Overview: A California appellate court recently upheld the admission of evidence obtained from the sensing diagnostic module (SDM) of a vehicle impounded after a fatal crash. The SDM decides whether to deploy air bags based on information recorded and stored five seconds before a crash, including vehicle speed, brake application and throttle position. A driver convicted of involuntary manslaughter claimed that the warrantless search and seizure of her vehicle’s SDM one year after the accident violated the Fourth Amendment, an issue of first impression in the state. Relying on previous California Supreme Court decisions, the court found that when officers lawfully seize a vehicle in the reasonable belief that it is the evidence or instrument of the crime, “subsequent examination” of the vehicle for evidence did not constitute a “search.” Further, drivers have no reasonable expectation of privacy in speed and braking data recorded by SDMs.

Training Points: This case illustrates that law enforcement may conduct a warrantless, subsequent search of the electronic vehicle storage device of an impounded vehicle that is believed to be evidence or the instrument of a crime. This information should be admissible in a criminal prosecution, and may be admissible in a civil action. Even so, it is critically important to process a vehicle to obtain evidence without delay following impound. Officers should remain vigilant in securing vehicles as evidence and conducting any follow up analysis as soon as possible following a collision to avoid inadvertent destruction of the information, to maintain the chain of custody, and to provide the most comprehensive evidence for use in court.

Constantly evolving technology can and will provide additional ways to substantiate criminal misconduct. However, law enforcement should work closely with legal counsel to confirm whether the state of the law has kept up with the state of the art.

Summary Analysis: In People v. Diaz, an intoxicated Diaz sped over a median, killing an 18-year-old driver. Police arrested Diaz and impounded her Chevrolet Tahoe. More than one year later, investigators downloaded SDM data showing that the Tahoe had been traveling at 76 miles per hour, without braking, seconds before the impact. Diaz claimed that the trial court should have suppressed evidence obtained from the illegal search and seizure of the SDM. The appellate court disagreed, finding that “subsequent examination” of the SDM did not constitute a “search” under the California and federal Constitutions and fell within the exception for a vehicle that was itself the evidence or instrument of the crime. The court also found that Diaz had no reasonable expectation of privacy in the recorded data because SDM technology “merely captured” information that she knowingly exposed to traffic. Others could directly observe the vehicle’s braking and speed on public roads or measure the data using trained experts, radar guns, vehicle pacing, or automated cameras.

Follow-Up Contact: For questions regarding this case or its implications for your city and police department, please contact Paul Cappitelli, BB&K’s law enforcement specialist, G. Ross Trindle, III, police attorney, or your BB&K attorney.