CA7: Looking at a cell phone while driving is not RS of texting while driving; consent suppressed

Indiana makes it an offense to text message and email while driving, but it prohibits no other phone activity such as searching for music, audio books, looking at videos. Studies show that a person looking at his phone is far more likely to be doing something other than texting or emailing. Thus, a driver looking down at his phone is not reasonable suspicion of texting while driving. Defendant consented to a search and heroin was found. United States v. Paniagua-Garcia, 15-2540 (7th Cir. Feb. 17, 2016):

… 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.” United States v. Flores, 798 F.3d 645, 649 (7th Cir. 2015); see also Reid v. Georgia, 448 U.S. 438, 441 (1980); Delaware 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 officer’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 reasonable 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 reasoning advanced by the government and adopted by the district judge justify stopping the driver.