The Public Hazard of Texting While Driving is Apparently Enough for Missoula City Cops to Throw Out the 4th Amendment

by jhwygirl

Tucked in last week’s story on councilman and Democratic congressional candidate Dave Strohmaier and his fellow councilman Jon Wilkins bringing back the cell phone ordinance for more discussion “based on successful work in other communities,” was a little sentence or two that made me wonder just how aggressive city cops were willing to go to enforce Missoula’s texting-while-driving law

You know – the story where Jon Wilkins was quoted as saying “I think the cellphone usage is out of control in Missoula,” and that it was “just going to get worse”?

Tucked in that story were these two paragraphs, with my emphasis added:

There have been a significant number of changes around the country and the state of Montana since Missoula has undertaken to pass our no-texting-while-driving ordinance,” said Muir, who noted that April happens to be National Distracted Driving Awareness Month.

It’s hard to tell if someone is texting or dialing, and police have issued just 12 citations since the law took effect, Muir said. A motorcycle cop wrote half of those because from his vantage point on the bike, it was easier to look down at a driver and see that the motorist was, in fact, texting.

Goddess bless Missoulian reporter Keila Szpaller, btw. She gets those details – and most of the time probably wonders why no one ever notices.

Of 12 citations written, one cop has written half of those citations because from his vantage point it was easier to look down on the driver and see that the motorist was texting?

Really? Is he doing this while riding his bike? Or while he is stopped at a light or sign next to or behind the driver?

I don’t want to sound theatrical or unreasonable, but what ever happened to reasonable cause? The right to…awww, let’s just go right to the U.S. Constitution, Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I recognize that police have a dangerous job. I consider myself pretty well-informed of the risks they take every day when the put on that uniform and go to work. But that being said, I can’t not for the life of me imagine how one cop has managed to rack up 50% of the tickets for texting-while-driving on reasonable cause suspicions that led to him looking into the laps of drivers.

It also makes me wonder what other tickets he’s given out and under what circumstances.

Wilkins thinks cell phone use is “out of control”? I’m thinking we’ve got the cops using that cell phone ordinance for more that what it was intended.

And one cop who might be a little “out of control.”

4th Amendment be damned, Missoula! We might have someone texting-while-driving! Even while stopped at a light!

  1. evdebs

    Not too hard to become aware if someone’s texting. They’re likely to be wandering around their lane, their head is looking down at their laps, etc.

    A good motorcycle driver should be much more aware of what other drivers are doing as they’e much more vulnerable. I had a driver on my right once had his attention called to a parking lot on his left by his passenger who was pointing at it. I was in the curb lane and hit the brakes and headed for the curb, but not quite quick enough.Though he hadn’t signaled, I figured he was going to take a left from the second lane and I was right. He hit my bike and sent me to the hospital.

    A rider on a full sized motorcycle is sitting considerably higher than the driver of a car and one doesn’t have to be terribly aware to notice that they’re texting.

    I’m sorry to hear that the police haven’t written more tickets. Obviously, texting while driving is a major problem.

    • jack ruby

      Its not really a violation of the 4th amendment to ding someone for behavior that they are exhibiting in public view in their car. The cell phone laws are a bit over the top we have one now in Helena and the police seem to take great joy in pulling people over for it yet it is also undeniably dangerous. Maybe they should change it to allow only people over 30 (who are clearly more mature and are better drivers) to talk while driving and target only those damn kids instead.

      • Let me first say I recognize the dangers of cell phone use while driving. People shouldn’t do it.

        What I don’t want to find out is that the cell phone ordinance is being used as a reason to go LOOKING for violations. People raise cain around here when they put up those random road blocks…so what I’m talking about is the lack of reasonable cause.

        Just how does a motorcyclist, while moving, look down INTO a car to make the distinction that the driver was texting and not dialing the phone (because that’s still legal here) – and that would be why the supposed vehicle was swerving or exhibiting dangerous behavior which is supposedly the reasonable cause justifying the police’s viewing into the lap of the driver.

        Get it?

        Or if the car is stopped, how is the driver exhibiting dangerous behavior such that the officer has that reasonable cause?

        Get it?

        So yeah – people shouldn’t use the phone while they’re driving because it’s dangerous…but cops should’t be using that ordinance as a reason for illegal searches of private space.

        OTOH, I do believe that Boneshackler does have a point.

        • Jack ruby

          Well the reality is the cops use any minor infraction to look for other infractions. You don’t have a reasonable expectation of privacy for things you are doing in plain view. Seeing someone on the phone texting constitutes a violation in and of itself there is no other probable cause needed to stop them and write a ticket, assuming the ordinance in Missoula is not some secondary offense where they are specifically required to have something else to pull someone over.I don’t know the specific circumstances of each time they wrote a ticket. I don’t think cops should be acting recklessly to try and find violations but cops are cops they will. There isn’t a 4th amendment issue at least the way it’s been interpreted.

          • You wouldn’t be “doing it in plain view” if it is in your lap…and you miss the fine point of the ordinance that goes after texting but not dialing the phone?

            So the office has to witness someone TEXTING, Jack, not just hitting the keypad.

            So precisely how does he do that while riding a motorcycle while a care is supposedly exhibiting dangerous driving behavior that gives the officer the reasonable cause to look down into the car?

            Frankly, it sounds like a pretty big hazard to me to be driving a motorcycle peering into a moving car.

            • Jack ruby

              I agree it sounds hazardous. I get the point about texting versus dialing. My point would be you don’t need any probable cause to look into their car form the road like that it’s still going to be considered in plain view public view whatever you want to call it. Same thing if someone was holding a beer or drugs or something.

              • Can a cop peer into your house window?

                I guess I’m of the opinion that you can’t happenstance upon what someone is doing in their lap without a bit of an effort.

                It’s that effort that requires reasonable cause.

                I mean – can they walk by the public parking lots and search cars via windows, at will and random?

                Like Boneshackler said – the 4th has been standing dead red for a while now.

  2. The_Boneshackler

    The fourth amendment to the U.S. Constitution was gutted a long time ago under the guise of the ‘War on Drugs’. It was finished off with the Patriot Act. The Bill of Rights is no longer in effect.

  3. dbudge55

    This reminds me of a classic scene from the movie Barfly.

    Wanda:I hate cops. Do you hate cops?
    Henry: No, but I feel better when they’re not around.

    Or maybe it’s all the quite-less-than-possitive-experiences I had with the police in the early ’70s. I dunno…

  4. I drive a truck and look into most cars as they pass me, you get to see some interesting things. If the other traffic on the road can see into your car, then why can’t the police look in as well? It seems to me, that unless your windows are tinted, you have to have some sort of expectation that people can, and will, see into your car, and some people will have a different vantage point than your average sedan driver.

    I do understand the point about the officer making the distinction between texting and dialing. They should have just banned all handheld device use, rather than just certain types of use.

  5. When enough is enough – Texting and Driving that is – more laws, bigger fines, more deaths, prison sentences and yet there is TextSmart-DriveSafe available for Free on the iPhone/iPad, Google Android Market and Blackberry. Locks your phone once you start driving (as low as 1MPH).

    Yes FREE, yet only 1600 downloads? Though iPhone is steady at over 100 weekly this number should be tens of thousands.

    Every driver 15 -19 should be mandated to have such an App on their phones. In many states this will be the case this year from what I am being told.

    Why are parents not concerning themselves with this issue? It’s not the job of law enforcement to monitor what teens eat, go to the doctor, take their medications, do good at school, so why is law enforcement having to ticket and watch for teens texting and driving?

    Parents have and still keep dropping the ball. Do they not love their children? They must not! It is the job of the parents to make their teens take every precaution to be safe while driving. I bet when insurance companies start offering discounts for teens using anti-texting/driving Apps, parents will pay attention. I bet when insurance companies deny coverage or charge a 200% premium for teens not using an anti-texting/driving App, parents will pay attention. Parents how about doing the right thing now, Pay Attention and show you really care!

    Teens and Children, show you’re Parents you care and ask then till you are blue in the face or they agree to put anti-texting/driving Apps on their phones for we know they are as guilty at driving distracted as you are.

    Bottom line; let’s start caring before we are not around to be cared about. 

  1. 1 Chickens Coming Home to Roost, Scene 42b: SCOTUS Rules 5-4 to gut 4th Amendment with Obama’s Approval « 4&20 blackbirds

    […] a quickie here today to tie together Jhwygirl’s recent uncovering of another of Missoula’s nanny state laws and the shrinking 4th Amendment with Lizards ongoing analysis of foreign policy American Imperialism and the democratic […]

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