Handing over a Cell phone to LE ?

Wow that guy is full of BS.....

 

There is plenty of case law on the 4th amendment and warrantless searches being allowed with reasonable cause with regards to vehicles. The justification being the movable nature of the vehicle and the ability to destroy evidence. This is combined with the balancing public safety over someone’s 4th amendment rights. Agree or not, this issue has long been settled.

Now I am not aware of any case law specific to CMV’s however the current laws would apply at a minimum and in other areas of regarding CMV’s it has been settled that the standards for conduct are set higher than the general public. And with public safety being the overwhelming driver behind many of the regulations we have to comply with, that would also set the bar for reasonable cause on an officers side much lower with a CMV.

And actually, there is case law that when an officer has suspicion that does not rise to reasonable cause to search a vehicle and the request to search is not given, that now rises to reasonable cause.

So to the original question. If you are asked to produce your cell you should think of it as the officer being polite and he has the right to demand your cell phone. The act of texting and driving a CMV is illegal in all states. Having the act of turning your phone caught on camera as you enter a scale is enough for them to justify searching it.

What I think many drivers forget is that we do not have the same rights in our trucks as we have in our homes. No one is worried about your home slamming into a school bus at 65 MPH.

 

There may be no specific law on it, but as of November 23, 2011 there is now a specific rule about it.

You can bet they will start asking for them a lot more now.

*edit* They are playing tricky with the wording of it as well. The rule says no using of hand held cell phones. Even if you are using a hands free device you are still using a hand held cell phone, which is now against the rules.....

 

That is simply what they want you to think and believe. The more sheople they can get to believe that load of crap the better for them. Just look at MN for a perfect example.

 

From the comments in the actual published documents:

"Because drivers have other options available that do not require pulling over and stopping, FMCSA disagrees that this rule would impede business. Stops can be avoided by using technological solutions such as a hands-free mobile telephone with a speaker phone function or a wired or wireless earphone. Most mobile telephones have a speaker phone function and one-touch dialing and thus would be compliant with this rule. Additionally, the Agency estimated the minimum cost of upgrading from a non-compliant mobile telephone to a compliant one to be as low as $29.99.11 Therefore, abiding by the final rule will not create a burden on, or hardship for, CMV drivers."
http://www.fmcsa.dot.gov/rules-regulations/administration/rulemakings/final/Mobile_phone_NFRM.pdf

 

JD, are you talking about hearing reports that officers in MI and CA are randomly asking for cell phones, totally separately from the new "no hand-held" rule? I had heard stories about MI doing this from a year or so ago, and using a computer program to see what towers the phone had pinged and comparing that to the logbook. I have NO IDEA if there is any truth to those stories, but there's no way that merely owning a phone is probable cause to have it searched, just like owning a vehicle isn't probable cause to have it searched. If they do have probable cause to search either, they'll have no problem breaking into my truck to do it, which is what they'll have to do.

 

It is not what they want you to believe, it is what the courts have said in Carroll v. United States.

Sorry, but this is going to get long but it is important that we understand what can and can't be done from a legal stand point and not from a truckstop lawyer.

However under the holding of Carroll, law enforcement officers do not have free reign to stop and automobile and search it indiscriminately. The Supreme Court in Carroll held that officers must have probable cause to believe that the automobile has contraband before searching the automobile.

By allowing this, the Supreme Court has also justified warrantless searches and seizures on the basis of safety concerns for the police officers. The Court has held that a police officer may order drivers and passengers out of an automobile. The Court has also found that officers have the freedom to search personal effects in an automobile including containers, purses and luggage, even if only the driver has committed a crime.

So what about searches of sleeper berths of commercial motor vehicles and containers and other items contained in a sleeper berth. To the best my knowledge, the U.S. Supreme Court has never specifically addressed the matter of warrantless searches of sleeper berths. But the Court in California v. Carney (1985) allowed warrantless searches of motor vehicles, in this case a motor home because of the mobility of the vehicle and the diminished expectation of privacy.

The Court set forth its rationale for allowing warrantless searches of motor homes stating as follows: While it is true that respondent's vehicle possessed some, if not many of the attributes of a home, it is equally clear that the vehicle falls clearly within the scope of the exception laid down in Carroll and applied in succeeding cases. Like the automobile in Carroll, respondent's motor home was readily mobile. Absent the prompt search and seizure, it could readily have been moved beyond the reach of the police. Furthermore, the vehicle was licensed to "operate on public streets; [was] serviced in public places; . . . and [was] subject to extensive regulation and inspection." Rakas v. Illinois, 439 U.S. 128, 154 , n. 2 (1978) (POWELL, J., concurring). And the vehicle was so situated that an objective observer would conclude that it was being used not as a residence, but as a vehicle.

In Carney, the Court found that when a vehicle is being used on the highways, or is capable of being used on the highways, even though it is also used as a home, the warrantless search of vehicle exception is applicable.

The Court reasoned that the vehicle is readily mobile, and that there is a diminished expectation of privacy in the motor home stemming from the pervasive regulation of vehicles capable of traveling on the highways. It would seem the same reasoning would apply to the sleeper in a semi.

Applying the Carney rationale, the sleeper is readily mobile, and there is a diminished expectation of privacy in the sleeper stemming from the pervasive regulation of commercial motor vehicles capable of traveling on the highway.

Again, this is not to say that a police officer can indiscriminately stop a commercial motor vehicle and search its entire contents and persons found therein. But they do have the right to check that you are in compliance with all safety regulations. If they have a reasonable case to want to search your cab or sleeper they can.

And lets remember. We are not talking about this happening on even on a remote basis now. So to say that the police are abusing this privilege now is pretty far from factual.

 

As many have mentioned the big question in the legality of DOT asking for your phone is probable cause. I'm pretty sure (not positive) that a cell phone tracks which cell towers it's connected to and logs the time. If DOT can readily access that data it can be used to verify log data, same as receipts or reward cards (see http://www.landlinemag.com/todays_news/Daily/2010/Dec10/122710/122910-04.shtml).

Personally I would politely decline any request for anything that's not my license, log book, and current BOLs.

 

I would have to say these stories are false as since the late 90's it became a federal crime for a cellular company to provide any information on cellular use without a warrant. And unless the judge is standing by to issue it this is just more trucker ledgened.

And why would you not submit to a lawful search? Seems silly to have to pay for new locks. And it is not like we are talking about rights some activist judge took away last year. This has been on the books since 1925.