CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, August 19, 2011

Gershowitz on Trading a Confession for a Search

Gershowitz_adam Adam M. Gershowitz (University of Houston Law Center) has posted Trading a Confession for a Search: A Proposal to Deter Texting While Driving and Warrantless Cell Phone Searches on SSRN. Here is the abstract:

Dozens of state legislatures have recently criminalized texting while driving. Unfortunately, these statutes are deeply flawed because they are under-inclusive, ambiguous, and impose punishments so light that they are unlikely to deter drivers. At the same time, by criminalizing texting while driving, legislatures have empowered police to conduct warrantless searches of drivers’ cell phones under the Fourth Amendment’s search incident to arrest and automobile exceptions. The disconnect is stark: For a crime that carries a $20 fine in some states, police are free to search a driver’s text messages, emails, internet browsing history, facebook account, photos, and countless other applications without a warrant.

Because texting while driving is just as dangerous as drunk driving, it should be seriously punished with stiff fines, possible jail time, license suspensions, and interlock devices that block recidivists’ phones from texting while driving. More severe punishment alone will not solve the problem however and it will do nothing to eliminate police authority to conduct warrantless cell phone searches. This article therefore proposes that legislatures adopt an exchange approach rarely utilized in the criminal justice system. Drivers stopped for texting while driving should be given the opportunity to immediately confess to texting while driving in exchange for avoiding a search of their phones. Allowing suspects to exchange a confession for a search will encourage them to plead guilty more often and more quickly, thus enhancing general deterrence. The exchange will also reduce invasive, warrantless cell phone searches that are currently authorized under the Fourth Amendment.

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