Appeals Court Says Indiana's Bad Anti-Texting Law Can't Be Used To Justify Stops Or Searches

from the 'suspicions'-not-even-remotely-'reasonable' dept

This is refreshing. A very stupidly-written law is the basis for evidence suppression in a drug arrest. Not only does the conviction vanish, but so does the law (more or less), thanks to the Seventh Circuit Court of Appeals.

Looking down at your phone while driving in Indiana is no longer a crime. The Seventh Circuit US Court of Appeals set that precedent last week in dismissing charges against Gregorio Paniagua-Garcia, a man who glanced at his phone while behind the wheel on September 27, 2014. Under Indiana law, it is unlawful to use a cell phone to type, send or read a text message or e-mail while driving. All other uses of the phone are perfectly acceptable.

An Indiana police officer, in the course of passing a car driven by Gregorio Paniagua-Garcia (whom for the sake of brevity we’ll call just Paniagua) on an interstate highway, saw that the driver was holding a cellphone in his right hand, that his head was bent toward the phone, and that he “appeared to be texting.” Paniagua denies that he was texting, the officer has never explained what created the appearance of texting as distinct from any one of the multiple other—lawful—uses of a cellphone by a driver, and the government now concedes that Paniagua was not texting—that as he told the officer he was just searching for music. An examination of his cellphone revealed that it hadn’t been used to send a text message at the time the officer saw him fussing with the cellphone.

No fact perceptible to a police 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 a forbidden use.

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.”

Consider now that some drivers don’t have a driver’s license, or their license has expired. The logic of the government’s position is that either possibility, however slight, justifies the police officer in suspecting that the driver is not authorized to drive and in ordering him to pull over.

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Because drivers are still free to perform other actions arguably more dangerous than texting (watching movies, browsing the web, reading ebooks, etc.), police officers cannot reasonably suspect that any driver they pass whose eyes appear to be focused on a device (rather than the road) are performing an illegal act.So, Paniagua's actions were actually lawful under the terrible law, but the officer used it as a basis for a traffic stop that ultimately resulted in the discovery of five pounds of heroin. As the court notes, the paper-thin basis for the stop is undermined by the law's absurd focus on one device-related activity.Using this law as the basis for stops is unreasonable. The court points out that lousy laws make for bad policing and a whole host of civil liberties violations.The opinion dismantles the government's arguments with aplomb, taking apart each assertion made to defend a drug bust predicated on something that doesn't even approach "reasonable" suspicion. Extending the government's logic to other possibly illegal acts, the court points out the government's reliance on this terrible law is woefully misguided. Since the government can't possiblyhow many people looking at their phones while driving are performing illegal acts, it can't base traffic stops on nothing more than the mere possibility something illegal may be happening.The opinion doesn't go so far as to call the law unconstitutional or ask for it to be rewritten, but it does point out the legislation's narrow coverage of a single action (texting) renders the entire law useless. Indiana law enforcement should no longer have any confidence that stops based on this perceived violation will hold up in court.

Filed Under: 4th amendment, anti-texting, gregorio paniagua-garcia, indiana, searches