Indiana Texting-While-Driving Ban Virtually Unenforceable

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By Lance J. Rogers

Feb. 19 — Police who saw a motorist fiddling with his mobile phone didn't have reasonable suspicion to stop him for violating a state texting-while-driving ban because it was just as likely that the driver was engaged in legal activity such as dialing a number or using a GPS application, the U.S. Court of Appeals for the Seventh Circuit ruled Feb. 18.

The decision likely dooms state schemes that ban texting-while-driving but allows drivers to perform other actions with their mobile phones.

It also clarifies succinctly the difference between a reasonable suspicion of criminal activity and pure conjecture.

‘Appeared' to Be Texting

The officer in this case pulled Gregorio Paniagua-Garcia over because he was holding a mobile phone and “appeared” to be texting on his key pad.

But that is not good enough to create reasonable suspicion because it was just as likely that Paniagua-Garcia was engaging in activity that isn't prohibited, the court said in an opinion by Judge Richard A. Posner.

The anti-texting initiative—Ind. Code § 9-21-8-59—makes it illegal for a person to transmit text messages or e-mails while driving, but allows all other uses, including: “making and receiving phone calls, inputting addresses, reading driving directions and maps with GPS applications, reading news and weather programs, retrieving and playing music or audio books, surfing the Internet, playing video games—even watching movies or television,” the court said.

No officer glancing into a car and observing a driver using a mobile phone could tell whether the motorist was engaging in forbidden activity, the court said.

Suspicion Versus ‘Reasonable' Suspicion

Paniagua-Garcia claimed he was just searching for music and the government conceded at oral argument that it had examined his phone records and found no evidence he had been texting.

It insisted, however, that the stop was nonetheless legitimate because the police can have a reasonable suspicion justifying a traffic stop even if that suspicion later turns out to have rested on a mistake of fact.

But the court rejected this argument, noting that the government was in essence claiming that the mere possibility that someone is engaging in a criminal act creates a reasonable suspicion of a criminal act.

“What it calls reasonable suspicion we call suspicion,” the court said. It noted that there was no evidence that Paniagua-Garcia was swerving or driving erratically.

If the government stance was correct, the police could stop any driver they saw drinking from a coffee cup on the suspicion that the coffee was spiked with booze because it is illegal to drink alcoholic beverages while driving, the court said.

Paniagua-Garcia was convicted of possession with intent to distribute after the police found five pounds of heroin in his car.

Just Guessing

At oral argument, the government insisted that the stop should be upheld because this is the type of judgment based on training and experience that officers are routinely called on to make while in the field.

“That's what law enforcement does all the time,” William L. McCoskey, of the U.S. Attorney's Office, Indianapolis, said.

But the judges rejected this suggestion pretty soundly during the argument, saying that the officer here was just guessing because he couldn't see what Paniagua-Garcia was typing.

“They're not allowed to stop people based on a guess,” Judge David F. Hamilton said.

Posner picked up on this threat in his opinion.

The government acknowledges that an officer's suspicion must be reasonable, but it offers no example of unreasonable suspicion and cites no evidence to support a finding of reasonable suspicion in this case, Posner said.

Indiana is right to be concerned about the dangers of drivers who take their eyes off the road while fiddling with their phones, Posner continued, but he suggested that the state legislature would do better by adopting the approach of other states, like Illinois, which have enacted “hands-free” laws for all mobile phone usage—not just texting.

Both Hamilton and Judge Michael S. Kanne joined the opinion.

Harold S. Ansell III, Indianapolis, argued for Paniagua-Garcia.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

For More Information

Full text at http://www.bloomberglaw.com/public/document/United_States_v_PaniaguaGarcia_No_152540_2016_BL_46039_7th_Cir_Fe.