Driving While Intexicated: NJ Bill No. 2783, New Jersey’s Attempt to Curb Texting-While-Driving

Written by Caitlyn Jaile

IMAGINE the following scenario: you are involved in a car accident and police arrive at the scene. Upon arrival, they begin to inspect the damage and ask for your license and registration. Next, they demand to see your cellphone. You wonder what the officer would find when looking through your phone? Would the officer find photographs of your children? Would the officer find confidential work e-mails meant for your eyes only? Could he uncover evidence of a completely unrelated crime you may have committed? How do you react? Are you shocked at the officer’s blatant request to search, arguably your most private possession, or, do you comply with the officer and willingly hand over the device holding access to personal e-mails, phone numbers, bank accounts, and photos? If given the option to deny or comply with the officer’s request, a reasonable person would likely refuse to hand over his or her cellphone for examination. However, pending the passage of NJ Bill No. 2783 this option would not exist and the mandatory search of one’s cellphone following a car accident would become a routine practice in the State of New Jersey. Consequently, this bill violates the U.S. Constitution’s Fourth Amendment ban on unreasonable search and seizures and violates a motorist’s right to privacy in his or her cellphone.

STOP TEXTS, STOP WRECKS. The introduction of NJ Bill No. 2783, by New Jersey Senator James W. Holzapfel (R. Ocean), comes at a time when states are beginning to enact stricter texting and driving laws with the goal of minimizing the number of driving-while-distracted accidents. The National Safety Council estimates that in 2011 at least 23 percent of all traffic crashes, or at least 1.6 million crashes each year, involved drivers using cellphones. In a country where at any given daylight moment approximately 660,000 drivers are using cellphones or other electronic devices while driving, the need for stringent texting-while-driving laws is apparent.

NJ BILL No. 2783. Introduced on May 20, 2013, NJ Bill No. 2783 has two main provisions. First, the Bill increases penalties for texting-while-driving. Under the proposed bill, a person who sends a text message while driving would be subject to a $300 fine and two motor vehicle penalty points on his or her license. In addition, a person who causes an accident because he or she is sending a text message is subject to a three-month license suspension.

The second provision of the Bill permits police officers to confiscate a motor vehicle operator’s cellphone under certain circumstances. 

NJ Bill No. 2783: “Whenever an operator of a motor vehicle has been involved in an accident resulting in death, bodily injury, or property damage, a police officer who reports to the scene of the accident may confiscate the operator’s hand-held wireless telephone if, after considering the facts and circumstances surrounding the accident, the officer has reasonable grounds to believe that the operator involved in the accident was operating a hand-held wireless telephone” while driving a motor vehicle

This provision specifies that whenever an operator is involved in an accident “resulting in death, bodily injury, or property damage” a police officer who reports to the scene of that accident can confiscate the operator’s hand-held wireless telephone if, “after considering the facts and circumstances surrounding the accident,” the officer has “reasonable grounds to believe” the operator involved in the accident was using a hand-held wireless telephone. Upon confiscating the operator’s cellphone, the reporting police officer may review the cellphone’s call data history to determine whether the cellphone was actually in use at the time of the accident.

THE CONTROVERSY. Cellphones have become more than just a means of communication; even the most basic cellphone now functions as a small computer, providing access to a number of different applications. As a result, courts have had to analyze and expand the Fourth Amendment’s protection to encompass cellphones. These analyses examine the constitutionality of the search of a cellphone’s data and content-based information, including any reasonable expectations of privacy a cellphone user might have.

The Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized[/box]

In order to determine whether an individual possesses a reasonable expectation of privacy, courts apply a two-prong test. This test (“Katz test”) was introduced in Justice Harlan’s concurrence in Katz v. United States. First, a court should ask whether the individual exhibits “an actual expectation of privacy.” This is the subjective prong of the test. Second, a court should ask whether that subjective expectation is “one that society is prepared to recognize as ‘reasonable.’” This is the objective prong of the test. If both prongs of the Katz test are met, a reasonable expectation of privacy exists and any violation of that privacy without a warrant is a violation of the Fourth Amendment and thus, unconstitutional.

A DRIVER’S REASONABLE EXPECTATION OF PRIVACY IN A CELL PHONE. Since the first cases addressing the constitutionality of warrantless cellphone searches, courts have addressed the privacy of cellphones with increasing frequency. As cellphone use has become more prevalent, the way in which cellphones are used has also expanded. Therefore, when considering the legality of searching a cellphone’s contents, one must consider first, whether a phone’s owner has a reasonable expectation of privacy in the general contents of the phone and second, whether some information on the phone is subject to a reasonable expectation of privacy while other information is not.

Though cellphones contain addresses and phone numbers similar to those found in a traditional address book, an item that is entitled to a lower expectation of privacy, today’s cellphones are more similar to computers, which are entitled to a heightened expectation of privacy due to the personal nature of the data they can hold. The court in State v. Smith held that, while cellphones are not completely analogous to computers, “their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of privacy in the information they contain.” This case supports an individual’s objective expectation of privacy, an expectation that society is willing to recognize. Further, because individuals hold their cellphones out to be private, for example, by storing a cellphones in a case or requiring a password to access a cellphone’s contents, it is evident that an individual possesses a subjective expectation of privacy in his or her cellphone. Therefore, because an individual does posses a reasonable expectation of privacy in a cellphone and its contents, a warrant must be procured if the cellphone is to be searched and NJ Bill No. 2783 would be unconstitutional

DO THE EXCEPTIONS APPLY TO BILL No. 2783? Though the Fourth Amendment explicitly requires that a warrant be procured for a search or seizure to be reasonable, inherent in the Amendment’s text are a number of exceptions to the warrant requirement. Generally, these exceptions include: the search incident to lawful arrest exception, the plain view exception, the consent exception, the stop and frisk exception, the automobile exception, and the emergencies/hot pursuit exception. Beginning with the most obvious, the search incident to arrest exception would not support an officer’s warrantless search and seizure of a driver’s cellphone under the Bill because there would be no arrest to trigger the exception. Currently, texting and driving is not an arrestable offense in any state. Moreover, if another crime has been committed during or immediately after the accident, police officers must believe the cellphone contains evidence of that crime in order to search it. Because the seizure of a cellphone under the search incident to arrest exception must directly stem from the underlying crime, the seizure of the cellphone for any other un-arrestable crime, such as texting-while-driving, is invalid.

Further, an application of the automobile exception in support of NJ Bill No. 2783 would also be improper. First, the evidence needed to prove a driver was texting-while-driving at the time of an accident is not the kind of evidence that can simply disappear or be destroyed. Coding information, the information that reveals only the identity of a party to a communication without disclosing the subject matter of the communication, can easily be obtained through a subpoena of the phone’s records even after a vehicle drives away or if the cellphone owner deletes the information from the cellphone itself. Thus, a simple subpoena of the cellphone provider’s records would provide police officers with the same information a warrantless search of the cellphone would without violating the driver’s Fourth Amendment rights.

THE CONSTITUTION PREVAILS. With over 1,840 cellphone related crashes in New Jersey alone, states are understandably beginning to propose drastic legislation to curb what has become a grave safety issue. However, no matter how dangerous or prevalent texting-while-driving has become, legislation proposed to curb this problem cannot violate an individual’s constitutional rights. Both a subjective and objective reasonable expectation of privacy exists in one’s cellphone. Therefore, in order for a warrantless search of the contents of a driver’s cellphone following an automobile accident, as proposed by NJ Bill No. 2783, to be valid, the search must fall under an accepted Fourth Amendment exception. No Fourth Amendment exception is applicable to make an officer’s actions under NJ Bill No. 2783 constitutionally valid. Therefore, NJ Bill No. 2783 should be rejected.

Grim Toll: A Case Commentary on Kaur v. New York State Urban Development Corp.

Written by Nathaniel Chiaravalloti

Imagine yourself in the position of being an independent small business owner.  Your family worked long hours with minuscule take home pay and no healthcare benefits.  It has taken years of hard work to build your business, and you are finally beginning to reap its benefits.  Now imagine a wealthy private entity has ambitions to buy all the real estate in your neighborhood, including your business.  It is working with the government agency charged with urban development oversight to do so. You do not want to sell your business, and the entity is unwilling to pay you what you feel the property is worth.

This is the story of Gurnham Singh and Parminder Kaur, who owned a family-run gas station for over 25 years in the Manhattanville section of northern Manhattan. In 2010, Kaur v. New York State Urban Dev. Corp., the New York Court of Appeals allowed the government to condemn the gas station property so that Columbia University could expand its campus.  The dealing between Columbia University, the Empire State Development Corporation (ESDC), and the New York City Economic Development Corporation (EDC) (together, the regulators) led the family, after years of failed negotiations, to sue the ESDC to save their property from being taken.

Traditionally, if a private entity wanted to purchase private property, the property owner always had the right to refuse the sale; this is a basic tenant of property law.  The government, the ultimate granter of property rights, is granted a constitutional exception to this general rule through the doctrine of eminent domain, allowing it to take private property for a public use once it provides the land owner with just compensation.

In the last thirty years, however, traditional government takings for public works projects have been popularly replaced by public/private partnerships.  Typically, state or local governments make a determination that a public/private project would benefit the public, and then contract with private developers or investors to complete the project.  These partnerships allow for civic improvements that can be funded without taxpayer dollars, but they create a greater risk of conflicts of interest and favoritism between the government and private business.

As public/private partnerships have become more common, it had initially been unclear whether the government could condemn private property and transfer it to another private entity in accordance with a public/private development arrangement.  The answer to this difficult constitutional question was, in some part, resolved by the Supreme Court in the landmark Kelo v. City of New London decision in 2005.  The Court, while remaining deferential to state and local governments decision making in eminent domain cases, reiterated and insisted that any such taking be made for a public use.  The city of New London, Connecticut, had suffered from hard financial times through the latter half of the 20th Century. To improve the economic prospects of the community, the local government worked with private enterprise to purchase and redevelop waterfront property into a commercial center.  With the promise of new jobs from a forthcoming pharmaceutical facility, the City wanted to create a “river walk” shopping and dining destination that would remake New London into a more dynamic city for its citizens. The Supreme Court narrowly affirmed the City’s taking and reselling to a private developer, but in Justice Kennedy’s decisive 5th vote and accompanying concurring opinion, he warned against unfair dealings, corruption, and favoritism that might arise from public/private takings.

With the Supreme Court’s affirmation of public/private takings, such ventures became more common.  The Kaur case centered on the taking of private properties for the purpose of expanding Columbia University’s campus.  The chief conflict in the case was the appearance of favoritism and preferential treatment by the government towards Columbia University, the very concerns articulated by Justice Kennedy in his concurrence in Kelo.  Columbia University worked very closely with the New York regulatory agencies, including hiring the same consulting firm as was employed by the regulators.

Columbia University sought to justify the takings on the ground that an area is “blighted.”  Columbia University began purchasing land in the neighborhood in 2001, after which time, the University applied little to no maintenance to those properties.  While that act in and of itself is fine, in this context it created significant questions about whether Columbia University was acting in bad faith. Specifically, by allowing the neighborhood to become blighted through years of willful neglect, it cast a pall over the proceedings when Columbia University’s consultant (who happened to also be under contract with the City) determined the entire area to be “blighted” during the proceedings many years later.  Among other things, tactics like willful neglect and sharing consultants, and their ultimate vindication in the courts, set forth a blueprint of how interested private entities might in the future use similar tactics to obtain land they seek.

The purpose of the upcoming note is twofold.  The first is to highlight the purpose of eminent domain doctrine, specifically how takings should always be related to a public use or good.  While Columbia University satisfied that element by expanding its educational facilities, providing space which will be accessible to the public, and continuing to serve the greater New York City community, the value of its contribution may be outweighed by its methods of obtaining the land.

The second is to articulate a functional judicial test that incorporates Justice Kennedy’s articulated concerns expressed in his concurrence in Kelo.  Because Justice Kennedy did not articulate a judicial test by which to apply his concurrence, it has been an easy trapping for courts, notably the New York State Court of Appeals, to either misinterpret or simply disregard the call of his opinion.

The test would allow courts to scrutinize the process when public/private partnerships are accused of unfair dealings, corruption, favoritism, or bribery.  On a spectrum, bribery, where an individual or corporation simply paid a public official to facilitate a taking, would be the most obvious and odious infraction, and optimally courts would prevent a taking in such cases.  Moving further down the spectrum, if a court found bad faith by the purchasing enterprise or by the government agency, the court would have discretion to prevent the taking. Examples might include direct conflicts of interest, deliberate denigration of the area, or unreasonably low offers to purchase the land from its owner.  Still further, questions of unfairness or favoritism would weigh against a taking, though a court might still allow the taking if it serves the public interest. The process would allow private property owners to challenge administrative rulings against them, if they are able to demonstrate any of the above bad acts. Courts would then be allowed to review the record de novo to determine if there has been, in fact, bad acts, and determine the appropriate sanction (if any) against the developer.

The judicial framework would create a strong incentive for private enterprise to act in good faith when involved in such dealings, if it was widely known that acting in bad faith could undermine the validity of an entire project.  Further, it would disincentivize bad faith actions such as thinly veiled corruption if parties knew that such behavior could lead to a court granting injunctive relief against them.

The Kaur decision was unfortunate for the family involved, but affords a teachable moment in eminent domain doctrine. By highlighting appearance of bad faith by the pertinent actors, and proposing a workable judicial framework, persons disadvantaged by public/private takings may challenge them and be better protected by courts who could scrutinize such dealings to the level prescribed by Justice Kennedy’s concurrence in Kelo.