Your View: Guest Column - Let’s terminate the texting terrorism

Jul. 06, 2014 @ 08:03 PM

BY ROBERT (DUSTY) SCHOCH

Your cell phone poll results likely surprised you (Vince Wheeler column July 2) because you asked the wrong question.  Your polling question was: “The U.S. Supreme Court says law enforcement officers need a warrant to check your cell phone if they think you have been texting while driving. Is that good or bad.”  You reported today (July 2) that 65 % of us said bad and 35% good.
The Supreme Court (in the Riley v. California and U.S. v. Wurie cases) didn’t say that. Riley and Wurie weren’t being tried for texting.  They were stopped for other reasons, and after being arrested had their cell phones examined (revealing evidence of other crime) without a warrant. The ruling in those cases makes a clear exception of the case where a person is arrested for using his cell phone (texting) when it says: “One well-recognized exception applies “when ‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.”
Anyone interested can read the cases here: http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf
Cell phone use laws vary from state to state and are summarized online here: http://www.ncsl.org/research/transportation/cellular-phone-use-and-texting-while-driving-laws.aspx
In N.C., hand-held cell phoning is permitted for drivers 18 and over, but texting is banned for all.
If an officer sees a person fingering a phone not held to his ear, that officer has probable cause to suspect the driver is texting, and in the process risking (statistically more than drunk drivers) killing you and me. That officer has probable (just) cause (and my gratitude and blessing) to stop that driver and check his cell phone to see if he’s been texting.  When you have probable cause to suspect illegal phone texting you don’t need a search warrant. The case falls under the exception in the above-quoted Riley/Wurie cases. This exact case has not (yet) been decided by the Federal courts, but when the case comes up I predict the court will rule as I have said.
So your poll question should have asked: “Should the court prohibit police from examining (without a warrant) cell phones of drivers they observe apparently texting while driving when it is understood that nothing private in the phone will be examined or revealed save the fact that the driver was texting someone?”
The answer should be a resounding “no”! Banning evidence of texting in a case of “driving while texting” is like banning breath alcohol evidence in a case of drunk driving.   If police have a right to examine our breath without a warrant when there’s probable cause to suspect drunk driving, they need the right to inspect our cell phone to confirm we were doing something just as lethally stupid — texting.
Why on earth are these nutcases out there risking OUR lives texting when God gave each of them perfectly-functional tongues with which to speak? What we don’t need are laws making it more difficult for police to protect us from texting drivers.  What we do need is much stiffer jail sentences for those who risk our lives by texting-peering at their “smart” phones instead of the road … where you, I and those we love are risking death every day at the hands of these texting terrorists.

Robert (Dusty)  Schoch is a High Point lawyer and writer.