GA: Retrieval of data from airbag control module after car wreck was search requiring warrant

Warrantless retrieval of data from the airbag control module (ACM) from a vehicle after a car crash was a search that required a warrant. Mobley v. State, 2019 Ga. LEXIS 694 (Oct. 21, 2019).

In this case, the State pressed an argument in the trial court and Court of Appeals premised on the misguided notion that “reasonable expectations of privacy” have supplanted private rights under the common law as the sole standard by which we determine whether a government act amounts to a search. But as the United States Supreme Court has made perfectly clear, “the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.” Jones, 565 U.S. at 409 (II) (A) (emphasis in original). See also id. at 414 (Sotomayor, J., concurring) (“Katz’s reasonable-expectation-of-privacy test augmented, but did not displace or diminish, the common-law trespassory test that preceded it.”). If either standard is satisfied, the government act in question generally will amount to a search that implicates the Fourth Amendment. See id. at 409 (II) (A).

Although Mobley disputes the idea that he had no reasonable expectation of privacy in the data retrieved from the ACM on the Charger, we find it unnecessary to resolve that question. To retrieve the data, Investigator Hatcher entered the passenger compartment of the Charger and connected a CDR device with the ACM by way of an onboard data port. A personal motor vehicle is plainly among the “effects” with which the Fourth Amendment—as it historically was understood—is concerned, see United States v. Chadwick, 433 U.S. 1, 12 (4) (97 SCt 2476, 53 LE2d 538) (1977), and a physical intrusion into a personal motor vehicle for the purpose of obtaining information for a law enforcement investigation generally is a search for purposes of the Fourth Amendment under the traditional common law trespass standard. See Jones, 565 U.S. at 404 (II) (A) (installation of tracking device on private vehicle and subsequent use of device to monitor vehicle movements is a search). See also Florida v. Jardines, 569 U.S. 1, 5 (II) (133 SCt 1409, 185 LE2d 495) (2013). The retrieval of data without a warrant at the scene of the collision was a search and seizure that implicates the Fourth Amendment, regardless of any reasonable expectations of privacy.