A bus driver in San Antonio is caught on camera while driving and texting.  Crash ensues.  Go figure.

Bus Driver Texting and Crash

Yesterday, in Arizona v. Gant, 07-542, the United States Supreme Court ruled that police need a warrant to search a vehicle of a person arrested once that person is secured in a police cruiser and poses no safety threat to officers.

The Court held, in a 5-4 decision:

Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Pp. 5–18. (a) Warrantless searches “are per se unreasonable,” “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357. The exception for a search incident to a lawful arrest applies only to “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395 U. S., at 763. This Court applied that exception to the automobile context in Belton, the holding of which rested inlarge part on the assumption that articles inside a vehicle’s passenger compartment are “generally . . . within ‘the area into which an arrestee might reach.’ ” 453 U. S., at 460.

Rodney Gant had been arrested in Tucson, AZ. for driving on a suspended license.  He was handcuffed and placed in the back seat of a police cruiser.  During a subsequent warrantless search of his car, officers found cocaine and drug paraphernalia in the vehicle.  The Arizona trial court denied his Motion to Supress and he was convicted of drug offenses.

The majority opinion, written by Justice John Paul Stevens, noted warrantless searches are permitted by police only if the car’s passenger compartment is within reach of the suspect or there is probable cause to believe evidence will be found of the crime that led to the arrest. 

In rejecting  more expansive search powers Stevens rationalized:

“A rule that gives the police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals.  Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment - the concern about giving police officers the unbridled discretion to rummage at will among a person’s private effects”  Id. at 11-12.

So, what does this decision mean for the average New York driver?  Clearly more protection from police searches.  I have had countless cases where a driver was stopped by law enforcement for a simple traffic matter, such as speeding or another routine traffic violation, and it turns out they are driving on a suspended license and arrested.  Subsequent vehicle search turns up contraband.  Under Gant, the police now will need a warrant to search the vehicle, unless that search was for evidence of the crime that person was arrested for.  The same rationale applies to DWI cases where the driver is arrested and placed in the police cruiser.  Unless police have probable cause to believe the vehicle contains evidence of the crime of DWI, the police will need a warrant to search that vehicle.

It should be noted that Gant probably does not limit other Fourth Amendment warrant clause exceptions such as consent, inventory, parole/probation search, and weapons search upon reasonable suspicion.

No Talking and Driving

New York State Police and the New York Thruway Authority have announced plans to step-up enforcement of the ban on driving and using cell phones without a “hands-free” device.  “Operation Hang Up” will target these drivers from April 21 - April 24, 2009.  The Troopers have given out over 5,000 citations for this offense in the past year.

Last month, the New York Post reported that the New York City police had a similar crackdown and gave out over 9,000 citations in a 24 hour period.

VTL 1225(c):

§1225-c. Use of mobile telephones.

1. For purposes of this section, the following terms shall mean: 

(a) “Mobile telephone” shall mean the device used by subscribers and other users of wireless telephone service to access such service. 
(b) “Wireless telephone service” shall mean two-way real time voice telecommunications service that is interconnected to a public switched telephone network and is provided by a commercial mobile radio service, as such term is defined by 47 C.F.R. S 20.3. 
(c) “Using” shall mean holding a mobile telephone to, or in the immediate proximity of, the user’s ear. 
(d) “Hand-held mobile telephone” shall mean a mobile telephone with which a user engages in a call using at least one hand. 
(e) “Hands-free mobile telephone” shall mean a mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such mobile telephone, by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate or initiate a function of such telephone. 
(f) “Engage in a call” shall mean talking into or listening on a hand-held mobile telephone, but shall not include holding a mobile telephone to activate, deactivate or initiate a function of such telephone. 
(g) “Immediate proximity” shall mean that distance as permits the operator of a mobile telephone to hear telecommunications transmitted over such mobile telephone, but shall not require physical contact with such operator’s ear. 

2. (a) Except as otherwise provided in this section, no person shall operate a motor vehicle upon a public highway while using a mobile telephone to engage in a call while such vehicle is in motion. (b) An operator of a motor vehicle who holds a mobile telephone to, or in the immediate proximity of his or her ear while such vehicle is in motion is presumed to be engaging in a call within the meaning of this section. The presumption established by this subdivision is rebuttable by evidence tending to show that the operator was not engaged in a call. (c) The provisions of this section shall not be construed as authorizing the seizure or forfeiture of a mobile telephone, unless otherwise provided by law.

3. Subdivision two of this section shall not apply to (a) the use of a mobile telephone for the sole purpose of communicating with any of the following regarding an emergency situation: an emergency response operator; a hospital, physician’s office or health clinic; an ambulance company or corps; a fire department, district or company; or a police department, (b) any of the following persons while in the performance of their official duties: a police officer or peace officer; a member of a fire department, district or company; or the operator of an authorized emergency vehicle as defined in section one hundred one of this chapter, or (c) the use of a hands-free mobile telephone.

4. A violation of subdivision two of this section shall be a traffic infraction and shall be punishable by a fine of not more than one hundred dollars.

We are watching.

The New York State legislature plans to approve the installation of up to 50 red light cameras at intersections in Rochester, NY  The Democrat & Chronicle published a story today on this matter: 

“Critics question whether the cameras are a solution looking for a problem, as the city thus far has not produced accident or enforcement data related to people running red lights. And while Mayor Robert Duffy says the motivation for putting up cameras is public safety, some question if the true benefit is the fines that violators will pay.

“When we start to use law enforcement as a way to generate revenue, I think that is troubling,” said Gary Pudup, director of the New York Civil Liberties Union, Genesee Valley Chapter. “This is not a case where the city is saying we have had these horrible accidents, and we are trying to do something about it. What they are doing is they are trying to close revenue gaps by fining citizens.”

Mayor Duffy stated that these cameras may bring in up to 3.5 million dollars annually to the city.  Each violation will result in a $50.00 fine to the owner of the vehicle - regardless of who is actually driving.  A City municipal attorney stated these citations would not count against the person’s driving record or insurance.

Contrast this plan against what happens if a driver is issued a ticket for the same offense under the NY Vehicle and Traffic law:  fine, mandatory surcharge of $85.00, and three points assessed on your NY DMV driver abstract.

Albany Lawyer writes a post indicating that red light cameras actually increase accidents, citing several studies on the issue here.  Good food for thought - are our politicians looking out for our safety, or is this just a revenue grab?

The New York DMV has announced it has improved customer service with its on-line “RightNow” deployment:

“Thanks to RightNow, NYDMV has done more than just meet these challenges. The agency has significantly exceeded its original efficiency goals and is now delivering superlative service via phone, email, and the web. In fact, NYDMV now answers 97 percent of knowledge base users’ questions automatically via web self-service—and, as a result, has reduced email workloads by 75 percent. Phone and in-office workloads have also been reduced.

“RightNow has enabled us to provide our web customers with outstanding ‘Help Yourself’ service that has yielded eye-opening results,” said New York State DMV internet customer relations manager George Filieau. “We’ve also found that the more you help your customers online, the more you wind up helping yourself.”

Details here