I can’t believe I’m having to write about this and that this has actually happened. Here’s what’s going on: Michigan State Police have been using a data extraction device to copy motorists’ cell phones. That means that Michigan State Police officers who have this device have been pulling over motorists for routine traffic stops, taking their phones, downloading the data (text messages, contacts, locations visited, web history, pictures, video) which takes about a minute and return the phones to the motorists. Hello? How is this constitutional? I bet you’re wondering if it’s even legal for the police to search your phone during a traffic stop. It’s not and I can’t believe this has happened in our country.
If the police pull you over for a traffic violation, the police may run a brief check to determine if you have warrants while they write you a ticket. The police may not begin searching your car unless they have a reasonable fear for their safety. In that case, the police may only search for weapons in the car where they would likely find weapons. In other words, a weapons search can include a pat-down of your body and a search inside your car where a weapon could be concealed. That does not include an ashtray. Once dispatch advises them that there are no valid warrants for your arrest, they must let you leave. They cannot continue to keep you detained at the side of the road even if you agree to it.
So needless to say I am baffled that the Michigan State Police have gotten away with this, from what I’ve been reading, since 2008 when they first ordered these data extraction devices. These devices even allow the police to break your passwords and retrieve everything in your phone. Even in my days as a prosecutor over a decade ago, I never saw such an egregious violation of privacy by the police. Without a validly obtained warrant, the police have no business looking through your iPhone, Android, or whatever kind of cell phone you have.
But that’s not the end of the story. The ACLU has filed suit against the Michigan State Police and is trying to get more information about the use of these devices. The Michigan State Police told the ACLU that they will comply with their subpoena request but it will cost the ACLU over $500,000. Can you believe this? Nevertheless, I’m confident that this shameful chapter of police overreaching will be over soon and Michigan State Police will have to scrap this unconstitutional program to copy motorists’ cell phone data during routine traffic stops.
If you are pulled over for a minor traffic offense and the police ask you if they can search your car, you do not have to consent. Even if the police officer tries to make you feel uncomfortable, politely tell the officer, “I do not permit you to search my vehicle.”
Also remember, just because you hired a criminal defense attorney does not make you guilty in any way shape, or form. You have the right to exercise your first amendment rights at any time.