Classic lawyer answer: It depends.
What is the Distracted Driving Law?
Ohio’s “distracted driving law” (Ohio Revised Code § 4511.204 “Driving While Texting”) went into effect about a year-and-a-half ago. In short, the law aims at curbing drivers paying more attention to their phones than the road. For a detailed break down of the law and penalties, read our article here.
Why Would Texting and Driving Allow a Police Officer to Search My Phone?
Almost 100 years ago, the United States Supreme Court created a doctrine of law referred to as the “automobile exception” or Carroll doctrine (the case was titled Carroll v. United States). That decision granted police officers broad powers to search our vehicles, without a warrant, if the officer has probable cause to believe evidence of a crime is present in the vehicle. However, the automobile exception does not apply during basic traffic stops (e.g. speeding, turn signal violation, expired tags) because there cannot be any further evidence of those violations inside the vehicle. That’s why officers typically ask if they have your permission to search your car during a basic traffic stop. Without your permission, a warrantless search of your vehicle could be unconstitutional.
Unlike most traffic law violations, Ohio’s “distracted driving” law is regulating conduct that occurs within your vehicle. In other words, the proof of the violation is on your phone. Meaning “evidence of a crime is present in the vehicle” on your phone.
So does that mean a police officer can take your phone and starting searching it without a warrant if you are pulled over for texting while driving? It depends.
What does Ohio’s Distracted Driving Law Say About Searching My Phone?
Ohio’s “distracted driving” law actually provides Ohioans with more protection than the Fourth Amendment. While the default rule is “get a warrant” just like the Fourth Amendment, Ohio’s “distracted driving” law actually requires law enforcement officers to tell you that you can decline to provide consent to search your phone if you are stopped for texting while driving. The requirement to inform you that you have the right to refuse a search of your phone is an extra step that the United States Supreme Court says the Fourth Amendment does not require be done.
That’s part of the reason why the answer to whether a law enforcement officer can search your phone is “it depends.” If you give them consent to search your phone, then of course they can search it.
What are the Rules for Obtaining My Consent?
Ohio’s “distracted driving” law lays out specific actions that a law enforcement officer cannot do during a traffic stop for texting while driving:
- The officer cannot coerce or force you to give consent to search your phone;
- The officer cannot use “any other improper means” to obtain your consent to search your phone (e.g. illegally arrest you, threaten or cause you harm);
- Take your phone while waiting for a judge or magistrate to issue a search warrant; OR
- Open, search, or use your phone without a warrant unless the owner provides consent.
What does it Mean to Give My Consent?
In short, that you give your permission for the police officer to search your phone. What the law is concerned about is that your permission is given (1) voluntarily and (2) unequivocally. Meaning, you want and intend to give permission, and the words you used are clear and unquestionably express your intent to give the officer approval to search your phone. If your answer to the police officer’s request for consent is not voluntary and unequivocal, then the officer cannot search your phone without a search warrant.
What Can a Police Officer Search for On My Phone if I Give Consent?
Ohio’s “distracted driving” law does not speak to the scope of the search permitted if you give a police officer consent to search your phone. Generally, it all depends on what you give the officer permission to do. If you say “yes, I consent” you are giving the officer permission to search for as long and in as many apps, folders, files, pictures, etc. as he or she wants.
The law says that a general “I consent to a search” is to be interpreted broadly; it’s an all-access pass to your phone. If you do not want a police officer to search your phone, either don’t give consent or give very specific instructions, like “You can search my call log only.” (i.e. if you wanted to show you were on a phone call which R.C. 4511.204 allows).
If you believe your constitutional or other legal rights were violated during a traffic stop, call Rittgers Rittgers & Nakajima to speak with one of our experienced criminal trial attorneys.