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How a bill becomes a law & how that law becomes unconstitutional

We often write about criminal appeals that go before the U.S. Supreme Court. These cases do not just affect the defendants involved. They nearly always address an important civil rights issue that is relevant to law enforcement across the country. Typically, they focus on how a certain aspect of a statute can be or should be applied.

But the intersection of criminal justice and civil rights can also be seen in the passage of new laws as well. A recently proposed bill is a good example.

Like Wisconsin and most other states, Vermont has passed a law prohibiting texting while driving. Drivers caught in the act can be pulled over and cited. When asked, some drivers admit to texting while others deny it. Generally, the only way to prove that the driver was texting is to look at their cellphone, which is a search and requires a warrant. This takes time and effort, and the tradeoff usually causes many officers to simply issue a warning instead of a ticket.

Recently, a state legislator proposed a bill that would suspend the warrant requirement in cases of alleged texting. In other words, officers could demand to look in a driver's phone and drivers would be required to comply.

It should be pretty easy for readers to imagine how problematic a law like this could be - especially if it was worded vaguely, as this bill apparently is. On one hand, there is a compelling public safety concern that could potentially be alleviated if officers could more consistently catch and cite texting drivers. On the other hand, the law could very easily be misused by officers to look for any other incriminating evidence (or even just personal information) that is on a driver's phone.

In 2014, the U.S. Supreme Court made clear that law enforcement officers must obtain a warrant before searching a suspect's cellphone. This is, in part, because our phones contain vast amounts of personal and sensitive information.

If the Vermont law were to pass, it might very well be struck down as unconstitutional based on the Supreme Court's 2014 ruling. But even if it was not summarily struck down, it would almost certainly lead to criminal defense appeals seeking to clarify the boundary between law enforcement powers and individual rights.

Let's hope that a similar bill is never proposed here in Wisconsin.

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