PART II – PROVE IT
Officer: Ma'am do you know why I pulled you over?
Motorist: No sir, I truly don't.
Officer: You were texting and driving.
Officer: May I look at your phone?
Any time this subject comes up, inquiring minds inevitably want to know just how can law enforcement prove that someone is texting and driving? Others want to know how they should handle the situation to best protect their legal rights. As it turns out, much of what law enforcement may use against a motorist in a texting while driving case is what a driver unwittingly, "voluntarily" gives them. A quick brush up on a driver's legal rights is recommended for those who desire to best protect their legal rights in these situations. Ultimately, there are three primary categories of evidence that law enforcement will attempt to use in texting while driving investigations.
As news articles have chronicled, law enforcement is stepping up their game in order to catch motorists who text and drive. They are even going undercover as construction workers or other civilians along the side of the road. Is that panhandler really looking for a philanthropic handout or is it police officer looking to hand out a citation for texting and driving?
Whether undercover or not, the first piece of law enforcement’s evidence against an alleged texting driver are the observations of the law enforcement officer. As with any other criminal offense, law enforcement may testify to their observations made during an investigation. If the officer can credibly communicate his/her observations to support the accusations against the motorist and the judge or jury believes them, those observations alone may support a conviction.
While officer or witness observations are an important piece of the proof puzzle, it is unlikely that law enforcement will attempt to rely solely on their observations. It is difficult to observe what a motorist is doing with their phone even if you are sitting right next to them in the vehicle, not to mention attempting to look into a vehicle as it drives by. This especially true given the fact that there are a number of exceptions to cell phone use while driving as we discussed in Part I. Sure, the motorist may have been looking at their phone but who is to say that they were not looking up a phone number or using their navigation function lawfully. That being the case, the minute law enforcement stops a vehicle the officer will be conducting an additional investigation.
People like to talk. People especially like to talk when they are nervous or scared. Anytime a motorist is speaking to law enforcement on the side of the road during a traffic stop, anything the motorists says can and will be used against them in a court of law. No, generally speaking, your Miranda rights don't have to be read to you during a normal traffic stop because it is not considered a "custodial interrogation." Many conversations in a texting while driving investigation will likely go like this:
Officer: You were looking at your phone when you passed me back there. Were you texting?
Motorist: Yeah, sorry. (Sheepish grin or batting of the eyes).
Officer: Please step back to my patrol vehicle, I have a citation for you to sign.
We do not like confrontation and many believe the law will take it easier on them if they just tell the truth. Some may think that they will walk away with simply a stern warning if they are just honest. Sometimes this is accurate, sometimes it is not. It depends entirely upon the situation, the facts of each case and the police officer. A motorist will have to make their own cost-benefit analysis to each situation and decide for themselves how they want to handle the situation. That all being the case, you are never required to say or admit to anything that can be used against you in a criminal prosecution. A traffic citation is a criminal prosecution.
A motorist has an expectation of privacy in the contents of their cell phone and consequently, law enforcement may not just look through a person's cell phone without first obtaining a search warrant or owner's permission to do so. Interestingly, the new Iowa law appears to prohibit law enforcement from confiscating a motorist’s cell phone to investigate violations of this law.
Iowa Code section 321.276(3) states: "Nothing in this section shall be construed to authorize a peace officer to confiscate a hand-held electronic communication device from the driver or occupant of a motor vehicle." As stated previously though, explicit permission is always an acceptable way for law enforcement to obtain evidence. The legal phrase is "consent." If you voluntarily hand over your phone to law enforcement when you are suspected of texting and driving, you will more than likely be stuck with what they observe being used against you.
It is not likely that law enforcement will take the time or effort to obtain a search warrant in ordinary texting while driving investigations. However, there has been an increasing trend of requesting and obtaining search warrants for phones in accident investigations that result in serious injury or death. These investigations are understandably much more serious and it is standard practice to at least attempt to search a driver's phone. In order for such a warrant to be valid however, the requesting officer must be able to articulate how and why there is a reason to believe that the phone was a factor in the accident occurring. Witnesses observations and admissions by the driver are key components to a requested search warrant. Absent an adequate showing that phone use was a factor in the accident, a search warrant authorizing the search of a cell phone may be held invalid.
Our cell phones tend to be our lifelines these days. Cell phones, especially smart phones contain information and data regarding our most private activities. Whether knowingly or unknowingly, these devices keep track of every time we access our devices, with whom and how we communicate, where we have been, how long we have been there, and the list goes on and on. Each motorist will have to make their own decision regarding whether or not they are willing to let law enforcement peruse their cell phone. Some may say it is not worth the conflict to tell law enforcement to "take a hike" while others will protect their privacy at all costs. Many may want to know what is really at stake before they decide how they want to handle the situation if it should ever arise. Those are the ones that will want to stay tuned for Part III – The Consequences.