I am watching the development of new cell phone law carefully. It may have a significant impact on how fault is decided in automobile accident cases. At issue is whether or not the police need a warrant to search a cell phone after an accident.
The law is being decided in cases across the nation, with judges in California allowing warrantless searches and those in Ohio denying them.
The matter remains untested here in Montana courts, but would impact what investigation tools the police have available after an accident. If the police can simply look at a driver’s cell phone and see that they were texting at the time of the accident it would establish grounds for a ticket (texting while driving is against current Montana law) and might indicate responsibility for the accident.
Checking cell phone records by subpoena is a useful tool when constructing a case, but it is currently part of the investigation that lawyers have to do when establishing the facts. If the police are allowed to check at the scene, not only is it more likely that a record will be preserved in the police report, but it may guide further inquiry.
The requirement of a warrant before searching is, at the root, a Constitutional question. It falls under the Fourth Amendment, which starts out: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”
Until the United States Supreme Court rules on the issue of cell phone searches, it remains up to the States to decide whether the practice is legal and what constitutes an “unreasonable search.” Privacy rights advocates will likely push to bring the matter before the Supreme Court in the hopes of getting a ruling in favor of not allowing a warrantless search.