Forensics on Phone Proves Defendant was not Texting

The United States 7th Circuit Court of Appeals has overturned the conviction of Gregorio Paniagua-Garcia in a possession of heroin with intent to distribute case when the police were unable to prove Paniagua was texting, which had been cited by police as the probable cause for the traffic stop.

Drug smugglingDeputy Dwight Simmons of the Putnam County Sheriff’s office pulled over Paniagua when he observed him using his cell phone.  Simmons claimed he believed Paniagua “appeared to be texting”, which is illegal while operating a motor vehicle in Indiana.  The Indiana law, however, does not prohibit drivers from using their mobile phones for other purposes while driving, like making a phone call, looking for music, checking GPS directions, etc.  When stopped, Paniagua told the arresting officer he was searching for music.  Officer Simmons found five pounds of heroin in the spare tire in the trunk of Paniagua’s car during the subsequent consent search.  Paniagua later pleaded guilty to the heroin charge on the condition that he be allowed to appeal the denial of his motion to suppress the heroin evidence.  He was sentenced to 36 months’ imprisonment.

iStock_000027020793_SmallHonest…I wasn’t Texting!
A forensic examination of Paniagua’s phone verified he was not texting at the time of the stop, and the 7th Circuit ruled, therefore, that the arresting officer lacked probable cause for the stop in the first place.  Claiming “the government appears to recognize no limit to the grounds on which police may stop a driver,” Judge Richard A. Posner reminded the police that it is virtually impossible to detect whether or not someone is texting by simply observing them with a mobile phone in their hand. Other lawful activities which are permitted under the Indiana statute (holding a cell phone while looking at it and tapping the screen with a thumb or finger while observing a GPS map, for example) would have the same general appearance as texting.  The mere “possibility” that a driver is texting and driving does not constitute probable cause for a traffic stop, and therefore, the five pounds of heroin discovered in the trunk of Paniagua’s car is not admissible as evidence.  Conviction overturned.

The Take-Away
Well, years ago it would have been difficult to imagine that a heroin conviction could be overturned by proving a defendant was not texting.  This case illustrates the power of digital evidence and its application to such a wide array of cases.  As mobile devices are used to perform an ever increasing number of our daily tasks, it is clear that those devices will be far more likely in the future to contain relevant electronic evidence.

iStock_000025139792_SmallWe recently conducted a forensic exam on a mobile phone in which we concluded that the deceased victim of an automobile accident was perusing his “Pandora” music application when he slammed into the back of a parked truck, killing himself instantly.  The result?  A massive reduction in the settlement his estate received from the truckers insurance company.

Lawyers that fail to consider mobile devices as potential sources of relevant ESI do so at significant risk.

United States v. Gregorio Paniagua-Garcia.  No. 15-2540.  2/18/16.