Police Must Have Warrant to Download ECM

We often get questions concerning the right of investigating police officers to download data from a tractor-trailer after an accident. One of the first questions posed to a driver following a crash is whether the police can download the ECM. More often than not, the driver and trucking company consent to the download and the data is routinely gathered by law enforcement.

In a recent Missouri case, a truck driver took the Missouri Highway Patrol to task on whether it was legal to download the ECM without his consent. Anthony West was operating a tractor-trailer owned by his employer when he collided with a pick-up truck resulting in the death of the pick-up driver on I-70 near Columbia, MO. West was charged with one count of involuntary manslaughter. While there was some dispute as to whether West consented to the download of the ECM, the Highway Patrol obtained the data without a warrant and planned to offer it into evidence against West on the criminal charges. West filed a Motion to Suppress. The trial court ruled in favor of West and held that the download by the Highway Patrol constituted an unlawful search and seizure. The State of Missouri appealed.

The Appellate Court held that the Missouri Highway Patrol’s download of the ECM violated the 4th Amendment of the U.S. Constitution and constituted an unlawful search and seizure. What is interesting to those of us who defend trucking companies and drivers is the reasoning of the Court in finding that the download was illegal.

The truck driver argued that he had a reasonable expectation of privacy in the data and as a result, the police officer had to obtain a search warrant. The Court refused to take up the issue of whether the driver, who did not own the truck (it was owned by his employer), had an expectation of privacy in the recorded data. However, the Court held that West was a lawful possessor of the truck and that the Highway Patrol in accessing the ECM data without the driver’s consent “constituted an actionable trespass on West’s possessory interest in the vehicle” with an attempt to find something or to obtain information. As a result, West had standing to suppress the data from the download.

The Court went on to hold that West’s lack of knowledge about the ECM, the data it collected or even his inability to access the data was of no consequence. The police officer’s “physical intrusion into and occupation of the tractor cab” to connect to the nine-pin connector was a violation of the truck driver’s 4th Amendment rights. State of Missouri v. West, 2018 WL 1797993 (MO Court of Appeals WD, April 17, 2018).

If a driver does not consent and law enforcement downloads the ECM without a warrant, it may be an unlawful search and seizure unless some other exception is applicable. However, if the driver consents to the download, it can and will be used against him even though there is no warrant. When involved in a catastrophic accident and there is a chance of criminal charges being filed, think twice before consenting to law enforcement downloading the ECM. It is better to be safe than sorry, seek the advice of an experienced trucking attorney.

Ted Perryman is perhaps best known for his role as a leading advocate and defense attorney for the trucking industry. Ted was named The Best Lawyers in America 2017 “Lawyer of the Year” for Insurance Litigation in St. Louis, Missouri.

TLP 2012 Color     tlp loty

Ted was interviewed by Fleet Owner Magazine regarding his decision to have the attorneys get their CDL’s. To read the full article click the following, Law Firm Gets CDLs to Better Represent Carriers, Drivers.

Hear Ted talk trucking May 1, 2018 on Freewheelin’ with Meredith Ochs & Chris T
Sirius XM Road Dog Trucking channel 146
Weekdays 10am-1pm (Replays weeknights 7-10pm CT, Saturdays noon-3pm CT)

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL.

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