Written by attorney Jennifer Nichole Johnson

Texting & Driving - Can the Police Search Your Cell Phone at the Traffic Stop?

On July 1, texting while driving will be illegal for all Georgia drivers, and young drivers with provisional licenses will be banned from any cell phone use behind the wheel. A conviction can cost the driver $150 and 1 point on their driver’s history.

But, what exactly does it all mean? The law, known officially as the "Caleb Sorohan Act for Saving Lives by Preventing Texting While Driving", states that a driver may not use using a wireless telecommunications device to write, send, or read any text based communication, including but not limited to a text message, instant message, e-mail, or Internet data, except in the case of an emergency. The ban does not include CB radios, commercial two-way radio communication devices (push to talk); subscription based emergency communications (On Star), in-vehicle security, navigation devices (GPS, including Google maps on iPhones), and remote diagnostics systems, or amateur or ham radio devices. The bottom line is that you can talk all you want or use your GPS without violating the new law.

The interesting question is how the police intend to enforce the law. If someone is stopped for texting while driving, can the police conduct a warrantless search of the cell phone? The Courts have found that a person has a reasonable expectation of privacy over their cell phone. United States v. Finley, 477 F.3d 250, 259-260 (5th Cir. 2007). Additionally, it has been found that cell phones are more than just calling devices, containing private information, such as text messages and address books and that going through a cell phone at a traffic stop was like “general rummaging in order to discover incriminating evidence." United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008). However, if the Officer arrests the driver, the Courts have held that a warrantless search of a cell phone was proper after the arrest of a suspect, thus there was no Fourth Amendment violation in retrieving the call records and text messages from the suspect’s cell phone. Finley, 260.

Whether a police officer making a traffic stop can demand an individual’s phone in an attempt to verify if someone was text messaging, checking their email or surfing the web and if that search would violate the Fourth Amendment will ultimately be left up to a court of law.

It is JNJLAW’s opinion that such a search would violate the Fourth Amendment because of the personal information contained in most “wireless communication devices". However, as an extra level of protection, JNJLAW recommends using the passcode feature available on many phones since a warrant would then be required to access the information.


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