One of the first questions posed to a driver following a crash is whether the police can enter the vehicle and download the data from its ECM. Usually, the driver and/or trucking company consent to the download and the data is routinely gathered by law enforcement. But, in a recent Missouri case, a truck driver took the Missouri Highway Patrol to task on whether it was legal to download the ECM data without his consent.
Anthony West was operating a tractor-trailer owned by his employer when he collided with a pick-up truck, resulting in the death of the driver, on I-70 near Columbia, MO. West was charged with one count of involuntary manslaughter. While there was some dispute as to whether West consented to the download of the ECM, the Highway Patrol obtained the data without a warrant and planned to offer it into evidence against West on the criminal charges. West filed a Motion to Suppress. The Court ruled in favor of West and held that the download by the Highway Patrol constituted an unlawful search and seizure. The State appealed, but the Appellate Court held that the download violated the 4th Amendment of the U.S. Constitution and constituted an unlawful search and seizure.
The truck driver argued that he had a reasonable expectation of privacy in the data, and as a result, the police officer had to obtain a search warrant. The Court refused to take up the issue of whether the driver, who did not own the truck, had an expectation of privacy in the recorded data. However, the Court held that West was a lawful possessor of the truck and that the Highway Patrol in accessing the ECM data without the driver’s consent “constituted an actionable trespass on West’s possessory interest in the vehicle” with an attempt to find something or to obtain information. As a result, West was able to suppress the data from the download.
The Court went on to hold that West’s lack of knowledge about the ECM, the data it collected or even his inability to access the data was of no consequence. The officer’s “physical intrusion into and occupation of the cab” to connect to the nine-pin connector was a violation of the driver’s 4th Amendment rights. If a driver does not consent and law enforcement downloads the ECM without a warrant, it may be an unlawful search and seizure, unless some other exception is applicable.
But, if the driver consents to the download, it can and will be used against him, even though there is no warrant. When involved in a catastrophic accident where there is a chance of criminal charges being filed, think twice before consenting to allow law enforcement to download your ECM. Better safe than sorry.
Now let’s talk about drones. Traffic stops are often one of the most dangerous situations for law enforcement. The unknown can escalate into a dire situation in a hurry. Police departments are now turning to drones to help alleviate some of the danger. Under tight regulations, drones can indeed become a helpful safety device for police, but they can also become another automated traffic enforcement device that could plague law-abiding motorists.
There are currently no federal laws regulating the use of drones for law enforcement, and less than half the states have passed legislation that address privacy concerns and drones. The primary situations police would like to use drones include search and rescue operations, accident reconstruction, investigating an active shooter situation, crime scene analysis, surveillance and crowd monitoring, to mention just a few. But, really, the sky is the limit for Police drones!
Here are some specific ways police departments could use drones. During a traffic stop, an officer could deploy a small shoulder-mounted drone (Amazon just patented one) that could fly around the car giving video feedback to the officer. A drone could also be used as an “eye in the sky” above the scene of a traffic stop or crime scene to serve as a video witness to the interaction of police with the motorist and passengers. Drones could be used to safely find and then follow a suspect’s vehicle during a high-speed pursuit. Using a drone for traffic accident reconstruction could be a time-saver for police, which would also mean less time for road or lane closures for motorists.
At least 347 state and local police departments, county sheriffs, fire departments and emergency units have acquired drones. Police departments lead the charge with more drone acquisitions having taken place in 2016 than in all previous years combined. The game changed last August when a federal law permitting only licensed pilots to operate drones for commercial and police use was lifted. Since then, the Federal Aviation Administration lowered the pilot license requirement and now potential drone pilots need only to pass a detailed test on how to operate a drone and understand air-space-use regulations.
In Tazewell County, IL, Sheriff Chief Deputy Jeff Lower said recently his department purchased three drones. One has thermal imaging to help find people in search and rescue operations, and another has software that allows them to create scale-model, 3D replicas of vehicle accident scenes. “What took two hours before, now takes 20 minutes with a drone,” said Lower. In January 2018, the Los Angeles Police Department (LAPD), the nation’s third largest police force, purchased four drones. Two of them are the “Phantom” model for traffic stops and pursuits. The LAPD crafted careful restrictions with citizen input. Restrictions apply to drone deployment and program oversight, however facial recognition technology and installed weapons will be prohibited.
In 2012, the International Association of Chiefs of Police published a list of recommended guidelines for use of drones in law enforcement. These guidelines, which were endorsed by the American Civil Liberties Union, include: police should obtain warrants to use drones if subjects have a reasonable expectation of privacy; unless relevant to a crime, images captured by drones should not be retained by police; departments should give the public substantial notice of drone use in the course of their police work and how the drones will be used; police drone programs should be tracked and audited for accountability and transparency; and drones should never be weaponized.
The establishment of drone regulations lags far behind the fast pace of increasing drone use by police. Congress, state legislatures, local police departments and county sheriffs need to be proactive to ensure right of privacy and in which situations drones can and should be used. If not, motorists will find themselves in more “Policing for Profit” situations that have the added threat of intrusive surveillance technology. Stay tuned!
