Speaking as a lawyer who is “neutral,” i.e., working only for a trial court in California the last several years, the only thing that can be said with certainty about a digital driver’s license on your phone is that it will take a good deal of time for the judiciary to settle on any comprehensive or “bright line” rule regarding the 4th Amendment (and any more expansive state rights against warrantless searches and seizures) implications. California only recently held that the failure to produce ID and registration on a traffic stop doesn’t allow a warrantless search of the stopped vehicle under the automobile exception. Since this will be a state-by-state adoption, I would be cautious about enabling legislation providing that use of the digital ID confers express or implied consent to warrantless phone searches. If this is truly contactless and wireless, and doesn’t require physically unlocking and handing over the device to validate the license holder, then it is a much better case that no implied consent is being given. To those who commented that any phone search without a warrant is illegal and that a private cause of action would lie, I would just point out that if the officer can establish probable cause to search and/or seize then the search and/or seizure may be upheld; even if probable cause is deficient, any incriminating evidence still might not be suppressed if a judge/magistrate finds the officer acted in “good faith,” meaning not contrary to settled law at the time. And as for a state or federal civil rights lawsuit arising out of an unlawful search or seizure, check with a local civil lawyer who specializes in them; there are governmental immunities that may make the case a non-starter and juries in different venues vary greatly in terms of liability and damages. Long story, short: if you care about this issue, it would be wise to wait a few years for the courts and the legislatures to catch up and don’t necessarily count on a civil remedy!
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