San Antonio, like many cities across Texas and the United States, put in place a law prohibiting drivers from texting while driving. However, on June 17, 2011, after passing in the legislature, Governor Rick Perry vetoed Texas House Bill 242. If this bill would have passed, Texas drivers would have faced up to a $200 fine and 30 days in jail. Governor Perry issued a statement agreeing that “texting while driving is reckless and irresponsible” but noting that his reason for denying the bill was because it was an “effort to micromanage the behavior of adults.” (See the full statement here.) It is already a Texas law that teens under the age of 18 are prohibited from using a cell phone while driving.
Texas state law generally takes precedence over a city ordinance such as the San Antonio’s ban on texting while driving. But, since the Governor of Texas has spoken, it remains to be seen whether the City of San Antonio will listen.
If the City of San Antonio and several surrounding cities that have followed San Antonio’s lead continue to ban texting while driving, will the officers who make stops be allowed to search the contents of the driver’s cell phone? It is obvious that keeping the roads safe from distracted drivers is good policy, but, what about the not so obvious consequences that will ensue from this law? Consequences such as unreasonable searches of your cell phone that implicate Fourth Amendment rights.
Take for example the following scenario: An officer believes he sees a driver texting. The officer conducts a traffic stop, explains the reason for the stop and then asks to search the driver’s phone. Does the officer now have probable cause to search the driver’s cell phone? And if so, what is the scope of the search?