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Seeing driver holding cellphone didn’t justify stop for texting while driving

United States v. Gregorio Paniagua-Garcia, 7th Circuit Court of Appeals No. 15-2540, 2/18/16

The stop of Paniagua-Garcia for texting while driving was unlawful because the officer had no basis for concluding Paniagua-Garcia was using his cellphone to send a text or email as opposed to using it in some way that isn’t prohibited.

An Indiana police officer passed a car and saw the driver, Paniagua-Garcia, holding a cellphone in his right hand with his head bent toward the phone. The officer thought the driver “appeared to be texting” so he stopped the car based on an Indiana statute that forbids drivers to use a cellphone to type, transmit, or read a text message or an electronic-mail message while operating a motor vehicle. But the statute doesn’t prohibit other uses of cellphones by drivers—making and receiving phone calls, reading driving directions and maps, reading news or weather programs, retrieving and playing music or audio books, even surfing the Internet, playing video games, or watching movies or television. Paniagua-Garcia denied he was texting, and said he was just searching for music. The government conceded the phone hadn’t been used to send a text message at the time the officer saw him, and the officer never explained what created the appearance of texting as distinct from any of the multiple lawful uses of a cellphone by a driver. (Slip op. at 1-2).

The Seventh Circuit holds this stop was unlawful. Because almost all the lawful uses would create the same appearance—cellphone held in hand, head bending toward it to see the screen, a finger or fingers on the screen—no fact perceptible to an officer glancing into a moving car and observing the driver using a cellphone would enable the officer to determine whether it was a permitted or forbidden use of the phone. Nor is the mere possibility of texting isn’t enough to justify the stop:

The government failed to establish that the officer had probable cause or a reasonable suspicion that Paniagua was violating the no-texting law. The officer hadn’t seen any texting; what he had seen was consistent with any one of a number of lawful uses of cellphones. The government presented no evidence of what percentage of drivers text, and is thus reduced to arguing that a mere possibility of unlawful use is enough to create a reasonable suspicion of a criminal act. But were that so, police could always, without warrant or reasonable suspicion, search a random pedestrian for guns or narcotics. For it would always be possible that the pedestrian was a bank robber, a hired killer on the loose, a drug lord or drug addict, or a pedophile with child pornography on his thumb drive. “A suspicion so broad that [it] would permit the police to stop a substantial portion of the lawfully driving public … is not reasonable.” United States v. Flores, 798 F.3d 645, 649 (7th Cir. 2015); see also Reid v. Georgia, 448 U.S. 438, 441 (1980); Delaware v. Prouse, 440 U.S. 648, 662 (1979); United States v. Thompson, 772 F.3d 752, 758–60 (3d Cir. 2014).

The government appears to recognize no limit to the grounds on which police may stop a driver. It says the officer’s suspicion must be reasonable but offers no example of unreasonable suspicion and cites no evidence to support a finding of reasonable suspicion in this case. What it calls reasonable suspicion we call suspicion. ….

(Slip op. at 4-5). Because the stop was unlawful, the five pounds of heroin found in the subsequent search of the car must be suppressed.

While this case is noteworthy for finding the stop to be invalid, it might have turned out differently under Wisconsin law. We prohibit texting or emailing while driving, § 346.89(3)(a), but unlike Indiana we also prohibit drivers from using an electronic device like a cellphone “that is providing entertainment primarily by visual means,” § 346.89(5)—which would seem to cover surfing the Internet, playing video games, or watching movies or television. Moreover, depending on what the officer says the driver was doing, there might be an objective basis to stop for plain old inattentive driving, which prohibits a driver from being “engaged or occupied with an activity, other than driving the vehicle, that interferes or reasonably appears to interfere with the person’s ability to drive the vehicle safely,” § 346.89(1)—something that can be accomplished with or without a cellphone, not to mention doing something with a cellphone other than texting.

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