Cal.6: Reasonable expectation of privacy in a vehicle’s “black box”

Search of a vehicle’s “black box” for data a year after an accident was without a warrant and without probable cause. The motorist retained a reasonable expectation of privacy in the data in the recorder even after a year. People v. Xinos, 192 Cal. App. 4th 637 (6th Dist. February 8, 2011):

In California v. Acevedo (1991) 500 U.S. 565 [111 S.Ct. 1982], the U.S. Supreme Court eliminated the warrant requirement for searching a closed container located in a vehicle where probable cause supports a search of the container but not a search of the entire vehicle. (Id. at pp. 573, 576, 579.) But the court emphasized that its holding did not expand the scope of searches permissible under the automobile exception. (Id. at p. 580.) Thus, in Acevedo, “the police had probable cause to believe that the paper bag in the automobile’s trunk contained marijuana,” which justified a warrantless search of the paper bag. (Ibid.) But “the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment.” (Ibid.) Thus, a warrantless search of a vehicle, or the containers within it, under the automobile exception continues to be circumscribed by probable cause. (Ibid.) Its holding indirectly confirms that vehicles continue to be protected by the Fourth Amendment.

We do not accept the Attorney General’s argument that defendant had no reasonable expectation of privacy in the data contained in his vehicle’s SDM. The precision data recorded by the SDM was generated by his own vehicle for its systems operations. While a person’s driving on public roads is observable, that highly precise, digital data is not being exposed to public view or being conveyed to anyone else. But we do not agree with defendant that a manufacturer-installed SDM is a “closed container” separate from the vehicle itself. It is clearly an internal component of the vehicle itself, which is protected by the Fourth Amendment. We conclude that a motorist’s subjective and reasonable expectation of privacy with regard to her or his own vehicle encompasses the digital data held in the vehicle’s SDM.

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The evidence at the suppression hearing established that the vehicle was still being held as evidence of a crime on May 11, 2007 but there had already been a disposition of the case based on “all of the [accident] reconstruction and eyewitness testimony.” The investigating officers had not accessed the data recorder prior to May 11, 2007 because they did not believe it held any relevant data since the airbags had not deployed during the collision. Officer Checke explained, “Prior to going in [on May 11, 2007], we did not believe there would be anything based on the fact that there were no air bags deployed.” Nevertheless, on May 11, 2007, more than a year after the fatal collision, they downloaded the data from the SDM at the request of the District Attorney’s Office. It was only some months later that Officer Checke learned that “a non-deployment event” may register even if air bags do not deploy.

As stated, the scope of a legitimate warrantless search of a vehicle under the automobile exception “is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” (U.S. v. Ross, supra, 456 U.S. at p. 824; cf. Michigan v. Clifford (1984) 464 U.S. 287, 294 [104 S.Ct. 641] [“If the primary object of the search is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched”]; Steagald v. U.S. (1981) 451 U.S. 204, 213 [101 S.Ct. 1642] [“A search warrant … is issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place”].) The scope of a warrantless search authorized by the automobile exception is “no broader and no narrower than a magistrate could legitimately authorize by warrant.” (U.S. v. Ross, supra, 456 U.S. at p. 825.) Moreover, probable cause to conduct a warrantless search must exist at the time the warrantless search is executed. (See Dyke v. Taylor Implement Mfg. Co. (1968) 391 U.S. 216, 221 [88 S.Ct. 1472] [officers conducting warrantless search of automobile must have “‘reasonable or probable cause’ to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search”]; cf. Sgro v. U.S. (1932) 287 U.S. 206, 210 [53 S.Ct. 138] [Proof of probable cause to support issuance of a warrant “must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time”].)

In cases of fatal collisions between a vehicle and a pedestrian, the particular facts and circumstances may give rise to probable cause to believe the SDM contains evidence of a crime. But in this case, the prosecution failed to show that the objective facts known to the police officers at the time of the download constituted probable cause to search the SDM for evidence of crime. The download occurred long after the collision and criminal investigation. The officers who conducted the download were merely complying with an unexplained request of the D.A.’s Office and believed no relevant data would be found. The download of the data was not supported by probable cause.