SDM module, similar to the one seized by police in the Xinos case A little known decision from the 6th Appellate District of the California Court of Appeal, People v. Xinos (2011) 192 Cal.App.4th 637, has established a 4th Amendment privacy right in automobile data recorders, known in the industry as an SDM or an EDR—which are a sort a of black box located within most vehicles manufactured within the last 10 to 15 years (depending on manufacturer).
Many people do not realize as they are tooling blissfully down the road that should their vehicle’s airbag sense a possible need to “wake up” and standby ready to deploy (known as a near deployment event) or should the airbag actually deploy, that a small electronic box is quietly recording data such as engine speed, breaking action, vehicle speed (and other information), and that the information will typically be stored in the vehicle for the critical five seconds prior to the deploying event—typically a collision.
This data can be instrumental in prosecuting the driver of a collision involved vehicle where personal injury or death results, especially if the driver turns out to be under the influence of drugs or alcohol at the time of the accident.
That is exactly what Santa Clara County prosecutors were thinking when they instructed police investigators to remove the SDM from George Xinos’ SUV, impounded by the cops months earlier when Xinos drove away after killing a pedestrian crossing at night, against the light at a busy unlit intersection, and was hours later found to have a blood alcohol level of .18.
The accident investigation report concluded that Xinos was driving at a safe speed at the time of the accident, and that the primary cause of the collision that killed 15 year old Marcus Keppert was that Keppert was crossing Almaden Expressway at Camden Avenue at 12:30 at night against the light and wearing dark clothing. This enabled Xinos’ attorney to negotiate a favorable plea bargain keeping his client out of prison (under the plea deal, Xinos agreed to serve one year in the county jail).
But all of that went out the window on the eve of Xinos’ sentencing under the plea deal when prosecutors instructed investigators to seize the black box, and the data revealed that Xinos was traveling much faster than believed—over 70 MPH just prior to the fatal car-on-pedestrian collision.
Prosecutors withdrew the plea deal, the court denied a motion to suppress the warrantless seizure of the data recorder, and Xinos was convicted of a panoply of charges including manslaughter and sentenced to over seven years in State Prison. (Xinos is currently serving his time in notorious San Quentin State Prison.)
Enter appellate specialist Dennis Riordan of San Francisco’s Riordan and Horgan who convinced the Sixth District Court of Appeal—without any on-point California precedent—to make some new law in his client’s favor.
The court reversed Xinos’s conviction on all counts impacted by the SDM data, holding in a case of first impression that drivers have a 4th Amendment privacy interest in the data recorders located in their vehicles, even if the vehicle was involved in a suspected driving under the influence crime like manslaughter, causing injury while under the influence, or leaving the scene of an accident.
This does not mean that police need a search warrant, but they do need probable cause to believe that the black box will yield evidence of criminality, and this must consist of specific, objective, and articulable facts creating a reasonable and strong suspicion in the mind of the investigator that the box contains helpful evidence.
Whether this landmark decision stands up to review by the California Supreme Court remains to be seen. On March 21, 2011 the California Attorney General’s Office, which handles all criminal appeals arising out of convictions in California state court, filed a petition for review with the California Supremes.
A decision by the California Supreme Court on whether to take the matter up for an opinion on the merits is expected in 60 days. If not, the 6th District decision will stand; if the Supremes decide to review the case the opinion of the lower court will be vacated pending an opinion by the California Supreme Court. Stay tuned, drivers!
Read the appellate opinion here.
Read our prior coverage of Dennis Riordan’s work as Phil Spector’s appellate counsel here.
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