SCOTT ROBERTS for www.theindianalawyer.com
The 7th Circuit Court of Appeals reversed the denial of a motion to suppress evidence after police found heroin in a man’s car and remanded the case to district court because the police had no probable cause to pull over the car in the first place.
Gregorio Paniagua-Garcia was driving on an interstate highway when an officer 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, and while texting while driving is illegal in Indiana, all other phone uses are not.
Paniagua denied he was texting while driving, and after he granted permission for the officer to search the car, the officer found five pounds of heroin in the trunk. Paniagua was sentenced to 36 months in prison, but appealed the denial of his motion to suppress evidence of the heroin because he said it was discovered during an illegal stop.
Judge Richard Posner agreed, saying the government failed to establish the officer had probable cause or a reasonable suspicion that Paniagua was violating the no-texting law. Later examination of Paniagua’s phone found he 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 write, citing State v. Rabanales-Ramos, 359 P.3d 250, 256 (Ore. App. 2015).
Posner rejected the government’s argument that the possibility of unlawful use is enough to create reasonable suspicion. “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.â€
The case is United States of America v Gregorio Paniagua Garcia,15-2540.
