Is California’s New “Hands-Free Only” Law a Pretext to Search You, Your Car, and Your Passengers?

Update: Movin' on up for any NYT readers in the house.

Next Tuesday, July 1, California’s new “hands-free only” cell phone law goes into effect. Drivers in California must use a headset or Bluetooth when talking on their phone; holding the phone in your hand while talking constitutes a violation of Vehicle Code § 23123, punishable by fines ranging from $76 to $190. The police may pull you over solely for a violation of the new law (and they've promised they will).

As a matter of public safety, it’s hard to imagine a more worthless piece of legislation. Most studies show that the risk of driving on the phone comes from the mental act of concentrating on the conversation, not the physical act of holding the phone to your ear. But the politicians didn’t dare ban cell phone use outright; instead, they patted themselves on the back for symbolic action while generating revenue for county governments and electronics retailers.

But my real question is whether this could lead to an explosion of pretextual searches of automobiles, especially in minority and low-income communities. I think such searches are, unfortunately, constitutional under current doctrine. I invite other criminal procedure aficionados (and doesn’t that include all of us studying for the bar?) to tell me if I’m wrong in this analysis:

Imagine a cop sees a driver in a car in front of him holding something to his ear. The cop flips on his lights and pulls over the driver. The driver, after spying the cop or after getting pulled over, closes the phone and puts it away—either in his pocket, the glove compartment, his backpack—anywhere concealed. The cop walks up to the car, asks the driver if he was talking on his cell phone, and the driver says, “No.” At that point, may the cop search the car, the drivers, and the passengers?

Frighteningly, I would think yes. The cop has probable cause to believe the car contains evidence of a crime. Namely, that there’s a cell phone hidden somewhere, which is evidence of the violation of the new law. The analysis isn’t terribly difficult under common crim pro precedent.

First, we know individuals have a reduced expectation of privacy in their cars, and cops may search a car without a warrant if they have probable cause to believe the car contains evidence of a crime. Carroll v. US, 267 U.S. 132 (1925); US v. Robinson 414 U.S. 218 (1973).

Second, probable cause to search the car can develop (e.g. ‘ripen’) after the stop—such as pursuant to the officer’s observations of the car and its occupants. Colorado v. Bannister, 449 U.S. 1 (1980).

Third, the stop may be completely pretextual—it is no defense that the cop had an ulterior motive in pulling over the car, so long as the stop itself was valid. Whren v. United States, 517 U.S. 806 (1996).

Fourth, and most importantly, the cop may then search the car, containers therein (e.g., purses and backpacks), the driver, and passengers’ belongings if any of those things could “reasonably contain” the items or evidence for which there is probable cause to search. Wyoming v. Houghton, 526 U.S. 295 (1999) (thanks Nino!).

That means that, because the driver could have put his cell phone in his pocket, or his glove compartment, or his backpack, or his girlfriend’s purse, or handed it to someone in the back seat—all of those things may potentially hold evidence and are thus searchable. The tremendous concealability of a cell phone makes anyone or anything in the passenger compartment a potential repository of evidence.

Nor does it make a difference that the “crime” for which evidence is being sought is only a minor vehicle infraction; the probable cause standard under the 4A does not distinguish among levels of crimes. Atwater v. Lago Vista, 532 U.S. 318 (2001) (upholding arrest incident to violation of fine-only infraction).

The closest case on point for all this is Knowles v. Iowa, 525 U.S. 313 (1998), in which the court actually rejected the right of the police to conduct a “search incident to citation.” But the case actually supports a search in this case.

In Knowles, an Iowa trooper pulled over a driver for speeding and then, without consent or probable cause, conducted a full search of the driver’s car and found marijuana. Iowa defended the search by saying that, since a search-incident-to-arrest is a well-recognized exception to the warrant requirement, the police should be able to search someone after citing him for any arrestable offense (like speeding)—even if they don’t actually arrest the guy, because they might find evidence supporting the citation. (The need to look for and preserve evidence of the crime is one of the constitutional rationales for allowing a search incident to arrest). But the Supreme Court, in a Rehnquist opinion, rejected this rationale only because, in the case of speeding, there was no additional evidence to find:

Nor has Iowa shown the second justification for the authority to search incident to arrest–the need to discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car.

Unfortunately, in the context of California’s hands-free device, there is additional evidence to find to prove a violation of the new law: the cell phone itself. Knowles actually seems to invite a search in these circumstances.

To quote the late great George Carlin, this is some bad shit.

Based on Knowles, I see two tiny glimmers of hope for those of us who like robust civil liberties:

One, if the driver admits to talking on the phone, that may be enough to discharge the right to search for lawful evidence—even if the phone is now concealed—because the cop has everything he needs to issue a ticket. However, just because a driver admits to being stoned doesn’t mean the cops can’t search for the pot: finding the article at issue makes the state’s case stronger—and that’s the whole point of “evidence.” If the driver decides to later challenge the hands-free ticket in court, it is obviously helpful if the state can point to an officer’s log or a memorandum on the printed ticket that notes, “Found black LG flip-phone with picture of lolcat below dash.” So I don’t know if an admission is much constitutional help.

Second, and perhaps more favorably, if the cell phone is in plain sight, the need to search for it dissipates entirely. If it's visible, it's been found. And the cell phone itself isn’t contraband.

So maybe this is what will happen during most stops. Maybe most drivers will calmly set their phone down in a visible place on the dashboard or seat next to them and sweetly admit their crime to the cop.

But I doubt it. California as a populace is law-and-order in the voting booth and recklessly libertarian on the freeways. I'd guess the first instinct for 70% of people pulled over is going to be to hide the phone. I mean, what are you going to do the first time you see flashing lights and think, “Oh shit"? (And I know some Boaltie is going to get nailed next week).

Maybe this won’t matter for most people. But if you’re poor, or you’re a black guy driving a BMW, or you’re on Telegraph after 2 AM, or the cop doesn’t like the cut of your jib, or he just had a bad happy meal—he’s got the right to tear your car apart under this new law. That could lead to a whole manner of abuses—and I doubt the (very Democratic) legislature had that in mind when it passed it.