Issue link: http://read.dmtmag.com/i/99744
Legal Lane By Jim Klepper Officer Grabs Cell Phone T he last 2 days we have had calls from our drivers about cell phone violations. The question is "the officer reached in the truck pulled his log book and the cell phone and said I will be back ". Does the officer have the right to take the cell phone and look to see if he was on the phone while driving? Does the driver have the right to refuse? I know this is a new "federal regulation" but what can we tell our drivers when they call in? Please advise us on our driver rights with cell phones. A. Carrier My first response to you is the Truck Driver's Golden Rule which states: The man with the badge and gun can do whatever he wants on the side of the road, but it may not hold up in court. You are asking if an officer can take a drivers cell phone without a warrant, a search and seizure issue. My answer to any legal question always starts out with; "It depends…" Under the "search incident to an arrest" doctrine, officers may search the pockets, purses, wallets and other containers on a person they have arrested. However, the courts are split on the "reasonableness" standard allows the officer to go through the contents of a cell phone seized incident to an arrest. The Fourth Amendment to the US Constitution assures the people the right "to be secure 86 January 2013 legallane 0113.indd 1 in their persons, houses, papers and effects against unreasonable searches and seizures The courts approving the officer to search a cell phone cite US v. Finley, 477 F.3d 250 (5th Cir. 2007) which uses the rational that a cell phone is just another type of container and since it was on the person the officer can search it. This has become the view held by the majority of courts that have reviewed the concept. Courts disallowing searches of cell phones follow the State v. Smith, 920 N.E.2d 949 (Ohio 2009) which uses the rational that a cell phone reaches the internet and is capable of storing "tremendous amounts of private data", the cell phone is unlike any other container and the owner has a high expectation of privacy in its contents; therefore, once the officer has the cell phone in his custody, the state has met its interest in collecting and preserving evidence and he must obtain a warrant before searching the cell phone. Let's look at the new FMCSA rule prohibiting any talking on a cell phone without a hands free device and texting on a cell phone. First this rule only applies when driving a commercial motor vehicle and FMCSA considers a violation of this regulation to be a "serious violation" just like speeding 15 over the posted limit and a driver with two serious violations on their CDL within a three year window will lose their CDL for 60 days. The driver is required to have the phone located BestDriverJOBS www.bestdriverjobs.com 12/6/12 9:39 AM