Legal Q&A: Can Police Use 'Textalyzers' Without a Warrant?

 Q: I recently saw a NBC news video that shows police with a new device that they plug into your phone and can see if you were texting while driving. It showed them pulling over drivers and using this device. It’s my understanding that SCOTUS (Supreme Court of the United States) ruled they need a warrant to search your phone. Is what they’re doing with this device legal without a warrant? Also, is this something that drivers who carry concealed could get subjected to during an ordinary traffic stop?

A. Texas & U.S. Law Shield Independent Program Attorney Edwin Walker responds: Thanks for the question. I saw that Rossen Reports segment on the Today Show as well. The device is called the “Textalyzer” (capitalizing on the name of the DWI machine, the Intoxilyzer). This indicates a very disturbing trend in the law.

This legislative session Texas became the most recent state to “ban” texting while driving, and several cities across Texas have created municipal ordinances against using handheld electronic devises while driving. These laws create a backdoor way for the police to possibly search a smart phone without getting a search warrant.

The SCOTUS case that you are referring to is called Riley v. California. Its primary holding was that the police could not search an electronic device without a warrant if they are looking for incriminating evidence of illegal activity such as contacts, emails, photos, etc. However, the SC mentioned that if the smart phone is the instrumentality of the crime or there are exigent circumstances, then it is possible that it could be searched by the police without a warrant. In these texting-while-driving crimes, it is clear that the phone is the criminal instrument. Therefore, a prosecutor would argue that the police are entitled to gather information from a smart phone without a warrant if they had probable cause to believe it contained evidence showing that it was used in a crime.

However, this position is definitely worthy of a good Fourth Amendment challenge. I would guess that most states will pass a law that will make it a condition of having your “privilege” to have a driver’s license, that you have consented to have your smart phone searched whenever you are accused of texting while driving. The state legislatures have long been given constitutional approval to do this in the context of enforcing the driving while intoxicated laws, by penalizing drivers who refuse to “voluntarily” give blood or breath samples for alcohol testing.

While it is undeniable that texting and driving has been the cause of many terrible automobile accidents, literally millions of people have once again had their Fourth Amendment rights chipped away because of the mantra, “If it saves just one life, then it is worth it.” But, as another old saying goes, “The road to Hell is paved with good intentions.”

One way to find out about how to deal with the Textalyzer is to attend a Gun Law Seminar near you. Our attorneys in various states will be covering new laws and how they affect your rights. Just select your state and look in the “Event Type” column for seminars with legislative updates in the descriptions.


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