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No. 15-2540 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-‐Appellee v. GREGORIO PANIAGUA-‐GARCIA Defendant-‐Appellant. Appeal from the United States District Court For the Southern District of Indiana, Terre Haute Division Case No. 2:14-‐cr-‐00027-‐JMS-‐CMM-‐01 The Honorable Jane Magnus-‐Stinson, District Judge BRIEF AND REQUIRED SHORT APPENDIX OF THE DEFENDANT-‐APPELLANT GREGORIO PANIAGUA-‐GARCIA H. Samuel Ansell Counsel for Defendant-‐Appellant 156 E. Market Street, Suite 900 Indianapolis, IN 46204 (317) 381-‐0371 Email: attorneyansell@gmail.com CIRCUIT RULE 26.1 DISCLOSURE STATEMENT The full name of every party that the attorney represents in the case: GREGORIO PANIAGUA-‐GARCIA The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Michael Donahoe and H. Samuel Ansell H. Samuel Ansell is the Counsel of Record for the above listed party pursuant to Circuit Rule 3(d). Gregorio Paniagua-‐Garcia is not a corporation. Date: September 15, 2015 s/H. Samuel Ansell________________ H. Samuel Ansell Attorney at Law 156 E. Market Street, Ste. 900 Indianapolis, IN 46204 (317) 381-‐0371 Fax (317) 614-‐7676 E-‐mail: attorneyansell@gmail.com i TABLE OF CONTENTS CIRCUIT RULE 26.1 DISCLOSURE STATEMENT............................................................................ i TABLE OF CONTENTS.............................................................................................................................. ii TABLE OF AUTHORITIES.......................................................................................................................iii JURISDICTIONAL STATEMENT............................................................................................................ 1 STATEMENT OF THE ISSUES................................................................................................................ 2 STATEMENT OF THE CASE AND FACTS .......................................................................................... 2 PROCEDURAL HISTORY.......................................................................................................................... 2 THE TRAFFIC STOP................................................................................................................................... 2 SUMMARY OF THE ARGUMENT .......................................................................................................... 4 ARGUMENT................................................................................................................................................... 4 I.
Deputy Simmons initiated the traffic stop on the basis of inadequate information to reasonably suspect that Paniagua-‐Garcia was texting while driving.......................................................................................................................... 4 CONCLUSION............................................................................................................................................. 10 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7)(C) ................................... 11 CERTIFICATE OF SERVICE.................................................................................................................. 12 APPENDIX.............................................................................................................................................App. i CERTIFICATE OF COMPLIANCE CIRCUIT RULE 30(d) ................................................... App. ii APPENDIX TABLE OF CONTENTS........................................................................................... App. iii ii TABLE OF AUTHORITIES CASES Delaware v. Prouse, 440 U.S. 648, 672 (1979) ............................................................................... 9 Navarette v. California, 134 S. Ct. 1638 (2014) ............................................................................. 5 Terry v. Ohio, 392 U.S. 1 (1968)....................................................................................................... 5, 9 United States v. Bentley, 2015 U.S. App. LEXIS 13066 ................................................................ 4 United States v. Flores, 2015 U.S. App. LEXIS 14570 ................................................................... 9 United States v. Garcia-Garcia, 633 F.3d 608 (7th Cir. 2011).................................................. 5 United States v. Lopez-Valdez, 178 F.3d 282 (5th Cir. 1999) ............................................... 10 Whren v. United States, 517 U.S. 806 (1996) .................................................................................. 4 Wong Sun v. United States, 371 U.S. 471 (1963) ........................................................................ 10 STATUTES Indiana Code § 9-‐21-‐8-‐49....................................................................................................................... 5 Indiana Code § 9-‐21-‐8-‐59(a)....................................................................................................... 3, 4, 5 Indiana Code § 9-‐21-‐8-‐59(b) ................................................................................................................ 7 OTHER AUTHORITIES FOX59 News Story at http://fox59.com/2014/05/21/3-‐years-‐later-‐police-‐say-‐ indianas-‐texting-‐and-‐driving-‐law-‐remains-‐unenforceable/ ............................................. 6, 7 WREX News Story at http://www.wrex.com/story/25908288/2014/06/30/ police-‐cracking-‐down-‐on-‐texting-‐while-‐driving-‐citations/.................................................... 8 iii JURISDICTIONAL STATEMENT Defendant-‐Appellant Gregorio Paniagua-‐Garcia appeals his criminal conviction and final judgment. Paniagua-‐Garcia was charged, by Indictment dated October 22, 2014, with possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c). Jurisdiction was conferred on the United States District Court for the Southern District of Indiana pursuant to 18 U.S.C. § 3231. Paniagua-‐Garcia pled guilty and was sentenced on July 1, 2015. The judgment of conviction was entered on the docket on July 7, 2015. Paniagua-‐Garcia filed his Notice of Appeal on July 20, 2015. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1294(1) and 18 U.S.C. § 3742. 1 STATEMENT OF THE ISSUE I. Whether the District Court erred in denying defendant’s motion to suppress for lack of reasonable suspicion to initiate a traffic stop. STATEMENT OF THE CASE AND FACTS PROCEDURAL HISTORY This is a direct appeal from a criminal conviction in the United States District Court for the Southern District of Indiana. On October 22, 2014, the government charged Paniagua-‐Garcia by Indictment with a single count of possession with intent to distribute heroin (Dkt. 12). On January 1, 2015, Paniagua-‐Garcia filed a motion and memorandum of law to suppress evidence seized during the traffic stop that led to his arrest (Dkt. 41, 42). On January 16, 2015, the government filed its response (Dkt. 43). On February 13, 2015, the Court denied the motion (Dkt. 46; App. 6-‐12). On July 1, 2015, Paniagua-‐Garcia pled guilty pursuant to a plea agreement, reserving his right to appeal the denial of his motion to suppress (Dkt. 48). The District Court sentenced Paniagua-‐Garcia to 36 months imprisonment (Dkt. 55). On July 7, 2015, the District Court entered the judgment of conviction on the docket (Dkt. 56; App. 1-‐5). On July 20, 2015, Paniagua-‐Garcia filed his Notice of appeal (Dkt. 58). THE TRAFFIC STOP AND SUBSEQUENT SEARCH AND SEIZURE The morning of September 27, 2014, at approximately 8:10 AM, Deputy Dwight Simmons with the Putnam County Sheriff’s Office was traveling eastbound on Interstate 70 in the Southern District of Indiana. While traveling in the left lane, Simmons passed a black Mitsubishi Galant traveling at nearly 70 miles per hour in the right lane. While passing the vehicle, Simmons observed the male driver holding a cell phone in his right hand with his 2 head tilted down toward the phone. Simmons concluded that the driver “appeared to be texting on his key pad” (Dkt. 1 at 2-‐3; App. 14-‐15). Deputy Simmons continued past the Mitsubishi and pulled to the right shoulder of the interstate to let traffic pass. Once the Mitsubishi had passed, Simmons pulled back into traffic and traveled behind the vehicle. Simmons then initiated a traffic stop for violation of the Indiana statute that prohibits texting while driving (Dkt. 1 at 2-‐3; App. 14-‐15). Simmons approached the vehicle and observed a female passenger and an infant in the back seat. Simmons asked the driver, Paniagua-‐Garcia, for his license and stated to him that he had observed him texting on his phone. Paniagua-‐Garcia stated that he was not texting on his phone but, rather, was trying to find music on his phone (Dkt. 1 at 3; App. 15). Paniagua-‐Garcia produced his driver’s license, vehicle registration, and proof of insurance. Simmons then asked Paniagua-‐Garcia to step to the rear of his vehicle for what he describes in his report as “enforcement action” (Dkt. 1 at 4; App. 16). Simmons issued Paniagua-‐Garcia a written warning for texting while driving, pursuant to Indiana Code § 9-‐21-‐8-‐59(a). He then asked if the car contained any contraband. Simmons then requested and received consent to search the vehicle which resulted in the seizure of 5.4 pounds of heroin (Dkt. 1 at 7, 9-‐10; App. 17, 18-‐19). 3 SUMMARY OF THE ARGUMENT Deputy Simmons lacked reasonable suspicion to conduct a traffic stop for the offense of texting while driving in violation of Indiana Code § 9-‐21-‐8-‐59(a) after only briefly observing Paniagua-‐Garcia operate the keypad of his cell phone while driving. ARGUMENT I. Deputy Simmons initiated the traffic stop on the basis of inadequate information to reasonably suspect that Paniagua-Garcia was texting. Standard of Review In reviewing the denial of a motion to suppress, both legal conclusions and mixed questions of law and fact are reviewed de novo. United States v. Bentley, 2015 U.S. App. LEXIS 13066 at 5. Analysis Vehicle stops are analyzed according to the Fourth Amendment’s reasonableness standard. Id. (citing Whren v. United States, 517 U.S. 806 (1996)). An initial traffic stop is justified where the stopping officer had reasonable suspicion that the driver had committed a traffic violation. Id. at 6. The facts known to Deputy Simmons at the time he stopped the vehicle do not give rise to reasonable suspicion that Paniagua-‐Garcia was using his cell phone in violation of Indiana law. Deputy Simmons, while driving in the left lane of traffic on Interstate Highway 70, passed Paniagua-‐Garcia’s vehicle traveling in the right lane at nearly 70 miles per hour. While passing the vehicle, Simmons observed that Paniagua-‐Garcia was holding his cell phone in his right hand and had his head tilted down towards the phone. Simmons stated in his narrative report that it appeared to him that the driver “was texting on his keypad.” (Dkt. 1 at 2-‐3, App. 14-‐15). 4 The government conceded to the District Court that Simmons was mistaken in his belief the Paniagua-‐Garcia was texting at the time and argues that, because his mistake of fact was reasonable, the stop was reasonable (Dkt. 46 at 5; App. 10). An officer’s subjective beliefs are largely irrelevant to the inquiry of probable cause or reasonable suspicion. United States v. Garcia-Garcia, 633 F.3d 608, 612 (7th Cir. 2011). Instead the analysis rests on the facts known to the officer at the time he stopped the vehicle. Id. at 613. Simmons’ observation that the driver “appeared to be texting on his keypad” supports the inference that Simmons observed the driver operate the keypad in some manner. Therefore, excluding his subjective belief that the driver was texting, the facts then known to Simmons were the following: 1. The driver was holding a cell phone in his right hand; 2. The driver’s head was tilted down towards the phone; 3. The driver was operating the keypad on the phone. The question then is whether these facts provided the officer with a particularized and objective basis for suspecting the driver of criminal activity. See Navarette v. California, 134 S. Ct. 1638, 1687 (2014) (citing Terry v. Ohio, 392 U.S. 1, 21-‐22 (1968)). Indiana Code § 9-‐21-‐8-‐59(a) provides in relevant part that: “a person may not use a telecommunications device to: (1) type a text message or an electronic mail message; (2) transmit a text message or an electronic mail message; or (3) read a text message or an electronic mail message; while operating a moving motor vehicle unless the device is used in conjunction with hands free or voice operated technology…” A person who violates this law commits a class C infraction. Indiana Code § 9-‐21-‐8-‐49. 5 Anyone familiar with modern cell phones knows that there are hundreds of applications available for these phones that do not involve the typing, transmitting, or receiving of text messages or electronic mail. First among these other uses is the simple act of dialing a number and making a call. Other uses include GPS location services, and applications to store and play music. From the vantage point of a passing car, a driver’s unlawful use of a cell phone in Indiana is indistinguishable from a driver’s lawful use of a cell phone. For either type of use, a passing officer would observe the exact same conduct: holding the phone, looking at the phone, and operating its key pad or touch screen. The near impossibility of discerning lawful from unlawful phone use while driving in Indiana is well known to law enforcement. Central Indiana FOX affiliate FOX59 posted on its website on May 21, 2014, the following news story: “Texting Tickets: Police unable to enforce Indiana’s texting and driving law.”1 (App. 20-‐22). The article states that, “nearly three years after Indiana’s texting and driving law went into effect, new numbers from Indiana State Police suggest the law remains unenforceable in most situations.” The article notes that in 2013, Indiana State Police issued 186 citations for violating the law, while in Illinois, where all hand-‐held cell phone use is banned while driving, police issued more than 6,700 citations. The article reports that, “the reason, according to many in law enforcement, is the same reason many criticized the law after it [passed]. The language of the law doesn’t give police the authority to realistically enforce it.” The article quotes Indiana Master State Trooper 1 Article found at http://fox59.com/2014/05/21/3-‐years-‐later-‐police-‐say-‐indianas-‐texting-‐and-‐
driving-‐law-‐remains-‐unenforceable/ last accessed on 09/13/2015. 6 Shana Kennedy admitting, “I’ve never done it” when asked how many texting tickets she had issued in three years. The article explains: “That’s not to say Trooper Kennedy doesn’t see drivers looking down at their phones behind the wheel. In fact, she sees it every day. But Indiana’s texting law is very specific. It prohibits the sending of text messages while driving. It does not address other smart phone apps like maps, Twitter, Facebook, games or the thousands of other apps that can take a driver’s eyes off the road.” The article continues: “If Trooper Kennedy does stop a driver who appears to be texting she has no authority to take that driver’s phone to see if they were. She has to take their word for it.” This references the fact that Indiana Code § 9-‐21-‐8-‐59(b) provides that “a police officer may not, without the consent of the person: (1) confiscate a telecommunications device for the purpose of determining compliance with this section; (2) confiscate a telecommunications device and retain it as evidence pending trial for a violation of this section; or (3) extract or otherwise download information from a telecommunications device for a violation of this section unless: (A) the police officer has probable cause to believe that the telecommunications device has been used in the commission of a crime; (B) the information is extracted or otherwise downloaded under a valid search warrant; or (C) otherwise authorized by law.” Another story on this issue was posted by Northern Indiana NBC affiliate WREX on June 30, 2014 2 (App. 23). It quoted Mishawaka Police Lieutenant Tim Williams stating, “We see people on their phones all the time, but it’s hard to prove their breaking the law.” 2 Article found at http://www.wrex.com/story/25908288/2014/06/30/police-‐cracking-‐down-‐on-‐
texting-‐while-‐driving-‐citations/ last accessed on 09/14/15. 7 The article continues, “South Bend Police say they’re going through the same problem because they’ve only issued a handful of citations.” The article also quotes Lieutenant Williams saying, “Here in Indiana, they can talk on their phones, they can use their apps, they can still dial in phone numbers. So for us to be able to prove that they’re texting while driving is a difficult thing.” (App. 23). Here, Deputy Simmons observed conduct that is consistent with the commission of a class C infraction under Indiana law. However, the conduct he observed is also consistent with actions that do not violate Indiana law. Deputy Simmons failed to note any detail that would distinguish unlawful use of a cell phone while driving from lawful use of a cell phone while driving. He therefore had nothing upon which to base a reasonable suspicion that Paniagua-‐Garcia was committing a traffic infraction by simply operating his cell phone while driving. Simmons had no objective reason to suspect that Paniagua-‐Garcia was using his cell phone unlawfully to type, transmit, or read a text message rather than using it lawfully to make a call, access GPS, browse music titles, or do anything else not prohibited by Indiana law. A reasonable officer could only conclude that the driver was using his cell phone, which, in and of itself, does not violate Indiana law. The District Court notes that, “Paniagua-‐Garcia does not point to additional conduct that would be necessary to provide probable cause for a texting while driving traffic stop, because there is none.” (Dkt. 46 at 6; App. 11). That may be true, however, the absence of particular facts that could support an objective basis to suspect a driver is texting rather than lawfully using a phone does not lessen the requirements imposed by the Fourth Amendment. 8 Were these facts adequate to establish reasonable suspicion, Indiana police could stop any driver seen using a cell phone. Such stops would occur in spite of the fact that, in most instances, using a phone while driving is legal in Indiana. The U.S. Supreme Court warned that, “to insist neither upon an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial objective standard or rule to govern the exercise of discretion would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches.” Delaware v. Prouse, 440 U.S. 648, 672 (1979) (citing Terry v. Ohio, 392 U.S. 1, 22 (1968)). In United States v. Flores, 2015 U.S. App. LEXIS 14570, this Court addressed the argument that an officer reasonably suspected that a common license plate frame masked information at the top of the plate and therefore violated the Illinois statute requiring the plate to be legible. The Court found that the government’s argument in that case “proves too much: it is true of all similar frames.” The Court reasoned that if the suspicion were reasonable, “then it would justify stopping any of the vast number of cars driven lawfully but affixing plates with the ubiquitous frames like the one in this case.” Id. at 9. The Court concluded that, “[a] suspicion so broad that it would permit the police to stop a substantial portion of the lawfully driving public, unless the drivers all removed their plate frames, is not reasonable.” Id. Similarly, here the officer’s suspicion is unreasonably broad. It would allow police to stop anyone using a cell phone while driving without a particularized and objective basis to suspect the driver was texting or emailing, rather than using the phone in any other way. Indiana’s legislators could have voted to make Indiana a “hands free” state like Illinois, but did not. The Fourth Amendment requires reasonable suspicion that a crime is being 9 committed. In this case, that standard requires reasonable suspicion that a person is texting or emailing while driving, not merely using a cell phone while driving. An analogous situation would be to suspect a driver of drinking alcohol merely because he drank from an unmarked container. The officer can see that the driver is drinking. The officer cannot reasonably suspect, absent additional information, that the driver is drinking alcohol. To hold otherwise would allow officers to routinely stop vehicles when drivers have not violated the law. “If officers are allowed to stop vehicles when drivers have not broken the law, the potential for abuse of traffic infractions as pretext for effecting stops seems boundless and the costs to privacy rights excessive.” United States v. Lopez-Valdez, 178 F.3d 282, 289 (5th Cir. 1999). Because the traffic stop was unsupported by reasonable suspicion, the subsequent search of the vehicle, discovery of contraband, and post-‐arrest admissions made by Paniagua-‐Garcia, are all fruits of the poisonous tree and therefore subject to suppression. See Wong Sun v. United States, 371 U.S. 471 (1963). CONCLUSION For all the foregoing reasons, the District Court’s denial of the motion to suppress should be reversed and the case remanded. Respectfully submitted, /s/H. Samuel Ansell_____________ Counsel for Appellant
10 CERTIFICATE OF COMPLIANCE WITH F.R.A.P. RULE 32(a)(7)(C) The undersigned, counsel of record for the Defendant-‐Appellant, Gregorio Paniagua-‐
Garcia, furnishes the following in compliance with F.R.A.P rule 32(a)(7): I hereby certify that this brief conforms to the rules contained in F.R.A.P Rule 32(a)(7) for a brief produced with proportionally spaced font. The length of this brief is 2,492 words. Dated: September 15, 2015 /s/H. Samuel Ansell H. Samuel Ansell Counsel for Appellant 156 E. Market Street Suite 900 Indianapolis, IN 46204 (317) 381-‐0371 11 CERTIFICATE OF SERVICE I hereby certify that the “Brief of Defendant-‐Appellant” was electronically filed on this date with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I also certify that some of the participants in this case are not CM/ECF users. I have mailed the foregoing document via U.S. First Class Mail, postage pre-‐paid, for delivery within three calendar days to the following participants: Gregorio Paniaga-‐Garcia, #12496-‐028 Great Plains Correctional Institution P.O. Box 400 Hinton, OK 73047 Date: September 15, 2015 s/H. Samuel Ansell________________ H. Samuel Ansell 12 REQUIRED SHORT APPENDIX
App. i
CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 30(d)
Pursuant to Circuit Rule 30(d), the undersigned hereby certifies that all materials
required by Circuit Rule 30(a) and (b) are included in the attached Required Short
Appendix and Supplemental Appendix.
/s/ Harold Samuel Ansell
Harold Samuel Ansell
Attorney for Defendant-Appellant Gregorio Paniagua-Garcia
Date: September 15, 2015
App. ii
APPENDIX TABLE OF CONTENTS
Certification .....................................................................................................................................App. ii
Judgment ..........................................................................................................................................App. 1
Order Denying Paniagua-Garcia’s Motion to Suppress Evidence...............................App. 6
Complaint ...................................................................................................................................... App. 13
“Texting Tickets: Police Unable to Enforce Indiana’s Texting and Driving Law,” Fox 59
News, May 21, 2014 .................................................................................................................. App. 20
“Police Cracking Down on Texting While Driving Citations,” WREX News, June 30, 2014
........................................................................................................................................................... App. 23
App. iii
Case 2:14-cr-00027-JMS-CMM Document 56 Filed 07/07/15 Page 1 of 5 PageID #: 227
AO 245B
(Rev. 09/13) Judgment in a Criminal Case
Sheet 1
UNITED STATES DISTRICT COURT
Southern
UNITED STATES OF AMERICA
v.
GREGORIO PANIAGUA-GARCIA
District of
)
)
)
)
)
)
)
)
Indiana
JUDGMENT IN A CRIMINAL CASE
Case Number: 2:14CR00027-001
USM Number: 12496-028
H. Samuel Ansell
Defendant’s Attorney
THE DEFENDANT:
pleaded guilty to count(s) 1
pleaded nolo contendere to count(s)
which was accepted by the court.
was found guilty on count(s)
after a plea of not guilty.
The defendant is adjudicated guilty of these offenses:
Title & Section
21 U.S.C. § 841
(a)(1)
Nature of Offense
Possession with Intent to Distribute Heroin
The defendant is sentenced as provided in pages 2 through
the Sentencing Reform Act of 1984.
Offense Ended
9/27/2014
5
Count
1
of this judgment. The sentence is imposed pursuant to
The defendant has been found not guilty on count(s)
Count(s)
is
are dismissed on the motion of the United States.
It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name,
residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If
ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic
circumstances.
7/1/2015
Date of Imposition of Judgment
BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB
A CERTIFIED TRUE COPY
Laura A. Briggs, Clerk
+RQ-DQH0DJQXV6WLQVRQ-XGJH
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6RXWKHUQ'LVWULFWRI,QGLDQD
U.S.. District Court
Southern
Indiana
uthern District of IInd
nd
n
diian
iaa a
Date-XO\
By
Deputy Clerk
App. 1
AO 245B
(Rev. 09/13) Judgment in Criminal Case
Sheet 2 — Imprisonment
Judgment — Page
DEFENDANT:
CASE NUMBER:
2
of
2:14CR00027-001
IMPRISONMENT
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a
total term of:
36 months
The court makes the following recommendations to the Bureau of Prisons:
That the defendant be designated to a facility as close as possible to Detroit, Michigan.
The defendant is remanded to the custody of the United States Marshal.
The defendant shall surrender to the United States Marshal for this district:
at
a.m.
p.m.
on
.
as notified by the United States Marshal.
The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
before 2 p.m. on
.
as notified by the United States Marshal.
as notified by the Probation or Pretrial Services Office.
RETURN
I have executed this judgment as follows:
Defendant delivered on
at
to
, with a certified copy of this judgment.
UNITED STATES MARSHAL
By
DEPUTY UNITED STATES MARSHAL
App. 2
5
AO 245B
Sheet 3 — Supervised Release
Judgment—Page
DEFENDANT:
CASE NUMBER:
3
of
5
2:14CR00027-001
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of : 3 years
The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release
from the custody of the Bureau of Prisons.
The defendant shall not commit another federal, state or local crime.
The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a
controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two
periodic drug tests thereafter.
The above drug testing condition is suspended, based on the court’s determination that the defendant poses a low risk of
future substance abuse. (Check, if applicable.)
The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. (Check, if applicable.)
The defendant shall cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.)
The defendant shall comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16913,
et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which he or
she resides, works, is a student, or was convicted of a qualifying offense. (Check, if applicable.)
The defendant shall participate in an approved program for domestic violence. (Check, if applicable.)
If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance
with the Schedule of Payments sheet of this judgment.
The defendant must comply with the conditions listed below:
CONDITIONS OF SUPERVISION
Upon completion of imprisonment, the defendant shall be surrendered to Immigration authorities for deportation proceedings pursuant
to the Immigration and Naturalization Act. If deported, the defendant shall not enter the United States. If granted permission by
Immigration authorities to remain in or legally re-enter the United States during the period of supervised release, the defendant shall
report immediately to the probation officer in the district nearest his/her current location.
Upon a finding of a violation of probation or supervised release, I understand that the court may (1) revoke supervision, (2) extend
the term of supervision, and/or (3) modify the condition of supervision.
These conditions have been read to me. I fully understand the conditions and have been provided a copy of them.
(Signed)
Defendant
Date
U.S. Probation Officer/Designated Witness
Date
App. 3
AO 245B
Sheet 5 — Criminal Monetary Penalties
Judgment — Page
DEFENDANT:
CASE NUMBER:
4
of
5
2:14CR00027-001
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.
Fine
Assessment
TOTALS
$ 100.00
Restitution
$
$
The determination of restitution is deferred until
entered after such determination.
. An Amended Judgment in a Criminal Case (AO 245C) will be
The defendant must make restitution (including community restitution) to the following payees in the amount listed below.
If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified
otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal
victims must be paid before the United States is paid.
Name of Payee
TOTALS
Restitution Ordered
Total Loss*
$
Priority or Percentage
$
Restitution amount ordered pursuant to plea agreement $
The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the
fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be
subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
The court determined that the defendant does not have the ability to pay interest and it is ordered that:
the interest requirement is waived for the
the interest requirement for the
fine
fine
restitution.
restitution is modified as follows:
* Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed
on or after September 13, 1994, but before April 23, 1996.
App. 4
AO 245B
Sheet 6 — Schedule of Payments
Judgment — Page
DEFENDANT:
CASE NUMBER:
5
of
5
2:14CR00027-001
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:
A
Lump sum payment of
not later than
in accordance
due immediately, balance due
C
D
, or
E, or
B
Payment to begin immediately (may be combined with
C
Payment in equal
D
Payment in equal
G below; or
C,
D, or
G below); or
(e.g., weekly, monthly, quarterly) installments of $
over a period of
(e.g., months or years), to commence
(e.g., 30 or 60 days) after the date of this judgment; or
(e.g., weekly, monthly, quarterly) installments of $
over a period of
(e.g., months or years), to commence
(e.g., 30 or 60 days) after release from imprisonment to a
term of supervision; or
E
Payment during the term of supervised release will commence within
(e.g., 30 or 60 days) after release from
imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or
F
If this case involves other defendants, each may be held jointly and severally liable for payment of all or part of the
restitution ordered herein and the Court may order such payment in the future. The victims' recovery is limited to the
amount of loss, and the defendant's liability for restitution ceases if and when the victims receive full restitution.
G
Special instructions regarding the payment of criminal monetary penalties:
Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is
due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’
Inmate Financial Responsibility Program, are made to the clerk of the court.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
Joint and Several
Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several Amount,
and corresponding payee, if appropriate.
Defendant Name
Case Number
Joint & Several Amount
The defendant shall pay the cost of prosecution.
The defendant shall pay the following court cost(s):
The defendant shall forfeit the defendant’s interest in the following property to the United States:
The Mitsubishi Galant, VIN: 4A3AB36F17E038200, seized by local authorities at the time of his arrest.
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal,
(5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and court costs.
App. 5
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
)
)
)
)
)
)
)
vs.
GREGORIO PANIAGUA-GARCIA,
Defendant.
2:14-cr-00027-JMS-CMM-1
ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS
Presently pending before the Court is Defendant Gregorio Paniagua-Garcia’s Motion to
Suppress. [Filing No. 41.] Mr. Paniagua-Garcia asks the Court to suppress evidence obtained
after an allegedly unlawful traffic stop, arguing that there was no probable cause for that stop. For
the reasons detailed herein, the Court DENIES Mr. Paniagua-Garcia’s motion.1
I.
BACKGROUND
The morning of September 27, 2014, Deputy Dwight Simmons with the Putnam County
Sheriff’s Office was traveling eastbound on Interstate 70. [Filing No. 42-1 at 1; Filing No. 42-1
at 3.] While traveling in the left lane, Deputy Simmons passed a black Mitsubishi Galant bearing
an Ohio license plate in the right lane. [Filing No. 42-1 at 1.] Deputy Simmons observed that the
male driver of the vehicle was holding a phone in his right hand, had his head tilted down toward
the phone, and appeared to be operating the key pad on the phone. [Filing No. 42-1 at 1.] Deputy
Simmons continued past the vehicle and pulled to the right shoulder of the interstate to let traffic
1
Evidentiary hearings are not required as a matter of course with motions to suppress; instead, the
Court need only conduct a hearing “when the allegations and moving papers are sufficiently definite, specific, non-conjectural and detailed enough to conclude that a substantial claim is presented
and that there are disputed issues of material fact which will affect the outcome of the motion.”
United States v. Villegas, 388 F.3d 317, 324 (7th Cir. 2004). In this case, no party requested an
evidentiary hearing or pointed to disputed issues of material fact. Thus, no hearing is necessary.
-1App. 6
pass. [Filing No. 42-1 at 1.] Once the Mitsubishi passed Deputy Simmons, he pulled back into
traffic and traveled behind the vehicle. [Filing No. 42-1 at 1.] Deputy Simmons then activated his
emergency lights and initiated an enforcement stop. [Filing No. 42-1 at 1.]
Deputy Simmons approached the vehicle and also observed a female passenger and infant
in the backseat of the vehicle. [Filing No. 42-1 at 1.] Deputy Simmons asked the driver—later
identified as Mr. Paniagua-Garcia—for his license and explained that he had observed him texting
on his phone and that doing so took his attention off the road. [Filing No. 42-1 at 1.] Mr. PaniaguaGarcia stated that he was not texting on his phone but, instead, was trying to find music. [Filing
No. 42-1 at 1.] Mr. Paniagua-Garcia produced an Ohio driver’s license, registration, and proof of
insurance. [Filing No. 42-1 at 1.] Deputy Simmons then asked Mr. Paniagua-Garcia to exit his
vehicle, which he did. [Filing No. 42-1 at 1.]
While in front of Deputy Simmons’ vehicle, Deputy Simmons continued to question Mr.
Paniagua-Garcia. [Filing No. 42-1 at 1-2.] Deputy Simmons asked Mr. Paniagua-Garcia to remain
roadside while Deputy Simmons entered Mr. Paniagua-Garcia’s license and registration information into the computer in his patrol vehicle. [Filing No. 42-1 at 2-3.] While in the patrol vehicle,
Deputy Simmons called for radio assistance from Sergeant Craig Sibbit. [Filing No. 42-1 at 3.]
Sergeant Sibbit arrived as Deputy Simmons was completing a written warning for Mr. PaniaguaGarcia for “Texting While Operating a Motor Vehicle” pursuant to Indiana Code § 9-21-8-59.
[Filing No. 42-1 at 3.]
After completing the written warning, Deputy Simmons exited the patrol vehicle and joined
Mr. Paniagua-Garcia roadside. [Filing No. 42-1 at 3.] He told Mr. Paniagua-Garcia that he was
issuing a warning for the offense of texting while driving and explained the importance of paying
attention while operating a vehicle. [Filing No. 42-1 at 3.] Deputy Simmons asked Mr. Paniagua-
-2App. 7
Garcia if there were any weapons, large amounts of U.S. Currency, or narcotics in his vehicle.
[Filing No. 42-1 at 3.] Mr. Paniagua-Garcia responded “no” to each question. [Filing No. 42-1 at
3.] Deputy Simmons asked Mr. Paniagua-Garcia for consent to search his vehicle, to which he
responded “yeah.” [Filing No. 42-1 at 3.] Deputy Simmons confirmed Mr. Paniagua-Garcia’s
response by asking, “I can search your vehicle?,” to which Mr. Paniagua-Garcia responded, “Yeah,
go ahead.” [Filing No. 42-1 at 3.] Deputy Simmons found 5.4 pounds of heroin in the trunk of
Mr. Paniagua-Garcia’s vehicle. [Filing No. 42-1 at 4.] Mr. Paniagua-Garcia was placed under
arrest and issued his Miranda warnings. [Filing No. 42-1 at 4.]
Mr. Paniagua-Garcia was later indicted for one count of possession with intent to distribute
a controlled substance in contravention of 21 U.S.C. § 841. [Filing No. 12.] He now asks this
Court to suppress the evidence found during the search of his vehicle, which he claims violated
his Fourth Amendment rights. [Filing No. 41.] The Government opposes Mr. Paniagua-Garcia’s
motion. [Filing No. 43.]
II.
THE FOURTH AMENDMENT
The Fourth Amendment to the United States Constitution protects the “right of the people
to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. . . .” U.S. Const. amend. IV. Generally, a warrantless search or seizure in the absence of
probable cause is unreasonable. United States v. Slone, 636 F.3d 845, 848-49 (7th Cir. 2011).
When police conduct an unreasonable search or seizure, the exclusionary rule usually vindicates
the Fourth Amendment’s protections by keeping out the unlawfully obtained evidence. Id.
-3App. 8
III.
DISCUSSION
Mr. Paniagua-Garcia challenges the constitutionality of Deputy Simmons’ initial stop of
his vehicle. He concedes that although Indiana Code § 9-21-8-59 prohibits texting while operating
a vehicle, the statute does not prohibit a driver from making phone calls, searching the phone’s
contact list, utilizing GPS services, or searching for music. [Filing No. 42 at 4.] Mr. PaniaguaGarcia argues that “the act of holding a cell phone, looking at the cell phone and even operating
the touch screen of a cell phone does not create a reasonable suspicion that the operator of a moving
motor vehicle is violating Indiana Code § 9-21-8-59.” [Filing No. 42 at 3.] Thus, Mr. PaniaguaGarcia asks the Court to suppress the evidence found during the search of his vehicle. 2
In response, the Government argues that suppression is inappropriate because Mr.
Paniagua-Garcia’s behavior provided Deputy Simmons with an objectively reasonable basis to
believe that he was texting while driving, in violation of Indiana Code § 9-21-8-59. [Filing No.
43 at 1.] Because Deputy Simmons allegedly had probable cause to stop Mr. Paniagua-Garcia, the
Government asks this Court to deny his pending motion. [Filing No. 43.]
A roadside traffic stop constitutes a “seizure” under the Fourth Amendment. Elliot v. Sheriff of Rush Co., 686 F.Supp.2d 840, 853 (S.D. Ind. 2010). Police may make a traffic stop when
they have probable cause to believe the driver has violated a traffic law, even a minor one. United
States v. McDonald, 453 F.3d 958, 960 (7th Cir. 2006) (citing Whren v. United States, 517 U.S.
806 (1996)). Probable cause exists when an officer reasonably believes that a driver committed a
traffic offense. McDonald, 453 F.3d at 960. “A stop and search can be reasonable even if the
2
Mr. Paniagua-Garcia does not challenge his subsequent consent for Deputy Simmons to search
his vehicle.
-4App. 9
defendant did not actually commit an offense as long as the officer reasonably believed an offense
occurred.” Id.
An officer’s subjective beliefs are largely irrelevant to the probable cause inquiry. United
States v. Garcia-Garcia, 633 F.3d 608, 612 (7th Cir. 2011). Instead, the analysis rests on two
factors. First, the Court must decide what facts the officer knew at the time he stopped the vehicle.
Id. at 613. Second, the Court must decide whether a reasonable officer could conclude that those
facts amounted to a violation of the law. Id.
In relevant part, Indiana Code § 9-21-8-59 prohibits a person from using a telecommunications device to type, transmit, or read a text message while operating a motor vehicle. Mr.
Paniagua-Garcia does not deny that he was using his phone at the time Deputy Simmons observed
him, but he does deny “that he was texting while driving at any point on the day of the traffic stop.”
[Filing No. 42 at 4; Filing No. 42-2 (affidavit from Mr. Paniagua-Garcia); Filing No. 42-4 (affidavit from Timothy Ziegler, who attests that he has inspected Mr. Paniagua-Garcia’s phone and that
no text messages were sent or received during the morning in question).] In response to Mr.
Paniagua-Garcia’s motion, the Government concedes that Mr. Paniagua-Garcia was not texting
while driving at the time Deputy Simmons stopped him. [Filing No. 43 at 8 (arguing that even
though Deputy Simmons’ “belief was incorrect, the mistake was reasonable [for] providing probable cause for the traffic stop”).]
The Court concludes that Deputy Simmons’ observations of Mr. Paniagua-Garcia while
operating the vehicle made it reasonable for Deputy Simmons to conclude that Mr. Paniagua-Garcia had violated Indiana Code § 9-21-8-59 by texting while driving. Mr. Paniagua-Garcia does
not dispute that in Indiana it is unlawful to text while operating a vehicle and that Deputy Simmons
observed him driving a vehicle while holding a phone with his head tilted towards the phone and
-5App. 10
operating the phone key pad. Mr. Paniagua-Garcia argues that these actions do not provide probable cause because they are “entirely consistent with nearly every other legal use of a cell phone
while driving.”3 [Filing No. 42 at 3.] Mr. Paniagua-Garcia does not point to additional conduct
that would be necessary to provide probable cause for a texting while driving traffic stop, because
there is none. Although the parties now agree that Mr. Paniagua-Garcia was not actually texting
while driving, that is irrelevant because a reasonable conclusion from the undisputed actions that
Deputy Simmons observed at the time he initiated the traffic stop is that Mr. Paniagua-Garcia was
texting while driving, in violation of Indiana Code § 9-21-8-59. See McDonald, 453 F.3d at 960
(“A stop and search can be reasonable even if the defendant did not actually commit an offense as
long as the officer reasonably believed an offense occurred.”).
Because it was reasonable for Deputy Simmons to conclude, based on his undisputed observations, that Mr. Paniagua-Garcia had violated Indiana law by texting while driving, the Court
concludes that Deputy Simmons had probable cause to initiate the traffic stop. Thus, the Court
denies Mr. Paniagua-Garcia’s Motion to Suppress. [Filing No. 41.]
IV.
CONCLUSION
For the reasons detailed herein, the Court DENIES Mr. Paniagua-Garcia’s Motion to Suppress. [Filing No. 41.]
3
In support of this argument, Mr. Paniagua-Garcia cites a 2013 Pew Research Center Survey detailing the activities of cell phone users. [Filing No. 42-3.] As an initial matter, the survey is not
specific to cell phone use while driving and, thus, the statistics are not directly applicable. [Filing
No. 42-3 at 2.] To the extent the study is at all applicable, it actually undercuts Mr. PaniaguaGarcia’s argument because it reveals that 81% of cell phone owners use their phones to “send or
receive text messages,” which is 21% higher than the next category (accessing the internet) and
supports the reasonableness of Deputy Simmons’ conclusion that Mr. Paniagua-Garcia was texting
while driving. [Filing No. 42-3 at 2.]
-6App. 11
February 13, 2015
Electronic Distribution via ECF only:
Harold Samuel Ansell
ATTORNEY AT LAW
attorneyansell@gmail.com
Doris Pryor
UNITED STATES ATTORNEY'S OFFICE
doris.pryor@usdoj.gov
Matthew J. Lasher
UNITED STATES ATTORNEY'S OFFICE
matthew.lasher@usdoj.gov
-7App. 12
Case 1:14-mj-00488-DKL Document 1 Filed 09/29/14 Page 1 of 11 PageID #: 1
App. 13
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App. 15
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App. 22
Police cracking down on texting while driving citations - WRE...
http://www.wrex.com/story/25908288/2014/06/30/police-cracki...
Police cracking down on texting while driving citations
Posted: Jun 30, 2014 5:11 PM EDT
By Faran Fronczak, Prime Anchor
CONNECT
MISHAWAKA - Texting and driving. By now, you know it's dangerous. Lawmakers across the country have
passed laws to get you to put your phone down. In fact, every state except Montana has a law banning texting
while driving. Although every state is set to start issuing tickets to drivers, the number of people getting caught
is pretty small.
Indiana's no-texting-while-driving law went into effect back in 2011. Three years later, law enforcement says it's
still hard to enforce. Mishawaka Police Lieutenant Tim Williams says since 2011, Mishawaka P.D. has only
issued seven citations, and he's issued three of them. "That number is small, but it doesn't represent the
number of drivers we see everyday texting and driving. We see people on their phones all the time, but it's
hard to prove they're breaking the law," says Williams.
South Bend Police say they're going through the same problem because they've only issued a handful of
citations. Many in law enforcement say it would be easier to issue tickets if Indiana had a hands-free law, like
they do in Illinois, where you can't even be caught holding your phone.
"Here in Indiana, they can talk on their phones, they can use their apps, they can still dial in phone numbers.
So for us to be able to prove that they are texting while driving is a difficult thing," says Williams. He says right
now, Indiana is ranked number one for the number of fatal crashes with young adults. Williams says one of the
main contributions to that number besides alcohol, is cell phones.
In the meantime, Williams says since the texting law is too vague, Mishawaka officers are cracking down in
other ways. They're on the lookout for certain signs that drivers are distracted. "Swerving across the center
line, going over the curb or the actual road edge, slowing, speeding up, showing inconsistencies. These signs
are the same driving patterns as drivers under the influence," says Williams. "In most cases, these people who
are texting while driving are more dangerous than a drunk driver," he adds.
In Indiana, if you're caught texting while driving, the fine can be up to $500. If someone is seriously injured in
an accident, or even killed, it's a class D felony.
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1 of 1
9/14/15, 6:40 PM
App. 23

claim - BNA.com.

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