys a break ... (Score:2)
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.
No. (Score:2)
No Thanks! (Score:3)
Ok due process here (Score:2)
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.
Idiocy (Score:2)
Subpoena? Yes! (Score:2)
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.
...and why not? (Score:2)
>> 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...
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Any passenger in the car at the time could testify that you were not using the phone
Presuming the accident did not cause them to become unconscious / not alive.
FWIW, the justice system is built on the concept of "innocent until proven guilty," not the other way around.
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And he'll shoot you in the fucking dick for "resisting arrest."
FTFY