Here in Atlanta and the rest of Georgia we have a law that prohibits texting and driving. This law says that a driver cannot operate his or her motor vehicle “…while engaging in a wireless communication using a wireless telecommunications device.” To “engage in a wireless communication” means “talking, writing, sending, or reading a text-based communication, or listening on a wireless telecommunications device. ” Indiana has a similar law, a statute that allows talking on a cell phone but which prohibits texting. Many years ago, the United States Supreme Court said that if a police officer has probable cause to believe that a driver has violated any law while driving the officer can stop the motorist. In many of our federal criminal cases, these traffic violations leads to a search of the vehicle, and some unfortunate motorists end up in jail when the policeman or woman finds drugs, illegal weapons and the like.
When I first heard about these anti-texting laws in Georgia, they made a lot of sense, especially since my then teenagers were just learning to drive when the law went into effect in 2008. However, I wondered, how can an officer know if the motorist whose head is pointed down toward a cellphone is “engaging in a wireless communication” as opposed to looking at photos or his calendar? The difference can be huge, especially if the reason the officer stopped the vehicle is for an alleged violation of the no-texting law, and the officer subsequently finds contraband.
It turns out I was not the only person pondering whether a traffic stop in this context would be legal. In the case of United States v. Paniagua-Garcia, the Defendant was prosecuted for a large quantity of heroin located after his vehicle was stopped and searched. However, here is why he was stopped: