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Thread: John Whitehead claims HB1907 grants broad powers to cops to search vehicles

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    Regular Member Repeater's Avatar
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    John Whitehead claims HB1907 grants broad powers to cops to search vehicles

    The motive for HB1907 was to criminalize texting while driving. Curiously, the bill completely exempts law-enforcement officers.

    What really concerns John Whitehead of the Rutherford Institute, is how this new law will be enforced. Will it grant officers broad authority to search your vehicle for the cell phone the cop thought he saw? What if, instead of finding no phone (because there wasn't one) he found a handgun instead?

    So, he wrote a letter to Bob 'for Jobs Higher Taxes' McDonnell asking him to veto HB1907.

    My question is, is Whitehead right and should McDonnell veto HB1907?

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    Campaign Veteran skidmark's Avatar
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    It seems that an officer might develop RAS based on observation, which would provide for the stop. But to "prove" the act of texting the officer would have to search the device for "proof" of having been used to text in the time period when the officer made the observation providing him with RAS.

    Since mobile devices can be used to download web pages, maps, music and other things not listed (they really should have defined the behaviors better) the claim could be made that one was not, for example, texting but selecting MP3 files, or content from web-streamed media, or looking up internal phone directory "contact" information - just to name a few possibilities that are not made illegal by the bill.

    The officer would have to 1) sieze the device and 2) a warrant obtained to search the device for "proof" of having been used for texting at the time of the alleged offense. Otherwise, a defense is mounted by simply denying the alleged act and requiring the officer to submit proof beyond a reasonable doubt.

    If the officer is close enough to see into a vehicle and personally observe the act of texting they are driving recklesly themselves. If they pull a driver over and upon approaching the vehicle observe the driver texting, no crime has been committed because the driver is parked.

    Another "feel good" law that will not accomplish its stated goal of improving driving safety by eliminating one form of reckless driving except in such few cases as to be meaningless.

    Further, if it is reckless for the proles, it surely is reckless for the Only Ones. (I've seen them at driver training.)

    stay safe.
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    Skid is correct, of course. I also point out that iPhones, and possibly other smart phones, can "text" without typing by using speech-to-text and voice commands. So, evidence collected from the phone that text messages were sent, is not evidence that the driver was "texting" in the intended sense of the law.

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    Police Have Constructive Possession of a General Warrant

    I like the concerns and ideas from Skid and Repeater.

    However, I would point out that difficulty proving an offense hasn't prevented zillions of illegal Terry Stops. The cop doesn't find concrete proof of an offense after he's pulled over the driver? So, what? It was a fishing expedition in the first place. Now, when you pass a bored cop and he sees you glancing down, he's got a plausible reason to give the judge for stopping you--if he arrests you for something else in the fishing expedition stop he's about perpetrate on you.

    But, if he doesn't find something in his fishing expedition, so what? What are you gonna do about it? Sue? Over a ten minute traffic stop that he can deflect by telling the judge you looked to be texting? Police know nobody is gonna sue over that.

    Just recall that video from a few years ago where the cop said its a numbers game. They know they have to stop "x" number of cars in order to find something arrest-able to increase their career stats. The General Assembly just tried to hand them another justification or outright pretext to pull people over.

    Remember that obnoxious cop who posted here in the early days? Remember his boast that he could follow someone for a little while because sooner or later they would break some traffic law since no driver remembers all the traffic laws and nobody is that perfect of a driver? Between that and stuff like statutes against texting, we might as well declare that the General Assembly has handed police the functional equivalent of a General Warrant. In fact, we should use the government's own line against them: the police have constructive possession of a General Warrant.
    Last edited by Citizen; 03-09-2013 at 10:32 PM.
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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Citizen View Post
    I like the concerns and ideas from Skid and Repeater.

    However, I would point out that difficulty proving an offense hasn't prevented zillions of illegal Terry Stops. The cop doesn't find concrete proof of an offense after he's pulled over the driver? So, what? It was a fishing expedition in the first place. Now, when you pass a bored cop and he sees you glancing down, he's got a plausible reason to give the judge for stopping you--if he arrests you for something else in the fishing expedition stop he's about perpetrate on you.

    But, if he doesn't find something in his fishing expedition, so what? What are you gonna do about it? Sue? Over a ten minute traffic stop that he can deflect by telling the judge you looked to be texting? Police know nobody is gonna sue over that.

    Just recall that video from a few years ago where the cop said its a numbers game. They know they have to stop "x" number of cars in order to find something arrest-able to increase their career stats. The General Assembly just tried to hand them another justification or outright pretext to pull people over.

    Remember that obnoxious cop who posted here in the early days? Remember his boast that he could follow someone for a little while because sooner or later they would break some traffic law since no driver remembers all the traffic laws and nobody is that perfect of a driver? Between that and stuff like statutes against texting, we might as well declare that the General Assembly has handed police the functional equivalent of a General Warrant. In fact, we should use the government's own line against them: the police have constructive possession of a General Warrant.
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    Regular Member Mattimusmaximus's Avatar
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    John Whitehead claims HB1907 grants broad powers to cops to search vehicles

    Phone? What phone? I don't own a phone officer. I don't think there is a phone in my trunk next to my m-14 officer..


    -Matt of Hillsboro OR-

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    John Whitehead claims HB1907 grants broad powers to cops to search vehicles

    I still do not see the point of the texting law. If texting impairs someone's driving to the point it is a danger to others, reckless driving general (46.2-852) is sufficient.

    Keep the laws simple.

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    Regular Member SouthernBoy's Avatar
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    Good points, particularly by Skid and Citizen. Police play the numbers game, not because of quotas but because that is in their nature. They are "looking for bodies" (quote from a book I read by Boston T. Party). It's just what they do.

    Personally, I don't see any sense at all in cell phone or texting laws because there is already a law on the books in Virginia regarding failure to "pay full time and attention" to your driving. The only real downside to this law is that it can be vague and can therefore be used as a blanket or umbrella law for most anything. However, it would certain cover all of the things drivers do that is a nuisance to other drivers and which cause them to driver erratically like constantly varying their speed, weaving in and over their lanes, failing to move through an intersection on a new green light, and so forth. This law covers everything from women putting on makeup while driving to eating a McDonald's Egg McMuffin so we don't need any new laws about cell phone use or texting.

    Still because of the vagueness of this law, there is a very real danger of it being misused just so that an LEO can go on a fishing expedition.

    What say you learned gentlemen?*


    *please note that this comment is not meant to be sarcastic or cynical. It is genuine.
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    Founder's Club Member Tess's Avatar
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    Quote Originally Posted by SouthernBoy View Post
    Good points, particularly by Skid and Citizen. Police play the numbers game, not because of quotas but because that is in their nature. They are "looking for bodies" (quote from a book I read by Boston T. Party). It's just what they do.

    Personally, I don't see any sense at all in cell phone or texting laws because there is already a law on the books in Virginia regarding failure to "pay full time and attention" to your driving. The only real downside to this law is that it can be vague and can therefore be used as a blanket or umbrella law for most anything. However, it would certain cover all of the things drivers do that is a nuisance to other drivers and which cause them to driver erratically like constantly varying their speed, weaving in and over their lanes, failing to move through an intersection on a new green light, and so forth. This law covers everything from women putting on makeup while driving to eating a McDonald's Egg McMuffin so we don't need any new laws about cell phone use or texting.

    Still because of the vagueness of this law, there is a very real danger of it being misused just so that an LEO can go on a fishing expedition.

    What say you learned gentlemen?*


    *please note that this comment is not meant to be sarcastic or cynical. It is genuine.
    Having informed Delegate Scott Surovell, who submitted one of the texting-while-driving bills, I learned his rationale was not to fix a bad part of the law, but to correct the legislature's screw-up. As I understand it from our conversation, some time ago (I didn't look it up) the legislature made texting and driving a secondary offense. It was thus separated out from the reckless driving criteria. When a judge was asked to rule against someone who had allegedly texted in the few seconds before a fatal crash, the judge said he couldn't use reckless driving because the cell-phone/texting section was separate from the reckless driving section.

    NB: Surovell is known for submitting legislation because of some case he defended in his private practice -- laws make his life easier, I guess.

    I agree with you the offense should be covered under the full-time-and-attention clause, or reckless driving, but then the police on US1 in Lower Alexandria would be continually guilty -- I can't speak for Fairfax County officers in other areas.

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    Quote Originally Posted by skidmark View Post
    It seems that an officer might develop RAS based on observation, which would provide for the stop. But to "prove" the act of texting the officer would have to search the device for "proof" of having been used to text in the time period when the officer made the observation providing him with RAS.

    Since mobile devices can be used to download web pages, maps, music and other things not listed (they really should have defined the behaviors better) the claim could be made that one was not, for example, texting but selecting MP3 files, or content from web-streamed media, or looking up internal phone directory "contact" information - just to name a few possibilities that are not made illegal by the bill.

    The officer would have to 1) sieze the device and 2) a warrant obtained to search the device for "proof" of having been used for texting at the time of the alleged offense. Otherwise, a defense is mounted by simply denying the alleged act and requiring the officer to submit proof beyond a reasonable doubt.

    If the officer is close enough to see into a vehicle and personally observe the act of texting they are driving recklesly themselves. If they pull a driver over and upon approaching the vehicle observe the driver texting, no crime has been committed because the driver is parked.

    Another "feel good" law that will not accomplish its stated goal of improving driving safety by eliminating one form of reckless driving except in such few cases as to be meaningless.

    Further, if it is reckless for the proles, it surely is reckless for the Only Ones. (I've seen them at driver training.)

    stay safe.

    And then there is the whole seize the device so that it can then be (later) searched (and given back to you when???). Leaving you with nothing to record the stop and any other non-justifiable searches, nothing to call your attorney with (and sure hope that you don't have any important contact number only in your device's contact/address book because I'm sure that they're not committed to memory). And as mentioned above, although I NEVER text and drive (frankly almost never text anyway) I do regularly use my ATT Navigator and to do so will hold it in my hands, look at it, keystroke to enter addresses or to check for nearby gas stations....all of which would then be used as justification to pull me over.

    Anyone remember The Wire? The whole idea of a "burner phone" that was disposable? Makes me think that if this becomes what we have to deal with (this law), it would be a great idea to have a "burner phone" readily visible in your vehicle -- one of the real cheap ones that doesn't even have text. I'm just saying....

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    Quote Originally Posted by Tess View Post
    Having informed Delegate Scott Surovell, who submitted one of the texting-while-driving bills, I learned his rationale was not to fix a bad part of the law, but to correct the legislature's screw-up. As I understand it from our conversation, some time ago (I didn't look it up) the legislature made texting and driving a secondary offense. It was thus separated out from the reckless driving criteria. When a judge was asked to rule against someone who had allegedly texted in the few seconds before a fatal crash, the judge said he couldn't use reckless driving because the cell-phone/texting section was separate from the reckless driving section.

    NB: Surovell is known for submitting legislation because of some case he defended in his private practice -- laws make his life easier, I guess.

    I agree with you the offense should be covered under the full-time-and-attention clause, or reckless driving, but then the police on US1 in Lower Alexandria would be continually guilty -- I can't speak for Fairfax County officers in other areas.
    I can. Its almost routine to see them weaving while playing with their computers in their cars. Occasionally they'll actually touch the center line or fog line, both of which I've seen in court cases as justification to temporarily seize the driver on suspicion of DUI.

    Of course, if we as citizens demand the situation be equalized, they'll just hit their lights and stop their cars in the right lane to play on their computers, and hold up traffic while letting us admire their pretty blue flashing lights.
    Last edited by Citizen; 03-10-2013 at 12:48 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    The Constitution of Virginia [1971]
    Article 1 Bill of Rights.

    Section 10. General warrants of search or seizure prohibited. — That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

    Va. Constitution Va. Con. Art. 1 10 (1971)

    =====

    Title 19.2 Criminal Procedure
    Chap. 5 Search Warrants, 19.2-52 — 19.2-60

    19.2-55. Issuing general search warrant or search warrant without affidavit deemed malfeasance. — Any person having authority to issue criminal warrants who wilfully and knowingly issues a general search warrant or a search warrant without the affidavit required by 19.2-54 shall be deemed guilty of a malfeasance. (Code 1950, 19.1-89; 1960, c. 366; 1975, c. 495.)

    =====

    Title 19.2 Criminal Procedure
    Chap. 5 Search Warrants, 19.2-52 — 19.2-60

    19.2-59. Search without warrant prohibited; when search without warrant lawful. — No officer of the law or any other person shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer. Any officer or other person searching any place, thing or person otherwise than by virtue of and under a search warrant, shall be guilty of malfeasance in office. Any officer or person violating the provisions of this section shall be liable to any person aggrieved thereby in both compensatory and punitive damages. Any officer found guilty of a second offense under this section shall, upon conviction thereof, immediately forfeit his office, and such finding shall be deemed to create a vacancy in such office to be filled according to law.

    Provided, however, that any officer empowered to enforce the game laws or marine fisheries laws as set forth in Title 28.2 may without a search warrant enter for the purpose of enforcing such laws, any freight yard or room, passenger depot, baggage room or warehouse, storage room or warehouse, train, baggage car, passenger car, express car, Pullman car or freight car of any common carrier, or any boat, automobile or other vehicle; but nothing in this proviso contained shall be construed to permit a search of any occupied berth or compartment on any passenger car or boat or any baggage, bag, trunk, box or other closed container without a search warrant. (Code 1950, 19.1-88; 1960, c. 366; 1975, c. 495; 1976, c. 293; 1978, c. 721; 1997, c. 147.)

    =====
    Last edited by user; 03-10-2013 at 02:07 PM.
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