STATE OF IOWA v. STEVEN EDWARD STRUVE
No. 19-1614
Supreme Court of Iowa
February 19, 2021
Submitted September 16, 2020
Appeal from the Iowa District Court for Clinton County, Marlita A. Greve, Judge.
The defendant appeals denial of his motion to suppress, arguing officers lacked reasonable suspicion he was illegally using his cell phone to support a traffic stop. AFFIRMED.
Oxley, J., delivered the opinion of the court, in which Waterman, Mansfield, and McDonald, JJ., joined. McDermott, J., filed a dissenting opinion in which Christensen, C.J., and Appel, J., joined. Appel, J., filed a separate dissenting opinion.
Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy (argued), Assistant Appellate Defendant, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson (argued), Assistant Attorney General, Mike Wolf, County Attorney, and James M. McHugh, Assistant County Attorney, for appellee.
Iowa is not a “hands-free” driving state. The Iowa legislature recently expanded Iowa‘s texting-while-driving1 statute but stopped short of prohibiting all hands-on use of a cell phone. Instead,
We do not decide today what uses of a cell phone are permitted and what uses are prohibited by
I. Factual Background and Proceedings.
Around 9 p.m. on October 2, 2018, Clinton police officers Curtis Blake and Roger Schumacher were driving next to a vehicle when they observed the driver holding a phone in front of his face. They could see the glow of the phone from their car and that the driver was “manipulating” the screen with his finger. The officers’ dash camera recorded the incident. After travelling alongside the car for approximately ten seconds, during which time the driver continued using the phone, the officers made a traffic stop.
After they pulled him over, the officers recognized the driver of the car as Steven Struve. Struve continued using the cell phone as the officers approached his vehicle. Officer Schumacher spoke to Struve, telling him he was not allowed to text while driving, while Officer Blake spoke to Struve‘s passenger. Struve responded he
The officers confirmed the pipe was the type used to smoke methamphetamine and ultimately discovered a baggie of over twenty grams of a substance that appeared to be methamphetamine under the center console. The officers arrested Struve and charged him with possession with intent to distribute methamphetamine in excess of five grams, a class “B” felony, and failure to affix a drug stamp. Struve filed a motion to suppress the items discovered during the traffic stop, arguing the officers lacked reasonable suspicion Struve was committing a traffic violation. Without reasonable suspicion, the traffic stop would amount to an unconstitutional seizure, and the fruits of that seizure would be suppressed. The district court denied the motion, concluding the officers had reasonable suspicion to stop Struve under
After a plea agreement was reached, and then withdrawn, the State withdrew the class “B” felony charge and charged Struve with possession with intent to deliver methamphetamine in violation of
II. Standard of Review.
Struve claims the officer‘s stop amounted to an unreasonable seizure in violation of the
III. Analysis.
A. Reasonable Suspicion to Support an Investigatory Stop.
Struve challenges the officers’ stop as an unreasonable warrantless seizure. See State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002). Our focus is on reasonableness, as our jurisprudence—and both constitutions—prohibit only “unreasonable” seizures. See
One exception allows an officer to briefly detain a driver to investigate whether a traffic violation has been, or is being, committed, but only if the officer can establish reasonable suspicion for the stop. Kreps, 650 N.W.2d at 641. “The purpose of an investigatory stop is to allow a police officer to confirm or dispel suspicions of criminal activity through reasonable questioning.” Id. Reasonable suspicion to support an investigatory stop requires
Yet, police officers need not rule out all possibility of innocent behavior before briefly detaining a driver. Kreps, 650 N.W.2d at 641–42. Even if it is equally probable that a driver is innocent, “police officers must be permitted to act before their reasonable belief is verified by escape or fruition of the harm it was their duty to prevent.” Id. at 642 (quoting United States v. Holland, 510 F.2d 453, 455 (9th Cir. 1975)). Thus, “reasonable cause may exist to investigate conduct which is subject to a legitimate explanation and turns out to be wholly lawful.” Id. (quoting State v. Richardson, 501 N.W.2d 495, 497 (Iowa 1993) (per curiam)). We “judge[] the facts against an objective standard: ‘would the facts available to the officer at the moment of the seizure . . . “warrant a man of reasonable caution in the belief” that the action taken was appropriate?’ ” Id. at 641 (quoting State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000) (en banc), abrogated on other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001)).
The United States Supreme Court recently addressed reasonable suspicion in Kansas v. Glover, where it held an officer had reasonable suspicion to stop a driver after the officer ran the vehicle‘s plates and learned the owner‘s license was revoked. See 589 U.S. ___, ___, 140 S. Ct. 1183, 1188 (2020). That fact, coupled with “the commonsense inference that [the owner] was likely the driver of the vehicle . . . provided more than reasonable suspicion to initiate the stop.” Id.
In distinguishing between a “mere hunch” that does not create reasonable suspicion and articulable and particularized facts that do, the Court recognized that officers in the field must be allowed to rely on “commonsense judgments and inferences about human behavior” in determining whether the particular facts known to the officer indicate criminal activity sufficient to warrant investigation. Id. at ___, 140 S. Ct at 1187–88 (quoting Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 676 (2000)).
Justice Kagan concurred, agreeing that the officer could reasonably infer that the driver of a vehicle is likely the owner even if the owner‘s license has been revoked based on the additional fact that “revocations in Kansas nearly always stem from serious or repeated driving violations,” giving additional support to the officer‘s inference that motorists with revoked licenses continue to drive. Id. at ___, 140 S. Ct at 1194 (Kagan, J., concurring). The majority recognized the Kansas licensing scheme reinforced the reasonableness of the officer‘s inference, but it was not needed to support the stop; “common sense suffice[d] to justify [the] inference.” Id. at ___, 140 S. Ct at 1188–89.
We reached the same conclusion on similar facts ten years earlier. See Vance, 790 N.W.2d at 781. An officer had reasonable suspicion to initiate an investigatory stop where the officer knew the registered owner of the vehicle had a suspended license and the officer was “unaware of any evidence or circumstances indicating the registered owner [was] not the driver of the vehicle.” Id. (addressing a challenge under the
Recognizing that an inference that the owner of a vehicle does most of the driving “may be fallible,” we nonetheless concluded it was “sufficiently reasonable to generate reasonable suspicion for an investigatory
We rejected the argument that the officer should do more to investigate whether the driver is the suspended owner because it “place[d] too heavy a burden on the police.” Id. (“It would be impossible for an officer to verify that a driver of a vehicle fits the description of the registered owner in heavy traffic, if the vehicle has darkly tinted windows, or if the stop occurs at night . . . .“). Allowing the officer to rely on the inference without engaging in further investigation “adequately protect[ed] against suspicionless investigatory stops because” if the officer is or becomes aware of facts that invalidate the assumption, such as evidence that the driver appears to be a different age or gender than the registered owner, “reasonable suspicion would, of course, dissipate.” Id. (second quoting State v. Newer, 742 N.W.2d 923, 926 (Wis. Ct. App. 2007)). Our position is consistent with that taken by the Supreme Court in Glover. While an officer is not required to look for corroborating facts, “the presence of additional facts might dispel reasonable suspicion.” Glover, 589 U.S. at ___, 140 S. Ct. at 1191.
We also recognized that allowing an officer to rely on commonsense inferences, “absent any evidence to the contrary, ensures the safety of the roadways and of law enforcement.” Vance, 790 N.W.2d at 782. Requiring the officer to verify that the driver met the registered owner‘s description would endanger both the officer and the traveling public if he had to attempt to maneuver himself into a position to clearly observe the driver. Id.
Last year, we applied Vance to a challenge under the Iowa constitution and upheld a traffic stop after officers observed a woman and two men leave a residence, ran the vehicle‘s license plate, and discovered the registered owner was a woman with a suspended license who “appeared to be” the defendant. See State v. Haas, 930 N.W.2d 699, 702 (Iowa 2019) (per curiam). The fact that three people got into the car did “not invalidate the officers’ assumption that [the registered owner] was driving her own vehicle” where the officers did not see who was driving. Id. As in Glover, we did not require additional corroboration for the officer‘s commonsense inference that the owner of a vehicle is likely the driver, even when the owner‘s license is suspended.
Relying on an officer‘s common sense is not new to our reasonable suspicion jurisprudence. An officer is expected to make “commonsense judgments and inferences about human behavior” when stopping a motorist engaged in suspicious behavior. See Kreps, 650 N.W.2d at 640, 645 (quoting Wardlow, 528 U.S. at 124–25, 120 S. Ct. at 676) (concluding stop was supported by reasonable suspicion despite no indication of criminal activity based on defendant‘s actions of attempting to elude officer without violating any traffic laws, coupled with passenger‘s jump from vehicle); see also State v. Lindsey, 881 N.W.2d 411, 426 (Iowa 2016) (concluding “school officials were operating on a ‘common-sense conclusio[n] about human behavior’ upon which ‘practical people‘—including government officials—are entitled to rely” in searching student athlete‘s bag with history of gun and drug possession after he expressed unprompted and
The following propositions emerge from these cases. First, an officer is expected to rely on their common sense and understanding of human behavior in determining whether observed activity raises their suspicions above a “mere hunch” of criminal activity. The officer‘s understanding comes not only from their training and experience as an officer but also their understanding from everyday life. Second, the officer‘s suspicion need not be infallible or even rise to a fifty-fifty chance the individual is engaged in criminal activity to be reasonable. Third, an officer is not required to engage in additional investigation to confirm their suspicions as long as the initial suspicions are in fact reasonable. But if they become aware of additional facts that make their suspicions of illegal activity unreasonable, the reasonableness of the initial suspicion dissipates and they cannot make the stop.
With this framework, we consider the Iowa texting-while-driving statute to put in context whether Struve‘s use of his cell phone as observed by the officers gave rise to a reasonable suspicion that he was using it in an illegal manner.
B. Iowa Code Section 321.276‘s Prohibition on Using Cell Phones While Driving.
Prior to July 1, 2017,
On April 17, 2017, the legislature passed Senate File 234, titled “An Act relating to
The revised statute now broadly prohibits not only texting and emailing but also browsing internet sites, accessing social media apps, and playing games while driving. At oral argument, Struve conceded the statute prohibits a motorist from using a cell phone for any purpose other than the express exceptions identified in
We need not decide the specific contours of the revised statute for purposes of this appeal.2 It is sufficient for our
the legislature greatly expanded the conduct prohibited by
Before determining whether the officers had reasonable suspicion for the stop, we review cases addressing texting-while-driving statutes from other jurisdictions.
C. How Other Jurisdictions Have Handled Traffic Stops for Cell Phone Use While Driving.
A handful of courts have addressed
In United States v. Paniagua-Garcia, an officer observed a driver holding a cell phone in his right hand with his head bent toward the phone, who “appeared to be texting.” 813 F.3d 1013, 1013–14 (7th Cir. 2016). The United States Court of Appeals for the Seventh Circuit focused on the quantity of prohibited and allowed uses to conclude the officer‘s suspicion the driver was violating Indiana law was not reasonable. Id. at 1014–15.
It turned out the driver was searching for music on his phone, not texting. Id. at 1014. Where Indiana‘s texting-and-driving law prohibited only texting and emailing but allowed “[a]ll other uses,” including “making and receiving phone calls, inputting addresses, reading driving directions and maps with GPS applications, reading news and weather programs, retrieving and playing music or audio books, surfing the Internet, playing
We are not persuaded by Paniagua-Garcia, which considered a statute prohibiting only texting, much like the prior Iowa statute. When the Iowa legislature changed
In State v. Morsette, the North Dakota Supreme Court held reasonable suspicion did not support a traffic stop where a police officer “observed a driver in the adjacent lane manipulating his touchscreen cell phone for approximately two seconds” while stopped at a red light. 924 N.W.2d 434, 436 (N.D. 2019). While the North Dakota statute prohibits more conduct than did the Indiana statute at issue in Paniagua-Garcia, we decline to follow the lead of the Morsette majority because it is contrary to the Supreme Court‘s discussion of reasonable suspicion in Glover. Morsette focused on the lack of evidence about the stopping officer‘s “past success rate at identifying violations” of the texting-while-driving statute or “any unique training he received” that would enable him to identify allowed use compared to prohibited use while travelling next to a moving vehicle. 924 N.W.2d at 440. But under Glover, reasonable suspicion includes common sense derived from everyday life, not only from specialized training or success rates. See Glover, 589 U.S. at ___, 140 S. Ct. at 1189–90 (“Nothing in our Fourth Amendment precedent supports the notion that, in determining whether reasonable suspicion exists, an officer can draw inferences based on knowledge gained only through law enforcement training and experience. We have repeatedly recognized the opposite.“). As the Supreme Court explained in Glover, requiring an officer to identify specific training to support his suspicions “would also impose on police the burden of pointing to specific training materials or field experiences justifying reasonable suspicion for the myriad infractions in municipal criminal codes.” Id. at ___, 140 S. Ct. at 1190.
The chief justice disagreed with the majority in Morsette. “[T]hat a person may be using a wireless communications device . . . for a valid purpose does not negate the reasonable suspicion that the person is using the cell phone for a prohibited purpose.” Morsette, 924 N.W.2d at 441 (VandeWalle, C.J., dissenting). Considering the extent of conduct prohibited by the North Dakota statute, the chief justice concluded “it is as probable that the cell phone is used to send or receive prohibited electronic messages as it is that the device is being used for one of the lawful purposes, perhaps more so.” Id.
Further, that the statute may be difficult to apply does not preclude officers from stopping drivers when the officer has articulable and objective facts to support the stop. See id. (“It seems to me that the majority opinion substantially reduces, if not eliminates, the effective enforcement of the statute.“). The Morsette dissent‘s position is more in line with the concern we identified in Vance that requiring an officer
Oregon courts have considered the issue in two cases, finding probable cause3 in one but not the other. In the first case, the officer observed ” ‘light coming up to [defendant‘s] face’ that he believed was coming ‘from a device that was in her hand that she was looking down at’ . . . for approximately 10 seconds.” State v. Rabanales-Ramos, 359 P.3d 250, 251–52 (Or. Ct. App. 2015) (alteration in original). “The trooper did not see defendant put the device up to her ear, move her lips as if she were talking, or push any buttons.” Id. Interpreting the statutory text to prohibit only use of a cell phone for communication, but not any other uses, the court concluded the trooper‘s “belief that defendant had ‘use[d]’ that device was not objectively reasonable under the circumstances.” Id. at 256 (alteration in original).
The Oregon Court of Appeals reached the opposite conclusion in State v. Nguyen Ngoc Pham, where police officers observed the defendant holding a cell phone in his hand, “saw the screen was lit up . . . and . . . could see [defendant] pushing something on the screen.” 433 P.3d 745, 746 (Or. Ct. App. 2018) (alteration in original). The officer could not identify exactly what the driver was doing. Id. When the driver looked up and saw a police car next to him, he put his cell phone down. Id. The
court concluded probable cause existed from the officer‘s observation of the defendant pushing on the screen and promptly lowering his phone when he saw the officer, distinguishing Rabanales-Ramos. Id. at 747. The officer‘s observation of the driver manipulating the phone was the primary difference between Nguyen Ngoc Pham and Rabanales-Ramos.
While these cases are distinguishable based on differences between the statutory prohibitions, it seems that the extent of conduct prohibited by the statute as well as the actual conduct observed by the officers are both critical to the reasonable suspicion analysis.
D. Did the Officers Have Reasonable Suspicion Struve Was Violating Iowa Code Section 321.276 to Support an Investigatory Stop?
We turn then to the facts articulated by the officers to support the stop. Officer Blake was in the passenger seat of the patrol vehicle, and as the officers moved alongside the driver‘s side of Struve‘s car, Officer Blake observed the driver holding a cell phone in front of his face for at least ten seconds, which lit up the interior of the dark car, and saw the driver “manipulating the screen with his thumb as he was driving.” The patrol car was beside and just behind the driver, which allowed Officer Blake “to view [Struve‘s] hands and the fact that his hand was up in front of his face with the cell phone and that he was manipulating the screen.” Officer Blake testified the phone was “[u]p in front of the steering wheel, pretty much directly in front of [Struve‘s] face.” The screen was “very bright,” which allowed Officer Blake “to see [Struve‘s] thumb moving back and forth in front of it.” Officer Schumacher, who was driving the patrol vehicle, likewise observed Struve holding the lit phone in front of his face and manipulating it in his hand. The thirty-second dashcam video introduced into evidence confirms that the cell phone was lit up during the entire approximate ten-second period during which the officers
The officers’ commonsense suspicion that Struve was illegally using his cell phone is supported by empirical data reflecting that a large percentage of drivers admit to reading or writing texts while driving, even while recognizing such activity as dangerous. See Glover, 589 U.S. at ___, 140 S. Ct. at 1188 (citing statistics from the National Cooperative Highway Research Program and the National Highway and Traffic Safety Administration and concluding “[e]mpirical studies demonstrate what common experience readily reveals“). AAA Foundation for Traffic Safety, which conducts an annual survey concerning distracted driving, conducted its 2018 survey between August 21 and September 11, 2018, around the time of Struve‘s traffic stop. AAA Found. for Traffic Safety, 2018 Traffic Safety Culture Index 7 (2019) [hereinafter AAA 2018 Traffic Safety Index], https://aaafoundation.org/wp-content/uploads/2019/06/2018-TSCI-FINAL-061819_updated.pdf. While 96% of respondents considered reading or typing texts or emails while driving to be very or extremely dangerous, 41% of respondents admitted reading messages while driving and 32% admitted typing such messages within the last thirty days. Id. at 5. Of respondents aged 19–39, over 50% reported reading or writing a text while driving in the prior thirty days. Id. at 20.4 The AAA Foundation observed the “survey again highlights the discordance between drivers’ attitudes and their behaviors,” recognizing similar responses in prior years’ surveys. Id. at 4.5
Glover reinforces the importance of considering the commonsense understanding about human behavior and use of cell phones in assessing whether the officers had an objectively reasonable suspicion that Struve was engaged in a prohibited use of his cell phone. That commonsense observation, supported by empirical evidence that a significant number of drivers continue to read and write text messages while driving despite recognizing the serious dangers of doing so, also distinguishes the officers’ observations of Struve‘s use of his phone from the hypothetical relied on to support the court‘s position in Paniagua-Garcia, 813 F.3d at 1015 (“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.“). That there is only a remote possibility that a driver has Kahlua in his coffee does not negate the entirely different inferences to be drawn from a driver using his cell phone. The likelihood that a driver—observed holding a cell phone in front of his
with ‘considerably less than proof of wrongdoing by a preponderance of the evidence.’ ” (quoting Richardson, 501 N.W.2d at 496–97)).
Our holding does not mean that an officer may stop any driver seen using a cell phone. For this point, we look to our cases involving observations that support stopping a driver on suspicion of impaired or drunk driving. In Tague, we held that observing a driver‘s “tires barely cross[ing] the edge line once for a very brief period” did not provide reasonable suspicion that the driver was impaired. 676 N.W.2d at 205. By contrast, observations of weaving within the driver‘s lane “several times,” id. at 204 (discussing State v. Tompkins, 507 N.W.2d 736, 740 (Iowa Ct. App. 1993) (en banc)), or erratic speed changes and “veering . . . at sharp angles,” id. at 204–05 (discussing State v. Otto, 566 N.W.2d 509, 510–11 (Iowa 1997) (per curiam)), provided reasonable suspicion that the driver may have been intoxicated. We reasoned that “any vehicle could be subject to an isolated incident of briefly crossing an edge line of a divided roadway without giving rise to the suspicion of intoxication.” Id. at 205. We agreed with the district court that “it happens all too often” and described a number of innocuous activities that could have caused the isolated incident. Id.
Yet the cases where we found reasonable suspicion of impaired driving to support a stop did not involve activity consistent only with illegal conduct. Weaving within one‘s own lane and changing speeds without exceeding the speed limit do not violate any statute, but they do provide evidence of impairment. The difference between Tague‘s isolated and limited action and the repeated and more dramatic actions in Tompkins and Otto did not turn on whether the observed conduct was consistent only with illegal conduct to the exclusion of legal conduct, but whether it provided an objective indication of illegality.
Applying that reasoning here, not every driver seen using a cell phone in any manner may be presumed to be violating
In the impaired driving context, observing a vehicle barely cross an edge line once does not rise to a reasonable suspicion of wrongdoing because a single incident could be caused by a number of innocuous reasons. Even though repeated swerving or crossing the lane lines is not itself illegal and could be explained by the same innocuous behavior as a single lane crossing, it still raises reasonable suspicion based on the commonsense understanding that such repeated actions can reflect impaired driving.
Struve‘s position that the officers were required to articulate observations consistent with illegal conduct to the exclusion of legal conduct clouds the distinction between a probable cause basis for a stop and a reasonable suspicion basis for a stop. See Glover, 589 U.S. at ___, 140 S. Ct. at 1188 (explaining information needed to establish reasonable suspicion differs “in quantity [and] content than that required to establish probable cause” (quoting Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990)))). If an officer could actually see that the driver was viewing a social media app as opposed to a GPS screen, the officer would likely have probable cause to stop the vehicle based on the officer‘s observation of a traffic violation.6 See Tyler, 830 N.W.2d at 293 (holding that an officer who observes a traffic violation, however minor, has probable cause to stop the motorist). The whole point of allowing officers to briefly detain motorists based on reasonable suspicion is to allow the officer to clear up any ambiguity about whether the observed behavior was illegal or not. See Vance, 790 N.W.2d at 780 (recognizing purpose of “an investigatory stop is to resolve the ambiguity as to whether criminal activity is afoot” (quoting Richardson, 501 N.W.2d at 497)).
We conclude that the officers’ observations of Struve holding the lit cell phone in front of his face for at least ten seconds while manipulating the screen allowed them to briefly stop Struve and clear up the ambiguity created by his actions, particularly in light of the expanded coverage of activity prohibited by
Simply stated, the Fourth Amendment and
IV. Conclusion.
Struve‘s constitutional rights were not violated, and we affirm the denial of his motion to suppress.
AFFIRMED.
Waterman, Mansfield, and McDonald, JJ., join this opinion. McDermott, J., files a dissenting opinion in which Christensen, C.J., and Appel, J., join. Appel, J. files a separate dissenting opinion.
#19-1614, State v. Struve
APPEL, Justice (dissenting).
I join in Justice McDermott‘s dissent. I write to emphasize that one of the central purposes of constitutional provisions related to search and seizure is to prevent arbitrary and capricious actions by law enforcement authorities. See Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 417 (1974). When law enforcement has broad sweeping powers that permit widespread searches or seizures, the potential of arbitrary and capricious enforcement is front and center. A warrantless search and seizure with substantial risks of arbitrary and capricious enforcement is, at a minimum, constitutionally suspect. In my view, for the reasons expressed by Justice McDermott, the warrantless search crosses the line in this case.
It is no answer to say that officers should use an unarticulated “common sense” to circumscribe their broad discretion. No one advocates senseless law enforcement activity. But unarticulated “common sense” may be a cover for other motives, and even under the best of circumstances, may be a fertile ground for implicit bias to operate.
In my view, for the above reasons and the reasons expressed by Justice McDermott, the warrantless search under this statute cannot be sustained. I therefore respectfully dissent.
#19-1614, State v. Struve
McDERMOTT, Justice (dissenting).
Under the majority‘s holding today, the legislature might as well have said the following: “Drivers: go ahead and use your phones for the uses we‘ve permitted you. Police: pull them over and interrogate them if they do.” As unjust as that sounds—as unjust as that is—it‘s now the status of the law in Iowa after today‘s ruling.
When a defendant challenges the reasonableness of a stop, the State must satisfy its burden with evidence. Not assumptions, nor guesswork, nor hunches. Whether a particular stop of a citizen is reasonable depends on the totality of the circumstances. In this case, there‘s only
Stopping a vehicle and detaining its occupants unquestionably constitutes a seizure under both the Federal and Iowa Constitutions. State v. Tyler, 830 N.W.2d 288, 292 (Iowa 2013). It goes without saying that private citizens following the law generally should be free from government harassment. Yet today‘s ruling gives the State the authority to pull over and interrogate any driver seen glancing at a phone despite the State having no idea whether the driver is actually breaking the law. We can‘t excuse the State‘s failure to establish reasonable suspicion with evidence by accepting instead an assumption of illegal conduct. The unconstitutional police power sanctioned today should alarm anyone concerned about the government‘s reach into citizens’ private, lawful activities.
The law at issue in this case,
A person shall not use a hand-held electronic communication device to write, send, or view an electronic message while driving a motor vehicle unless the motor vehicle is at a complete stop off the traveled portion of the roadway.
The statute defines electronic message this way:
“Electronic message” includes images visible on the screen of a hand-held electronic communication device including a text-based message, an instant message, a portion of electronic mail, an internet site, a social media application, or a game.
The reference to “images” must be read in the context of the examples that illustrate it. This is because, unless the operation is voice activated or merely involves the volume buttons on the side of the phone, every operation of a smart phone involves images visible on the screen. Interpreting the term “electronic message” so broadly as to prohibit every smart phone operation that produces an image on the display expands the statute far beyond the manner it was written. If the legislature really intended such a sweeping ban on phone use, it easily could have done so. The simplest and most obvious way for the legislature to create such a clear and all-encompassing prohibition is by exclusion: “All uses are forbidden except x.” But it didn‘t. Instead, the legislature carved the forbidden boundaries with specific examples.
As a result, “images” must be interpreted in the context of the six “electronic message” examples set forth in the statute: text messages, instant messages,
When interpreting criminal statutes, “we have repeatedly stated that provisions establishing the scope of criminal liability are to be strictly construed.” State v. Hearn, 797 N.W.2d 577, 583 (Iowa 2011). “Blurred signposts to criminality will not suffice to create it.” United States v. C.I.O., 335 U.S. 106, 142, 68 S. Ct. 1349, 1367 (1948) (Rutledge, J., concurring). Doubts in penal statutes are resolved in favor of the accused. State v. Conley, 222 N.W.2d 501, 502 (Iowa 1974). The universe of phone uses left unstated and unaddressed in the statute are all permitted uses.
A look at the smart phone applications (“apps,” colloquially) that come preloaded on every iPhone (the iPhone being the most popular smart phone in the country based on market share) gives a sense of the scope of the permitted uses. Out of the box, the iPhone currently comes with forty-four preloaded apps. Under the examples of forbidden uses stated in the statute, drivers would be forbidden from using just four: Messages (“text-based message“), Mail (“a portion of electronic mail“), Safari (“internet site” web browser), and Game Center (a “game“). Drivers are thus permitted to use the other forty preloaded apps, including Calculator, Calendar, Camera, Clock, Compass, and Contacts—and those are just the preloaded apps starting with C.
A driver may make unlimited use of a smart phone‘s alarm clock, flashlight, stopwatch, timer, and magnifying glass features. A driver may check the weather on the Weather app, download podcasts on the Podcast app, set reminders on the Reminders app, and create a grocery list on the Notes app. We‘re far from done with even the preloaded apps on the iPhone that are permitted uses, and we haven‘t touched on the apps available for download from third parties. At present, there are 1.85 million other apps available for download on an iPhone through its App Store. Users of Google‘s Android phones have even more options, with 2.56 million apps available through the Google Play app. (And yes, searching and downloading
A driver may lawfully use the phone to play streaming music or to select downloaded songs from a music app. A driver may also use a phone app to order food, trade stocks, shop for a book, check sports scores, measure heart rate, turn on a home security alarm, check in for a flight, read a newspaper article, diagnose car troubles, transfer funds between bank accounts, make a dinner reservation, pair a Bluetooth accessory, calendar an appointment, view traffic congestion reports, deposit a check, pull up digital concert tickets, track calories . . . and on, and on.
One might well complain that all these permitted uses under the statute could contribute to distracted driving and its associated dangers. Yet we must remember that it‘s the province of the legislature, not the courts, to make such policy choices and to establish acceptable levels of risk on our roadways. In exercising restraint against expanding the statute to make criminal the thousands of uses its text does not forbid, the judiciary upholds the constitutional separation of powers “by ensuring that crimes are created by the legislature, not the courts.” Matter of Bo Li, 911 N.W.2d 423, 429 (Iowa 2018) (quoting State v. Hearn, 797 N.W.2d 577, 585 (Iowa 2011)); see also United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Marshall, C.J.) (“It is the legislature, not the Court, which is to define a crime, and ordain its punishment.“). A court‘s own views about the consequences that might result from the proper interpretation of this or any other statute cannot weaken our resolve. Particularly where the legislature has spoken, “consequences cannot change our understanding of the law.” United States v. Davis, 588 U.S. ___, ___, 139 S. Ct. 2319, 2335 (2019). Courts must avoid the temptation of “reading the law to satisfy their policy goals.” Id.
The majority opinion doesn‘t suggest any disagreement with an interpretation of the statute granting such a wide assortment of permitted uses. Instead, the majority‘s analysis runs aground in its assumption that most phone use while driving is one of the few enumerated prohibited uses. Police officers of course must rely on reasonable inferences grounded in their experience and training as law enforcement officers, but today‘s holding doesn‘t rest on any evidence or assertion that the stop of this defendant‘s car was grounded in the officers’ experience or training.
An officer positioned any normal distance from a moving vehicle can‘t see what particular phone function a driver is using. Was the driver looking at an email (a forbidden use) or a GPS map (a permitted use)? Tapping the screen to hit send on a text (forbidden) or to hit play on a song or a podcast (permitted)? Swiping the screen to scroll comments on a social media app (forbidden) or to scroll down a list of driving directions (permitted)? In every instance, the driver‘s actions look exactly the same. Lacking some extraordinary visual acuity to make out the small screen on a moving vehicle, the officer is left to guess. And guesswork, we have repeatedly said, can never establish “reasonable suspicion” for a stop under the constitution. See, e.g., State v. Tague, 676 N.W.2d 197, 204 (Iowa 2004); State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002); see also United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750 (2002) (requiring law enforcement to have a “particularized and objective basis for suspecting legal wrongdoing” to establish reasonable suspicion for a stop).
The majority seeks to clothe its naked guesswork about drivers’ unlawful phone
This heavy conclusion collapses on the flimsy scaffolding that the premise supporting it provides. What the majority considers “common sense” tells us more about the justices’ own beliefs about drivers’ phone use than it does any actual activity supporting the stop. We must require more than smoky incantations of “common sense” to give rise to such a sweeping right for government intrusion. Reliance on some sixth sense about the driver‘s phone use—as opposed to the officer‘s actual articulable observations—sets the reasonable suspicion bar on the floor and, in my view, invites widespread abuse of citizens’ constitutional rights.
What proportion of the many thousands of uses of a smart phone by drivers are the forbidden variety? I don‘t know—and neither does the majority. The survey data the majority cites (uncited by any party and absent from the record) certainly doesn‘t answer the question. The burden in proving a factual, articulable basis to support reasonable suspicion for a stop rests—as it always does, and always must—with the State. State v. Tague, 676 N.W.2d at 204. Cloaking a gut feeling with the words “common sense” isn‘t enough. “What it calls reasonable suspicion we call suspicion.” United States v. Paniagua-Garcia, 813 F.3d 1013, 1015 (7th Cir. 2016) (Posner, J.). And mere suspicion is insufficient for the State to infringe the rights of law-abiding citizens under the constitution. See, e.g., Tague, 676 N.W.2d at 204; see also Radley Balko, There‘s No Way to Enforce a Texting While Driving Ban, CATO Institute: Commentary (Oct. 13, 2009), www.cato.org/publications/commentary/theres-no-way-enforce-texting-while-driving-ban [https://perma.cc/2SLA-QFD5].
The facts of this case illustrate the absence of reasonable suspicion for the defendant‘s stop. The police officers observed Struve holding up the alighted phone at shoulder level for about ten seconds and swiping a few times at the screen with his finger. There‘s nothing about the height level at which he held the phone that makes Struve‘s use somehow more indicative of any forbidden use (e.g., viewing a text message) than any permitted use (e.g., viewing driving directions). Likewise, there‘s nothing revealed about the type of use from holding the phone for ten seconds; some shorter or longer duration (if it had been, say, five seconds or fifteen seconds) tells us nothing about whether it‘s a forbidden or permitted use. One could easily spend an equal amount of time scrolling through posts on a social media app (forbidden) as scrolling through a list of songs titles on a music app (permitted), or typing a text (forbidden) as typing an address for driving directions (permitted). The same goes for swiping the screen with his finger; both forbidden uses and permitted uses where the driver swipes the screen appear identical to an observer who can‘t make out the screen. “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.” Paniagua-Garcia, 813 F.3d at 1014
For
The majority concedes that today‘s opinion aligns us with the minority of courts that have addressed this issue. Admittedly, cases from other jurisdictions are of limited help in our analysis because each state without a hands-free law has a slightly different statute with varying permitted or forbidden uses. But there‘s a common thread in the case law running directly counter to our court‘s holding today. All but one of the cases from other jurisdictions found “reasonable suspicion” lacking where the police couldn‘t articulate a basis for the stop that suggested the driver actually engaged in forbidden (as opposed to permitted) use of the phone. See Paniagua-Garcia, 813 F.3d at 1014 (finding no reasonable suspicion under Indiana‘s statute); State v. Morsette, 924 N.W.2d 434, 438-40 (N.D. 2019) (finding no reasonable suspicion under North Dakota‘s statute); Rabanalas-Ramos, 359 P.3d 250, 256 (Or. Ct. App. 2015) (finding no reasonable suspicion under Oregon‘s statute). The only phone case supporting today‘s holding is a court of appeals ruling from Oregon—and it conflicts with the holding of another Oregon court of appeals case. Compare Nguyen Ngoc Pham, 433 P.3d 745, 747 (Or. Ct. App. 2018), with Rabanalas-Ramos, 359 P.3d at 256.
Lacking support from the more analogous phone cases, the majority relies instead on vehicle registration cases. But those cases addressed reasonable suspicion for police stops involving unique vehicle registration issues, not use of smart phones while driving, and thus involve a completely different basis for articulating the reasonableness of a stop. The reasoning in those cases doesn‘t apply equally to the issues informing reasonable suspicion in this case, and thus they‘re of minimal value to us.
While reasonable suspicion doesn‘t require law enforcement to rule out the possibility of innocent conduct, Kreps, 650 N.W.2d at 642, the majority treats an unsupported hunch—that most phone use is the unlawful kind—as good enough to support a stop. And that‘s the real shortcoming of the majority‘s disposition in this case, which now authorizes that police here and henceforth may rely on speculation that a driver‘s use is one of the illegal varieties without any evidence that it really
The majority complains that requiring the police to possess specific and articulable grounds that a driver‘s phone use is one of the unlawful uses will hamper enforcement of this statute. But this is as it must be under our constitutional search and seizure protections. The constitution is “the supreme law” in our State.
The statute itself severely restricts an officer‘s ability to investigate whether any offense occurred. Subsection 3 of the statute states: “Nothing in this section shall be construed to authorize a peace officer to confiscate a hand-held electronic communication device from the driver or occupant of a motor vehicle.”
A prior version of the statute explicitly addressed enforcement considerations by affirmatively barring the police from making stops based solely on a violation of this statute. When the legislature passed Iowa‘s first phone-related distracted driving law in 2010, the statute commanded that the police “shall not stop or detain a person solely for a suspected violation of this section.”
Many states have passed laws taking a clearer, more categorical, approach that forbids all phone use while driving except for voice-activated or “hands-free” operation. Hands-free laws (as the name implies) prohibit all drivers from using hand-held phones while driving. With hands-free laws, reasonable suspicion does exist for police stops based on drivers looking at their phone screens because all uses that
The willingness to engage in unfounded assumptions that ambiguous conduct is criminal conduct opens the door to many other unlawful stops being upheld. Say, for instance, an officer sees a driver take a drink from a can with the can‘s label obscured by the driver‘s hand. Is it a can of beer or a can of pop? As with the driver‘s cell phone use in this case, the officer is left to guess whether the conduct is the forbidden type. Under the reasoning adopted today, the possibility it might be beer and not pop, however remote, would justify stopping the driver. See Paniagua-Garcia, 813 F.3d at 1015 (describing a similar hypothetical). Citizens concerned with protection of their basic civil liberties might justifiably wonder how, and where, the court draws these lines moving forward. Smart phones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Riley v. California, 573 U.S. 373, 385, 134 S. Ct. 2473, 2484 (2014) (Roberts, C.J.). It is not hyperbole to say that millions of law-abiding Iowans risk suffering the inconvenience, humiliation, and violation of their rights that comes with the sweeping stop-and-interrogate right granted today to the government. Distracted driving is a serious matter, “but so is the loss of our freedom to come and go as we please without police interference.” Navarette v. California, 572 U.S. 393, 414, 134 S. Ct. 1683, 1697 (2014) (Scalia, J., dissenting). Today‘s majority opinion risks infringing the constitutional freedoms of law-abiding drivers based on nothing more than suspicion. I respectfully dissent.
Christensen, C.J., and Appel, J., join this dissent.
Notes
One danger of relying on a position not advocated by either party is that the position remains untested by our adversarial system and its logic may not be thoroughly scrutinized before making its way into an opinion. According to the dissent‘s research, use of forty of the forty-four preloaded apps on an iPhone is not prohibited by the dissent‘s reading of section 321.276. From this, the dissent concludes that when a person is using a phone, they are much more likely than not using it for a permissible purpose. This conclusion is based on unsound reasoning. The relevant question is not what percentage of apps can be used without violating the statute. The relevant question is what percentage of time people spend using apps prohibited by the statute. The dissent‘s analysis assumes all apps are used equally. If a person has only two apps on a phone—a weather app and a text messaging app—there would be a fifty-fifty chance the person is using the weather app or the text messaging app. Of course we know this is not true. This example simply demonstrates the dissent‘s failure to account for a critical variable in its own analysis.
Relying on positions not advocated by the parties also results in the loss of vetting through consideration of contrary arguments. The dissent surmises that a driver may permissibly use apps on an iPhone to order food, trade stocks, shop for books, and check in for a flight, among others. An argument to the contrary could be made (and might have been made by the State had it been given the opportunity). The dissent points out that the statute provides a nonexhaustive list of examples of what constitutes an “electronic message.” The question remains whether an app that allows the cell phone user to communicate with the app‘s provider is sufficiently similar to communicating through an internet site (expressly listed), such that using the app would also be
prohibited. A cell phone user who downloads and uses Amazon‘s app to order books communicates with Amazon in virtually the same way as if they used their phone‘s web browser to access Amazon‘s website. We make no judgment as to whether browsing or accessing an app instead of an internet site while driving violates section 321.276. We leave that question for another day where the issue is more directly presented through the adversarial process. For this case, it is enough to recognize that the legislature greatly expanded the statute‘s coverage from its prior limited prohibitions. Cf. State v. Coleman, 907 N.W.2d 124, 135–36 (Iowa 2018) (“[A]lthough we adhere to the rule of lenity in criminal cases, criminal statutes still ‘must be construed reasonably and in such a way as to not defeat their plain purpose.’ ” (quoting State v. Hagen, 840 N.W.2d 140, 146 (Iowa 2013)))).