“2 Fast 2 Warrantless: Dom Toretto was involved in an automobile collision and his badly-damaged car was impounded while he was in the hospital receiving treatment for his injuries. The police suspect that the crash occurred during an illegal high-speed drift-racing competition. They would like to inspect the car’s electronic data recorder, a/k/a “black box,” a small onboard computer which automatically records the car’s speed, engine RPM, steering wheel position, brake status, and other data. Obtaining the data will require inserting a cable into the car’s dashboard and decoding it will require specialized software available only to mechanics certified by the car’s manufacturer. Do the police need a warrant?”
The first question we would want to answer is whether this action would be a search at all? In United States v. Jones a physical invasion is a search. In that case, the police committed a search when they secretly attached a tracking device to the defendant’s car. Here, I would argue that the police are trespassing by inserting a cable into the car’s dashboard and decoding it. Even if this is not considered a trespass, under Katz, a search can still occur without a trespass when the police violate you reasonable expectation of privacy. Did Dom have a reasonable expectation of privacy in the information on this “black box”? I would argue that he likely does because most people don’t think about someone getting into their dashboard to acquire all this data about the electronic data on the car. Additionally, the cops are using enhanced technology, available only to mechanics certified by the car’s manufacturer. This would likely be similar to Kyllo where the Court held that the use of infrared thermal imaging camera was a search because “The Government use[d] a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion” Although a home is generally given greater protection than a car, I can see where the same principles of enhanced technology would apply here. I would find that there is likely a search here.
The next inquiry would be whether the search would be “reasonable”. The Fourth Amendment prohibits only “unreasonable” searches and seizures. However, a search is automatically reasonable if it is carried out pursuant to a search warrant. There are some exceptions to the rule including, consent being given, plain view rule, and third-party doctrine. In Riley v. California the Court held that an Officer must generally secure a warrant before they are permitted to search digital information on a cell phone incident to an arrest (unless extreme circumstance like a bomb). David Riley was stopped by a police officer for driving with expired registration tags. In the course of the stop, the officer also learned that Riley’s license had been suspended. An officer searched Riley incident to the arrest and found items associated with the “Bloods” street gang. He also seized a cell phone from Riley’s pants pocket. The officer accessed information on the phone and noticed that some words (presumably in text messages or a contacts list) were preceded by the letters “CK”—a label that, he believed, stood for “Crip Killers,” a slang term for members of the Bloods gang. This information was presented at trial to convict Riley. The situation with the “black box” is similar because it also contains electronic data and stores it about the car.
Based on these facts, I would advise that the police obtain a warrant in order to inspect the “black box”.
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