Texting and context

United States v. Paniagua-Garcia, No. 15-2540 (7th Cir. Feb. 18, 2016).

 A street sign in West University Place, Texas (credit:  Wikimedia )

A street sign in West University Place, Texas (credit: Wikimedia)

An Indiana police officer saw a driver holding a cellphone in his right hand, his head bent toward the phone. The police officer stopped the car, got permission to search the car, and discovered five pounds of heroin in the trunk. The defendant entered a conditional guilty plea. The question on appeal is whether the stop comported with the Fourth Amendment.

The Seventh Circuit, through Judge Posner, holds that it didn’t. Texting while driving is unlawful in Indiana, but all other uses of cellphones by drivers are lawful. And here, context—a held phone and a bent head—gave the police officer no reason to think that the driver was texting, as opposed to playing music, or looking at driving directions, or some other lawful behavior. Because the officer lacked a reason to believe that the driver was texting while driving, the stop was unconstitutional and the conviction is reversed (the government apparently concedes that if the stop is unconstitutional, suppression is the consequence). 

Judge Posner closes his opinion with a suggestion that Indiana ought to make it unlawful for a driver to manually use his cellphone in any way. Then the police don’t need to distinguish between texting and other kinds of cellphone fiddling in order to justify a stop.