Peace officers and attorneys are increasingly aware that nearly all vehicles have an event data recorder, sometimes called a sensing diagnostic module (the "black box") installed that monitors and records data in the seconds prior, during, and immediately after an "event" (crash or airbag deployment). I know that many officers working on accident reconstruction teams have the necessary hardware and software to download the data from these modules. They can be invaluable in determining what cause a crash, etc. However, there almost no litigation involving them that addresses the issue of warrantless seizure of the data. One New York case found the warrantless seizure lawful based on exigent circumstances (data could be destroyed by owner of vehicle moved). The officer in that Case (New York v. Christmann) didn't have PC that the defendant had committed any offense (auto/pedestrian).

Do you prefer your officers to try for a search warrant (or, of course, consent), or do you care if the officer simply takes the data based on the need for it to include as part of the investigation?

Thanks for any input.

Janette Ansolabehere
DPS

I ask my police departments to use a search warrant. It may not be legally necc based on current case law but I'd rather be safe then sorry.

Given the constitutional preference for warrants, why not get one (or obtain consent). Often the vehicle isn't going anywhere except a shop or a pound and how many laypersons have the sophistication to identify, let alone tamper, with the "black box/"

I have spent some time researching the issue of a warrantless "seizure" of black box data by an officer. Amazingly, given the fact that they have been installed in quite a few vehicles, including nearly all GM models, there are almost no cases dealing with the unlawful search issue. Mainly the courts have had to answer the "criteria for admission into evidence" issue, i.e., Daubert. Anyway, one New York trial court did find that while the officer who downloaded the data as part of his car/pedestrian fatality accident investigation did not have PC to get a search warrant or search under the automobile exception, his action was lawful under the Fourth Amendment and the New York Constitution based on the concept of exigency--the data could be easily erased or lost and New York specifically requires that the officer must respond to an accident involving serious bodily harm or death and determine the cause and file charges if applicable. The court found that the officer's actions were reasonable.

Unlike the New York statute, the Texas statute regarding investigation of accident states that the officer "may" investigate accidents involving injury or property damage exceeding $1,000, and file a report with DPS.

So the real issue is, if the officer doesn't have PC to get the search warrant and the driver or owner won't consent, then what?

Janette Ansolabehere

If you have PC to search a car for drugs, do you need a warrant? No.

If you think the drugs are in the trunk, do you need a warrant? No.

If you think the drugs are in a locked suitcase in the trunk, do you need a warrant? No.

So, what part of this changes just because the information is electronic?

Drugs are perhaps not the best example because they are not just evidence of a crime but also an element.

A better analogy would be a paper document... like maybe the log book that truck drivers use to record their driving time and distance.

Well after thinking about it some more I think that Bradley is right... PC is good enough.

However, I still believe that drugs are not the best analogy because possession is an ongoing crime in the presence of the officer and these computer documents were probably recorded prior to the officer's arrival.

In my opinion, these black boxes are more like the trucker logs except (1) there is no law requiring them, (2) they can be kept without the driver's knowledge, (3) it is possible that a driver wouldn't be able to disable the device even if they knew about it, and (4) the driver has no way to verify the accuracy of the device or know that it is functioning properly and recording accurate data.

Although I believe that you probably don't need a warrant I still feel kinda slimed in regard to the 4th amendment and somewhat uneasy about compelled testimony vis a vis the 5th.

----------------

EDIT: I changed my mind again... I see this more like a diary or journal... or at least somewhere between a diary and a wiretap. Whatever, its not compelled testimony.

I hope this makes sense. I wish I'd gone to law school instead of becoming a software developer. /sigh

[This message was edited by AlexLayman on 07-26-04 at .]

-- EDIT Part II ----
OK, I've got to go to bed and stop thinking about this.

When I boil it all down, the thing that bothers me about this line is that some day we'll have Palm Pilots that plug directly into our brains. These devices would provide great evidence, perhaps even your mens rea, and probable cause may be good enough... just like these black boxes.

I'm REALLY uncomfortable with the idea that a memory enhancement device might be searched without a warrant. Or maybe I just need some sleep before I turn into a conspiracy nut.

[This message was edited by AlexLayman on 07-26-04 at .]

Hey Alex,

Just because you're paranoid doesn't mean they really AREN'T out to get you!

But the good news is, at least the Supremes said "they" can't use their whiz-bang heat-sensing devices to watch your movements inside your own house.

At least - not yet.

I can agree with John that if the officer has probable cause that the driver committed a criminal offense by the manner in which he operated his vehicle, then he can download the EDM data without a warrant under the automobile search exception. But what if the officer doesnt' have PC because he or the accident reconstruction team hasn't yet figured out who or what caused the accident? No PC, no warrantless search. It will be interesting to see how Texas courts handle this issue. California has already passed a statute that makes the EMD data the property of the owner or driver, and it may not be downloaded by an officer without consent or a court order.

Janette Ansolabehere

If you wait the PI lawyers will swoop in and remove and or destroy the info for either the Defense or for the Plaintiff. I have had a hard time making the troopers realize that the Vehicles are not junk but evidence. Is there a DPS policy re this Janette? Are all of the Troopers trained to download the info from these boxes or do we have to send them to you in Austin???

Warner, call me at 512-424-2345 and I will discuss this with you, or e-mail me your number and I will call you. [janette.ansolabehere@txdps.state.tx.us]

Janette Ansolabehere

Is there a definitive list online somewhere of which vehicles have EDR/SDM type systems installed? Before we put too much effort into obtaining the data, it would be handy to know whether there's data to be had....

The one thing that pops into my mind about getting this data without a warrant is the fact that in many instances the suspect's vehicle will no longer be driveable. The automobile exception exists becasue the contraband can drive away. Since you can seize the vehicle why not get the warrant.

In Harris County, we tell officers that they do not need a warrant because the automobile exception applies. The only circumstance that would change that advice arises if there is NO OTHER method to arrive at speed AND speed is vital to the case. The folks who require or suggest warrants have valid concerns. However, we do not want to be in the situation where judges will start to expect warrants for automobiles.

The recovered data is very helpful in the prosecution of these cases, but the information should be part of a total investigatory packet. If we routinely get warrants in this type of "automobile exception," then judges will start to expect it in other cases.

Should it really matter in terms of exigency whether the vehicle which may contain evidence is gone because the owner drove it away, or because the owner had it towed away? Either way, it seems that a warrantless search would be based on the same likelihood of lost/destroyed evidence.

Here's a recent California case which found a 4th Amend violation in a warrantless black box search.

http://www.courtinfo.ca.gov/opinions/documents/H034305.PDF (mostly at 24-25)

The car was impounded by police after a fatal collision with a pedestrian. One year later, the black box was searched.

The opinion seems to say that there was no PC for the search because the police were merely searching at the request of the DA and they didn't expect to find any useful evidence. That part seems a little weird.

As mentioned above, better safe than sorry.