Texting while Driving
The 7th Circuit Court of Appeals has stepped in and said what many lawyers have worried about since the “texting and driving” ban was implemented in Indiana. The law prohibits only electronic telephonic communication. It prohibits no other uses of your phone, including snapping a selfie or, like in this case, browsing for music. The Court found that heroin should be kept out of evidence when the police stopped him for browsing music on his phone while driving.
Gregorio Paniagua-Garcia was driving on an interstate highway when police saw him holding a cell phone in his right hand with his head bent toward the phone. The officer said he appeared to be texting. Paniagua denied he was texting while driving, granted permission for the officer to search the car (NEVER DO THIS, READERS), and the officer found five pounds of heroin in the trunk. Why this guy would let police search his car when he had 5 pounds of heroin makes me wonder if he knew it was there to begin with. But that’s a separate issue.
Paniagua argued that the police didn’t have reason to stop the car to begin with. Judge Richard Posner agreed, saying the government failed to establish the officer reasonably thought Paniagia was violating the no-texting law. Police found that Paniagua was looking for music on his phone at the time the officer pulled him over and the officer did not see any action that was specific to 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,” Posner wrote. Mere suspicion of unlawful use is not enough.
If you’ve been stopped by the police and subsequently search, call us now for a free consultation to see how we can help.
The original opinion can be found here.