What could happen when you give your phone to an officer?

By John Bendel, editor-at-large

Your iPhone or smartphone can be your friend. But where law enforcement is concerned, it may not be so friendly – especially if you use it as your electronic logging device.

Let’s say you have an ELD, one of the thrifty ones, a mobile phone app. You pull into a weigh station and an officer asks for your logs.

What do you do? Do you invite him into the truck to look at your phone in its dash mount? Or do you simply hand it to him with your log page showing on the screen?

If you hand your phone to the officer, you may be handing him or her an outline of your life and lots of detail too. That officer could be holding all your contacts, your emails, a trove of photographs, your social media posts, your calendar, and whatever else you might store in that phone’s memory.

Now let’s say the officer takes your phone with him into the scale house, and when he comes out he tells you to pull off to the side. The local police are on the way. Seems he saw something on your phone that indicated you may have been involved in a crime.

Maybe it’s an email that says “deliver that stolen load to 30 Warehouse Way by 7 p.m.” Maybe it’s a photo of a bullet-riddled body. Maybe it’s a text from your wife saying: “Sorry. I had no cash for coffee so I held up the 7-Eleven.”

Maybe the stolen load reference is a broker’s idea of a joke. Maybe that crime-scene photo is actually a movie still. Maybe the message from your wife is family code for “bring home a quart of half-and-half.”

Or maybe not.

What happens now? What are your rights? Do you even have any rights? The short answer is, well, there is no short answer.

According to a U.S. Supreme Court decision in 2014, police cannot search your mobile phone without a warrant. That decision cites the Fourth Amendment to the Constitution, which affirms “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.”

Sounds pretty straightforward, but it gets complicated.

“It’s really a question of expectation of privacy,” said Professor Donald Tibbs of the Drexel University Kline School of Law in Philadelphia, Pa. Tibbs is a constitutional scholar.

“When you hand an officer your phone, that expectation of privacy changes because you’ve basically given them access to something they may not have a clear legal right to. Police may not have free rein to go through the phone, but they may inadvertently see something you don’t have closed off or protected,” Tibbs said.

That might be something running behind your log app – maybe a text or a photo, he said. It could be an instant message that simply pops up on your screen.

That’s when something called the plain view doctrine comes into play.

“If an officer walks into your home with a warrant to search for drugs, but they see an illegal gun on the table, you can be prosecuted for illegal gun possession even if the search for drugs turns up nothing. That’s because the gun was in plain view during a legal search,” Tibbs explained.

If police find the gun in a dresser drawer, though, it is not in plain view and you cannot be prosecuted, Tibbs noted. The same idea applies to mobile phones.

In one example, an officer may deliberately check to see what else might be running on your phone besides the log app, but this won’t work against you. In another example, the officer might accidentally close the log app and see something else, something incriminating, on the screen, and that could be trouble.

“There’s a big difference. One is not authorized and anything found cannot be used against you. The other constitutes accidentally seeing evidence or contraband during a search that is constitutionally permissible – the plain view doctrine. That can be used against you,” Tibbs explained.

The problem, of course, is determining what is accidental and what isn’t, especially when the officer and the phone are out of your view. It’s very easy – especially for clumsy people – to push the wrong button.

Tibb’s advice: “Your drivers might want to keep two cellphones.”

One would only run the log app; the other would be your personal phone with your personal information.

“That way your expectation of privacy is protected because there’s no constitutional basis for officers to ask for your private phone. The phone you hand them only has logs on it. There is nothing else for them to find,” he said.

Tibbs cautioned that if your constitutional rights are violated in an illegal phone search, information found cannot be used against you. However, that does not apply to information on your phone about others.

Remember that example of your wife’s text about robbing the 7 Eleven? According to Tibbs, that text could be used as evidence against her.

“Even if they violate your constitutional rights and find information about her, she has no challenge under the Fourth Amendment. She would be totally exposed to police investigation,” Tibbs said.

“Your wife would have no standing to bring a lawsuit against the government or to raise a constitutional challenge,” Tibbs explained. “If information that was found about her came through another party, that party may have constitutional protection, but she doesn’t.” LL