Driver was not texting, so heroin must be suppressed: appeals court

A U.S. appeals court suppressed evidence of heroin found in the car of a driver pulled over in Indiana on suspicion of texting while driving, blaming a “largely inefficacious” state law that lets drivers use cellphones so long as they do not send or receive text messages.

In a decision on Thursday, the 7th U.S. Circuit Court of Appeals in Chicago said an Indiana police officer violated Gregorio Paniagua-Garcia’s constitutional protection against illegal seizures, after pulling him over because he was holding a cellphone near his head and “appeared to be texting.”

Paniagua-Garcia, a Detroit construction worker, claimed he was searching for music when he was pulled over. After a search of the trunk uncovered five pounds of heroin, he pleaded guilty to drug possession and was sentenced to three years in prison.

But the defendant claimed on appeal that the heroin should have been suppressed, and the appeals court agreed with him.

Circuit Judge Richard Posner said no officer can tell by peering into a moving vehicle that a driver using a cellphone is texting, rather than doing something that may be legal.

The judge also said Indiana might be better off adopting a version of neighboring Illinois’ law barring drivers from using cellphones with their hands.

He said Illinois issued more than 6,700 citations in 2013 for violating its “hands-free” law, while Indiana issued just 186 under its own “largely inefficacious” statute.

“Indiana is right to be worried about the dangers created by persons who fiddle with their cellphones while driving, but probably wrong to outlaw such fiddling only with respect to texting,” Posner wrote.

The decision could prompt prosecutors to drop the case.

Sam Ansell, a lawyer for Paniagua-Garcia, said his client plans to withdraw his guilty plea.

“It says a lot about the difficulty in enforcing Indiana’s anti-texting law,” he said. “It’s impossible to know, by watching a driver operating a cellphone, which of the hundreds of things you can do with a cellphone he’s doing.”

A spokesman for U.S. Attorney Josh Minkler in Indianapolis declined to comment.

(Reporting by Jonathan Stempel in New York; Editing by Tom Brown)

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