Here in Atlanta and the rest of Georgia we have a law that prohibits texting and driving. This law says that a driver cannot operate his or her motor vehicle “…while engaging in a wireless communication using a wireless telecommunications device.” To “engage in a wireless communication” means “talking, writing, sending, or reading a text-based communication, or listening on a wireless telecommunications device. ” Indiana has a similar law, a statute that allows talking on a cell phone but which prohibits texting. Many years ago, the United States Supreme Court said that if a police officer has probable cause to believe that a driver has violated any law while driving the officer can stop the motorist. In many of our federal criminal cases, these traffic violations leads to a search of the vehicle, and some unfortunate motorists end up in jail when the policeman or woman finds drugs, illegal weapons and the like.
When I first heard about these anti-texting laws in Georgia, they made a lot of sense, especially since my then teenagers were just learning to drive when the law went into effect in 2008. However, I wondered, how can an officer know if the motorist whose head is pointed down toward a cellphone is “engaging in a wireless communication” as opposed to looking at photos or his calendar? The difference can be huge, especially if the reason the officer stopped the vehicle is for an alleged violation of the no-texting law, and the officer subsequently finds contraband.
It turns out I was not the only person pondering whether a traffic stop in this context would be legal. In the case of United States v. Paniagua-Garcia, the Defendant was prosecuted for a large quantity of heroin located after his vehicle was stopped and searched. However, here is why he was stopped:
“[O]n an interstate highway, [the police officer] 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 gov ernment now concedes that Paniagua was not texting, that as he told the officer he was just searching for music.”
Last week, the always colorful Judge Posner of the United States Court of Appeals for the Seventh Circuit wrote a wonderful opinion in which he ruled that the officer did not have justification to stop the driver, and that the search that uncovered all the drugs was therefore illegal. Judge Posner explained why a suspicion that a person was texting while driving is insufficient justification for stopping the driver’s vehicle:
“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.’”
In ruling that the stop of the vehicle was not supported by probable cause, Judge Posner noted that the Indiana law seemed to be the problem, for (like Georgia’s statute) it only prohibited some cell phone uses (texting) while not preventing others (searching maps or music). While we all want laws to make us safer on the roads, I applaud the Court of Appeals for having the courage to apply the Constitution and to hold that this particular traffic law was so vague as to not support stopping a driver whose head was bent toward his phone.