United States v. Gregorio Paniagua-Garcia

                             In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 15-2540
UNITED STATES OF AMERICA
                                               Plaintiff-Appellee,

                               v.

GREGORIO PANIAGUA-GARCIA,
                                            Defendant-Appellant.
                    ____________________

         Appeal from the United States District Court for the
          Southern District of Indiana, Terre Haute Division.
  No. 2:14-cr-00027-JMS-CMM-01 — Jane E. Magnus-Stinson, Judge.
                    ____________________

  ARGUED JANUARY 27, 2016 — DECIDED FEBRUARY 18, 2016
               ____________________

   Before POSNER, KANNE, and HAMILTON, Circuit Judges.
    POSNER, Circuit Judge. An Indiana statute forbids drivers
to use a telecommunications device (normally a cellphone)
to type, transmit, or read a text message or an electronic-mail
message, Ind. Code § 9-21-8-59(a)—in short it prohibits “tex-
ting” (sending or receiving textual material on a cellphone or
other handheld electronic device; also called “text messag-
ing” or “wireless messaging”) or emailing while operating a
motor vehicle. All other uses of cellphones by drivers are al-
2                                                 No. 15-2540


lowed, Joel M. Schumm, “Recent Developments in Indiana
Criminal Law and Procedure,” 45 Indiana L. Rev. 1067 (2012):
making and receiving phone calls, inputting addresses, read-
ing 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. Most of these
activities seem dangerous—though no more so, and maybe
less so, than texting—and because a driver is more likely to
engage in one or more of them than in texting, see J. Tison,
N. Chaudhary, & L. Cosgrove, National Highway Traffic Safety
Administration, National Phone Survey on Distracted Driving
Attitudes and Behaviors 4 (Report No. DOT HS 811 555)
(2011), the most plausible inference from seeing a driver fid-
dling with his cellphone is that he is not texting.
    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 tex-
ting, the officer has never explained what created the ap-
pearance 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. An ex-
amination 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.
   Almost all the lawful uses we’ve listed would create the
same appearance—cellphone held in hand, head of driver
No. 15-2540                                                    3


bending toward it because the text on a cellphone’s screen is
very small and therefore difficult to read from a distance, a
finger or fingers touching an app on the cellphone’s screen.
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 for-
bidden use. See State v. Rabanales-Ramos, 359 P.3d 250, 256
(Ore. App. 2015).
    The officer pulled over Paniagua, questioned him at
length, eventually asked and received Paniagua’s permission
to search the car, and discovered in the search five pounds of
heroin concealed in the spare tire in the car’s trunk.
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 pleaded guilty to possession of heroin intend-
ing to distribute it and was sentenced to 36 months’ impris-
onment. But he reserved the right to appeal the denial of his
motion to suppress the evidence of the heroin. He argued
that it 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 (held applicable to state offic-
ers by interpretation of the Fourteenth Amendment) only if
the officer had probable cause to believe that a traffic viola-
tion 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.
4                                                   No. 15-2540


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 presented no evidence of what percentage of
drivers text, and is thus reduced to arguing that a mere pos-
sibility of unlawful use is enough to create a reasonable sus-
picion of a criminal act. But were that so, police could al-
ways, without warrant or reasonable suspicion, search a
random pedestrian for guns or narcotics. For it would al-
ways be possible that the pedestrian was a bank robber, a
hired killer on the loose, a drug lord or drug addict, or a pe-
dophile 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.” United States v. Flores, 798 F.3d 645, 649 (7th Cir.
2015); see also Reid v. Georgia, 448 U.S. 438, 441 (1980); Dela-
ware 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 of-
ficer’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 rea-
sonable suspicion we call suspicion. Suppose the officer had
observed Paniagua drinking from a cup that appeared to
contain just coffee. Were the coffee spiked with liquor in
however small a quantity, Paniagua would be violating a
state law forbidding drinking an alcoholic beverage while
driving, and that possibility, however remote, would on the
No. 15-2540                                                     5


reasoning advanced by the government and adopted by the
district judge justify stopping the driver.
    Against this comparison the government argues that “in
the case of drunk driving, by contrast [to texting], erratic
movements, speed changes, and other conduct would typi-
cally be part of the assessment of the reasonableness of an
officer’s suspicion,” and therefore “it would be unreasonable
in certain cases to suspect drinking and driving when ob-
serving a driver drinking from an unmarked cup, but it is
always reasonable to suspect texting while driving when ob-
serving a driver typing on and looking at a phone.” In say-
ing this the government (the federal government, remember)
reveals confusion about Indiana law, which does not merely
forbid driving while drunk; it forbids any consumption of
alcohol while driving. Ind. Code § 9-30-15-4. Just as it’s pos-
sible to text without being seen to text, it is possible to con-
sume alcohol without being observed to have done so and
without having become intoxicated as a result.
     Consider now that some drivers don’t have a driver’s li-
cense, or their license has expired. The logic of the govern-
ment’s position is that either possibility, however slight, jus-
tifies the police officer in suspecting that the driver is not au-
thorized to drive and in ordering him to pull over.
   Surprisingly—for it is a blatant contradiction to its argu-
ment for affirmance—the government states “that a traffic
stop such as the one at the heart of this case is a ‘seizure,’
which must comport with the Fourth Amendment.” But this
means that 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.
6                                                   No. 15-2540


    Indiana is right to be worried about the dangers created
by persons who fiddle with their cellphones while driving,
but probably wrong to outlaw such fiddling only with re-
spect to texting—if only because the effect of slicing up driv-
ers’ use of cellphones in this way has been to make the Indi-
ana statute largely inefficacious, such is the difficulty of dis-
tinguishing texting from other uses of cellphones by drivers
by glancing into the driver’s side of a moving automobile.
The contrast with Illinois, which has a “hands-free” law, 625
ILCS 5/12-610.2 (a driver is forbidden to use a cellphone with
his hands, as distinct from using bluetooth or other technol-
ogies that enable the driver to communicate without manip-
ulating his cellphone), is striking. For while in 2013 only 186
citations were issued for violations of the Indiana texting
law, more than 6700 citations were issued in Illinois for vio-
lations of the Illinois hands-free law. (These figures are from
Zach Myers, “Texting Tickets: Police Unable to Enforce Indi-
ana’s Texting and Driving Law,” FOX 59, May 21, 2014,
http://fox59.com/2014/05/21/3-years-later-police-say-indianas
-texting-and-driving-law-remains-unenforceable/          (visited
February 16, 2016).)
                                     REVERSED AND REMANDED