Georgia Supreme Court Says Cops Need Warrants To Search Vehicle Crash Data Recorders
from the enhanced-privacy-expectations dept
A couple of years ago, the Georgia state appeals court interpreted the Supreme Court's Riley decision to cover data pulled from vehicles after accidents. If warrants were required to search cellphones -- thanks to their ability to store all sorts of personal information -- it stood to reason warrants should be needed to access other data not visible to the naked eye.
Extracting and interpreting the information from a car’s black box is not like putting a car on a lift and examining the brakes or tires. Because the recorded data is not exposed to the public, and because the stored data is so difficult to extract and interpret, we hold there is a reasonable expectation of privacy in that information, protected by the Fourth Amendment, which required law enforcement in the absence of exigent circumstances to obtain a warrant before extracting the information from an impounded vehicle.
The court told law enforcement that warrants should be considered must-haves in nearly every situation involving data belonging to someone else. The contents of a vehicle's black box are tied to the vehicle, not any third party. In addition, the data recording is mandated by the government, making this an involuntary process. The Third Party Doctrine only covers information voluntarily given to third parties. The data collection that occurs when a vehicle's air bag deploys isn't voluntary.
Georgia's highest court has now come to the same conclusion, but in a different case. (via FourthAmendment.com) It doesn't cite the Riley decision, but it does point to the more recent Carpenter decision, which established a warrant requirement for historical cell site location info. Not all black boxes record GPS location, but that's not really the point. The point is the information belongs to the car's owner. In order for the government to retrieve and interpret it, it has to enter a person's vehicle, attach a device to the car, and download the info. All of these steps implicate the Fourth Amendment, even though this particular issue hasn't been litigated at the federal level.
The key here is the expectation of privacy. Also important in this case is the testimony of officers who undercut their own claims of inevitable discovery by asserting they almost never sought warrants to obtain black box data. A warrant was obtained one day after the data had already been downloaded and examined. The state Supreme Court doesn't consider applying for a warrant after the fact to be the same thing as applying for a warrant before performing a search.
The decision [PDF] follows the steps of the investigation, noting the events that undercut the lower court's application of the inevitable discovery warrant exception. This is what happened at the crash scene:
Investigator Jason Hatcher entered the passenger compartments of both vehicles, attached a crash data retrieval (CDR) device to data ports in the cars, and used the CDR to download data from the ACMs. The data retrieved from the Charger indicated that, moments before the collision, Mobley was driving nearly 100 miles per hour.
The warrant wasn't actually obtained until the next day when a different investigator joined the investigation.
The next day, Investigator Bryan Thornton joined the team of officers investigating the collision. He discussed the case with the officers who had responded to the crash, visited and personally inspected the scene of the collision, and then applied for a warrant to search the Charger and Corvette and to physically remove and seize the ACMs from both vehicles. When Investigator Thornton made his application for a warrant, he was aware that Investigator Hatcher already had retrieved the data from the ACMs and that the data indicated that the Charger had been traveling at an excessive rate of speed.
The court notes that the warrant application did not rely on data already obtained by investigators to establish probable cause for the search. But it also notes Inspector Thornton added something to his warrant application that could only have been discovered via the search that had already occurred: the Charger's high rate of speed.
[A]lthough he did not testify explicitly about his knowledge of the substance of that data at the time he applied for a warrant, he said that the data was the basis for the conclusion that Mobley committed vehicular homicide in the first degree (as opposed to some lesser offense or no offense at all). In the warrant application, Investigator Thornton represented that the ACMs likely contained evidence of vehicular homicide in the first degree. His testimony at the hearing implies, therefore, that he had a meaningful awareness of the substance of the data when he made the warrant application.
The officers argued recovery of crash data was routine in these investigations. This is likely true. But it's also true investigators almost never obtained warrants for this data, making it far less likely the data would have been obtained Constitutionally. A certain amount of intrusion into a person's property -- in this case, a car -- is needed to retrieve the data, which should have put officers on notice warrants were necessary.
Although Mobley disputes the idea that he had no reasonable expectation of privacy in the data retrieved from the ACM on the Charger, we find it unnecessary to resolve that question. To retrieve the data, Investigator Hatcher entered the passenger compartment of the Charger and connected a CDR device with the ACM by way of an onboard data port. A personal motor vehicle is plainly among the “effects” with which the Fourth Amendment—as it historically was understood—is concerned, see United States v. Chadwick, 433 U.S. 1, 12 (4) (97 SCt 2476, 53 LE2d 538) (1977), and a physical intrusion into a personal motor vehicle for the purpose of obtaining information for a law enforcement investigation generally is a search for purposes of the Fourth Amendment under the traditional common law trespass standard.
There is no warrant exception that excuses the warrantless search. The automobile exception doesn't apply because the vehicle was immobilized by the accident and under the control of law enforcement for the duration of the investigation. There were no exigent circumstances for the same reason. The likelihood of evidence being destroyed or going missing was almost nil.
And the reason inevitable discovery does not apply is because there's no reason to believe investigators would have inevitably discovered the damning evidence legally.
In its order denying the motion to suppress, the trial court concluded that an application for a warrant was inevitable, a conclusion based entirely on its finding that Investigator Thornton “always seeks such a warrant in accidents involving fatalities.” Investigator Thornton, however, was off duty on the day of the collision, and there is no evidence that his involvement in the case was even contemplated until the next day. That a particular officer always seeks a search warrant in similar circumstances cannot logically show that a warrant was inevitable at a point in time prior to that officer becoming involved in the case. Equally important, Investigator Thornton did not actually testify that he always obtains warrants in fatality crash investigations. To the contrary, he said that he always retrieves ACM data in such investigations, most commonly without a warrant at the scene of the crash. Investigator Thornton testified that, if ACM data could not be retrieved at the scene, he would seek a warrant, but that hardly suggests that warrants always or usually are sought, considering that the routine practice is to retrieve data at the scene without a warrant.
Warrants are far from "inevitable" in crash investigations, according to officers' own testimonies. Applying this exception -- as the lower court did -- is clearly erroneous. It gives the officers credit for work they almost never do.
With the lower court's decision reversed, the warrant is suppressed. In Georgia, cops need warrant to search vehicle black boxes. This shouldn't be that tough to comply with. Crashes severe enough to warrant criminal charges will usually result in immobilized vehicles and a large police presence. Time is on law enforcement's side. And if it has the time, it can certainly get a warrant.
Filed Under: 4th amendment, georgia, searches, vehicle crash data recorders, warrants
