DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

STATE OF FLORIDA,
Appellant,
v.
CHARLES WILEY WORSHAM, JR.,
Appellee.
No. 4D15-2733
[March 29, 2017]
Appeal of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Jack Schramm Cox, Judge; L.T.
Case No. 2013CF012609AMB.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellant.
Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm
Beach, for appellee.
GROSS, J.
The state challenges an order granting appellee Charles Worsham’s
motion to suppress. Without a warrant, the police downloaded data from
the “event data recorder” or “black box” located in Worsham’s impounded
vehicle. We affirm, concluding there is a reasonable expectation of privacy
in the information retained by an event data recorder and downloading
that information without a warrant from an impounded car in the absence
of exigent circumstances violated the Fourth Amendment.
Worsham was the driver of a vehicle involved in a high speed accident
that killed his passenger. The vehicle was impounded. Twelve days after
the crash, on October 18, 2013, law enforcement downloaded the
information retained on the vehicle’s event data recorder. The police did
not apply for a warrant until October 22, 2013. The warrant application
was denied because the desired search had already occurred.
Worsham was later arrested and charged with DUI manslaughter and
vehicular homicide. He moved to suppress the downloaded information,

 arguing the police could not access this data without first obtaining his
consent or a search warrant. The state defended the search on the sole
ground that Worsham had no privacy interest in the downloaded
information, so that no Fourth Amendment search occurred. 1 The trial
court granted Worsham’s motion.
“A motion to suppress evidence generally involves a mixed question of
fact and law. The trial court’s factual determinations will not be disturbed
if they are supported by competent substantial evidence, while the
constitutional issues are reviewed de novo.” State v. K.C., 207 So. 3d 951,
953 (Fla. 4th DCA 2016) (internal citation omitted). An appellate court is
bound by the trial court’s findings of fact unless they are clearly erroneous.
Id. The burden is on the defendant to show the search was invalid,
“[h]owever, a warrantless search constitutes a prima facie showing which
shifts to the State the burden of showing the search’s legality.” Id. (internal
citation omitted).
In Florida, citizens are guaranteed the right to be free from
unreasonable searches and seizures by the Fourth Amendment to the
Unites States Constitution and section 12 of Florida’s Declaration of
Rights. Smallwood v. State, 113 So. 3d 724, 730 (Fla. 2013). “The most
basic constitutional rule” in the area of Fourth Amendment searches
is that “searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment—subject only to a
few specifically established and well-delineated exceptions.”
The exceptions are “jealously and carefully drawn,” and there
must be “a showing by those who seek exemption . . . that the
exigencies of the situation made that course imperative.”
“[T]he burden is on those seeking the exemption to show the
need for it.”
Id. at 729 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 454–55
(1971)).
“A Fourth Amendment search occurs when the government violates a
subjective expectation of privacy that society recognizes as reasonable.”
State v. Lampley, 817 So. 2d 989, 990 (Fla. 4th DCA 2002) (quoting Kyllo
v. United States, 533 U.S. 27, 33 (2001)). This principle has been applied
The state raises inevitable discovery and good faith in its brief. We do not reach
these issues because they were not preserved in the circuit court. Sunset Harbour
Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005).

1

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 “to hold that a Fourth Amendment search does not occur . . . unless ‘the
individual manifested a subjective expectation of privacy in the object of
the challenged search,’ and ‘society [is] willing to recognize that
expectation as reasonable.’” Lampley, 817 So. 2d at 990-91 (quoting Kyllo,
533 U.S. at 33)).
Katz v. United States explained “the Fourth Amendment protects
people, not places,” so “[w]hat a person knowingly exposes to the public,
even in his own home or office, is not a subject of Fourth Amendment
protection.” 389 U.S. 347, 351 (1967). One example is a car’s exterior,
which “is thrust into the public eye, and thus to examine it does not
constitute a ‘search.’” New York v. Class, 475 U.S. 106, 114 (1986); see
also Cardwell v. Lewis, 417 U.S. 583, 592 (1974) (permitting warrantless
search of an automobile’s exterior).
Nevertheless, information someone seeks to “preserve as private,” even
where that information is accessible to the public, “may be constitutionally
protected.” Katz, 389 U.S. at 351. This is why “a car's interior as a whole
is . . . subject to Fourth Amendment protection from unreasonable
intrusions by the police.” Class, 475 U.S. at 114–15; see also United States
v. Ortiz, 422 U.S. 891, 896 (1975) (“A search, even of an automobile, is a
substantial invasion of privacy.”).
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. See Riley v. California, 134 S. Ct. 2473 (2014)
(requiring warrant to search cell phone seized incident to arrest);
Smallwood, 113 So. 3d 724 (requiring warrant to search cell phone in
search incident to arrest); State v. K.C., 207 So. 3d 951 (requiring warrant
to search an “abandoned” but locked cell phone).
Noting that cell phones can access or contain “[t]he most private and
secret personal information, Smallwood, 113 So. 3d at 732, the Florida
Supreme Court has distinguished these computer-like electronic storage
devices from other inanimate objects:
[A]nalogizing computers to other physical objects when
applying Fourth Amendment law is not an exact fit because
computers hold so much personal and sensitive information
touching on many private aspects of life. . . . [T]here is a far
greater potential for the “inter-mingling” of documents and a
-3-

 consequent invasion of privacy when police execute a search
for evidence on a computer.
Id. (quoting United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011)).
Because of the “very personal and vast nature of the information” they
contain, cell phones are “materially distinguishable from the static,
limited-capacity cigarette packet in Robinson.” 2 Smallwood, 113 So. 3d at
732. “[T]he search of a static, non-interactive container, cannot be deemed
analogous to the search of a modern electronic device cell phone.” Id. The
Smallwood court made clear that the opinion was “narrowly limited to the
legal question and facts with which [it] was presented.” Id. at 741.
Nonetheless, the court reiterated its desire to protect Fourth Amendment
precedent “by ensuring that the exceptions to the warrant requirement
remain ‘jealously and carefully drawn.’” Id. at 740.
The United States Supreme Court drew a similar distinction between a
cell phone and other tangible objects in Riley v. California. The Court held
that the search incident to arrest exception did not apply because neither
rationale–the interest in protecting officer safety or preventing destruction
of evidence–justified the warrantless search of cell phone data. Riley, 134
S. Ct. at 2486-88. “Cell phones differ in both a quantitative and a
qualitative sense from other objects that might be kept on an arrestee’s
person. The term ‘cell phone’ is itself misleading shorthand; many of these
devices are in fact minicomputers . . . .” Id. at 2489.
Searches of these “minicomputers,” with their “immense storage
capacity,” are far more intrusive than searches prior to the “digital age,”
which were “limited by physical realities and tended as a general matter to
constitute only a narrow intrusion on privacy.” Id. The capacity of these
devices “allows even just one type of information to convey far more than
previously possible.” Id. The Court concluded, “[t]he fact that technology
now allows an individual to carry such information in his hand does not
make the information any less worthy of the protection for which the
Founders fought.” Id. at 2495.
It is an issue of first impression in Florida whether a warrant is required
to search an impounded vehicle’s electronic data recorder or black box.3
United States v. Robinson, 414 U.S. 218 (1973) (permitting the warrantless
search of an arrestee’s person incident to arrest if the officer had probable cause
for the arrest).
3 As of this writing, 17 states have laws addressing event data recorders, which
provide under what circumstances the data may be downloaded. Privacy of Data
From Event Data Recorders: State Statutes, NATIONAL CONFERENCE OF STATE
2

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 An event data recorder is a device installed in a vehicle to record “crash
data” or technical vehicle and occupant information for a period of time
before, during, and after a crash. NHTSA, Event Data Recorders, 49 C.F.R.
§ 563.5 (2015). Approximately 96% of cars manufactured since 2013 are
equipped with event data recorders. Black box 101: Understanding event
REPORTS,
data
recorders,
CONSUMER
http://www.consumerreports.org/cro/2012/10/black-box-101understanding-event-data-recorders/index.htm, (published Jan. 2014).
Most of these devices are programmed either to activate during an event
or record information in a continuous loop, writing over data again and
again until the vehicle is in a collision. Michelle V. Rafter, Decoding What’s
in Your Car’s Black Box, EDMUNDS, https://www.edmunds.com/cartechnology/car-black-box-recorders-capture-crash-data.html
(updated
July 22, 2014). However, if triggered, the device can record multiple
events. 49 C.F.R. § 563.9.
The National Highway Traffic Safety Administration has standardized
the minimum requirements for electronic data recorders, mandating that
the devices record 15 specific data inputs, including braking, stability
control engagement, ignition cycle, engine rpm, steering, and the severity
and duration of a crash. 49 C.F.R. § 563.7. Along with these required
data inputs, the devices may record additional information like location or
cruise control status and some devices can even perform diagnostic
examinations to determine whether the vehicle’s systems are operating
properly. See Decoding ‘The Black Box’ with Expert Advice, AMERICAN BAR
ASSOC.
GP
SOLO
LAW
TRENDS
&
NEWS,
http://www.americanbar.org/content/newsletter/publications/law_tren
ds_news_practice_area_e_newsletter_home/decodingblackbox.html (May
2005); Vehicular Data Recorder Download, Collection, and Analysis,
COLLISION
RESEARCH
AND
ANALYSIS
INC.,
http://collisionresearch.com/services/event-data-recorder-0.
The information contained in a vehicle’s black box is fairly difficult to
obtain. The data retrieval kit necessary to extract the information is
expensive and each manufacturer’s data recorder requires a different type
of cable to connect with the diagnostic port. Rafter, supra. The
downloaded data must then be interpreted by a specialist with extensive
training. Id.; see also Melissa Massheder Torres, The Automotive Black
Box, 55 REV. DER. P.R. 191, 192 (2015).
LEGISLATURES,
http://www.ncsl.org/research/telecommunications-andinformation-technology/privacy-of-data-from-event-data-recorders.aspx (Jan. 4,
2016). Florida does not have similar legislation.
-5-

 The record reflects that the black box in Worsham’s vehicle recorded
speed and braking data, the car’s change in velocity, steering input, yaw
rate, angular rate, safety belt status, system voltage, and airbag warning
lamp information.
Extracting and interpreting the information from a car’s black box is
not like putting a car on a lift and examining the brakes or tires. Because
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 impounded vehicle.
Although electronic data recorders do not yet store the same quantity
of information as a cell phone, nor is it of the same personal nature, the
rationale for requiring a warrant to search a cell phone is informative in
determining whether a warrant is necessary to search an immobilized
vehicle’s data recorder. These recorders document more than what is
voluntarily conveyed to the public and the information is inherently
different from the tangible “mechanical” parts of a vehicle. Just as cell
phones evolved to contain more and more personal information, as the
electronic systems in cars have gotten more complex, the data recorders
are able to record more information. 4 The difficulty in extracting such
information buttresses an expectation of privacy.
Recently enacted federal legislation enhances the notion that there is
an expectation of privacy in information contained in an automobile data
recorder. The Driver Privacy Act of 2015 states that “[a]ny data retained
by an event data recorder . . . is the property of the owner . . . of the motor
vehicle in which the event data recorder is installed.” § 24302(a), 49 U.S.C.
§ 30101 note (2015). The general rule of the statute is that “[d]ata recorded
or transmitted by an event data recorder . . . may not be accessed by a
person other than an owner . . . of the motor vehicle in which the event data
recorder is installed.” § 24302(b) (emphasis added). There are only five
exceptions to this rule, which include authorization from a court or
administrative authority or consent of the owner. § 24302(b)(1)-(5).
See U.S. GOV’T ACCOUNTABILITY OFF., REPORT TO CHAIRMAN, SUBCOMM. ON
PRIVACY, TECH. AND THE LAW, COMM. ON THE JUDICIARY, U.S. SENATE, (Dec. 2013),
http://www.gao.gov/assets/660/659509.pdf; Peter Gareffa, Senate Committee
Approves
Black
Box
Privacy
Bill,
EDMUNDS,
(Apr.
18,
2014),
https://www.edmunds.com/car-news/senate-committee-approves-black-boxprivacy-bill.html.
4

-6-

 A state court in California has addressed the Fourth Amendment’s
application to a vehicle’s data recorder. That authority is not persuasive
or controlling and was decided prior to the passing of the Driver Privacy
Act of 2015.
People v. Diaz, held that the defendant lacked a privacy interest in his
vehicle’s speed and braking data, obtained from the “sensing diagnostic
module” after a fatal accident, 153 Cal. Rptr. 3d 90 (Cal. Ct. App. 2013).
It was undisputed the search was conducted without a warrant, over a
year after the accident. Id. at 96. There was testimony about the
defendant’s speed at the time of the accident, but the officer conceded this
was based on the information downloaded from the vehicle’s sensing
diagnostic module. Id. at 94.
The court concluded that the defendant failed to demonstrate “a
subjective expectation of privacy in the SDM’s recorded data because she
was driving on the public roadway, and others could observe her vehicle’s
movements, braking, and speed, either directly or through the use of
technology such as radar guns or automated cameras.” Id. at 102. Since
the diagnostic module “merely captured information defendant knowingly
exposed to the public,” downloading that information without a warrant
was not a violation of the Fourth Amendment. Id. (citing Smith v. Maryland
442 U.S. 735, 741–45 (1979) (holding installation of a pen register did not
violate the Fourth Amendment because it only recorded information
“voluntarily conveyed . . . in the ordinary course of business.”)).
Diaz is unpersuasive. It relied on Smith v. Maryland, which found no
expectation of privacy in information “voluntarily conveyed” to a third
party. 422 U.S. at 745. However, when addressing digital devices, the
Supreme Court has moved away from the Smith rationale. In United States
v. Jones, the Court could have relied on Smith when considering the
constitutionality of placing a GPS tracking device on a vehicle without a
warrant, since the vehicle’s position “had been voluntarily conveyed to the
public.” 132 S. Ct. 945, 951 (2012). Instead, the Court relied on a trespass
theory to find that while “mere visual observation does not constitute a
search,” attaching a device to the vehicle or reaching into a vehicle’s
interior constitutes “encroach[ment] on a protected area.” Id. at 952-53.
Additionally, the Diaz court’s reliance on Smith v. Maryland seems
misplaced because, as the opinion acknowledged, sensory diagnostic
modules can record much more information than what is observable to
the public, including “the throttle, steering, suspension, brakes, tires, and
wheels.” 213 Cal. App. 4th at 748. We disagree with Diaz that all black
box data is “exposed to the public.”
-7-

 Although the issue was not before the Court, the majority in Jones
acknowledged that acquiring data “through electronic means, without an
accompanying trespass,” could still be “an unconstitutional invasion of
privacy.” Id. at 953.
In his concurring opinion, Justice Alito expressed a preference for
analyzing the case by “asking whether [Jones’s] reasonable expectations
of privacy were violated by the long-term monitoring of the movements of
the vehicle he drove.” 132 S. Ct. at 958. Justice Alito observed that the
Katz expectation-of-privacy test,
rests on the assumption that this hypothetical reasonable
person has a well-developed and stable set of privacy
expectations. Dramatic technological change may lead to
periods in which popular expectations are in flux and may
ultimately produce significant changes in popular attitudes.
New technology may provide increased convenience or
security at the expense of privacy, and many people may find
the trade off worthwhile.
Id. at 962. Under Justice Alito’s approach, the constant, unrelenting black
box surveillance of driving conditions could contribute to a reasonable
expectation of privacy in the recorded data. Considering that the data is
difficult to access and not all of the recorded information is exposed to the
public, Worsham had a reasonable expectation of privacy, and we agree
with the trial court that a warrant was required before police could search
the black box.
Affirmed.
KLINGENSMITH, J., concurs.
FORST, J., dissents with opinion.
FORST, J., dissenting.
I respectfully dissent. There are not many court opinions addressing a
warrantless search of the “black box” event data recorder (“EDR”) attached
to an individual’s motor vehicle. 5 An opinion by a “Justice Court” in New
5 In General Motors vehicles, the EDR is also referred to as the “Sensing
Diagnostic Module (SDM).” People v. Diaz, 153 Cal. Reptr. 3d 90, 92 n.2 (Ct. App.
2013); People v. Christmann, 776 N.Y.S.2d 437, 438 (Just. Ct. 2004). “The SDM
. . . has multiple functions: (1) it determines if a severe enough impact has
occurred to warrant deployment of the air bag; (2) it monitors the air bag’s

-8-

 York (similar to a circuit court in Florida) 6 and an appellate court in
California 7 appear to be the only published precedent addressing the
instant matter. Obviously, searches of EDRs in motor vehicles were not
on the minds of the first United States Congress when the Fourth
Amendment was introduced in 1789, and the United States Constitution’s
right to privacy sheds no light on the subject (particularly since there is
no provision actually describing such a right to privacy). 8
Thus, there is no definitive answer to the question posed in this case—
whether the warrantless search of Appellee’s car’s EDR constituted a
violation of his Fourth Amendment protection against unreasonable
searches. Nonetheless, contrary to the well-reasoned majority opinion, I
conclude that the “search” of the EDR attached to Appellee’s vehicle was
not a search or seizure protected by the Fourth Amendment, as Appellee
did not have a reasonable expectation of privacy with respect to the data
in this particular EDR.
Background
The relevant facts are set forth in the majority opinion.
Analysis
As noted in the majority opinion, “[a] Fourth Amendment search occurs
when the government violates a subjective expectation of privacy that
society recognizes as reasonable.” State v. Lampley, 817 So. 2d 989, 990
(Fla. 4th DCA 2002) (quoting Kyllo v. United States, 533 U.S. 27, 33
(2001)). The reverse is also true: “a Fourth Amendment search does not
occur . . . unless ‘the individual manifested a subjective expectation of
privacy in the object of the challenged search,’ and ‘society [is] willing to
components; and (3) it permanently records information.” Bachman v. Gen.
Motors Corp., 776 N.E.2d 262, 271-72 (Ill. App. Ct. 2002).
6 Christmann, 776 N.Y.S.2d 437.
7 Diaz, 153 Cal. Reptr. 3d 90.
Diaz is discussed in this opinion. Another
California appellate court decision, People v. Xinos, 121 Cal. Rptr. 3d 496 (Ct.
App. 2011), which held that the downloading of data from the vehicle’s EDR
following an accident violated the driver’s Fourth Amendment rights, is not
discussed as it predates Diaz and was ordered not to be officially published. Id.
at 507-12.
8 Appellee does not rely upon the Florida Constitution’s Right of Privacy, Article
I, Section 23. Further, that provision yields to Article I, Section 12 with respect
to “searches and seizures,” with the Florida Constitutional right “construed in
conformity with the 4th Amendment to the United States Constitution, as
interpreted by the United States Supreme Court.”
-9-

 recognize that expectation as reasonable.’”
original) (quoting Kyllo, 533 U.S. at 33).

Id. at 991 (alterations in

In contrast to a cellular phone, an EDR does not contain “a broad array
of private information” such as photos, passwords, and other “sensitive
records previously found in the home.” Riley v. California, 134 S. Ct. 2473,
2491 (2014). Significantly, the EDR in the instant case did not contain
GPS information relative to the vehicle’s travels, which may be subject to
privacy protection. See United States v. Jones, 565 U.S. 400, 415-17
(2012) (Sotomayor, J., concurring) (expressing concern with GPS
information which “reflects a wealth of detail about [a person’s] familial,
political, professional, religious, and sexual associations”). As noted in the
majority opinion, the EDR in this case was only recording speed and
braking data, the car’s change in velocity, steering input, yaw rate,9
angular rate, safety belt status, system voltage, and airbag warning lamp
information. Moreover, this data had not been knowingly inputted by
Appellee; in fact, it is likely that Appellee did not even know that the vehicle
he was driving had an EDR. Therefore, it would be quite a stretch to
conclude that Appellee sought to preserve this information as “private.”
The majority opinion references the United States Supreme Court’s
Riley decision as well as this Court’s recent opinion in State v. K.C., 207
So. 3d 951 (Fla. 4th DCA 2016). Both cases involved cell phones. As
distinguished from an EDR attached to an undercarriage of a motor
vehicle, cell phones are usually carried close to an individual’s body,
generally in a pants or shirt pocket or in a purse or belt case. The database
of the EDR in this case carries extremely non-private, non-confidential
information, such as the vehicle’s yaw rate; a cell phone, on the other
hand, “collects in one place many distinct types of information—an
address, a note, a prescription, a bank statement, a video—that reveal
much more in combination than any isolated record.” Riley, 134 S. Ct. at
2489. A reasonably prudent seller of his/her used cellphone or personal
computer would clear the hard drive of all personal information; the seller
of a used vehicle would be unlikely to take similar action with respect to
the vehicle’s EDR.

“A yaw rotation is a movement around the yaw axis of a rigid body that changes
the direction it is pointing, to the left or right of its direction of motion. The yaw
rate or yaw velocity of a car, aircraft, projectile or other rigid body is the angular
velocity of this rotation . . . .” Yaw (rotation), WIKIPEDIA (Mar. 13, 2017, 2:37 PM),
https://en.wikipedia.org/wiki/Yaw_(rotation) (emphasis omitted). Yes, I also
didn’t know what this was.
9

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 In our K.C. opinion, we emphasized that, though abandoned by the
phone’s owner, “[the] contents [of the cell phone] were still protected by a
password, clearly indicating an intention to protect the privacy of all of the
digital material on the cell phone or able to be accessed by it.” K.C., 207
So. 3d at 955. The private data in a cell phone is, for the most part, created
by the owner and is password protected by the owner for his/her own
benefit and privacy. The data on the EDR, however, was not created by
the owner and was not protected by a password by or for the benefit of the
owner (even though there apparently was a password-like encryption on
the data). This data is collected and stored in the interest of public safety,
including the safety of the vehicle’s driver.
In the aforementioned New York Christmann decision which involved a
prosecution for speeding and failing to exercise due care, the court held
that the motorist had only a diminished expectation of privacy following
an accident with respect to the vehicle’s mechanical areas, and therefore
retrieval by law enforcement of data stored in the vehicle’s SDM did not
constitute an unreasonable search and seizure. Christmann, 776 N.Y.S.2d
at 441-42; see also People v. Quackenbush, 670 N.E.2d 434, 439-40 (N.Y.
1996) (similar, and specifically referring to the diminished expectation of
privacy yielding to the overwhelming state interest in investigating fatal
accidents).
The California case of Diaz involved a situation similar to the instant
case. Diaz, 153 Cal. Rptr. 3d 90. There was a motor vehicle accident and,
as part of their investigation, law enforcement personnel, without a
warrant, downloaded the SDM. Id. at 96. The California Court of Appeal
affirmed the trial court’s ruling that there was no reasonable expectation
of privacy with respect to the data in the SDM, finding the defendant failed
to demonstrate “a subjective expectation of privacy in the SDM’s recorded
data because she was driving on the public roadway, and others could
observe her vehicle’s movements, braking, and speed, either directly or
through the use of technology such as radar guns or automated cameras.”
Id. at 102.
“[T]echnology merely captured information defendant
knowingly exposed to the public—the speed at which she was travelling
and whether she applied her brakes before the impact.” Id.
The majority opinion discounts the reasoning in Diaz, finding it neither
“persuasive [n]or controlling.” Certainly, it is not controlling. However, it
is persuasive, as the trial court’s decision denying the defendant’s motion
to suppress, quoted in the District Court’s opinion, is particularly logical:
“Assuming the defendant had such knowledge [that there was
an SDM in the car] and also had an expectation of privacy, it
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 does not seem that such expectation would be reasonable.
These computer modules were placed in cars as safety devices
to gather information such as braking and speed, so as to be
able to deploy the air bag at an appropriate time. They were
not designed to gather any personal information nor designed
or developed by the government to gather incrimination
evidence from a driver. One cannot record communication of
any kind on them. Indeed, they are not under the control of
the individual driver at all.”
The trial court further held: “[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. 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.”
Id. at 97.
The majority opinion maintains that Diaz inappropriately relied on
Smith v. Maryland, 442 U.S. 735 (1979), and implies that Jones is the
operative Supreme Court precedent for this issue. Actually, the Diaz
opinion discusses Jones at some length, noting that the Supreme Court
decision was based “on the common law theory of trespass in placing the
GPS on the defendant’s personal property, combined with the police
attempt to obtain information,” and the “trespass theory underlying Jones
has no relevance [in this SDM search case] and, as the trial court aptly
pointed out, the purpose of the SDM was not to obtain information for the
police.” Diaz, 153 Cal. Rptr. 3d at 101. The majority in the instant case
suggests that the Jones opinion’s reliance on this trespass theory when it
could have relied on the Smith theory means that Smith is no longer
binding precedent. But the fact that the Supreme Court chose to resolve
Jones on the narrower trespass grounds rather than to wade into the
waters of voluntary conveyance of information from Smith means only that
trespass is a viable Fourth Amendment consideration, not that trespass is
the only consideration remaining.
Furthermore, in Jones, the government placed a GPS tracking device
on the defendant’s car to monitor the vehicle’s movement and location.
Jones, 565 U.S. at 403. By contrast, an EDR is installed on vehicles before
they are sold/leased to a driver and the purpose is not to track the vehicle’s
- 12 -

 location or route. Moreover, although the EDR is placed under the vehicle
and most vehicle owners and drivers are unaware that there is such a
black box attached to the vehicle, there is no attempt on the part of the
government to secretively attach the EDR and have it record this
information. Unlike the situation in Jones, the attachment of the EDR is
not directed at any individual; as noted in the majority opinion,
“[a]pproximately 96% of cars manufactured since 2013 are equipped with
event data recorders” and they are installed prior to the conveyance of the
vehicle to any individual.
Conclusion
The data that the government extracted from the vehicle that was
owned and driven by Appellee in this case was not information for which
Appellee or any other owner/driver had a reasonable expectation of
privacy. The data was not personal to Appellee, was not password
protected by Appellee, and was not being collected and maintained solely
for the benefit of Appellee. The EDR was installed by the vehicle’s
manufacturer at the behest of the National Highway Traffic Safety
Administration and, as distinct from Jones, the purpose of the data
collection is highway and driver safety. See New York v. Class, 475 U.S.
106, 113 (1986) (“[A]utomobiles are justifiably the subject of pervasive
regulation by the State [and e]very operator of a motor vehicle must expect
the State, in enforcing its regulations, will intrude to some extent upon
that operator’s privacy.”).
Accordingly, as the extraction of data from the vehicle’s EDR in the
instant case was not a search or seizure protected by the Fourth
Amendment, I would reverse the trial court’s suppression of this evidence.
Thus, I respectfully dissent.
*

*

*

Not final until disposition of timely filed motion for rehearing.

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