Legal Experts See Possible Showdown Pitting Safety Vs. Fourth Amendment

TRENTON, N.J. (CBSNewYork) — License, registration and your cellphone, please.

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Police in New Jersey may soon be allowed to search your cellphone after an accident.

A bill proposed Monday in the New Jersey State Senate would require drivers involved in an accident to hand over their phones — no warrant necessary.

Motorists were mixed on the proposal aimed at cracking down on distracted driving.

“I think it is kind of fair because if you are paying attention to the road, the phone shouldn’t matter,” driver Omar Ali told CBS 2’s Derricke Dennis.

“I think it’s OK, it’s an excellent deterrent,” Lenore Zarin agreed.

But other drivers said the proposal seems like an invasion of privacy.

“I’m against that. You can’t just take my phone out unless I’m doing something wrong with it,” Ron Tillman of Piscataway told Dennis.

State Sen. James Holzapfel (R-Ocean County) introduced the measure over concerns about the rise in accidents linked to texting and calling while driving.

WEB EXTRA: Read The Bill (pdf)

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Bill S2783 states “whenever an operator of a motor vehicle has been involved in an accident resulting in death, bodily injury or property damage, a police officer may confiscate the operator’s hand-held wireless telephone if the officer has reasonable grounds to believe that the operator was operating a hand-held wireless telephone while driving.”

Seton Hall Law professor Jenny Carroll said the bill may violate the Fourth Amendment, which protects against unreasonable searches and seizures.

“I think it’s likely to end up in the U.S. Supreme Court. If not from New Jersey, from another state because many states have passed similar laws or have similar regulations like this which allow police officers to seize a cell phone and review data contained in that cell phone at the scene of an accident,” Carroll told WCBS 880 on Monday.

The bill would also increase the penalty for texting while driving.

“The Constitution makes an exception for evidence that’s in plain view so an open bottle of liquor, for example, rolling around on the floor of your car following an accident would be in the officer’s plain view and could be seized,” Carroll told WCBS 880. “It’s not just that they’re taking the cell phone, which may well be in plain view, but they’re actually looking at information contained in that cell phone to decide whether or not the presence of the cell phone is relevant to the car accident. In other words, were you on the phone or were you texting or receiving a text near or at the time of the accident.”

Civil rights attorney Norman Siegel agreed the measure may face court challenges.

“I understand the frustration and wanting to address this issue, but you have to do it constitutionally,” Siegel told Dennis. “The Fourth Amendment protects citizens from the government seizing and searching their property unless there’s reasonable suspicion and/or probable cause.”

According to the measure, those who get into an accident while texting or talking on the phone face a maximum fine of $300 and two points on their driver’s license.

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