Pulled Over & Phone Searches in Virginia…
WTDW Podcast | Episode 29: What To Do When… You Are Pulled Over & Police Want to Search Your Phone.
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WTDW Podcast | Episode 29: What To Do…When You Are Pulled Over & Police Want to Search Your Phone.
Welcome to What To Do When….A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss What to do When, and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Hi, and welcome back to another podcast with Critzer Cardani. Here in Richmond, Virginia. What To Do When…
Scott Cardani 0:28
Hello, welcome to another episode here with Critzer Cardani. In Richmond, Virginia. I’m Scott Cardani. This is Will Smith.
Will Smith III 0:35
What’s on the docket for today Scott?
Scott Cardani 0:37
What do you do when you’re pulled over in the police asked to search your cell phone?
Will Smith III 0:41
Yes, sir. This is a follow up to one of our previous podcasts about the new law changes here in Virginia.
Scott Cardani 0:46
Okay, well, what do we need to know about this? Well, I guess the law is really changed with cell phones, hasn’t it?
Will Smith III 0:48
It certainly has. And in Virginia, you can’t hold your cell phone if you’re going to talk on it, or text.
Scott Cardani 0:58
And you mean I can’t just grab my phone right now you just mean when we’re driving.
Will Smith III 1:02
You see all these well, just when driving. New cars nowadays all have Bluetooth capabilities, but people still are driving older version two cars. So they don’t really have that same, you know, ability to connect their their Bluetooth to the car.
Scott Cardani 1:17
It’s really important people, the law has changed, you can actually be pulled over just for using your cell phone in your hand when driving. Right? Yeah. Okay.
Will Smith III 1:27
So the first thing I would say about that, too, is just don’t do it. Right? It’s dangerous. You’re distracted, you know, you don’t have both hands on the wheel, you kind of have your attention isn’t just on the road. So it’s a dangerous situation. So just don’t do it. If you if you have to consider emergency that’s one thing. But mercy, say pull over and use your phone. That’s right. Well, you but we’re out here in Short Pump, you know where, you know, we’re going up and down Broad Street. And I see people all day every day on their phones. And I just keep thinking and you see, you know, these little fender benders and traffic jams. A lot of times those people looking around, somebody has their phone on or they’re stopped at the stoplight and or look, they’re in their suit during their tech.
Scott Cardani 2:07
I can’t tell you how many times folks lately that I’ve seen people come up to Senator me going down a smaller road and you look at him and they’re reading that text. And I’m going like, Whoa, I just almost got clipped. So we’re moving on, or we’re not safety police. But we want you to be safe out there because we care. So what’s the next thing about it?
Will Smith III 2:26
So again, in Virginia, the law says that if you have a cell phone and you’re holding it that is going to be probable cause for the police to be able to stop you.
Scott Cardani 2:33
What if you’re using it for directions?
Will Smith III 2:35
Same thing. You know, if you don’t have Bluetooth capability with your car, you should get one of these things that mounts to your phone. So you want to look at it while you’re driving. You’re still don’t have it in your hand, but it’s you’re looking at it.
Scott Cardani 2:48
It’s literally this issue, right? That’s right. So if it’s sitting over here, you’re fine.
Will Smith III 2:52
That’s Right… It’s let’s say for two because your eyes are still looking up at the road, you’re not handling it, and potentially putting other people in danger and put yourself in danger as well.
Scott Cardani 3:01
So the cop pulls you over, he walks up and he says, Let me see your cell phone. What do you do?
Will Smith III 3:05
That’s right. Well, I’m in Virginia, and really the whole country, the Constitution is what drives right. So under the Fourth Amendment, the police need a warrant in order to search your phone. And just like a lot of other traffic stops they will ask to consent. Will you consent to a search? Can I see your phone?
Scott Cardani 3:25
And what’s our standard answer, folks? No, thank you. I’d like to talk to a lawyer before I consent to anything.
Will Smith III 3:31
That’s right. And so if they can say that they saw you with your phone, that’s it, maybe they did, maybe they didn’t you know, but what they want to be able to see is what you were doing. And so they can go in and see if you were sending text messages, emails, you have read receipts when you’re looking at text messages from a lot of people’s phones. So they want to go in and just confirm what they think they already saw and use that evidence against you in court.
Scott Cardani 3:53
But it’s your right to privacy, folks. I mean, they they are violating your right to privacy, because let’s face it, cell phones today, you have a lot of personal information on there. And again, always remember this, you don’t have the duty to help them make a case against you. You have a duty to be polite, cooperative, but you don’t have anything else.
Will Smith III 4:16
Right, Right, right… Can the police asked to conduct take your cell phone? Can you confiscate your cell phone during a search?
Scott Cardani 4:22
Will Smith III 4:23
I mean, I it’s just like anything else? I mean, if they are trying to search your home, they have to have probable cause for search warrant, right? Or if they come to your house, can we look around and you consent? Well, then you’ve just given up your rights.
Scott Cardani 4:34
And remember, folks, this happens a lot. The cops say oh, you know, if you don’t do this, I’m going to do this. Walk the process out maybe they can get a search warrant. I think it’s highly unlikely they’re gonna get a search warrant and after 11 o’clock at night per cell phone but the bottom line is you have to they’re going to try to get the cell phone and try to get you to consent. You got to hold the line, hold your constitutional rights up and say you know, with all due respect officer I understand you’re doing your job but you I’m not going to give you my cell phone.
Will Smith III 5:01
Right. And I think that that is people just, you know, they want to comply, they want to be easy to, you know, easygoing get along with the police when they’ve been stopped. But that’s one of those things where, you know, it’s you have the same rights, the same rights of privacy, as if you were in your house, or if you’re just driving your car, kind of guy search your car, you don’t have to let them do that.
Scott Cardani 5:19
Yeah, folks, this is really, really important. And you really need to grasp this. We, we have here at Critzer, Cardani. And with Well, we’ve been drills trying to drill this down that, you know, when you’re in crimes, or you’re pulled over, and all these things, you have rights, and you need to exercise those rights. It’s so important, we’re trying to instruct you in those rights, because it just makes everybody’s job easier. It makes our job defending you easier. I mean, they may take your phone, and that would not be great, but it’s better they take it wrongfully. Right?
Will Smith III 5:35
Right… And I’m not saying that it’s going to make it easier, but at least we have a chance, you know, we’re gonna have a chance to defend you. If you haven’t given away all your rights, you haven’t waived all of your rights. So make sure you preserve them. And I think that’s the biggest thing that we can that we can tell people about that.
Scott Cardani 6:03
Have you ever had a search warrant issued for any of your clients being pulled over?
Will Smith III 6:07
I’ve had a search? Well, yes, I’ve had search warrants for blood draws. I’ve had search warrants for their cars.
Scott Cardani 6:12
I mean, for the cell phone, I mean, has anybody Have you heard of anybody out there yet?
Will Smith III 6:16
Not until after they’ve been suspected of some other, more serious offense. But so I don’t think like you’re saying, I don’t think the police are gonna go out of their way, if you’ve been pulled on suspicion of talking on your cell phone or texting while driving to get a search warrant for it. They’re usually going to take that time to get search warrant if they’re suspected of drug dealing, or some other illegal activity. So I think that the and I’ve had clients, I had a client who was looking at YouTube, watching YouTube while driving, and I can’t think of anything really more dangerous than watching television or watching YouTube while driving. But the police officer asked to look at her phone, she gave me his phone, she pulled it right up, I saw exactly what she’d been watching. It’s like, that’s what I saw when I was when I pulled you over. So because she did that she was able to confirm what he already believed corroborating evidence. And so she was really in a difficult spot there.
Scott Cardani 7:06
And, you know, we’ve had some very serious accidents in the state where somebody was making a text going down the road. This recently somebody was killed on the road where somebody was texting something, right? When, right when they were texting, they’ve swerved off the road. And, you know, things just happen, folks. And it’s, you’re driving a very heavy car, and I know you hear about it at school when you say I can do it and all those things. And you know, I’m sure everybody texts once in a while. But you know, you got to just be vigilant to this. And you’ve got to be vigilant with your rights. If you’re pulled over and I say, let me see your phone. You don’t give me your phone. And again, you know, the other thing that people are saying you can give them your phone, but they don’t have your password. So if the phone doesn’t open, it doesn’t open if they want your password that’s even a bigger violate. Yeah, no, no, you’re not getting my password. No, you’re not getting my app, you’re not getting into my phone. I have personal information in there. You don’t have a right to and maybe, you know, you have other crimes sitting there on your phone. That’s the last thing you need. We don’t usually see that. But you know that I’ve had it happen. You know, he’s, I don’t want to go there. What are our takeaways for today?
Will Smith III 8:14
Takeaway for today, if you’re driving, don’t use your phone, don’t hold your phone. I mean, you can obviously do it. Use your phone if it’s mounted, if you have Bluetooth capabilities, but do not hold your phone and talk or hold your phone and text. I think that’s number one, the safety concern. The second just being mindful, also the new laws, texting and driving or talking and driving, they can pull you over for that. So that alone, they can pull you over. And then third, same requirements as if they’re going to search your car, their search your house or anything else where you have a right to privacy. Do not give that right up by consenting to a search. Make them get their warrant, make them do their jobs, so that you can preserve your rights.
Scott Cardani 8:51
All right, well, we appreciate your time, make sure you like and subscribe. Thank you for joining us at Critzer Cardani Thanks.
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