Know your rights: Drivers willingly hand over incriminating evidence

by: Jodie Fleischer Updated:

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SNELLVILLE, Ga. - A Channel 2 Action News investigation found drivers handing over evidence without a warrant over and over again, even though the U.S. Supreme Court says you don't have to.

"I handed it over to him, cause that's what I thought I was supposed to do," said Jonathan Wicknig.

Wicknig was driving through Snellville last fall when an officer saw him texting and pulled him over.

On the body camera video, the officer is heard saying, "What was so important on the phone, man? You were scrolling through?"

"I received a text," Wicknig replied, coming clean immediately.

But the officer still wanted the proof and followed up asking Wicknig, "May I see your phone?"

He handed it over, and the officer asked him to unlock it.

The officer found Wicknig had sent a text as well.

Last spring, the U.S. Supreme Court ruled officers need a search warrant to see what's on your phone, unless you consent to a search.

Snellville officers aren't shy about asking.

The police department provided several body camera videos to demonstrate a texting while driving operation. In every single case, the driver handed over their phone willingly.

Investigative reporter Jodie Fleischer asked, "Have you ever had an instance in which someone said no?"

"I'm not aware of one," replied Chief Roy Whitehead.

He says his officers are all equipped with body cameras, which can capture video of drivers texting.

Even if they don't, the officer has already observed it when he makes the traffic stop, so he technically doesn't need the phone evidence.

Search warrant 

Whitehead says it's unlikely that his officers would go get a search warrant for a texting ticket.

If a driver does refuse to hand over a phone, he says his officers are trained to accept that and move on and make their case without it.

But the chief admits the phone evidence is good to have.

"We're not doing anything forcefully. We're not taking them from them. We're not doing anything except asking very politely," said Whitehead.

Southern Center for Human Rights attorney Gerry Weber says drivers can politely say no.

"It becomes a much more difficult case for the police if they don't have that information," said Weber, "Now if you say no, if you don't consent, they can seize your phone and go and get a search warrant."

Weber says that could become an even bigger inconvenience.

"I just didn't have the time that day to test it, nor did I know I could," said William Dryden, who was also pulled over in Snellville.

Dryden says he was stopped at a red light and didn't realize he wasn't allowed to look at his phone while he waited.

"He asked me for the phone, and since I obviously felt I had done nothing wrong, I gave him my cellphone," said Dryden.

He tried to fight the ticket in court and lost, receiving a $240 fine.

Dryden thinks officers should make it clear the search is a request, not a command.

"I was just very upset about the whole thing," said Dryden.

Weber says recent high profile run-ins with police could have a chilling effect on how drivers exercise their rights.

"If the officer tells you to do something, I think that there's really a strong tendency now for folks to comply, because they are fearful," said Weber.

But he says knowing your rights could protect you and your privacy.

"The officer has every right to ask, but the citizen has every right to say no," added Weber.

Wicknig says he might have said no, if he knew that was an option.

With the exception of the right to remain silent, officers are not required to tell drivers the law.

"I wish I would have known that when I got pulled over," said Wicknig, "I could have probably, not necessarily fought the ticket, but gone into the court with a little bit of ammunition."