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An Indiana statute forbids drivers to use a telecommunications device (a cellphone) to type, transmit, or read a text message or an electronic-mail message, Ind. Code § 9-21-8-59(a). All other uses of cellphones by drivers are allowed.  An Indiana police officer, in the course of passing a car driven by Paniagua-Garcia 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.
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. See State v. Rabanales-Ramos, 359 P.3d 250, 256 (Ore. App. 2015).  The officer pulled over Paniagua and discovered in the search five pounds of heroin. Paniagua was prosecuted in federal court for possession of the heroin, and though the police officer was mistaken in thinking that Paniagua had been texting when the officer drove by and saw him holding the cellphone, the district judge ruled that the officer had reasonably believed that Paniagua was texting.
Paniagua argued that that heroin had been discovered by an illegal stop, amounting to a seizure of his person. The government concedes that the traffic stop constituted a seizure and therefore was lawful under the Fourth Amendment only if the officer had probable cause to believe that a traffic violation had occurred or reasonable suspicion that a crime was about to be or had been committed. See Whren v. United States, 517 U.S. 806, 810 (1996); Navarette v. California, 134 S. Ct. 1683, 1687 (2014). 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 is thus reduced to arguing that a mere possibility of unlawful use is enough to create a reasonable suspicion of a criminal act. “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. In the absence of compelling circumstances, none present in this case, a traffic stop for a traffic violation must be based on probable cause, and in this case it was not. REVERSED AND REMANDED.

By:  Chicago Federal Criminal Defense Attorney Michael J. Petro