Issue link: https://read.dmtmag.com/i/661417
Law 101 Trucking by Jim C. Klepper - Attorney at Law 800-333-DRIVE www.interstatetrucker.com www.driverslegalplan.com What does the law say about on-the-road cell phone usage? T he last 2 days we have had calls from our drivers about cell phone violations. The question is "the offi cer reached in the truck pulled his log book and the cell phone and said I will be back ". Does the offi cer 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 regu- lation" but what can we tell our drivers when they call in? Please advise us on our driver rights with cell phones. A. Carrier My fi rst 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 offi cer can take a driver's 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, offi cers may search the pockets, purses, wallets and other containers on a person they have arrested. However, the courts are split on whether the "reason- ableness" standard allows the of- fi cer to go through the contents of a cell phone seized incident to an ar- rest. The Fourth Amendment to the US Constitution assures the people the right "to be secure in their per- sons, houses, papers and effects against unreasonable searches and seizures The courts approving the offi - cer 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 offi cer 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 8 www.studentdriverplacement.com April '16