Supreme Court of Maryland Finds No Reasonable Suspicion to Stop Vehicle Based on Driver Touching or Manipulating a Cell Phone

TR § 21-1124.1(b) prohibits a person from writing, sending, or reading a text message or an electronic message on a text messaging device while operating a motor vehicle in the travel portion of the roadway. The statute, however, permits a driver to use a global positioning system (GPS) or a text messaging device to contact a 9-1-1 system while operating a motor vehicle. See TR § 21-1124.1(c). Under TR § 21-1124.2(d)(2), drivers may not use their hands to use a handheld telephone while a vehicle is in motion, with the exception of initiating or terminating a call or turning the handheld telephone on or off. The statute also does not prohibit the emergency use of a handheld telephone for calls to, among other places, a 9-1-1 system, and use of a handheld telephone as a text messaging device as defined in TR § 21-1124.1. See TR § 21-1124.2(b)(1) and (b)(3). In other words, drivers may use their hands to use a handheld telephone to initiate or terminate a call, turn a handheld telephone on or off, use GPS, or contact a 9-1-1 system or other emergency services.

Where a police officer observes a driver manipulating, touching, or pressing the screen of a phone, without additional information, a reasonable and prudent officer would not be justified in believing that the person may have violated traffic laws governing use of a mobile phone while driving. Limited observations of this type are not “out of the ordinary[,]” i.e., do not rule out “a substantial portion of innocent” drivers,…and do not constitute facts from which, together with the rational inferences that may be drawn from them, are sufficient to satisfy the requirement for reasonable suspicion of a violation of TR §§ 21-1124, 21-1124.1, or 21-1124.2. As explained by courts in other cases, “[a] suspicion so broad that [it] would permit the police to stop a substantial portion of the lawfully driving public…is not reasonable.”…Where a police officer has observed innocuous conduct—conduct that may or may not be indicative of illegal activity to satisfy the reasonable suspicion standard—the officer must be able to credibly identify specific facts that gave rise to suspicion of illegal activity based on what was known to the officer at the time, and the facts and rational inferences that may be drawn from them must reasonably warrant the intrusion that is at issue…

Next, the manner in which the State phrases its contention—that officers had reasonable suspicion to effectuate a traffic stop for use of a mobile phone while driving when they observed Mr. Stone manipulating the phone in a manner that was consistent with sending a message or initiating a phone call—demonstrates that the officers’ observations did not reach the level of reasonable suspicion necessary to justify a stop of Mr. Stone’s vehicle. Under the State’s view of the evidence, Officer Huff testified that the conduct he observed was, under the Transportation Article, either completely innocent behavior (placing a phone call) or innocuous conduct indicative of lawful or unlawful activity (typing a message). In instances in which courts have found reasonable suspicion for an investigatory stop based on an officer’s observation of innocuous conduct that could be indicative of either illegal or legal activity, officers have observed conduct that, based on specific facts, gave the officers reasonable grounds to believe that a person was or may have been engaged in illegal activity….Although the conduct that the officers observed could have been equally indicative of legal or illegal activity, the officers described particularized facts and circumstances, which the court found credible, that would have caused an objectively reasonable police officer to believe that criminal activity was or may have been occurring.

By requiring officers to rule out exceptions to the prohibition before making a stop, the Majority’s holding effectively neuters Maryland’s distracted driving statutes as a tool for preventing tragic auto accidents. It demands too much of officers and thereby elevates the governing standard to something beyond reasonable suspicion. Under the Majority’s analysis, the officer must resolve ambiguity before making the stop by making additional observations such as the contents of the screen of the phone (dial pad or GPS?), the length of time the driver focused on the screen, and the manner of the driver’s manipulation of the phone. See Maj. Op. at –––– – ––––. The practical consequence is that the Terry stop is eliminated from an officer’s toolkit for enforcing these laws. In other contexts, depriving law enforcement of one of its tools may not hamper enforcement. With these statutes, however, probable cause is unlikely to develop, and the opportunities for a consensual encounter before a tragic collision are vanishingly thin.