The Textalyzer: New Technology Gives Police Access to Private Phone History

The Textalyzer is a new tech item that gives police access to a person’s phone history after an accident, but does it also sanction law enforcement to invade someone’s privacy?

The Textalyzer

Photo by: xersti

The state of New York, along with multiple other locations across the country, is eager for their police department to begin using a new gadget known as the Textalyzer. If it makes it through the New York State Senate, Utah won’t be far behind. The term “Textalyzer” is a spin-off of the breathalyzer except instead of detecting alcohol use, it would detect whether or not a phone was being used prior to a collision. The Textalyzer is a handheld device which officers can connect directly to a person’s phone at the scene of an accident and in less than two minutes, detect if there was any phone activity in the moments leading up to impact.

Flawless technology…

The Textalyzer device is allegedly meant to only detect if there is activity on a phone but there are a few possible flaws:

• Will it truly be able to distinguish if a person was actively looking and using their phone or if there unattended phone was merely receiving calls or texts?

• What if there is activity on the phone, but it was being used hands-free which is legal?

• Does the Textalyzer know whether or not a passenger was using the phone and not the actual driver?

In order to help prevent some of these flaws, simply detecting any activity on the phone won’t be enough. To help reduce flaws with the Textalyzer, it may need more access to a person’s private cell phone history in order to protect that person from being falsely accused of cell phone use while driving.

“Private” cell phones

Textalyzer

Photo by: Lord Jim

Some reports state the Textalyzer could tell what apps were used prior to a collision and if the driver was sending content or just receiving it. This means if someone receives a message on Tinder or another private social media app or sends one themselves it could end up publicly documented in a police report. Even then, there is no way to tell who was using the phone in the car unless of course the driver was alone. To really know for sure when two or more persons were in the car, the content of messages such as a picture taken by a passenger or a reply to a text made by a passenger in behalf of the driver might have to be evaluated to tell who was actually using the phone. In order to not be falsely accused of texting or Facebooking while driving, a large amount of the driver’s private phone history would have to be disclosed and likely documented in a report.

Illegal search and seizure

The Fourth Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Textalyzer would give law enforcement the right to search a person’s private property: their cell phone. It would also give police the right to illegally seize information found on the phone that belongs solely to the owner.

Convenience doesn’t take priority over Constitutional Rights

Photo by: Bill Selak

The Textalyzer may be a simple, easy-to-use device, but realistically it is nothing more than a convenient back door approach for law enforcement to get around going through the proper channels meant to protect a person’s Fourth Amendment rights. If the wool is removed and the Textalyzer is seen as the invader of privacy that it is, officers would have to return to legally obtaining a warrant to search the records of a phone. This may be a longer process than the Textalyzer, but the extra time is worth it to ensure no one’s Constitutional rights are violated.

Fourth Amendment Allows Hotels to Keep Registries Private from Police

Hotels are normally strict about keeping registries private when inquiries are made from common citizens; however when police are involved, guest information is often searched freely with or without a warrant.

Hotel registries

Photo by: Alan Light

As travel season hits its peak for summer vacation, many Utah residents will book lodging away from home. As travelers check in to their overnight establishments, there are several items of information that will be requested and stored by the hotel. A driver’s license with a home address and a credit card to pay for the room are typical items required before a hotel will allow a patron to check in. In addition to the name and address on the license, hotel clerks will generally ask for a phone number, email, and number of guests staying at the hotel as well as the make, model, and license plate number of the vehicle being driven by the hotel guest. This information is then recorded for a period of time on a hotel registry.

Fourth Amendment rights of hotel owners

Prior to June 2015, information collected on registries about patrons would legally have to be handed over at the request of a police officer. Failure to do so could result in criminal charges for the hotel staff or owners. In The City of Los Angeles V Patel, the Supreme Court ruled that forcing a hotel to provide police access to their registries conflicted with the Fourth Amendment rights of the hotel owners. They determined that the owners of a hotel have a constitutional right against unreasonable searches of their patron registries and that the information contained therein should only be released to law enforcement after a signed warrant is presented or if the owner decides to offer the information freely to police.

Privacy or not – hotel has the choice

Photo by: Bob Shepard

The information collected by a hotel belongs to the hotel only and not to the guests for which the information is about. If a hotel owner chooses to share their patron registries with police- that is ultimately their call. The popular lodging chain Motel 6 has chosen the provide law enforcement with their patron registries on a daily basis in order to help limit crime being committed on their property. It is unknown what other hotels have similar freedom of information with police. As privacy may be a sensitive an issue for many individuals, especially those wishing to keep record of their overnights discreet, it may be wise to speak with a hotel about their policies concerning patron registries before booking a room with them.

Pretextual Stop Gives Police Probable Cause to Search a Vehicle

Anytime a Utah resident is pulled over for a minor traffic violation, that incident has the potential to become a pretextual stop, or an opportunity for police to find probable cause to search a vehicle.

Suspicious vehicle

Pretextual Stop

Photo by: Tony

There are times when law enforcement sees a vehicle that they would like to search but they have no probable cause to allow them access to it. The vehicle may be “suspicious” by fitting a certain profile that would allude to possible criminal behavior by the vehicle’s occupants or officers may want to search a car to help an unrelated investigation. Instead of waiting for a crime to be committed by the driver or getting a warrant to search the car, the vehicle may be followed until it makes a minor traffic violation instead.

Broken taillight = probable cause for a search

Speeding, switching lanes without signaling, no seatbelt, and even a broken taillight are all reasons that police can use to pull a car over and issue a citation. These simple traffic stops can also give law enforcement the opportunity to find probable cause to search a vehicle. A planned traffic stop with a hidden agenda is referred to as a pretextual stop, or an opportunity for law enforcement to search a vehicle for a reason that is actually unrelated to the traffic violation.

Whren v. United States

Photo by: Blogtrepreneur

In 1995, Whren- a driver of Mexican descent- was traveling along a stretch of road known as being a major drug trafficking corridor. Officers spotted Whren and proceeded to follow him for over 20 miles. Eventually a couple minor traffic violations such as failure to use a turn signal at a stop sign and speeding were made. This gave officers the opportunity to pull the vehicle over where they noticed narcotics in Whren’s hand. In court Whren attempted to have the evidence surpressed due to the pretextual stop violating his Fourth Amendment rights, however that motion was denied and he was ultimately convicted.

Pretextual stop not unconstitutional

The Fourth Amendment to the U.S. Constitution protects citizens from unreasonable searches and seizures that are conducted without probable cause. Unfortunately, the United States Court of Appeals stated in Whren’s case that a pretextual stop did not violate Whren’s Fourth Amendment Rights. They explained: “the temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment’s prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective.” They went on the further clarify that “Detention of a motorist is reasonable where probable cause exists to believe that a traffic violation has occurred.”

Limits to a pretextual stop

Photo by Drew Stevens

Although the U.S. Court of Appeals determined a pretextual stop to be constitutional, there are limits to what officers are allowed to do once a vehicle is stopped. A pretextual stop allows an officer to pull over a vehicle for a traffic violation but not necessarily to search the vehicle. In order to conduct a search, officers would have to have a warrant or probable cause to do a search. Probable cause might include:

• Seeing contraband in plain view;
• Smelling of illegal drugs by an officer or K9; or
• Observing activity that gives officers reasonable suspicion of a crime such as reckless driving that could indicate alcohol consumption or drug abuse.

If an officer cannot find probable cause to search a vehicle during their pretextual stop, they may ask the driver for permission to search. In an effort to cooperate with law enforcement, many individuals wouldn’t dare saying “no” when asked if officers can look in their vehicle. This is often a major loophole that police use to search a car without probable cause. While being respectful, it is perfectly acceptable to refuse officers to do a vehicle search. If they search a vehicle without probable cause, a warrant, or permission and find evidence of a crime, drivers are encouraged to wait politely but silently and have legal counsel discuss the unreasonable search during court. The evidence collected would likely be dismissed along with related charges. With all cases regarding a pretextual stop or illegal searches and seizures, it is recommended to obtain the aid of a criminal defense attorney. An experienced attorney will help ensure that no constitutional rights have been violated and that all searches were made lawfully.