Feb 092011
 February 9, 2011  Posted by  Court, Featured News, Surveillance

Metropolitan News-Enterprise reports an appellate decision from the Sixth District Court of Appeals in California  in People v. Xinos, 11 S.O.S. 782:

Police violated the Fourth Amendment rights of a drunk driving/vehicular manslaughter suspect by downloading data from the car’s sensing and diagnostic module without a warrant, the Sixth District Court of Appeal ruled yesterday.

The justices threw out George Xinos’ conviction for vehicular manslaughter in the 2006 death of Marcus Keppert, who was killed crossing a San Jose street.


About a year later after the crash, police—at the request of prosecutors—downloaded the data contained in the SUV’s SDM, also known as an event data recorder.


In denying the defense motion to suppress, Santa Clara Superior Court Judge Marc Poche held that no warrant was required because the defendant lacked a reasonable expectation of privacy in the SDM data, and that there was no search in the Fourth Amendment sense.

The judge also ruled that if there was a search, it fell within the automobile exception to the warrant requirement because the officers had probable cause.


Justice Franklin Elia, writing for the Court of Appeal, said Xinos had a reasonable expectation of privacy in the data contained within the module.

“This case is fundamentally distinguishable from the cases where technology is used to allow law enforcement to capture information that a person is knowingly exposing to the public,” the justice wrote, such as those where tracking devices are installed in a container so that signals can be followed to a location.

With the SDM, Elia explained, data is generated for the personal use of the motorist. “While a person’s driving on public roads is observable, that highly precise, digital data is not being exposed to public view or being conveyed to anyone else,” the justice said.

He went on to conclude that at the time of the download, long after the crime occurred and the investigation concluded, the officers lacked probable cause.

Read more on Metropolitan News-Enterprise.

[corrected 2-11-11 to indicate Sixth District Court of Appeals in California and not Sixth Circuit Court of Appeals. Thanks to @pporlock for pointing out my error/]

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