Do Drivers Have A Reasonable Expectation Of Privacy In The Information Collected From Their Vehicle's Black Box? Florida Court Says Yes

A Florida appellate court was recently tasked with determining an interesting issue. Most cars nowadays have a “black box” that records certain information about the vehicle and its operation. The court evaluated what amount of privacy a driver could expect with the information collected by his or her vehicle's black box.

The underlying case involved a man who was charged with vehicular homicide and DUI manslaughter. The defendant, Charles Worsham, “was the driver of a vehicle involved in a high speed accident that killed his passenger.” Among the evidence that law enforcement gathered was the information stored on the black box, also called the event data recorder, which was in the defendant's vehicle. Officers collected this data while the vehicle was impounded and prior to obtaining a warrant. When they applied for a warrant, it “was denied because the desired search had already occurred.” Worsham later moved to suppress the evidence obtained from the event data recorder contending that “the police could not access this data without first obtaining his consent or a search warrant.” The trial court agreed and granted his motion. The state subsequently appealed.

The court stated that “[i]n Florida, citizens are guaranteed the right to be free from unreasonable searches and seizures” by both the state and federal constitutions. Quoting a prior case, the court stated that, “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject to only a few specifically established and well-delineated exceptions.” Fourth Amendment searches “occur when the government violates a subjective expectation of privacy that society recognizes as reasonable.” If a person knowingly exposes something to the public then it is not protected by the Fourth Amendment, even if it is kept in a private place like a home. However, if a person chooses to keep something private, even while in public, then it “may be constitutionally protected.” The court used the example of a car. While the exterior would not be subject to the protection of the Fourth Amendment, in general, the interior would.

The court then looked at what expectation of privacy an individual has in the black box in his or her vehicle. The court stated that “[a] car's black box is analogous to other electronic storage devices for which courts have recognized a reasonable expectation of privacy. Modern technology facilitates the storage of large quantities of information on small, portable devices. The emerging trend is to require a warrant to search these devices.” The court noted that the search of a cell phone generally requires officers to obtain a warrant first.

The court determined that the information on the event data recorder was also subject to the Fourth Amendment's warrant requirement. The court pointed out that the device records more than outwardly observable information like the vehicles speed or braking. The black box in the defendant's vehicle also recorded “the car's change in velocity, steering input, yaw rate, angular rate, safety belt status, system voltage, and airbag warning lamp information.” The court also noted that the information was not easily retrieved and the “downloaded data must . . . be interpreted by a specialist with extensive training.” In addition, there is a federal law that was recently passed that also states that the data can only be accessed by the owner with some exceptions such as permission from a court.

Thus, the court held that “[b]ecause the recorded data is not exposed to the public, and because the stored data is so difficult to extract and interpret, we hold there is a reasonable expectation of privacy in that information, protected by the Fourth Amendment, which required law enforcement in the absence of exigent circumstances to obtain a warrant before extracting the information from an impound vehicle.” The court therefore affirmed the ruling of the trial court and kept the evidence obtained from the event data recorder out of the defendant's case.

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