A couple weeks ago, news agencies across the country began to report on new device called the Textalyser and how police departments might benefit from such a device.  For those who did not read about it or could care less, please allow me to educate you on the subject.  The Textalyser is to be used after a motor vehicle accident when distractive driving, i.e. use of a cellphone, might be a cause of said motor vehicle accident.  The Textalyser is a roadside device and will allow the police to essentially scan your cellphone to determine whether or not a person sent messages or made calls at the time of accident.  The Textalyser only downloads metadata and would not download any content of conversations via text, email, voicemail, contact information, and photos.  I can already hear conspiracy theorists going apes shit over the idea that police can “only download metadata” and not any other cellphone content.

Alright now that we have a basic idea of what the Textalyser is and how it can be used, let’s takes a look a scenario where a Textalyser is used at a motor vehicle accident.

Billy Manziel was driving down the roadway and texting Jerry Jones about his desire to play football for the Cowboys.  Not paying attention, Billy rear ends a motor vehicle in front of him causing moderate damage.  Billy gets out of the car, and with fear in his eyes, he sees that he has rear ended Cleveland Browns legend Ozzie Newsome.  Newsome checks out the damage to his car and looks at Billy in disgust for not only hitting his car, but for also being a shitty quarterback.  I personally believe there is more disgust for the latter and not the former.  Moving on with the story, Newsome calls the cops.  Police show up and begin to investigate the crash.  Believing that Billy was texting while driving, the police asked Billy if they could scan his cellphone to determine if his cellphone was in use at the time of the accident.  Billy, however, tells the police officers that they cannot scan his phone and they would need a warrant.

Let’s stop the story with Billy refusing to allow the police to scan his cellphone.  At this point, do the police officers have any more backing to demand that Billy turn over his cellphone?  What about downloading data without a warrant?  Will courts say that scanning metadata is a violation of the Fourth Amendment?  I believe courts will be looking at implied consent laws and laws surrounding warrantless searches of cellphones to answer some of these questions.  To make things simple, I will address implied consent law then possible Fourth Amendment issues.

Implied Consent Law

Do you operate a vehicle on roadways, highways, and the like in Ohio?  Well guess what, by doing so you have given consent for the state of Ohio to administer a chemical test on you if you are suspected of Operating a Motor Vehicle under the Influence (OVI).  This chemical test can be done through a breath, urine, or blood.   Under Ohio law, you may refuse this chemical test, BUT you will be facing an automatic administrative license suspension.  For a first time refusal of said chemical test, the Ohio BMV will issue you a one year administrative license suspension.  Ouch!

But implied consent law gets so much better!  Let’s say you are out driving and get stopped for suspicion of OVI.  Police officer asks for you to submit to a chemical test to determine your blood alcohol content (BAC).  And let’s say that you have an OVI conviction on your record from ten years ago and there is no way that you are submitting to a chemical test this time around!  Well, unfortunately for you, that OVI from ten years ago is about to bite you in the ass because now you are looking at a secondary charge for refusing to submit to a chemical test within the within the past twenty years of your previous OVI conviction!  To make matters even lovelier for you, this secondary charge is a first degree misdemeanor.  Whiskey Tango Foxtrot, over!

Ohio is not the only state in the Union with implied consent laws or no refusal laws.  All fifty states have implied consent laws with very similar language and penalties.

In New York, legislators are looking to similar implied consent language with regards to the Textalyser.  Under Evan’s Law, named after Evan Lieberman who died in a car crash resulting from distractive driving, all drivers “shall be deemed to have given consent to field testing of his or her mobile phone by a police officer.”  If a person refuses to turn over their cellphone, they will lose their license.

Personally, I think implied consent laws are a punch of bullshit.  They are “a damned if you do and damned if you don’t” situation.  Essentially, under implied consent laws you are forced to either provide evidence that aids your own prosecution or automatically face punishment for not complying without any due process and before you are convicted of a crime!

This very issue is currently in front of the United State Supreme Court.  The U.S. Supremes recently heard arguments on the constitutionality of punishing suspected drunk drivers for refusing to submit to breath or blood testing when stopped by police.  Depending how the Supremes rule on implied consent, the Textalyser could meet its first hurdle to mandate that drivers give up their cellphones to the police or face penalties.  If implied consent laws are found to be bunk with regards to OVI, I have no doubt defense attorneys will argue that implied consent laws for the Textalyser would also be unconstitutional.

For fun, let’s say that implied consent law is out.  Would the information or metadata being transmitted from the phone to the Textalyser require a warrant?

Warrantless Search of a Cellphone

Back in 2014, The U.S. Supremes took on the issue of whether a police officer may, without a warrant, search digital information on a cellphone seized from an individual who has been arrested.  Riley v. California, 573 US ___(2014).

In Riley, the court goes into detail about the modern day use of cellphones, how they are a pervasive and insistent part of our daily lives, and even quips about how a visitor from Mars might conclude that cellphones are an important feature of the human anatomy.

The court eventually holds that, “modern cellphones are not just another technological convenience.  With all they contain and all they may reveal, they hold for many Americans the privacies of life.  The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.  Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple – get a warrant.”

Now it is important to note that Riley discussed search of a cellphone that is seized due to an arrest.  I would say that a majority of citations issued by police officers to an at fault party in a car accident are minor misdemeanor traffic citations.  Hence, there is no arrest.  An argument could be made that Riley does not apply to such a situation.  Even so, defense attorneys will be using Riley to combat police officers using the Textalyser.  I think there is room to argue that metadata might show more than just the cellphone was in use at the time of accident.

Another interesting point to consider is that the information the Textalyser would download is safely stored with the user’s cellphone provider and would not be destroyed.  In my mind, the Textalyser is pointless because a police officer can request a warrant for said metadata when he returns to his post and never fear that said metadata would be destroyed.

Based on these potential arguments, Billy Manziel might have some ground to stop the search of his phone without a warrant and have no fear of his license being suspended.  Maybe he can figure out how to play pro football now.

How often have you been behind a person that is driving like a complete jackass?  Said person is slowing down, then speeding up, then crossing the center line, and is not paying attention to the traffic signals.  So when you finally pass said jackass and look over to the person to yell at them, you see that they are texting!  Eyes are clued to their stupid cellphone!  I am becoming pissed off just thinking about it.

Listen, we have all used or looked at our phones while driving our vehicles and that is a big problem.  My wife gets mad when she calls my phone ten times in a row while I am driving.  I refuse to answer it for two reasons, 1) no need to distract myself while driving and 2) I really don’t want to turn down my music in order to listen to my wife ask me what I want for dinner.   I tell my wife every time that I want lobster.  I have yet to have lobster for dinner.

Alright so here is what Ohio law says about Driving While Texting (O.R.C. 4511.204)

No person shall drive a motor vehicle on any street or highway while using a handheld electronic wireless communications device to write, send, or read a text-based communication.

BUT the following does not apply to the above:

1)         A person using a handheld electronic wireless communication device in that manner for emergency purposes.  Think calling 9-1-1, police, EMT, fire department, etc.

2)        A person driving a public safety vehicle who uses a handheld electronic wireless communications device in that manner in the course of the person’s duties.

3)        A person using a handheld electronic wireless communications device in that manner whose motor vehicle is in a stationary position and who is outside a lane of travel.

4)        A person reading, selecting, or entering a name or telephone number in a handheld electronic wireless communications device for the purpose of making or receiving a telephone call.

5)        A person receiving wireless messages on a device regarding the operation or navigation of a motor vehicle; safety-related information, including emergency, traffic, or weather alerts; or data used primarily by the motor vehicle.

6)        A person receiving wireless messages via radio waves;

7)         A person using a device for navigation purposes.

8)        A person conducting wireless interpersonal communication with a device that does not require manually entering letters, numbers, or symbols or reading text messages, except to activate, deactivate, or initiate the device or a feature or function of the device.

9)        A person operating a commercial truck while using a mobile data terminal that transmits and received data.

10)      A person using a handheld electronic wireless communications device in conjunction with a voice-operated or hands-free device feature or function of the vehicle.

Wow…ten exceptions to the Driving While Texting law.  After all, checking the weather alerts on your smart phone is more important than watching the damn roadway.  If there are dark skies all around and there is a torrential downpour you don’t need to check your phone to figure out if there are any possible weather alerts.  Get off the road, seek shelter, and then check your smartphone.  But what the hell do I know.

I recommend that you utilize the third exception of getting off the roadway to text your friends, look at a funny video on Facebook, or take a car selfie for Instagram.

In closing, please don’t text and drive!  If it is an emergency text or call, pull your car over if you are able to.  Remember that you are driving a 4,000 pound weapon.

“Help! I’ve fallen and I can’t get up!”  Remember that television commercial?  Poor old little lady on the ground trying to reach for the phone but she just can’t find the strength to pull herself up.  Thank God she had that little red button from Life Line around her neck to call someone for help.  The product is still only $19.99 for the first twenty callers.  Hurry as supplies are limited.

Now take the above scenario, but replace the little old lady with a heroin addict who just overdosed and add an overzealous police officer looking for any excuse to search a home.  That, my friends, is the story behind State v. Levengood, 2016-Ohio-1340.

In Levengood, Galen Levengood was found unresponsive on the kitchen floor of his apartment by his roommate Sierra Burger.  Being a decent roommate, Burger called 911 for medical help.  New Philadelphia Police and E.M.S. responded.

Patrolman Clark arrived on scene a short time later and found E.M.S. working on Levengood.  Ptl. Clark testified that he could see into the kitchen but not into any bedrooms.  At that point, Ptl. Clark decided to do a protective sweep of the residence for the safety of the officers and E.M.S.  The purpose of the protective sweep was twofold according to Ptl. Clark.  Specifically, Ptl. Clark wanted to determine whether anyone else was in the apartment 1) who might pose a threat to the officers and E.M.S. and 2) who might be injured.  Ptl. Clark proceeded to look anywhere in the apartment a person might be found.

While walking around the apartment and walking into every bedroom, Ptl. Clark observed a brown powdered substance on a counter in the bedroom by a couple of needles.  Turns out this brown substance was that black tar known as heroin.  And the crowd goes silent from shock and awe!

Alright, so good ole Levengood gets indicted and fights the case.  Mainly the whole searching of his apartment while he was hanging out with either God or the devil, or both, was complete bullshit according to Levengood.  The trial court agrees with Levengood and suppressed the heroin evidence.   Upset that they did not get their way, the state appeals the case.

The appellate court opens up with that Ptl. Clark’s warrantless entry into Levengood’s apartment was justified.  This warrantless entry is known as the community-caretaking/emergency-aid exception to the Fourth Amendment warrant requirement.  This exception allows police to respond to emergency situations where life or limb is in jeopardy. State v. Dunn, 2012-Ohio-1008.  Makes sense given that Levengood was definitely on his way to meet his maker when the cops showed up.

But what about that pesky protective sweep conduct by Ptl. Clark?  According to the U.S. Supremes, the Fourth Amendment permits a properly-limited protective sweep when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.  Maryland v. Buie, 494 U.S. 325 (1990).  The protective sweep, however, is limited to a cursory inspection of those spaces where a person may be found and lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.  Id.

Courts have used Buie to hold that mere suspicion that a weapon remains inside is insufficient for a protective sweep.  State v. Sharpe, 2008-Ohio-267.  Likewise, not knowing whether anyone else is there is an insufficient pretext because the need for protection necessarily implies that another person or persons are there. Id.  Faced with such doubts, and absent any reason to believe that other persons may be inside, officers must obtain a warrant before they conduct a search of a defendant’s house after a defendant’s arrest there. Id.

Based on Buie and Sharpe, the appellate court held that Ptl. Clark had no positive indication others might be present in Levengood’s apartment, and the fact that he didn’t know whether anyone else was present is not sufficient pretext to sweep the entire apartment.

Great victory for the Fourth Amendment!  Levengood, however, needs to get his shit together.  Heroin is a nasty drug and I hope he gets the help he needs to battle it.