Searching Cell Phones for Evidence of Texting While Driving

The Ohio Supreme Court recently ruled that cell phones generally cannot be searched without a warrant incident to arrest. That court's decision is here. The law in North Carolina appears to be otherwise, as I've noted here and here. But reading the Ohio decision reminded me of a topic some colleagues and I were discussing recently: can an officer who has stopped a driver for a traffic infraction, and who suspects that the driver was texting while driving, search the driver's cell phone for evidence -- such as a time-stamped text message from just before the stop? The backdrop, as most readers probably know, is that effective December 1, 2009, new G.S. 20-137.4A makes it illegal to read or compose text messages while driving. It's a misdemeanor for school bus drivers, but for the rest of us, penalties are slight. It is "an infraction . . . punishable by a fine of one hundred dollars . . . and the costs of court. No drivers license points or insurance surcharge shall be assessed as a result of a violation of this section," and a violation isn't negligence per se. If texting while driving were a crime, and if the officer had probable cause to believe that the driver had committed it, the officer almost certainly could search the cell phone for evidence: the vehicle exception to the warrant requirement would probably apply, and the officer might have an exigent circumstances justification to boot, because any delay in searching the phone might [...]