For Fourth Amendment purposes, a motorist has a subjective and reasonable expectation of privacy in digital data held in the vehicle’s sensing and diagnostic module (SDM). In May 2006, appellant struck and killed a pedestrian while driving his SUV. The victim was wearing dark clothing and stepped into the roadway. Appellant failed to stop after the collision, but police found him soon afterwards. It was determined he was under the influence of alcohol, and he was arrested, with the vehicle seized and stored in a police warehouse. On the basis of her investigation, police officer Checke determined that the primary cause of the accident was the pedestrian stepping out into the roadway and that appellant could not have avoided him. Appellant’s speed was estimated at 55 mph at the time of the collision. On May 3, 2007, appellant pled no contest to felony hit and run and misdemeanor driving under the influence, and sentencing was set for July. On May 11, 2007, in response to the unexplained request of the district attorney, officer Checke downloaded data contained in the vehicle’s SDM. The data was later analyzed by an accident-reconstruction expert who opined that appellant’s vehicle was traveling at 57 to 65 mph when the collision occurred, and if appellant had not been alcohol impaired, he could have avoided the collision. Appellant’s pleas were vacated and the matter went to trial, with appellant being convicted of vehicular manslaughter, felony hit and run, an enhancement under Vehicle Code section 20001, subdivision (c). Prior to trial, appellant sought to suppress the data from the SDM but the suppression motion was denied. The appellate court reversed with directions to grant the motion to suppress. In this case of first impression, the court observed that there is some legitimate expectation of privacy in vehicles, which absent an exception to the Fourth Amendment, requires probable cause to justify a search. An SDM is an internal component of the vehicle itself which is protected by the Fourth Amendment. To justify a search, an officer must be able to point to specific and articulable facts which reasonably warrant the intrusion of the search. Here, the download of the data was not supported by probable cause. The facts known to the officers at the time were not such as to indicate they were searching for evidence of the crime. The search occurred long after the collision and investigation. And the officers believed no relevant data would be found.
The enhancement under Vehicle Code section 20001, subdivision (c) (hit and run), does not require proof that defendant acted to avoid observation or arrest. As to the hit and run enhancement, appellant contended that the court erred by failing to instruct the jury that the prosecution was required to prove appellant left the scene to avoid arrest or detection. The court disagreed. Analyzing the language of Vehicle Code section 20001, subdivision (c) and the legislative intent, the court determined that the term “flee” in the statute means nothing more than failure to stop.