As you pull off the side of the road, watching the flashing blue lights in your rearview mirror, you’re thinking, “This day couldn’t possibly get any worse.”

Then, as the highway patrol officer is walking up to your car window, you realize that you forgot your wallet and have no identification…

H/T Franz Borghardt: Louisiana has introduced what they are calling the LA Wallet, a smartphone app that allows you to carry a digital form of your driver’s license in your phone – no physical driver’s license card necessary.

What is it, how does it work, and when is SC going to get one?

How Does the LA Wallet Work?

It’s a smartphone app, approved by the state as a substitute for physical license cards. It’s free to download, but there is a $5.99 in-app purchase to activate it.

It shows a picture of your license, and it communicates with the DMV to ensure that your license is up-to-date and valid. People forget their wallets, and they forget their licenses when they leave home, but no one ever forgets their smartphone…

It’s convenient, it’s simple to use, it’s… wait a minute, do I have to hand my phone to a police officer during a traffic stop?

Does Using the LA Wallet Give Police Permission to Search my Phone?

Not according to the Louisiana law that authorizes it:

“(e) The display of a digitized driver’s license shall not serve as consent or authorization for a law enforcement officer, or any other person, to search, view, or access any other data or application on the mobile device. If a person presents their mobile device to a law enforcement officer for purposes of displaying their digitized driver’s license, the law enforcement officer shall promptly return the mobile device to the person once he has had an opportunity to verify the identity and license status of the person.”

So, the law says the police can’t look at my phone, so they won’t look at my phone, right?

It’s brilliant, really. For law enforcement.

It’s convenient, most people will probably download it and use it, and everyone will be handing their phones over to police on the side of the road. Eventually, once everyone is using it, if you don’t hand over your phone, they will wonder what you are trying to hide…

If you don’t think police will look at the contents of your phone, you don’t know law enforcement (law enforcement = humans with uniforms on). They’ll look. If they see what they think is evidence of a crime, they’ll arrest you and use the information from your phone to find additional evidence. Then, after you’ve been arrested, jailed, paid for a defense lawyer, and are about to go to trial a year or two years later, you can argue a pretrial motion asking the court to dismiss your case based on an invalid search…

Got nothing to hide? If you are not committing any crime, you still have a right to privacy. Not all, but some police officers will be violating it as they hold your phone in their hand.

The Plain View Exception, Anyone?

The Fourth Amendment protects your right to privacy in the contents of your cellphone.

To access the contents of your cellphone, in most cases, police must get a search warrant based upon probable cause that evidence of a crime will be found on your phone. Unless an exception to the Fourth Amendment applies, and there are many exceptions.

Like the plain view exception – if police see something in plain view, they don’t need to get a warrant. If you hand a police officer your phone and they claim to see something on it that’s evidence of a crime, they can 1) refuse to give your phone back until they get a warrant (now that you’ve entered your password for them) or 2) just take it, search it, and download the contents, relying on the plain view exception to get past pretrial motions to suppress based on the Fourth Amendment violation.

Ready to Volunteer to Allow the Government Remote Access to Your Cellphone’s Contents?

The app updates and communicates with the DMV – are you going to give the government permission to remotely access your phone?

Of course, it’s not set up to search, copy, or install anything on your phone. But, can’t it be, once you’ve given them permission to connect? Do you trust the government to not use the app to snoop?

What if they get a search warrant to access your phone remotely through the app?

How Can We Make the SC Wallet Better?

I still love the idea.

But, can’t we design an app that displays the license while the rest of the phone’s contents are still password protected? If we can do that, why wouldn’t we? The only reason I can think of is so that police can access the contents of your phone – tell me another valid reason?

Is it for our convenience or for the officer’s convenience?

Why does the app have to communicate with the DMV? An officer can take the SC Wallet, run a computer check just like they currently do with physical driver’s licenses, and then return it. Your phone is safe, secure, and password protected, and you’ve been saved the convenience of carrying a physical license around without giving the government access to the contents of your phone either physically or remotely.

Can I Just Take a Picture of My License and Show it to Officers?

I think you can. That doesn’t mean an over-eager police officer won’t hand you a ticket or even slap cuffs on you… but can they?

South Carolina, like every state, requires you to have a valid driver’s license. I don’t see where drivers are required to carry a physical license card issued by the DMV, though.

“Driving without a license” in SC is punishable by up to 30 days for a first offense, up to 45 days for a second offense, and a mandatory minimum of 45 days up to six months for a third offense.

SC Code Section 56-1-440 says, “A person who drives a motor vehicle on a public highway of this State without a driver’s license in violation of Section 56-1-20 is guilty of a misdemeanor…” It does not say “without a physical driver’s license in their possession…”

56-1-440 goes on to say, “However, a charge of driving a motor vehicle without a driver’s license must be dismissed if the person provides proof of being a licensed driver at the time of the violation to the court on or before the date this matter is set to be disposed of by the court.”

A photo of your license is proof of being a licensed driver – especially since the officer can confirm the DMV records right there on the roadside…

SC Code Section 56-1-20 says, “No person, except those expressly exempted in this article shall drive any motor vehicle upon a highway in this State unless such person has a valid motor vehicle driver’s license issued to him under the provisions of this article…”

56-1-440 provides the penalties for a violation of 56-1-20, which requires only that a person must have had “a valid motor vehicle driver’s license issued to him.” There is no requirement that you hold the physical license in your hand at the moment a police officer stops your vehicle.

So, if you want to keep a picture of your driver’s license on your phone, and you don’t mind handing your phone to a police officer and allowing them to potentially search the contents of your phone, I think SC law already allows it…

Get Ahead of the Technology

Now is the perfect time for SC legislators who care about the privacy of SC citizens to introduce legislation authorizing a SC Wallet, along with real privacy protections – no remote access and the app must be designed to allow the contents of the phone to remain password protected.

It’s probably coming – everything is digital these days, and it doesn’t make sense to continue to use physical forms of ID. If you are a legislator who cares about privacy rights, introduce legislation now to authorize SC’s version of LA Wallet, with a requirement that the app: 1) bypasses the phone’s password, leaving the rest of the contents protected; and 2) does not permit remote access by the DMV.

Charleston, SC Criminal Defense Lawyer

Charleston criminal defense attorney Grant B. Smaldone focuses his practice on criminal defense cases, including post-conviction relief and criminal appeals, in the Charleston, SC area.

If you’ve been charged with a crime in SC, or if you or a loved one has been convicted of a crime and need to appeal or file PCR, call now at (843) 808-2100 or contact us by email to talk with an attorney today.