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.

 

36 comments on “Legal Q&A: Can Police Use ‘Textalyzers’ Without a Warrant?

  • Rob Parker says:

    “Officer, if you read the conversations on my electronic device, you will be in violation of both attorney/client privilege, and doctor/patient confidentiality laws. How do you intend to proceed?”

    Reply
  • What about the talk to text. Talk to text is no different than talking on the phone however that was not addressed. I would like to get your take on the talk to text

    Reply
  • Forest Johnson says:

    As a former LEO I can see this a both a 4th Amendment Nightmare and a Tool for good.

    Nightmare: Any communication you are engaged in should be confidential, not one should be able to see what program you clicked on, what key stroke(s) you made nothing without a warrant. Assuming you are guilty before being able to prove it in my opinion is too Nazi’esque. Unless it can the evidence points to you causing an accident of some kind where property damage, injury of a person or a life lost was the result of your inattention.

    Answering a call with blue tooth, would still be ‘receiving a call’. Does the system note the difference, something NOT addressed in the video?

    What if the phone is in your pocket, as I carry mine often; what if some taps are made by inadvertent contact with the screen, as happens with mine often? Yet, you were still involved in an accident, now you are guilty of ‘swiping/tapping the screen, because it does not access what was or wasn’t said and so on, correct?

    Tool: In the event of a Accident and you lie to the officer saying you were not Texting and Driving, when you were; raises 2 issues… 1 You are distracted and you caused and accident of some kind, where property damage, injury of a person or a life lost was the result of your inattention. 2: you are lying to protect yourself, thus interfering with an investigation, which is a felony in may states. You should be punished for both.

    In the event of suspected DUI/DWI driving, it would help if the officer can’t smell alcohol, and the person said they had looked at their phone. Still a naughty, LOL. BUT, the officer can now use a tool to determine if you were on the phone, if you were, ticket done and STOP IT!. If it says your weren’t, then were you lying because you are under the influence of a narcotic or drunk and need to be arrested because you are too stupid to call a cab or get a room (I have NO soft spot for drunk drivers)? Then you deserve to be charged accordingly.

    Look there is not going to be an easy answer, we all have great opinions and we all have some kind of experience on either side of this issue. I admit I do at times, use my device like maps, calls, read a message and voice to text back. I would therefore deserve a citation for this when the law takes effect here in Texas. But then again, I don’t want to be wrongly accused of something I didn’t do after the law goes into effect, even if there was an accident. Sometimes those just happen for hundreds of other reasons, aside from texting/using your phone.

    Reply
    • Scott Ares says:

      I think there is an easy answer, make all cell phone manufacturers automatically blank out the screen when the device is traveling faster than 10 mph. The blue tooth, microphone and speakers would still work but there would be no distraction that takes your eyes off the road. If cell phone use is for navigation purposes, there may be an app limitation to allow the screen to function only to show the navigation route but the settings would have to be made while the vehicle is stopped. If you are a passenger in a car traveling more than 10 mph, tough. Know that the inconvenience does not outweigh your life or the lives of others.

      Reply
        • I text and ride my Motorcycle all the time by using Cortana. The machine would show i was texting but im actually just talking to my helmet, and vise versa. Microsoft has been using this technology on their phones for years.

          Reply
      • Forest Johnson says:

        I 100% agree, and this should be something that you cannot deactivate. I 100% agree that Bluetooth connection is still available and you could use use the Bluetooth via a headset. I know a lot of people do not like using Bluetooth headsets, but they’ll wear earphones, what’s the real big difference?

        Reply
      • So what about passengers? Kids in the back seat? Good technology, but there is more to think about. I believe the new iPhone will have that feature as an option the user can disable. This would also require that the phone constantly track your location, to know when you are traveling that fast. Not cool to the people who enjoy their privacy. Just something to think about.

        Reply
        • Scott Ares says:

          The phone already know where you are at all times. Location services is just something you turn on to let specific apps know where you are. The speedometer apps just do the math calculation to tell you how fast you are going. BTW- don’t commit a crime while carrying your cell phone and claim you were not even there. The phone knows you were there. It only takes a warrant to make everyone else aware of where you were.

          Reply
      • Scott,

        Nice idea, but you have now made the devices also unusable for all the people on public transportation or similar conveyances. For that reason, I don’t think it is going to work. Too many city dwellers who ride mass transit or commuter rail would be unable to do the things that mass transit advertises as one of their bonuses.

        Reply
        • Scott Ares says:

          Mass transit operators of trains, airplanes, etc. can broadcast a signal that would re-enable the screen for their passengers.

          Reply
      • It’s actually easier than that! I already have my android device set to send an automatic reply to texts. It detects the Bluetooth connection, and replies that I am driving, talk to you later. Having the screen go off would be extremely easy to do.

        Reply
      • “Make all manufacturers…” I’m sorry,I have a serious issue with any statement that begins like that. Why is it the manufacturers problem to solve? What’d they do wrong? It also won’t solve the problem because there are so many ways around software, there will be tool to circumvent it in no time. There are also too many legitimate times that you would be in a scenario where you aren’t in violation of the texting while driving, so I don’t buy your argument of sucking it up because even if it saves one life it’s worth the inconvenience to all. I don’t buy that for a minute. There are simply other solutions to try first before nuking the usefulness of a cell phone for those that live in states that allow texting while driving or have large commuter populations.

        Reply
        • Scott Ares says:

          Going to the problem to find a solution is like asking a burglar how to protect your home. You Just might be the problem. Texting while driving with no regard for human life including your own is everyone’s concern. No one is blaming the cell phone makers or asking them to find the solution. I just found one solution. The problem is idiots that don’t know how to use cell phone responsibly. Our government has the power to protect against those who don’t care. The fix is not a software thing. We all know that won’t work. It’s a hardware thing. It is way more than just one life we are talking about. It is an epidemic costing millions of dollars if not billions of dollars in injuries, deaths, auto repairs and property damage. Irresponsible and immature people should not own both a drivers license and cell phone. I guess you would allow arsenic in food because it’s not the chemical companies problem of how it is used. Ask yourself at what point should the government protect you. Before or after YOU are dead. Because there is someone out there is who is now dead in the short time since this thread started from a texting driver.

          Reply
          • I agree. The problem is the users’, not the manufacturers, like holding bartenders responsible for what drunk drivers do. The idea is to protect people from irresponsible drivers. Other than heavy fines and jail terms, I’m not sure how to effect that without undue deprivation of liberty for the rest of us.

      • There’s an even easier answer. It doesn’t matter the cause of an accident. You caused one. Phone distraction, children, burger-eating, etc.

        Use your phone and other electronic devices responsibly, but at the same time, knowing and accepting the risks. Just as driving, alone, has its risks. The government needs to stop trying to be everybody’s nanny.

        Reply
  • What people need access to are secure and self-defending devices. Not going to get into a legal discussion but I do not believe one can not be compelled to provide a password.
    A recent engineering project using a standard tablet sized phone has brought forth a secure and self-protecting digital device. With a fast command from the user, it will isolate the transceiver in the USB port (tape its own mouth shut) and connect the USB port to a power supply-like device that uses electricity to destroy the transceiver port in the “intruding device” without the slightest possibility of harming anyone. It detects a connection from an intruder, waits until the interrogation begins, the USB handshake as it is called. Then that’s the end of the digital conversation for the offender. It’s not original, just an outgrowth and more useful version of the ‘usb killer’, as it was called. Anyway, if you say “no”, and then warn that unauthorized access will cause damage to their property, it is on them if they do not believe it. enFORCE your rights.

    Reply
    • Indeed, there is no need to implement stage two and I do not advocate ruining equipment. Simply de-powering the port transceivers is enough to stop the snooping unless they take the thing away from you and to a lab.

      Yes, before people get too unhappy about security.

      Reply
      • Forest Johnson says:

        Yes, Howard has a good question. One that actually would benefit everyone, regardless of the need. Plus, it is a great ‘security’ feature if your phone gets lots of stolen. Feel free to share the info… or source there of.

        Reply
  • Richard Harvey #600698 says:

    This article is interesting, and of concern, as are those who continue to text and drive. Personally, if I need to text, I pull off the road, and do so in a safe manner, engaging my safety flashers. My question is this: Can this textalyzer determine if my cell phone was operating independently of my vehicle or just when I was in it… since I usually have it plugged into a USB port to maintain the charge. My incoming calls are via onscreen handsfree system per Honda.

    Thanks for this opportunity.

    Reply
  • Mary Davis says:

    Is using SIRI to verbally text for me, still considers texting while driving? I use Siri , because I don’t have to look numbers up, nor dial them. This wld be like using Bluetooth, or my cell buttons in my steering wheel.
    I feel that Siri texting is even better than having someone in my car, and turning my head to talk to them! Thanks

    Reply
  • Scott Ares says:

    In the case of alcohol testing, there has to be some evidence of alcohol use before an officer can subject you to a breathalyzer test. Therefore, it would only be reasonable for them to search your phone if there was evidence of texting. To search your phone without probable cause would be illegal. Additionally, if your phone is not in plain sight, it would be illegal for the police to search your vehicle or person for a phone of which to search for text messages. Even finding messages on your phone, they cannot necessarily prove that you were not pulled over on the side of the road while texting.

    Reply
  • It seems to me that the State could get a warrant to examine your phone records if they needed to prosecute you. They don’t need roadside access. That’s a dangerous road to travel down. What’s next, “Home- alysers” to see if you were doing anything illegal prior to calling the fire department? “Bar-alysers” to see if you were in a cocktail lounge prior to being stopped? Go ahead and laugh. In London, they’re considering mandatory GPS devices on cars to see if you enter the city limits so they can tax you on your mileage.

    Reply
    • Richard Harvey says:

      Most folks aren’t aware, but in using the locator function of your phone, there’s already a GPS inside what you use to communicate with. iPhone have the ‘find your phone’ function… nothing more than another name for a GPS… LE functions are well aware of this. Moms & Dads frequently use this to track the whereabouts of their kids. Nothing stops the police from confiscating your phone as evidence, tracking your ‘travels’ and then either returning it to you, or saying Mea Culpa once they’ve had their hands slapped for a minor indiscretion… all costly to you having had to secure the services of legal representation… a slimy street to travel. NOT IN FAVOR of this, even a little. BIG Brother is already a bully, in my eyes.

      Reply
  • James E Carter says:

    What if you are using your phone as a MAP, such as google maps. That might look as if you were texting to the Police.

    Reply
  • Is there a way that the textalyzer can differentiate between a hands free blue tooth device used to handle a phone call as opposed to a hands on cell phone?

    Reply
  • Cameo Harvey, O.D. says:

    I sometimes text or read texts while sitting at a stop light. When the light changes, I put the phone down. Would this be considered “texting while driving” if I was not actually moving my vehicle while doing this? If that is OK, how can the Textalizer know whether your vehicle was in motion a few minutes ago while I texted briefly?

    Reply
    • “Would this be considered ‘texting while driving’ if I was not actually moving my vehicle while doing this?”

      Is it reasonable to consider that the act of driving is suspended when the transmission remains in Drive whilst waiting at a traffic signal? I’d submit that any jury worth their salt would be unanimous in their rejection of any such suggestions.

      In my considered opinion, any use of the phone when concurrently attempting to operate a motor vehicle is considerably worse than driving while intoxicated. At least the drunks are trying to pay attention to the road. “Texters”, by definition, are not.

      More than twice have I been tempted to pay for a billboard ad that states the following, in bold black text on a plain white background:

      You are not important.
      Your text is not important.
      Turn off the phone.
      DRIVE.

      Reply
  • Vernon Fothergill says:

    My car has bluetooth/ hands free capabilities, what if I left my phone in the trunk. Could still receive calls but no texting abilities. Would this keep them searching my phone.

    Reply
  • Tom Nowlin says:

    I like the idea but how does this work if I were to hand my wife my cell and she makes a call on it or if I have hands free capabilities to make verbal calls and/or text?

    Reply

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