A recent news story on NPR reveled that many vehicles are now being manufactured with a ‘black box’ which records data from your vehicle in the event of a crash. The data saved captures moment-by-moment statistics saved from the most recent collision, and would include things such as seatbelt usage, speed, acceleration, breaking, number of passengers in a vehicle and even the vehicle’s location. This information, for some vehicles, can even be gathered remotely. Federal regulators are considering requiring these in all motor vehicles beginning in late 2014. Currently, the information that can be gathered from these devices is not regulated by Pennsylvania law, and drivers do not have the option to turn the device off. (Currently, 13 states have some regulations about the black boxes) Because this is a fairly new technology, it is unclear whether police can use this information in a criminal investigation without the use of a warrant. Additionally, this evidence must prove to be scientifically reliable before it may be admitted against a criminal defendant.
If police, without a warrant, seized the information in a vehicle’s black box, a defendant, through their criminal defense attorney, must be prepared to file a motion to suppress the gathered information. Because the technology is new, the argument for suppression should be based on existing laws and privacy interests, as well as currently accepted scientific principals.
Under the Pennsylvania and Federal Constitutions, individuals have privacy interests in their persons, houses, papers and possessions. Generally a warrant, supported by probable cause, must be obtained before the government can conduct a search or seizure. To succeed in a suppression motion based in the 4th Amendment (or Article I, Section 8 of the Pennsylvania Constitution), one must show that they have a legitimate expectation in privacy that is both subjective and recognized as reasonable by society. At least one court, a California Appellate Court, has reasoned that an individual does not have a privacy interest in speed and breaking data recorded by these devices. The Court reasoned that the device merely captured information the defendant knowingly exposed to the public. Other states, such as Utah, have taken recent steps to limit the use of this information and acknowledge that individuals have Fourth Amendment protections against the search and seizure of data collected in their vehicle’s data recorder. As such, Utah’s state legislature recently drafted a bill which would declare that this data belongs to the owner of the vehicle, and police must first obtain a search warrant before accessing it.
In addition to concerns over privacy expectations, this new technology also raises questions about the device’s accuracy. Before scientific evidence can be introduced in trial, the proponent of the evidence must demonstrate that it is generally accepted in the relevant scientific community. In a case where the prosecution plans to introduce evidence obtained from these devices, the Defendant should be prepared to challenge the accuracy of the data by questioning the government’s expert on how these devices are tested and regulated. It could be crucial for a defendant to introduce testimony of an automotive engineer or accident investigator who can understand the device’s limitations.
Obviously the law will continue to evolve to keep pace with new technologies and thus it is important to have an attorney who stays current on emerging laws and technology. For questions regarding technology and/or search and seizure issues in a criminal case, contact an experienced Pennsylvania criminal defense attorney at Foreman & Caraciolo.