7th Circ. Calls Indiana’s Texting Law Ineffective

     CHICAGO (CN) – An Indiana man pulled over for texting while driving cannot be charged for the heroin found in his car because police didn’t know if he was texting or not, the Seventh Circuit ruled.
     A police officer pulled Gregorio Paniagua-Garcia over because he “appeared to be texting” on his cellphone while driving, according to court records.
     Indiana law forbids drivers from texting or sending an email while driving, but all other uses of a cellphone are permitted under state law.
     Given the many other functions a cellphone has today, “the most plausible inference from seeing a drivier fiddling with his cellphone is that he is not texting,” Judge Richard Posner said, writing for the Seventh Circuit’s three-judge panel last Thursday. (Emphasis in original.)
     Indeed, Paniagua-Garcia claims he was searching for music on his phone while driving, and the record shows that he had not sent or received a text message at the time the officer saw him driving while using his phone.
     “Almost all the lawful uses we’ve listed would create the same appearance – cellphone held in hand, head of driver 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,” Posner wrote. “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.” (Emphasis in original.)
     The Chicago-based appeals court therefore ruled that the officer had no probable cause to pull Paniagua-Garcia over or to search his car, where the officer discovered five pounds of heroin concealed in a spare tire in the trunk.
     Posner said the state essentially argued that the mere possibility that Paniagua-Garcia was texting was cause to stop him.
     “The government appears to recognize no limit to the grounds on which police may stop a driver,” the judge wrote. “What it calls reasonable suspicion we call suspicion.”
     He noted that Indiana’s current law, insofar as it only outlaws texting but not other kinds of phone “fiddling,” has the “effect of slicing up drivers’ use of cellphones [in a way that] makes the Indiana statute largely inefficacious.”
     In 2013, Indiana issued only 186 citations for texting while driving, whereas Illinois issued 6,700 citations for violations of its hands-free law.

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