Cases to Watch: Mobley v. State (part II)

In June we highlighted Mobley v. State as one of our cases to watch. This week we spoke with Nathan Freed Wessler, representing the ACLU as amicus curiae in support of the petitioner, for his thoughts on the case. Mr. Wessler is an attorney with the ACLU Speech, Privacy, and Technology Project, and last year won a landmark victory in Carpenter v. United States, in which the United States Supreme Court held that warrantless acquisition of cell-site location information violates the Fourth Amendment. 


Background 

On December 15, 2014, the vehicle driven by Victor Lamont Mobley collided with another vehicle, killing both the driver and the passenger. . . Mobley was charged with reckless driving, two counts of homicide by vehicle in the first degree and speeding. Mobley moved to suppress evidence that was obtained from the airbag control module (“ACM”) in the vehicle he was driving, which showed that the vehicle was traveling at a speed of 97 miles per hour five seconds before airbag deployment. After conducting a hearing, the trial court denied his motion. In its order denying Mobley’s motion to suppress, the trial court found that it did not have to reach the issue of whether a search warrant was required to access the data from the ACM in the vehicle driven by Mobley, because a search warrant was obtained the day after the data was accessed and the data in the ACM would have inevitably been discovered “when the ACMs were properly removed from the vehicle pursuant to the search warrant[ ].” Following a bench trial on June 6, 2017, Mobley was found guilty on all counts. 

The Court of Appeals affirmed, holding that Mobley lacked a reasonable expectation of privacy in the information revealed by the search, since "there are outward manifestations of the functioning of some of the vehicle’s systems when a vehicle is operated on public roads. For example, a member of the public can observe a vehicle’s approximate speed; observe whether a vehicle’s brakes are being employed by seeing the vehicle slow down or stop or the brake lights come on, by hearing the sounds of sudden braking; and observe whether the driver is wearing a seatbelt . . .   an individual knowingly exposes such information to the public." See 346 Ga. App. at 646. 

The court granted cert, asking: 

1. Did the search and seizure of the airbag control module violate the Fourth Amendment?
2. If so, was the evidence obtained from the search admissible under the inevitable discovery exception to the exclusionary rule as a matter of federal constitutional law?
3. If so, did OCGA § 17-5-30, as construed by this Court in Gary v. State, 262 Ga. 573 (1992), preclude admission of the evidence?
4. If so, should this Court continue to follow Gary v. State, 262 Ga. 573 (1992), in construing OCGA § 17-5-30?

Watch the Argument Here

Discussion


1. The Technology

The first thing to appreciate is that there are a number of different devices relevant to the conversation. "Airbag control module" (or "ACM") is the term that is frequently thrown around, but ACMs are just one type of the devices at issue, and are not nearly the most advanced. An ACM is the computer that monitors the vehicle sensors and stores the information in a temporary file, periodically overwriting itself unless there is a airbag-triggering crash which causes the data to be saved. Over time, devices of this type have become advanced enough to track more data from more parts of the vehicle; these devices are usually referred to as an "Event Data Recorder" ("EDR") or a "Black Box."


2. Use and Availability

According to Mr. Wessler, more than 99% of light vehicles (here meaning personal-transportation vehicles) sold in recent years have an EDR or Black Box, but the devices themselves date back to vehicles made as early as the 1990's. Since this time, Black box technology has changed incrementally more than exponentially, but Mr. Wessler believes "we're at the cusp of an exponential change" because cars today are virtually run by computers, and the range of data they provide is "extraordinary."

While the driver of the vehicle would never know the device is there simply by visually inspecting it (since the device is usually concealed in the dash board or under the hood), as demonstrated by Mr. Mobley's case, the data collected by the EDR can be highly probative evidence in criminal prosecutions where reckless driving is at issue. Based on the testimony in the trial court, at least some police departments regularly collect EDR data following a fatal car crash, though it is not yet clear how many do so or what their standard procedures are.

Mr. Wessler points out that it is precisely because we don't know how many police departments collect the data that it is so important the court provide guidance on the state of the law in this area, no matter the outcome or rationale in the case.

3. The Argument

Asked what the ACLU was asking the Court to say about the case, Mr. Wessler identified two points:

First: downloading EDR data is a search under the Fourth Amendment.

Mr. Wessler believes this is an easy conclusion to reach under the "property" (i.e. trespass to property) theory of the Fourth Amendment, but it is nonetheless important that the Court explain the state of the law in this area so that police, the public, and lawyers understand how traditional rules apply in the realm of advancing technology.

Second: courts should think hard about applying the usual rules to unusual technology. 

As the first point shows, the reasons and exceptions underpinning traditional Fourth Amendment doctrine do not always fit comfortably with the realities of modern technology. To use Mr. Wessler's words, this means that courts should not "mechanically apply" traditional doctrines to "digital age data." In the context of Mobley, the automobile exception to the warrant requirement should not be extended to car-systems data because the rationales underpinning the exception simply don't apply, and the privacy interests in the data are different and greater than those historically at stake. In short: courts must be careful not to wander their way into allowing police to obtain mounds of EDR data at every routine traffic stop.

4. The Takeaways


Cases like Mobley demonstrate two important points for Georgia criminal practice. First, it pays to understand the technology. It is the rare lawyer that has significant background in science and technology, but in cases like Mobley the details of the technology are a major part of the privacy interests at stake in a Fourth Amendment case. Second, as Mr. Wessler emphasized, a responsible defense attorney needs to be prepared to present arguments under both the property and reasonable expectations of privacy theories of the Fourth Amendment. Some cases will be better than others for one theory or another, but it is important to spend time thinking about both.