State of Iowa v. Steven Edward Struve ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 19–1614
Submitted September 16, 2020–Filed February 19, 2021
STATE OF IOWA,
Appellee,
vs.
STEVEN EDWARD STRUVE,
Appellant.
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.
2
OXLEY, Justice.
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, Iowa Code section
321.276 allows drivers to use cell phones for some limited purposes while
prohibiting most others.
We do not decide today what uses of a cell phone are permitted and
what uses are prohibited by section 321.276. The driver here was not
charged with violating the statute. He was, however, stopped when officers
believed he might be violating it. Thus, this case requires us to determine
when a police officer’s observations of a driver using a cell phone move
from only a “hunch” the driver is using the cell phone in a prohibited
manner to providing the “specific and articulable facts” required to permit
an officer to stop a driver and investigate whether the use violates Iowa
law. For the reasons explained below, we hold that observations of a driver
holding a phone in front of his face and actively manipulating the screen
for at least ten seconds as involved in this case justified stopping the driver
to resolve any ambiguity about whether the driver was violating section
321.276.
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
1We use this term as a colloquial shorthand for the statute with the understanding
that it addresses more than texting.
3
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 thought it was only illegal to text
and drive in Illinois and explained he had been showing his passenger
photos from his phone’s gallery. As Officer Schumacher spoke to Struve,
Officer Blake noticed what appeared to be a drug pipe protruding from a
bag in the car’s backseat. Officer Blake notified Officer Schumacher about
the pipe, and they searched the vehicle.
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 Iowa Code section 321.276.
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 Iowa Code section
124.401(1)(c)(6), a class “C” felony. Struve proceeded to a bench trial on
4
the minutes of testimony, and the district court found him guilty. Struve
appeals the denial of his motion to suppress. On appeal, Struve challenges
only the initial stop; he does not challenge the officers’ subsequent search
of the car after they observed the pipe in the back seat, conducted under
the plain-view exception to the warrant requirement.
II. Standard of Review.
Struve claims the officer’s stop amounted to an unreasonable
seizure in violation of the Fourth Amendment of the United States
Constitution and article I, section 8 of the Iowa Constitution. Given the
constitutional basis of his challenge, we review the denial of his motion to
suppress de novo. State v. Tyler, 830 N.W.2d 288, 291 (Iowa 2013). “We
independently evaluate the totality of the circumstances found in the
record . . . .” State v. Vance, 790 N.W.2d 775, 780 (Iowa 2010). We give
deference to the factual findings of the trial court but we are not bound by
them. Id.; Tyler, 830 N.W.2d at 291. The parties do not seriously dispute
the underlying facts; rather, they disagree about whether the officers’
observations supported the stop.
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 U.S. Const. amend. IV; Iowa
Const. art. I, § 8. These constitutional protections generally require a
warrant before an officer may seize a person, with noted exceptions.
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,
5
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 that the officer identify “specific and articulable
facts, which taken together with rational inferences from those facts, to
reasonably believe criminal activity may have occurred.” State v. Tague,
676 N.W.2d 197, 204 (Iowa 2004). “Mere suspicion, curiosity, or hunch of
criminal activity is not enough.” Id.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
6
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 Fourth
Amendment).
7
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 stop to resolve the ambiguity as to whether criminal activity
is afoot.” Id. at 781–82. Forbidding officers from relying on the
commonsense inference that the driver of a vehicle is usually its owner
“would seriously limit an officer’s ability to investigate suspension
violations because there are few, if any, additional steps the officer can
utilize to establish the driver of a vehicle is its registered owner.” Id. at
782.
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
8
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
9
athlete’s bag with history of gun and drug possession after he expressed
unprompted and unusual concern about the bag while lying injured on
the football field) (alteration in original) (quoting New Jersey v. T.L.O., 469
U.S. 325, 346, 105 S. Ct. 733, 745 (1985)). Nor does an officer’s common
sense need to be based on specific training or law enforcement experience.
Glover, 589 U.S. at ___, 140 S Ct. at 1189 (“The inference that the driver
of a car is its registered owner does not require any specialized training;
rather, it is a reasonable inference made by ordinary people on a daily
basis.”). As the Supreme Court explained, “the ‘common sense’
understanding of common sense, [is that it refers to] information that is
accessible to people generally, not just some specialized subset of society.”
Id. at ___, 140 S. Ct. at 1189–90. Thus, officers are expected to “draw[]
factual inferences based on the commonly held knowledge they have
acquired in their everyday lives.” Id. at ___, 140 S. Ct. at 1190.
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.
10
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, section 321.276 prohibited a driver from using
a cell phone “to write, send, or read a text message while driving a motor
vehicle unless the motor vehicle [was] at a complete stop off the traveled
portion of the roadway.” Iowa Code § 321.276(2) (2017). The prohibition
extended to text-based messages, instant messages, and email messages.
Id. § 321.276(1)(c). The statute expressly allowed other uses of a cell
phone, including using the cell phone’s global position system (GPS) or
navigation system, selecting a name or entering a number to make a voice
call, and “activate[ing], deactivate[ing], or initiate[ing] a function of a hand-
held mobile telephone.” Id. § 321.276(2)(a). It also allowed use of cell
phones in specific safety-related circumstances. Id. § 321.276(2)(b).
Section 321.276 was a secondary offense, which means an officer could
not stop a driver for violating it but could only cite a driver if lawfully
stopped for another traffic violation. See id. § 321.276(5) (“A peace officer
shall not stop or detain a person solely for a suspected violation of this
section. This section is enforceable by a peace officer only as a secondary
action when the driver of a motor vehicle has been stopped or detained for
a suspected violation of another provision of this chapter, a local ordinance
equivalent to a provision of this chapter, or other law.”).
On April 17, 2017, the legislature passed Senate File 234, titled “An
Act relating to the use of electronic communication devices to write, send,
or view electronic messages while driving as a primary offense, and making
11
penalties applicable.” 2017 Iowa Acts ch. 75 (codified at Iowa Code
§ 321.276 (2018)). While the legislature did not enact a “hands-free” law,
as some states have done, it did place additional limitations on the use of
cell phones while driving. The Act broadened the statute’s coverage from
“text messages” to “electronic messages,” changed its prohibition of
“reading” such messages to “viewing” them, redefined relevant terms, and
made violations a primary offense so that officers could stop drivers for
violating the revised statute. Id. §§ 1, 5.
Iowa Code section 321.276 now declares, “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.” Iowa Code
§ 321.276(2) (2018). An “electronic message” expressly “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.” Id.§ 321.276(1)(a). Additionally, the revisions defined “[t]he terms ‘write’,
‘send’, and ‘view’, with respect to an electronic message, [to] mean the
manual entry, transmission, or retrieval of an electronic message, and
include playing, browsing, or accessing an electronic message.” Id.
§ 321.276(1)(d). The statute continues to expressly allow use of a cell
phone for navigation; to conduct voice calls; to activate, deactivate, or
initiate other functions of a cell phone; and in specific safety-related
circumstances. Id. § 321.276(2)(a), (b).
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
12
than the express exceptions identified in section 321.276(2)(a) and
subsection (b). Struve also concedes that his actions of scrolling through
his phone’s photo gallery and showing pictures to his passenger violated
the statute. The State does not disagree with Struve’s interpretation of the
statute.
We need not decide the specific contours of the revised statute for
purposes of this appeal.2 It is sufficient for our purposes to recognize that
2The dissent’s impassioned plea rests on the premise that the legislative revisions
did little to change the prohibited uses of a cell phone. The dissent’s position is not
advanced by either party; indeed, it is at odds with the interpretation actually advanced
by both parties. “[O]ur system ‘is designed around the premise that [parties represented
by competent counsel] know what is best for them, and are responsible for advancing the
facts and argument entitling them to relief.’ ” United States v. Sineneng-Smith, 590 U.S.
___, ___, 140 S. Ct. 1575, 1579 (2020) (alteration in original) (quoting Castro v. United
States, 540 U.S. 375, 386, 124 S. Ct. 786, 794 (2003) (Scalia, J., concurring in part and
concurring in judgment)). “ ‘[C]ourts are essentially passive instruments of government.’
They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait
for cases to come to [them], and when [cases arise, courts] normally decide only questions
presented by the parties.’ ” Id. (alteration in original) (citation omitted) (quoting United
States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in denial
of reh’g en banc)).
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
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the legislature greatly expanded the conduct prohibited by section
321.276. Our resolution of Struve’s appeal turns on whether Officer Blake
and Officer Schroeder observed activity that justified stopping Struve for
the purpose of investigating whether he was engaged in illegal activity.
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 Fourth
Amendment challenges (or analogous state constitutional challenges) to
traffic stops for cell phone use under other states’ laws. The different
language used in various state statutes limits our ability to apply other
cases to Iowa’s statute, but a review of their reasoning supports our
ultimate conclusion that the officers had reasonable suspicion to stop
Struve.
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.
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))).
14
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
video games—even watching movies or television,” the court concluded it
was not reasonable to stop someone seen using a cell phone without
evidence that the officers saw texting as opposed to activity that is
“consistent with any one of a number of lawful uses of cellphones.” Id.
The officer never “explained what created the appearance of texting as
distinct from any one of the multiple other—lawful—uses of a cellphone by
a driver.” Id.
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 section 321.276 from a secondary offense to
a primary offense, it also greatly expanded the scope of its coverage to
prohibit not only writing, sending, or reading text or email messages but
also playing games, browsing social media apps, and accessing internet
sites. Thus, the revised Iowa statute prohibits much of the activity allowed
under the Indiana statute that supported the Seventh Circuit’s conclusion.
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
15
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
16
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 to further investigate
whether the driver is the suspended owner before making a stop “place[d]
too heavy a burden on the police.” Vance, 790 N.W.2d at 782.
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
3Oregon jurisprudence requires the higher probable cause standard to justify a
traffic stop. State v. Rabanales-Ramos, 359 P.3d 250, 253 (Or. Ct. App. 2015). This in
itself makes the Oregon cases of limited value to our reasonable suspicion analysis.
17
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 followed Struve
18
and assessed whether he appeared to be improperly using his cell phone.
The officers suspected Struve was texting and stopped him to investigate.
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
4Respondents aged 25–39 were the worst offenders, with 60% admittedly reading
a text and 54% typing a text while driving, even though 96% of that age group viewed
such activity as very or extremely dangerous. AAA 2018 Traffic Safety Index at 18, 20.
5An article cited by the dissent provides further support for the general knowledge
that a significant number of drivers engage in prohibited conduct, noting that “a [2007]
study of adults from New York, New Jersey, and Connecticut revealed that eighty-six
19
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 face for a prolonged period while manipulating the
screen—is using the phone for a prohibited rather than a permitted use is
more than a remote possibility. The empirical evidence supports the
commonsense inference that it is quite likely a driver is impermissibly
using his phone—for some age groups of drivers even more likely than not.
See Kreps, 650 N.W.2d at 642 (“An officer may make an investigatory stop
percent of drivers ignore cell phone bans in their respective states.” Alan Lazerow, Near
Impossible to Enforce at Best, Unconstitutional at Worst: The Consequences of Maryland’s
Text Messaging Ban on Drivers, 17 Rich. J.L. & Tech. 1, 31 n.105 (2010).
20
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.
21
Applying that reasoning here, not every driver seen using a cell
phone in any manner may be presumed to be violating section 321.276.
Iowa drivers legally use their cell phones every day. But at the same time,
reasonable suspicion does not require an officer to rule out all innocent
explanations. “The need to resolve ambiguous factual situations—
ambiguous because the observed conduct could be either lawful or
unlawful—is a core reason the Constitution permits investigative
stops . . . .” United States v. Miranda-Sotolongo, 827 F.3d 663, 669 (7th
Cir. 2016) (citing Wardlow, 528 U.S. at 125, 120 S. Ct. at 677).
“Accordingly, reasonable suspicion may support an investigatory stop that
ultimately reveals wholly lawful conduct.” Vance, 790 N.W.2d at 780.
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.
Likewise, merely observing a cell phone in a driver’s hand reflects
innocuous behavior. But additional observations can raise an officer’s
suspicions sufficient to justify an investigatory stop, even if the
observations do not necessarily reveal prohibited as opposed to allowed
activity. Here, the officers observed more than mere use of a cell phone.
The officers followed alongside Struve and observed him holding the phone
in front of his face for a significant period of time while manipulating it,
actions consistent with improper use of his phone. That these actions may
be consistent with proper use of a phone does not make the stop per se
22
unreasonable. Our caselaw makes clear the officers were not required to
rule out permitted activity before making an investigatory stop. Indeed, a
“tie” in the reasonable inferences to be drawn from the officer’s
observations lands the evidence on the reasonable side of the equation
since “[t]he reasonable suspicion inquiry ‘falls considerably short’ of 51%
accuracy.” Glover, 589 U.S. at ___, 140 S. Ct. at 1188 (quoting United
States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744, 751 (2002)) (explaining
that “[t]o be reasonable is not to be perfect” (alternation in original)
(quoting Heien v. North Carolina, 574 U.S. 54, 60, 135 S. Ct. 530, 536
(2014)).
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
6The dissent likewise confuses probable cause and reasonable suspicion when it
suggests an officer could only stop a driver if he could “make out the contents of the
phone’s screen” and “come to a conclusion about the phone function employed.” If the
officer could see a text message or Facebook page visible on the screen, the officer would
have probable cause to stop the driver. Reasonable suspicion requires a lesser showing.
See Wardlow, 528 U.S. at 123, 120 S. Ct. at 675–76.
23
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 section 321.276. If these facts don’t allow officers to
stop a driver to investigate, it is hard to imagine what facts would. The
legislature expanded the scope of section 321.276 and made it a primary
offense to address the significant public safety issues associated with
distracted driving caused by cell phones. To hold otherwise on the facts
of this case would run the risk of “substantially reduc[ing], if not
eliminat[ing], the effective enforcement of” section 321.276. Morsette, 924
N.W.2d at 441 (VandeWalle, C.J., dissenting); see also Vance, 790 N.W.2d
at 782 (“[T]o forbid the police from relying on such an inference to form
reasonable suspicion for an investigatory stop would seriously limit an
officer’s ability to investigate suspension violations because there are few,
if any, additional steps the officer can utilize to establish the driver of a
vehicle is its registered owner.”).
Simply stated, the Fourth Amendment and article I, section 8 allow
investigatory stops based on reasonable suspicion. This means there will
be some circumstances when the individual will turn out not to have
engaged in the unlawful conduct. This is true whether the stop involves
investigating wrongful use of a cell phone or some other suspected
misconduct as in Glover, Vance, and Haas. The circumstances and
24
inferences involved here are simply indistinguishable from the
circumstances and inferences involved in those cases.
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.
25
#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.
26
#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 one
circumstance: police officers saw a driver for about ten seconds holding
up and touching his phone. That’s it. No swerving, no speeding, no other
basis for the stop. And on that fact alone, the court today holds as a
constitutional matter that it’s reasonable for law enforcement to assume a
driver is engaging in one of a handful of prohibited uses of the phone—and
not one of the innumerable permitted uses—and thus that it’s reasonable
to stop and interrogate the driver.
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
27
concerned about the government’s reach into citizens’ private, lawful
activities.
The law at issue in this case, Iowa Code section 321.276, permits
drivers far more lawful uses of their phones than the majority
acknowledges. Here’s the text of the statute:
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.
Iowa Code § 321.276(2) (2019).
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.
Id. § 321.276(1)(a). With its use of the word “includes,” the statute
describes “electronic message” not with a statement of its exact meaning
but rather with nonexclusive examples. See Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 132 (2012) (stating
that the verb to include “introduces examples”). And here, somewhat
awkwardly, the legislature’s phrasing provides examples of an example:
“ ‘Electronic message’ includes images . . . including a text-based message.”
Iowa Code § 321.276(1)(a) (emphasis added).
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
28
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, email, internet sites, social media applications, and
games. Iowa Code § 321.276(1)(a). Those examples generally bear some
logical connection to the term actually used in the statute: “electronic
message.” See Porter v. Harden, 891 N.W.2d 420, 427 (Iowa 2017) (“The
legislature is . . . entitled to act as its own lexicographer,” but “when the
legislative definition of a term itself contains ambiguity, we should hesitate
before veering too far from the common meaning of that term.”). The word
“message” connotes communication with another party. See Message,
Black’s Law Dictionary, at 1186 (11th ed. 2019) (defining message as “[a]
written or oral communication, often sent through a messenger or other
agent, or electronically (e.g., through e-mail or voicemail)”). And this
communication focus comports with federal law too. Congress in the
Federal Records Act defines “electronic messages” as “electronic mail and
other electronic messaging systems that are used for purposes of
communicating between individuals.” 44 U.S.C. § 2911(c)(1).
Section 321.276, from its inception, has explicitly permitted drivers
to make various lawful uses of their smart phones, including for GPS and
navigation; calls, including entering a name or dialing a phone number;
activating, deactivating, or initiating a smart phone function; and receiving
safety-related information, including emergency, traffic, or weather alerts.
Compare Iowa Code § 321.276(2)(a), (b)(3) (2010), with § 321.276(2)(a),
29
(b)(3) (2020). But by omission from the list of forbidden uses, the statute
permits far more.
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
30
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 smart phone apps is itself a permitted use while driving.)
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
31
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 use not with observed or articulable facts but instead with
a claim that such a conclusion can be drawn from “common sense.” To
32
appreciate just how much of a load the term “common sense” is required
to carry, one need only count the number of times the majority repeats the
term in its opinion: by my count, nineteen times. Having repeated its claim
that “common sense” permits the conclusion that any ambiguous phone
use while driving can be reasonably assumed the illegal kind, the majority
conjures “reasonable suspicion” for such police stops into existence.
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
33
(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 (emphasis in original).7
7Although irrelevant for purposes of the reasonable suspicion analysis upon which
this case turns, Struve’s counsel conceded at oral argument that his own claimed use of
the phone while driving—to scroll through photographs—was a forbidden use under the
statute. Not so. A driver viewing photos, without more, is not violating section 321.276.
The majority twice references counsel’s admission but—correctly—doesn’t assert
anywhere in its opinion that viewing photos while driving actually violates section
321.276. Struve never committed (nor even was charged with) any violation of section
321.276 that the police officers were investigating when they stopped his car.
34
For section 321.276 to be enforced as written, the observed driver
would need to be moving slowly enough for an officer to see inside the
vehicle, to make out the contents of the phone’s screen, and to come to a
conclusion about the phone function being employed. That’s no easy task,
but it’s conceivable in some circumstances that an officer might be able to
accomplish it. It didn’t happen in this case, where the officers instead
admitted to being unable to make out the contents of the phone’s screen.
To conduct a stop, the State must both have an articulable basis for their
suspicion of criminal activity and that articulable basis must be objectively
reasonable. State v. Salcedo, 935 N.W.2d 572, 579 (Iowa 2019). The stop
in this case, based on an observation only that the driver was viewing and
touching a screen, fails that test.
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.
35
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
is. The assumption that every driver’s ambiguous phone use is one of the
handful of forbidden uses is contrary to our precedent, in which we’ve said
that criminality “is never presumed.” Kutchera v. Graft, 191 Iowa 1200,
1209, 184 N.W. 297, 301 (1921). Now, apparently, we can assume
criminality whenever a driver glances at or touches a phone screen without
knowing anything more.
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. Iowa Const. art. XII, § 1. Constitutional
protections are not held in abeyance or demoted to second-class status
36
simply because a legislative enactment is difficult to enforce as written.
Enforcing a law like this one—with permitted phone uses and forbidden
phone uses that appear absolutely identical to an observer—creates
significant constitutional challenges. See, e.g., Alan Lazerow, Near
Impossible to Enforce at Best, Unconstitutional at Worst: The Consequences
of Maryland’s Text Messaging Ban on Drivers, 17 Rich. J.L. & Tech 1, 31–
38 (2010). But it can never be the court’s job to expand the text of criminal
statutes to secure for the State greater ease of some particular method of
enforcement.
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.” Iowa Code § 321.276(3) (2019). By its terms, the
statute prevents the police from taking possession of the phone to
determine whether the type of use the driver had been engaging in violated
the law. So where, as here, an officer has no idea whether the driver’s use
of a phone is one of the forbidden types, the statute’s own enforcement
restriction means that the only way an investigatory stop could result in a
ticket is if the officer gets the driver to admit to engaging in one of the
forbidden uses. The roadside stop and seizure of the driver in these
situations, with its seemingly complete reliance on self-incrimination, thus
promotes little meaningful enforcement of this statute while imposing
significant incursions on citizens’ liberty interests.
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
37
that the police “shall not stop or detain a person solely for a suspected
violation of this section.” Iowa Code § 321.276(5)(a) (2011). Instead the
statute could be enforced “only as a secondary action when the driver of a
motor vehicle has been stopped or detained for a suspected violation of
another . . . law.” Id. The prior version thus prevented the constitutional
infringement at issue in this case. But the Legislature revised the statute
in 2017 and eliminated this language. See Iowa Code § 321.276 (2018).
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 involve looking at the
screen while driving are unlawful. Such laws help address the
enforcement problem section 321.276 presents with its few restricted uses
and broad universe of permitted uses.
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.
38
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.