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New York drivers might get mandatory 'textalyzer' phone scans

I would say accessing my texts, even metadata as unreasonable search. We are in the digital age, we need to re-define these rights.
I don't disagree.

I just wanted to point-out the Constitution does not specifically enumerate a 'right to privacy'

However, the Justices have derived many interpretations of what might be thought of as 'privacy' from the 'search & seizure' lines.

And it's for the reasons above in your post, that the Constitution needs to be interpreted and reinterpreted in the context of our times!
 
I'm all for it but I dont know why they need the device. Like they said in the article, they can already get that info from the service providers. And there's a good chance they can retain more individual privacy that way too.
If it's after an accident, then like you say, they can access phone company info... preferably with a warrant. But the accident has already happened so there's no need to have it *right now*. Let the investigation fall out properly.
 
I don't disagree.

I just wanted to point-out the Constitution does not specifically enumerate a 'right to privacy'

However, the Justices have derived many interpretations of what might be thought of as 'privacy' from the 'search & seizure' lines.

And it's for the reasons above in your post, that the Constitution needs to be interpreted and reinterpreted in the context of our times!
Right, but some states do have privacy in their Constitutions. Don't know if New York is one of those states, though.
 
Do they have to read the content of the texts? Isnt just the proof of accessing the text enough? Or sending?

No, I can have my phone send messages on a timer, using speech to text, and other methods. At the very least they should require a warrant and get the information form the phone company, not my phone.
 


If we allow access for angels we will inevitably give access to demons.
 
Right, but some states do have privacy in their Constitutions. Don't know if New York is one of those states, though.
Now isn't that interesting!

So now I wonder: Does a state constitution have to be (federally) Constitutional?

I suspect it does.
 
Now isn't that interesting!

So now I wonder: Does a state constitution have to be (federally) Constitutional?

I suspect it does.
I believe that a state Constitution can add things, but not invalidate anything in the federal Constitution.

For example: California's Constitution does include a right to privacy (or something like that), but they could not invalidate the 2nd Amendment even if they wanted to... which I'm sure they do.
 
Right, but some states do have privacy in their Constitutions. Don't know if New York is one of those states, though.

AFAIK The New York Constitution doesn't have a explicit right to privacy
 
If it's after an accident, then like you say, they can access phone company info... preferably with a warrant. But the accident has already happened so there's no need to have it *right now*. Let the investigation fall out properly.

I agree.

But this bill (for the device) is only after an accident anyway, correct?
 
No, I can have my phone send messages on a timer, using speech to text, and other methods. At the very least they should require a warrant and get the information form the phone company, not my phone.

I never heard of a timer...wow.

And I agree...what's the rush? Go thru due process, get a search warrant, and find out.
 
New York drivers might get mandatory 'textalyzer' phone scans

New York drivers might get mandatory 'textalyzer' phone scans - Apr. 14, 2016



For the life of me, cannot see the need for this beyond law enforcement over reach. In the item "Evan's story" on which the law is based reveals they discovered phone use through law suit. Last I looked the police have the power of warrant to search all phone records, so why?

Further, I sense we are being hosed here. I note that what "Evan's" parents discovered was the other driver had "had been using his phone at some point during the drive that morning. " Now having had some experience in this, as I was a witness, the logs show the exact times of calls. We DO NOT hear this driver was using his phone at the time of the accident, which would have been immediately evident. Therefore I suspect their lawsuit failed.

So what it looks like to me is law enforcement is trying to do through back door what they could not do through front. Since a warrant is specific to the crime being investigated, I suspect police can only see the relevant information. I see this as an attempt to get a data dump collecting other information that has nothing to do with the case at hand.
 
Actually, no we do *not* have a right to privacy (sadly), although some of what we believe to be privacy is sometimes found under 'unreasonable search and seizure'.

But unless my undergrad Con Law professor was in error, the Constitution is silent on the issue.

Indeed. We only have the snippets the Court has carved out from other rights; ie, I'm fairly certain (but I could be wrong because it's been 10 years since I read it) that Lawrence v. Texas carved out something like a "right to privacy" for bedroom escapades, using the term "privacy." Similarly, they mention privacy interests in dealing with 4th Amd issues. But you are absolutely correct that the constitution says nothing explicitly on the point.

And I'd also note the obvious: the NSA fiasco(s) as brought to light by Snowden and others make clear that no matter what the Court has said the constitution implicitly contains, we have no right to privacy as a practical matter.

Well, unless you're in your bedroom doing bedroom things. And even then who knows?
 
Now isn't that interesting!

So now I wonder: Does a state constitution have to be (federally) Constitutional?

I suspect it does.

Not clear on what you mean exactly, but:

1. If a state constitution offers less protection than the federal constitution, then the state courts follow the federal constitution in those respects.

2. If a state constitution offers more protection than the federal constitution (as MA does in a number of areas), then the state courts follow the state court in those respects.



So I guess the answer is: no, but it doesn't matter, because federal supremacy. I'm not aware of any cases where the Supreme Court has had to rule that a state constitutional provision violates the federal constitution and is overturned to the extent that it does, but there probably are some out there.
 
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The goal of the bill is to give police a device that plugs into a phone and scans logs to see if a driver was texting or calling during the crash. And if drivers refuse to hand over their phones, they would lose their driver's license, under the proposed bill -- just as suspected drunk drivers are required to submit to breathalyzers.



Curious what cases you'd rely on for that proposition, because I'm more or less completely certain that it is dead wrong.

As the article itself notes, states already have laws that place you in the position of voluntarily agreeing to submit to a breathalyzer test OR to face automatic license suspension. These laws have been upheld as perfectly constitutional because to the extent it is a search, it is a consent search.

As for the 5th Amd., the Supreme Court has even held that it does not violate the 5th amendment to admit evidence in court that you refused the test, because they don't see blowing into a breathalyzer (or the refusal to do so) as being on par with being forced to provide incriminating testimony against yourself. (Contrast Massachusetts, where in 1992, the SJC held in Opinion of the Justices that evidence that you refused a breathalyzer is not admissible under the state constitution because it is the equivalent of testimonial evidence that the driver knows or suspects he has consumed enough alcohol to have committed OUI).


This would be the same thing, but for plugging the phone into a device to provide physical evidence that you were violating the law. With a breathalyzer, it's the percentage of alcohol in your blood stream. With this, it's whether a text function was active at a particular time.




This is not a breathalizer, it is a monitor and potential restriction of freedom of speech by an unlawful search and seizure - there is software and hardware in modern vehicles that allow a person to talk on the phone without holding it and to text without reading or typing which is required to break the laws. The phone will still show that a call was made or a text was received or sent but the fact that the person did so through a hands free voice recognition program is not logged on the phone and is potentially a violation of the person's Constitutional rights.

What the proposed legislation does is give the government power it does not have regarding both restrictions on the 1st Amendment rights of citizens and increases in government power to search and seize without a warrant which is a 4th Amendment violation, and potentially a 5th Amendment violation if they gain access to what was texted or stated over the phone by eliminating the choice of the person to choose to remain silent.

Hate to pull rank, but here we go: I am a lawyer. I specialize in - and only in - criminal appeals and post-conviction matters. Yes, I should be working now, but I will make up the time tomorrow because I'm feeling lazy at the moment.

You are wrong about the constitutional violations other than the 1st Amd. point, and I am not recalling any cases at the moment that would determine how that one point plays out. I suspect they would say you lose, but as far as I know, it would be a relatively novel argument. I'll have to mull it over to see what pops into mind. (Maybe matchlight can chime in on that point)

As for what I said, I am right and you are wrong.



As to the 4th, you are wrong for the reason I said: the proposed law would be structured so that the driver has a choice to submit the phone to testing or refuse. But refusal would carry a penalty. The Courts have called that a "consent search", meaning no 4th violation. I disagree with the thinking, but I'm not a justice. They don't think that the statutory penalty for refusal makes the consent to search invalid; I do, but again, I'm not SCOTUS.

As to the 5th Amd, you are wrong for the reasons I said: Whether evidence of refusal is admissible at trial would depend on the jurisdiction. Self-incrimination is about testimony and testimonial-like statements or actions that the defendant is compelled to make and which are used at a criminal proceeding. It is NOT about being compelled to provide physical evidence. So you're wrong there.

I see precisely no reason why the Supreme Court would distinguish breathalyzers from cell-tests, because they both provide information about the physical status of the person at the relevant time. The Supreme Court has - wrongly, I believe - held that the police may testify at trial that an individual refused a breathalyzer. South Dakota v. Neville, 459 U.S. 553, 564 (1983). I see no reason to distinguish refusal evidence regarding a cell-phone check.

The only wiggle room here would be whether or not the jurisdiction has a case like Opinion of the Justices, 412 Mass. 1201 (1992).
 
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Hate to pull rank, but here we go: I am a lawyer. I specialize in - and only in - criminal appeals and post-conviction matters. Yes, I should be working now, but I will make up the time tomorrow because I'm feeling lazy at the moment.

You are wrong about the constitutional violations other than the 1st Amd. point, and I am not recalling any cases at the moment that would determine how that one point plays out. I suspect they would say you lose, but as far as I know, it would be a relatively novel argument. I'll have to mull it over to see what pops into mind.

As for what I said, I am right and you are wrong.



As to the 4th, you are wrong for the reason I said: the proposed law would be structured so that the driver has a choice to submit the phone to testing or refuse. But refusal would carry a penalty. The Courts have called that a "consent search", meaning no 4th violation. I disagree with the thinking, but I'm not a justice. They don't think that the statutory penalty for refusal makes the consent to search invalid; I do, but again, I'm not SCOTUS.

As to the 5th Amd, you are wrong for the reasons I said: Whether evidence of refusal is admissible at trial would depend on the jurisdiction. Self-incrimination is about testimony and testimonial-like statements or actions that the defendant is compelled to make and which are used at a criminal proceeding. It is NOT about being compelled to provide physical evidence. So you're wrong there.

I see precisely no reason why the Supreme Court would distinguish breathalyzers from cell-tests, because they both provide information about the physical status of the person at the relevant time. The Supreme Court has - wrongly, I believe - held that the police may testify at trial that an individual refused a breathalyzer. I see no reason to distinguish refusal to this.

The only wiggle room here would be whether or not the jurisdiction has a case like Opinion of the Justices, 412 Mass. 1201 (1992).

You forgot to drop the mic
 
Indeed. We only have the snippets the Court has carved out from other rights; ie, I'm fairly certain (but I could be wrong because it's been 10 years since I read it) that Lawrence v. Texas carved out something like a "right to privacy" for bedroom escapades, using the term "privacy." Similarly, they mention privacy interests in dealing with 4th Amd issues. But you are absolutely correct that the constitution says nothing explicitly on the point.

And I'd also note the obvious: the NSA fiasco(s) as brought to light by Snowden and others make clear that no matter what the Court has said the constitution implicitly contains, we have no right to privacy as a practical matter.

Well, unless you're in your bedroom doing bedroom things. And even then who knows?
And then, only if you shut off the wi-fi to the laptop & iPad, take the battery out of the cell phone, and disconnect the cable! ;)

Not clear on what you mean exactly, but:

1. If a state constitution offers less protection than the federal constitution, then the state courts follow the federal constitution in those respects.

2. If a state constitution offers more protection than the federal constitution (as MA does in a number of areas), then the state courts follow the state court in those respects.



So I guess the answer is: no, but it doesn't matter, because federal supremacy. I'm not aware of any cases where the Supreme Court has had to rule that a state constitutional provision violates the federal constitution and is overturned to the extent that it does, but there probably are some out there.
Thanks.

What I was wondering is: Do state constitutions have to (themselves) meet federal Constitutional tests?

IOW, can a state's constitution be found unconstitutional?

I suspect it can, no different than a state's legislature can be found to have produced unconstitutional legislation.

For ex: some provision which violates an individual's Constitutional rights.

But it's interesting that a state constitution can go further in protecting rights (I would assume as long as some other right is not subsequently infringed upon due to the state's expansion).
 
Thanks.

What I was wondering is: Do state constitutions have to (themselves) meet federal Constitutional tests?

IOW, can a state's constitution be found unconstitutional?

I suspect it can, no different than a state's legislature can be found to have produced unconstitutional legislation.

For ex: some provision which violates an individual's Constitutional rights.



Well, like I said, I just can't answer that because it's not something I've looked into. I suspect that what would happen is that a state appellate court states that the defendant loses under both federal and state constitutions, and then the Supreme Court takes it up on cert. to say "the state court's interpretation of the state constitution provides less protection on this point, so we overturn this decision because the federal constitution as we interpret it says otherwise."

I'm not sure it would be phrased as a ruling that the state constitution is "unconstitutional" under the federal constitution, but the practical effect would be the same. The state court would then have to follow whatever the Supreme Court said. I'm just not aware of any case that dealt with that specifically, so what do I know.





But it's interesting that a state constitution can go further in protecting rights (I would assume as long as some other right is not subsequently infringed upon due to the state's expansion).

It's not something that many people may be aware of, but it's there and I definitely approve of it. One snippet:

"We have noted that we "can HN6 interpret the rights of our citizens under art. 12 to be more expansive than those guaranteed by the Federal Constitution." Commonwealth v. Cryer, supra, at 568. As we stated in Commonwealth v. Hodge, 386 Mass. 165, 169, 434 N.E.2d 1246 (1982), in discussing the differences between the Sixth Amendment and the Massachusetts Declaration of Rights, the "Declaration of Rights can . . . provide greater safeguards than the Bill of Rights of the United States Constitution."
Commonwealth v. Mavredakis, 430 Mass. 848 (2000)



So in addition to what I've mentioned, MA for example requires a trial judge in a criminal case to give a forceful instruction to the jury about doubting the police account of a defendant's confession where they failed to record it (or the defendant refused to allow it to be recorded). Though it wouldn't go as far as one might think. The prosecutors flipped their collective lids when the decision came down, but really, nothing changed. (Of course, it also lead to a situation where the recording equipment suffered an unexplained "malfunction" at higher rates than previously....). We're pushing to have them mandate automatic exclusion of a confession that is not recorded, given the ubiquity of recording equipment and the force of a confession, but who knows where that will go. I doubt they'll go that far.

Cite: Commonwealth v. DiGiambattista, 442 Mass. 423 (2004). (These are available online free, if anyone is interested enough to slog through pages of legal rationale....)

Similarly, unlike under the federal constitution, the police must notify a suspect they have in for questioning if an attorney contacts them and tells them that they wish to speak with the suspect before interrogation (or be present for it). SCOTUS says that knowledge that an attorney is trying to contact a suspect is irrelevant to whether the suspect voluntarily waives his "Miranda rights". MA says that's crap.





There are 6-10 other examples, but I'm feeling a little too lazy to find where I cited them in the past...
 
d






Hate to pull rank, but here we go: I am a lawyer. I specialize in - and only in - criminal appeals and post-conviction matters. Yes, I should be working now, but I will make up the time tomorrow because I'm feeling lazy at the moment.

You are wrong about the constitutional violations other than the 1st Amd. point, and I am not recalling any cases at the moment that would determine how that one point plays out. I suspect they would say you lose, but as far as I know, it would be a relatively novel argument. I'll have to mull it over to see what pops into mind. (Maybe matchlight can chime in on that point)

As for what I said, I am right and you are wrong.



As to the 4th, you are wrong for the reason I said: the proposed law would be structured so that the driver has a choice to submit the phone to testing or refuse. But refusal would carry a penalty. The Courts have called that a "consent search", meaning no 4th violation. I disagree with the thinking, but I'm not a justice. They don't think that the statutory penalty for refusal makes the consent to search invalid; I do, but again, I'm not SCOTUS.

As to the 5th Amd, you are wrong for the reasons I said: Whether evidence of refusal is admissible at trial would depend on the jurisdiction. Self-incrimination is about testimony and testimonial-like statements or actions that the defendant is compelled to make and which are used at a criminal proceeding. It is NOT about being compelled to provide physical evidence. So you're wrong there.

I see precisely no reason why the Supreme Court would distinguish breathalyzers from cell-tests, because they both provide information about the physical status of the person at the relevant time. The Supreme Court has - wrongly, I believe - held that the police may testify at trial that an individual refused a breathalyzer. South Dakota v. Neville, 459 U.S. 553, 564 (1983). I see no reason to distinguish refusal evidence regarding a cell-phone check.

The only wiggle room here would be whether or not the jurisdiction has a case like Opinion of the Justices, 412 Mass. 1201 (1992).

I was thinking that the fact that the breathalyzer test only checks for alcohol while searching someone's cell phone can potentially bring to light other incriminating evidence might have bearing on the 4A argument.
 
But it's interesting that a state constitution can go further in protecting rights (I would assume as long as some other right is not subsequently infringed upon due to the state's expansion).
<edited for brevity>

It's not something that many people may be aware of, but it's there and I definitely approve of it. One snippet:

"We have noted that we "can HN6 interpret the rights of our citizens under art. 12 to be more expansive than those guaranteed by the Federal Constitution." Commonwealth v. Cryer, supra, at 568. As we stated in Commonwealth v. Hodge, 386 Mass. 165, 169, 434 N.E.2d 1246 (1982), in discussing the differences between the Sixth Amendment and the Massachusetts Declaration of Rights, the "Declaration of Rights can . . . provide greater safeguards than the Bill of Rights of the United States Constitution."
Commonwealth v. Mavredakis, 430 Mass. 848 (2000)



So in addition to what I've mentioned, MA for example requires a trial judge in a criminal case to give a forceful instruction to the jury about doubting the police account of a defendant's confession where they failed to record it (or the defendant refused to allow it to be recorded). Though it wouldn't go as far as one might think. The prosecutors flipped their collective lids when the decision came down, but really, nothing changed. (Of course, it also lead to a situation where the recording equipment suffered an unexplained "malfunction" at higher rates than previously....). We're pushing to have them mandate automatic exclusion of a confession that is not recorded, given the ubiquity of recording equipment and the force of a confession, but who knows where that will go. I doubt they'll go that far.

Cite: Commonwealth v. DiGiambattista, 442 Mass. 423 (2004). (These are available online free, if anyone is interested enough to slog through pages of legal rationale....)

Similarly, unlike under the federal constitution, the police must notify a suspect they have in for questioning if an attorney contacts them and tells them that they wish to speak with the suspect before interrogation (or be present for it). SCOTUS says that knowledge that an attorney is trying to contact a suspect is irrelevant to whether the suspect voluntarily waives his "Miranda rights". MA says that's crap.





There are 6-10 other examples, but I'm feeling a little too lazy to find where I cited them in the past...
Thanks for your insight.

Yes, just as I thought.

And yes again, to welcoming the state's expansion of individual rights!

I'd like to think of the Constitution as, 'a nice minimal framework to be expounded upon'!

Surely the framers couldn't think of everything, nor envision every future technology. And the states are in an ideal situation to expand upon and customize.
 
I was thinking that the fact that the breathalyzer test only checks for alcohol while searching someone's cell phone can potentially bring to light other incriminating evidence might have bearing on the 4A argument.

Sadly, no.

In order to protect the policy, the courts have reached the counter-intuitive conclusion that a penalty involving loss of one's driving license does not render the driver's agreement to the search unconsensual.
 
The police are already using stingray devices for mass surveillance so this is kind of small potatoes compared to that. Not that I agree with it, because I don't.

What doesn't make sense is, why do you need to know if someone was texting to know if they're at fault for a crash? It's usually obvious, either because the person wasn't seeing a traffic signal, right of way, or the impact dynamic shows it. Not to mention witnesses. What if the police find out you were texting while driving, but it was a half hour earlier before the crash happened? Do they get to take away your license? This just screams of abuse potential.

It's more big brother non-sense. I also take big issue with de facto guilt if you refuse a search that does not involve a warrant. If the search has probable cause then get a warrant.
 
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