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Iowa high court: lit up phone near face enough for criminal stop


Operating a cell phone while driving, even if accepting a call or following navigation instructions, can be reasonable suspicion to conduct a stop under the Struve decision.

On Friday, February 19, 2021, the Iowa Supreme Court in State v. Struve interpreted Iowa Code § 321.276, the law that makes illegal sending electronic messages, playing games, browsing social media apps, and accessing internet sites on a mobile device all while driving a primary criminal offense. A primary criminal offense means officers can conduct a traffic stop when they believe it is occurring and not wait for something else to happen first, as they must with “secondary offenses.”


In Struve, police stopped the defendant because they saw him driving while manipulating an illuminated cell phone screen. They stopped him on suspicion of violating the law against sending electronic messages on a mobile device while driving. An officer saw what he believed was a meth pipe, searched the car, and allegedly seized dealer-level quantities of methamphetamine. The traffic stop thus quickly turned into a criminal drug investigation.


The State charged the defendant with Class “B” felony level possession with intent to deliver and the defendant moved to suppress all of the fruits of the stop, search, and seizure, because, he alleged, the officers did not have reasonable suspicion to believe he was “sending electronic messages” on his phone when he was simply showing a passenger a photograph.


Justice Oxley, wrote the opinion of the court, joined by Justices Waterman, Mansfield, and McDonald. Justice McDermott wrote a dissenting opinion in which Justices Christensen and Appel joined. Justice Appel wrote a separate dissent as well.


Justice Oxley first noted that the federal and state constitutions both require reasonable suspicion to seize a motorist, apparently signaling the departure from the previous Court’s rulings that indicated Iowa Constitution Article I § 8 provided more protection than the Fourth Amendment to the United States Constitution against police intrusions.


The Court then noted that reasonable suspicion—nothing new— is based on not only police officers’ training and experience but their common sense inferences that a crime might be occurring. They don’t have to be 100% right about it and can dispel their suspicion by asking questions, wrote the court. If they do so, the intrusion is limited and brief. Further allowable inferences and observations may, as here, escalate to a more serious investigation.


The Court noted that the criminal law prohibits sending “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.” Sending, wrote the Court, includes the telecommunication of any messages, internet requests, social media, or game commands. It rejected the defendant’s assertion that swiping photos was legal, noting that counsel for defendant at oral argument conceded it was not.


The Court examined cases in Indiana, North Dakota, and Oregon, distinguishing both law and facts.


Ultimately, it held that a driver who holds up a phone for 10 seconds near his face and manipulates the screen provides to an officer reasonable suspicion to conduct a traffic stop to cite or warn about a violation of Iowa Code § 321.276. The Court wrote:


“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.”


However, the Court noted that, like “weaving”, there is not a bright line standard for all cell phone use:


“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.


Justice McDermott offered a robust dissent, noting:


“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.


Justices Appel and Christensen joined this dissent.


Justice Appel wrote his own dissent to note that “[i]t 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.”


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