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'Looks Like Texting' Isn't Texting, Suppress that Heroin! 7th Cir.

By Jonathan R. Tung, Esq. on February 22, 2016 | Last updated on March 21, 2019

It can't be overstated: Indiana has some funny laws. In the case at bar, Judge Posner authored an opinion that overturned a criminal conviction for possession of heroin all because the police failed to prove probable cause. Now if this seems perfectly reasonable, get a load of the facts before you make your final assessment. It's a great case.

Before you read on, ask yourself a question and remember the answer. If you passed a car on the highway and saw the driver with their head bent forward fiddling with their cell-phone what would you suppose they were doing? Texting, right? Be honest.

Indiana's Weird Laws

Recently we wrote a piece that brought some attention to an Indiana law in which the temperature of beer dictated whether its sale was lawful in some venues but. Yes, the temperature -- not alcohol by volume. The issue in that case was actually based on business interests.

It turns out that Indiana also has a general law that prohibits texting while driving, codified in Ind. Code sec. 9-21-8-59(a). No texting, no emailing. Sounds like a good public policy plan, right? This is not a weird law, per se, but it gets weirder when you realize what the law leaves out.

For some reason, all other uses of cell-phones are perfectly legal while driving. In Indiana, you can read the news, surf the web, play video games, and watch Youtube videos while you drive.

Reasonable minds can disagree as to the relative levels of dangerousness of each activity compared to texting, but Judge Posner relied on a DOT study released in 2011 that suggested that texting was the most dangerous of all these activities.

Basic Facts

In the facts, a police officer was driving past a car and saw a driver in another lane with his head bent down fiddling with his cell phone in his right hand. To the officer, the driver "appeared to be texting." It later turned out that he wasn't texting and was searching for music instead.

The officer pulled the defendant to the side of the road, questioned him and eventually conducted a search. The officer found five pounds of heroin stashed in the spare wheel well in the trunk.

At the district level, it was agreed that the traffic stop constituted a search for purposes of the Fourth Amendment and was thus subject to a probable cause analysis. The defendant did not disagree that he was fiddling with his cell phone, but he argued that the officer was mistaken in concluding that he was texting when in fact he wasn't. The district court denied the defendant's theory and concluded that the officer acted reasonably in his belief.

Circuit Analysis

And here's where things get interesting. Judge Posner, writing for the majority, wrote that the government failed to establish that the officer had probable cause or even reasonable suspicion that the defendant was texting -- he hadn't actually seen texting.

Looks Like Texting Is Not Texting

"The officer hadn't seen any texting; what he had seen was consistent with any one of a number of lawful uses of cellphones," Posner said. What the government attempted to do was to reduce the "mere possibility of unlawful use to ... reasonable suspicion," and that could not be countenanced. If such a policy were adopted, Posner argued, then police could simply -- without warrant or reasonable suspicion -- search any random pedestrian for guns or narcotics, for it is always possible that the pedestrian broke the law. Such a result cannot be countenanced.

The result? The heroin that the police officer found was not supported by probable cause, meaning the search was illegal. So, it had to be suppressed.

Fix This Already

Even Judge Posner was quick to point out the seemingly ineffectiveness of Indiana's ban on texting law because it leads to scenarios like the one described above. The officer's conclusion would have been probable cause in any state that had a omnibus ban on any use of a cell phone while behind the wheel. But since the appearance of fiddling with one's cell phone was consistent with say surfing Youtube, police officers are left to second guess whether or not a stop of a vehicle is supported by Indiana style probable cause. And that, apparently seems to consider playing Fruit Ninja while driving much safer than texting while driving.

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