Metropolitan News-Enterprise


Thursday, February 7, 2013


Page 1


No Expectation of Privacy in Air Bag Data, C.A. Holds


By JACKIE FUCHS, Staff Writer


In what it said was a case of first impression in this state, a California appellate court yesterday held that the warrantless seizure of the sensing diagnostic module from a lawfully impounded vehicle’s airbags did not violate the driver’s Fourth Amendment rights.

A unanimous panel of the Fourth District Court of Appeal, Div. Two, said the driver – who was accused of vehicular manslaughter — had no reasonable expectation of privacy in the SDM data, because the module merely captured her speed and use of brakes, information she knowingly exposed to the public.

The charges arose after Elva Diaz’s Chevrolet Tahoe struck a Honda Accord driven by 18-year-old Rachel Elliott, who suffered skull fractures in the collision and died from blunt force trauma.

Defendant’s truck and the victim’s vehicle were impounded for evidence and towed to a secured lot, where the California Highway Patrol’s Multidisciplinary Accident Investigation Team supervised the inspection of the Tahoe, including its tire, wheels, throttle, steering, suspension, brakes, and condition. More than a year after the accident, the sensing diagnostic module, located in the air bags, was also downloaded.

Before trial, Diaz filed a motion to suppress evidence obtained through the warrantless search of the SDM, contending the admission of such evidence violated her Fourth Amendment rights.

Riverside Superior Court Judge Mark Johnson denied the motion, ruling the defendant had no reasonable expectation of privacy in her speed on a public roadway or when and if she applied her brakes shortly before the crash.

He said:

“If a witness observed those actions and testified to them, the evidence would be admitted. If an expert in accident reconstruction testified to them, that evidence would be admitted. There is no difference in an electronic witness whose memory is much more accurately preserved, both to exonerate and implicate defendants.”

A jury eventually convicted Diaz of involuntary manslaughter as a lesser included offense to second degree murder, and vehicular manslaughter with gross negligence while intoxicated.

On appeal from her conviction, defendant argued that although her truck was lawfully in police possession and that there was probable cause to obtain the SDM data, no exigent circumstances existed and she had a reasonable expectation of privacy in it. The SDM was inaccessible and not in plain view, the investigators had to go under the driver’s seat and cut through the carpet to reach it, and its data could not be accessed without connecting it to a computer, the defense pointed out.

Justice Thomas E. Hollenhorst, writing for the panel, said the instrumentality exception to the warrant requirement applied, because the defendant’s vehicle was itself an instrumentality of the crime of vehicular manslaughter. As a result, the examination of the Tahoe for the purpose of determining its evidentiary value did not constitute a “search” as that term is used in the California and federal constitutions.

Hollenhorst also agreed with Johnson that a person has no reasonable expectation of privacy in speed or use of a vehicle’s brakes on a public highway where others could observe such things either directly or through the use of technology such as radar guns or automated cameras.

The SDM, Hollenhorst said, merely captured information defendant knowingly exposed to the public—the speed at which she was traveling and whether she applied her brakes before the impact – and, therefore, there was no Fourth Amendment violation in the admission of the SDM evidence.

Even if the panel were to presume, for purposes of argument, that the search was unlawful, the justice wrote, any error in admitting the SDM data was harmless in light of the overwhelming evidence of defendant’s guilt, including her blood alcohol level at the time of the impact and an expert’s independent estimation of her speed.

Justices Art W. McKinster and Betty Ann Richli concurred in the opinion.

The case is People v. Diaz, 13 S.O.S. 680.


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