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95 N.D. L. Rev. 193 (2020)
Criminal Law - Search and Seizure: Determining Probable Cause Relating to "Hands-Free" Laws

handle is hein.journals/nordak95 and id is 197 raw text is: CRIMINAL LAW--SEARCH AND SEIZURE: DETERMINING PROBABLE CAUSE RELATING TO HANDS-FREE LAWS State v. Morsette, 2019 ND 84, 924 N.W.2d 434 ABSTRACT In State v. Morsette, the North Dakota Supreme Court held observing a driver looking at a phone and tapping its illuminated screen does not give law enforcement officers a reasonable suspicion to initiate a traffic stop. An of- ficer observed Morsette using his cell phone while driving and saw him touch the phone's screen ten times in approximately two seconds. After stopping Morsette, who claimed he was only changing the music on the radio, the of- ficer investigated the vehicle and arrested Morsette on drug possession charges. Morsette filed a motion to suppress, arguing that his stop was not based on reasonable suspicion and thus violated his Fourth Amendment pro- tection against unlawful search and seizure. The district court denied Morsette's motion to suppress the evidence resulting from his allegedly un- reasonable traffic stop. Morsette then entered a conditional plea agreement. On appeal, the North Dakota Supreme Court reversed, finding that under sec- tion 39-08-23 of the North Dakota Century Code, determining whether a driver is engaged in a prohibited activity rather than a permitted activity is arguably uneasily discernable at a distance. While it is possible drivers are using their devices in a prohibited manner, the court reasoned it is just as likely, if not more likely, that their use is allowed under the statute. Therefore, law enforcement officers must have more than a mere hunch the driver is violating the law. Officers may be required to witness a message being sent, or a download occurring. In addition, the court held that if an officer is unable to articulate why they believed a driver's conduct violated the statute, such mistake of fact is not reasonable. The officer must rely on factual evidence in initiating a stop, even if that evidence results in a mistake of fact. The court's holding in Morsette increases the level of culpable activity an officer must observe before effectuating a traffic stop, thus making section 39-08-23 difficult to enforce. This precedent is critical in protecting law abiding mo- torists and preventing broad and unnecessary traffic stops for the mere pos- sibility of an infraction. An officer must observe a specific prohibited activity like transmitting a message or accessing a web page.

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