Does an officer have the right to take your cell phone and look to see if you were on the phone while driving? Does the driver have the right to refuse? Here is what a driver's rights entail with regards to cell phones.
The man with the badge and gun can do whatever he wants on the side of the road, but it may not hold up in court. If an officer takes a drivers cell phone without a warrant, this is a search and seizure issue.
Under the “search incident to an arrest” doctrine, officers may search the pockets, purses, wallets and other containers on a person they have arrested. However, the courts are split on the “reasonableness” standard allows the officer to go through the contents of a cell phone seized incident to an arrest. The Fourth Amendment to the US Constitution assures the people the right “to be secure in their persons, houses, papers and effects against unreasonable searches and seizures
The courts approving the officer to search a cell phone cite US v. Finley, 477 F.3d 250 (5th Cir. 2007) which uses the rational that a cell phone is just another type of container and since it was on the person the officer can search it. This has become the view held by the majority of courts that have reviewed the concept.
Courts disallowing searches of cell phones follow the State v. Smith, 920 N.E.2d 949 (Ohio 2009) which uses the rational that a cell phone reaches the internet and is capable of storing “tremendous amounts of private data”, the cell phone is unlike any other container and the owner has a high expectation of privacy in its contents; therefore, once the officer has the cell phone in his custody, the state has met its interest in collecting and preserving evidence and he must obtain a warrant before searching the cell phone.
Let’s look at the new FMCSA rule prohibiting any talking on a cell phone without a hands free device and texting on a cell phone. First this rule only applies when driving a commercial motor vehicle and FMCSA considers a violation of this regulation to be a “serious violation” just like speeding 15 over the posted limit and a driver with two serious violations on their CDL within a three year window will lose their CDL for 60 days. The driver is required to have the phone located where the driver is able to initiate, answer or terminate a call by touching a single button while seated in the driving position and using a seatbelt but in no circumstances may a driver reach for a phone. Notice the one button rule. That means you cannot dial a phone number, dialing itself is a violation. This new rule will cause many driver to purchase a hands-free such as the blue-tooth headphones you see in a lot of drivers’ ears.
This new regulation allows the officer to view your cell phone to see if you have been on the phone while your log book says you were driving. I might also mention here that the fines are up to $2,750 for each offense and up to disqualification for multiple offenses if you are guilty. If your driver erases his “call history” or “recent calls” and deletes his text history on his phone after each call or text there would be no evidence of the violations for the officer to find, but that does not make the driver a safer driver. Deleting calls and texts might work with officer on the side of the road, but a plaintiff attorney would be able to discover the driver’s phone log from the cell phone carrier to prove or disprove the driver calling/texting during the time in question. Remember, someone always knows what you are doing.
The concern that an officer will “grab” a cell phone in a hands-free dock or off the dash is a legitimate concern since a cell phone is not “contraband” under the law like drugs are. The officer should always ask for your logs and may ask for your cell phone. The driver can always give the officer “permission” to search his phone, but then the officer can look at everything on the phone, calls, texts, photos etc…
The new cell phone regulation for the CDL is still untested in the courts as far as what the officer can seize and search on a phone. However, there is a lot of law and court cases that do define what an officer may seize and search as all warrantless searches are governed by the Fourth Amendment. Trucking is what the Supreme Court calls a “heavily regulated industry” through the FMCSA and as such the normal Fourth Amendment rules are “relaxed” for the officers dealing with truck drivers on the road.