REASONABLE MISTAKES OF LAW IN THE DIGITAL AGE FOLLOWING HEIEN V.

Kingsley Nwamah

INTRODUCTION

On July 1, 2015, a police trooper issued a citation to a driver for operating a GPS service on his cellphone, in potential violation of Rhode Island’s ban on texting while .1 A Rhode Island Tribunal’s Appeals Panel upheld the fine, and found that any use of a cell phone while driving is prohibited by the Rhode Island statute.2 The Tribunal’s ruling drew strong reactions from state legislators in Rhode Island, and the state’s law enforcement community.3 The ruling and the subsequent mixed reactions to the ruling underscore the difficult issues of statutory interpretation presented by statutes.4 Following the Supreme Court’s ruling in Heien v. North Carolina,5 distracted driving statutes are an area of law that may present Fourth Amendment challenges. In Heien, the Court ruled that a police officer’s reasonable mistake of law may serve as the basis for an officer’s reasonable suspicion for a search or seizure under the Fourth Amendment. Despite the Court’s holding that the ruling in Heien does not

1 See State v. Joseph Furtado, R.I. Traffic Trib. CA. No. T16-0004, 15001516934 (2016). 2 Id. 3 Neil Remiesiewicz, Traffic Tribunal Rules Use of Phone’s GPS Function While Driving is Illegal, (Oct. 2, 2016), http://wpri.com/2016/10/01/traffic- tribunal-rules-use-of-phones-gps-function-while-driving-is-illegal/ (‘“It’s a great ruling for the state of Rhode Island and the people who travel on our roads,’ Captain Dennis Fleming of the Rhode Island State Police told WPRI.com . . . ‘It was overreaching,’ said local resident Mike Harrington. ‘I think you should be able to use your GPS on your handheld.’”). 4 This Note will refer to “distracted driving” statutes and “texting-while- driving” statutes interchangeably. 5 See Heien v. North Carolina, 135 S. Ct. 530, 540, 543 (2014) (discussing how an error in law by police creates an issue with Fourth Amendment protections).

532 2017] REASONABLE MISTAKES OF LAW IN THE DIGITAL AGE 533 place a police officer’s subjective understanding of the law at issue6, the dissent notes courts may simply decide cases based on whether an officer’s interpretation was reasonable.7 The potential ramifications of the Court’s ruling implicates fundamental principles essential to the protection of liberty including separation of powers and the uniform application of the law. This Note examines the Supreme Court’s ruling in Heien and the statutory landscape of distracted driving statutes. The Note highlights the ambiguity present in many distracted driving statutes and the Fourth Amendment implications following the Heien ruling. Part I of the Note will review the Court’s reasoning in Heien, and the effect of the Court’s ruling on important principles such as separation of powers. Part II will explore texting-while-driving statutes throughout the United States, and the Fourth Amendment complications presented by these statutes. Finally, Part III will analyze potential considerations the Supreme Court should adopt to its reasonableness inquiry following Heien, and a conceivable solution to bring uniformity to distracted driving statutes.

I. HEIEN V. NORTH CAROLINA AND THE RAMIFICATIONS OF THE COURT’S RULING

Prior to the Court’s ruling in Heien, a fault line was beginning to emerge between circuit courts on the issue of whether a police officer’s reasonable mistake of law can serve as the basis for a lawful search under the Fourth Amendment.8 Several state courts had even begun to permit an officer’s reasonable mistake of law.9 By the time Nicholas Heien was pulled over in North

6 Heien, 135 S. Ct. at 539. 7 Id. at 544 (Sotomayor, J., dissenting). 8 See United States v. Martin, 411 F.3d 998, 1001 (8th Cir. 2005). See also United States v. Southerland, 486 F.3d 1355, 1358–59 (D.C. Cir. 2007); United States v. Smart, 393 F.3d 767, 770 (8th Cir. 2005). Compare United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir. 2005) (holding that an officer’s misunderstanding of law is not objectively reasonable). 9 See State v. Wright, 791 N.W.2d 791, 799 (S.D. 2010) (finding that any mistake of law resulting in a search or seizure must be objectively reasonable). See also Moore v. State, 986 So. 2d 928, 935 (Miss. 2008) (holding that “based on the totality of the circumstances . . . including a valid, reasonable belief that Moore was violating a traffic law, Officer Moulds had sufficient probable cause to pull Moore over. . . . Officer Moulds based his belief of a traffic violation on a mistake of law.”); City of Wilmington v. Conner, 144 App. 3d 735, 40 (Ohio 534 ALBANY GOVERNMENT LAW REVIEW [Vol. 10

Carolina it was clear that circuit courts were split on the issue.

A. Factual and Procedural Background of Heien

In April of 2009, Nicholas Brady Heien was in the passenger seat of his car, a Ford Escort, when a police officer on patrol, Sergeant Darisse of the Surry County Sheriff’s Department, noticed the driver’s “stiff and nervous” behavior.10 The officer began to follow the Escort and noticed that the car had a broken right brake light.11 Under North Carolina law, a vehicle must be equipped with a “stop lamp on the rear of the vehicle.”12 Sergeant Darisse, while issuing a ticket for the brake light noted the suspicious behavior of the two individuals and asked Heien, the owner of the car for permission to search the vehicle.13 Following a search of the vehicle, the officer discovered a sandwich bag containing cocaine and Heien was arrested.14 Heien was charged with attempted trafficking.15 Prior to entering a guilty plea, Heien moved to suppress the evidence found in his car, claiming that the evidence was obtained through a stop and search that violated his Fourth Amendment rights.16 The trial court denied the motion, but Heien reserved his right to appeal the court’s decision.17 The North Carolina Court of Appeals reversed the suppression decision.18 The appellate court

Ct. App. 2001) (“Under limited circumstances, the exclusionary rule may be avoided with respect to evidence obtained in an investigative stop based on conduct that a police officer reasonably, but mistakenly, believes is a violation of the law.”) 10 Heien, 135 S. Ct. at 534. 11 Id. 12 N.C. Gen. Stat. § 20-129(g) (No person shall sell or operate on the highways of the State any motorcycle or motor-driven cycle, manufactured after December 31, 1955, unless it shall be equipped with a stop lamp on the rear of the motorcycle or motor-driven cycle. The stop lamps shall emit, reflect, or display a red or amber light visible from a distance of not less than 100 feet to the rear in normal sunlight, and shall be actuated upon application of the service (foot) brake. The stop lamp may be incorporated into a unit with one or more other rear lamps.) 13 Heien, 135 S. Ct. at 534. 14 Id. 15 Id. at 535. 16 Id. 17 Id. 18 Id. 2017] REASONABLE MISTAKES OF LAW IN THE DIGITAL AGE 535 held that the initial stop was not valid because driving with only one functioning brake light was not a violation of North Carolina law.19 The State appealed to the North Carolina Supreme Court and the ruling was reversed.20 The North Carolina Supreme Court held that the arresting officer could have reasonably, even if mistakenly, understood that both brake lights in the car must be in good, functioning order.21 Following the North Carolina Supreme Court’s reversal, the Supreme Court granted certiorari.22 The United States Supreme Court affirmed the ruling of the North Carolina Supreme Court.

B. Majority Opinion in Heien v. North Carolina

Chief Justice Roberts, writing for the Court, began by noting that “to be reasonable is not to be perfect. . . .”23 The Chief Justice stated that reasonable men can make reasonable mistakes of law, as well as mistakes of fact, and such mistakes are no less compatible with the concept of reasonable suspicion.24 The Court began by citing to older precedents that addressed mistake of law, and conducted an analysis of the evolution of Fourth Amendment jurisprudence over time, primarily on the issue of mistakes of fact and law. The rulings of the Supreme Court on legal errors in other contexts have also shaped the Court’s rulings on the Fourth Amendment. In United States v. Riddle, the Supreme Court ruled a mistake of law to be reasonable as it related to probable cause.25 Justice Marshall went on to opine: “A doubt as to the true construction of law is as reasonable a cause for seizure as a doubt respecting the fact.”26 The Court directly addressed the standard of reasonableness as it applies to police officers beyond the reasonable suspicion analysis. In Brinegar v. United States, the Court defined the standard of reasonableness on the part of government officials,

19 Heien, 135 S. Ct. at 535. 20 Id. 21 Id. The North Carolina Supreme Court held that since the arresting officer had reasonable suspicion to conduct the the police officers mistake of law was objectively reasonable. 22 Id. 23 Id. at 536. 24 Id. 25 United States v. Riddle, 9 U.S. 311, 312–13 (1809). 26 Id. at 313. 536 ALBANY GOVERNMENT LAW REVIEW [Vol. 10 including police officers.27 The Court opined that due to the varying situations that confront police officers in the course of their duty, there must be latitude for police officers to make mistakes.28 The Supreme Court placed a limit on the mistakes that were permitted by police officers, stating that the mistakes must be “of reasonable men, acting on facts leading sensibly to their conclusions of probability.”29 The Court also analyzed v. DeFillippo, a case cited extensively by both parties in briefs, where the Court held that an arrest and subsequent search was valid even though the violated ordinance was later held to be unconstitutional.30 In DeFillippo, the defendant was arrested for failing to comply with an ordinance that made any refusal to identify oneself to a police officer unlawful.31 The police conducted a search incident to arrest and found a controlled substance.32 The Supreme Court accepted the lower court ruling that the ordinance was unlawful but reversed the lower court’s ruling that the arrest was invalid.33 The Court held that abundant probable cause existed for the police officer to believe that the defendant violated a presumptively valid ordinance; the arrest of the defendant, and thus the subsequent search of the defendant was lawful.34 Supreme Court jurisprudence includes cases in which the Court addressed the reasonableness of an officer’s legal error in the process of considering the appropriate remedy for a constitutional violation, instead of whether there was a constitutional violation at all.35 The Court noted that the distinction between the cases that Heien cited to and the instant case is that a Fourth Amendment violation had already been found or assumed in the former.36 Therefore, an officer’s

27 See Brinegar v. United States, 338 U.S. 160, 175–76 (1949) (discussing the situation under which an agent with government authority may erroneously act under what is believed to be the law, analysis should be reasonable). 28 See id. (“Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part.”). 29 Id. 30 Michigan v. DeFillippo, 443 U.S. 31, 33 (1979). 31 Id. at 33–34. 32 Id. 33 Id. at 40. 34 Id. at 37. 35 See Davis v. United States, 564 U.S. 229, 240–41 (2011); Wilson v. Layne, 526 U.S. 603, 614 (1999); Ill. v. Krull, 480 U.S. 340, 342 (1987). 36 See Heien, 135 S. Ct. at 539; Wilson v. Layne, 526 U.S. at 614. 2017] REASONABLE MISTAKES OF LAW IN THE DIGITAL AGE 537 mistaken view of whether or not the conduct at issue gave rise to Fourth Amendment violation could not change the final conclusion.37 Hence, in the cases Heien cited, the reasonableness of an officer’s mistake of law was concentrated on the subject of remedy.38 By contrast, in the instant case the mistake of law is linked to the antecedent question of whether it is reasonable for an officer to suspect that the defendant’s conduct was illegal.39 The majority stated that the cases cited by the defendant and the dissent did not preclude a court from considering the antecedent question when considering an officer’s reasonable mistake of law.40 The majority opinion addressed the public policy concerns, raised by the defendant and the amici, that the Court’s decision would discourage officers from learning the law.41 The Court reaffirmed that the Fourth Amendment tolerates only reasonable mistakes, and established that the test for mistakes of fact or law, is whether the mistake is objectively reasonable.42 Chief Justice Roberts concluded that “[a]n officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.”43 The Court refuted the argument by the amici and the defendant that their ruling provides an unfair standard in which police officers would be excused from their mistakes of law while ordinary citizens would not be subjected to that standard.44 The majority reasoned that simply because criminal liability could not be imposed based on a mistaken understanding of law, it did not follow that a reasonable mistake could not justify an investigatory stop.45 Finally, the Supreme Court concluded that the police officer’s mistake of law regarding the North Carolina statute at issue was reasonable.46 The Court observed that the statute referred to a “stop lamp” and provided that a “stop lamp may be incorporated

37 Heien, 135 S. Ct. at 539. 38 Id. 39 Id. 40 Id. at 539. 41 Id. at 540. 42 Id. at 536. 43 Heien, 135 S. Ct. at 539–40. 44 Id. at 540 (“Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability based on a mistaken understanding of the law.”). 45 Id. 46 Id. 538 ALBANY GOVERNMENT LAW REVIEW [Vol. 10 into a unit with one or more other rear lamps.”47 The majority found that the use of the word “other” in the statute implied that a reader of the statute could believe a “stop lamp” was a type of “rear lamp.”48 Based on the use of the word “other,” the Court held that it was reasonable for an officer to think that Heien’s broken brake light was a violation of the North Carolina statute.49

C. Concurrence and Dissent in Heien

Justice Kagan’s concurrence, joined by Justice Ginsburg, sought to expand on the limitations in the majority’s ruling.50 The concurrence emphasized the Court’s ruling allowed for only ‘“objectively reasonable’ mistakes of law,” and expanded on the limitations inherent in the Court’s ruling.51 The concurrence noted that the majority’s ruling did not provide the government with the ability to defend a seizure based on an officer’s “subjective understanding;” thus, a mistake of law could not be based on a police officer being “unaware or untrained in the law.”52 The concurrence outlined the test for courts when deciding whether an officer’s mistake of law can justify a seizure should be a “straightforward question of statutory construction.”53 Justice Kagan stated that if a statute is “genuinely ambiguous, such that overturning the officer’s judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not.”54 The concurrence cited to the Solicitor General’s oral argument that the statute must pose a “really difficult” or “very hard question of statutory interpretation.”55 The concurrence applying the aforementioned test sided with the majority opinion that the North Carolina statute relied on by the officer posed a difficult question of statutory interpretation.56 Additionally, to emphasize the limitations of the majority’s ruling, the concurrence described the Court’s test for objective

47 Id. (citing N.C. Gen. Stat. § 20-129(g) (2016)). 48 Id. 49 Heien, 135 S. Ct. at 539–40. 50 Id. at 540–41 (Kagan, J., concurring). 51 Id. 52 Id. 53 Id. 54 Id. at 540–41. 55 Heien, 135 S. Ct. at 541–42. 56 Id. at 542. (Kagan, J., concurring). 2017] REASONABLE MISTAKES OF LAW IN THE DIGITAL AGE 539 reasonableness as “more demanding than the one courts undertake before awarding qualified immunity.”57 The concurrence juxtaposes the heightened standard of the qualified immunity test58 with the standard used to determine whether a legal error supports a seizure.59 The dissent, written by Justice Sotomayor, did not find the limitations presented by the majority and the concurrence functional in the practical application of the Court’s ruling.60 The dissent underscored the potential adverse effects of the majority’s holding.61 Justice Sotomayor argued that by allowing mistakes of law to justify seizures, the obstinate effect would be a delay in the clarification of law.62 Courts, the dissent argued, would decide on whether an officer’s interpretation was reasonable, instead of interpreting statutory language.63 The dissent challenged the argument that excluding mistakes of law in the reasonableness inquiry would hamper the ability of the law enforcement system to function.64 Justice Sotomayor cited to the lack of evidence in other circuits that the approach of excluding mistakes of law from the reasonableness inquiry has had a negative impact on law enforcement.65 Justice Sotomayor aptly described the connection between the cases the majority cited to and the instant case as tenuous.66 Though, the majority relied on case law that is “not directly on point,”67 Justice Roberts was correct in noting the outcome of an officer’s mistake of law or fact is identical: “the facts are outside the scope of law.”68 Ultimately, Justice Sotomayor concluded by noting that the majority’s failure in elaborating on the conception of reasonableness in the context of a mistake of law would only lead to difficulty for later courts seeking to apply the Heien decision.

57 Id. at 541. 58 See id. (“Second, the inquiry the Court permits today is more demanding than the one courts undertake before awarding qualified immunity.”). 59 See id. 60 See id. at 542–43 (Sotomayor, J., dissenting). 61 Heien, 135 S. Ct. at 544 (Sotomayor, J., dissenting). 62 Id. 63 Id. at 543–44. 64 Id. 65 Id. 66 Id. at 545. 67 Heien, 135 S. Ct. at 537 (majority opinion). 68 Id. at 536. 540 ALBANY GOVERNMENT LAW REVIEW [Vol. 10

D. Potential Harm to Separation of Powers Following Heien

An unintended, yet foreseeable, consequence of the court’s ruling in Heien may be an erosion of the separation of powers as courts begin to undertake a review of whether a police officer’s interpretation of a statute was reasonable. As Justice Sotomayor notes, the Heien ruling allows courts to forego the interpretation of statutory language and instead rule on whether an officer’s interpretation of a statute was reasonable.69 In the Eighth Circuit, the first Circuit to include an officer’s mistake of law in the reasonableness inquiry, courts have circumvented their judicial authority in the realm of statutory interpretation and instead ruled on the reasonableness of an officer’s mistake.70 As Justice Sotomayor notes, and as the Eight Circuit’s actions have affirmed, by allowing mistakes of law to justify seizure, the perverse effect is a delay, and in some instances, denial of the clarification of law.71 A consequence of an eroded separation of powers is a reduction in statutory interpretation based on recognized interpretive theory. State legislatures have adopted varying approaches to statutory interpretation for state courts to follow.72 Though the interpretive rules imposed by state legislatures have been fraught with challenges, it underscores the desire for interpretive clarity shared by both state legislatures and the courts.73 The Court’s ruling in Heien allows courts to bypass the canons of construction established by state legislators, and follow a nebulous standard based on the reasonableness of an officer’s mistake of law.

69 Id. at 544 (Sotomayor, J., dissenting). 70 See United States v. Rodriguez-Lopez, 444 F.3d 1020, 1022–23 (8th Cir. 2006) (finding that the case did not turn on whether the statute was violated, but instead turned on whether the detective’s belief that the statute was violated was objectively reasonable). See also United States v. Robledo, 185 Fed. Appx. 556, 557 (8th Cir. 2006) (per curiam) (finding that the question before the court was whether the officer had an objectively reasonable basis for believing the defendant violated a traffic law and not whether the law was in fact violated). 71 See generally Heien, 135 S. Ct. at 544 (Sotomayor, J., dissenting) (discussing rulings by the Eighth Circuit and the argument that law enforcement should not be allowed to justify seizures through the use of mistakes of law). 72 See Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 YALE L.J. 1750, 1754–56 (2010). 73 Id. at 1781. 2017] REASONABLE MISTAKES OF LAW IN THE DIGITAL AGE 541

II. TEXTING WHILE DRIVING STATUTES: A SLOWLY DEVELOPING STATUTORY LANDSCAPE AND THE FOURTH AMENDMENT IMPLICATIONS FOLLOWING HEIEN

INTRODUCTION

The issue of distracted driving has been present since the invention of the automobile. Distracted driving can take on many forms, including conversations with fellow passengers, eating while driving, or changing the radio station.74 Cell phones, in comparison to the aforementioned examples, present a more troublesome distraction, a cognitive distraction.75 In fact, a 2006 study concluded that the danger of driving while using a cell phone is comparably as dangerous as driving while intoxicated.76 The National Safety Council estimates that tweny-one percent of all car accidents in 2010 involved talking on a cell phone, an estimate of 1.1 million crashes that year as a result of cell phone conversations.77 Moreover, In 2014, there were a total of 29,989 fatal crashes in the United States.78 A total of 2,955 fatal crashes that occurred in the U.S. involved distraction.79 According to the Department of Transportation, about thirteen percent of distracted drivers involved in fatal crashes were using a cell phone in some capacity at the time of the accident.80 The issue of distracted driving has garnered more attention as

74 National Highway Traffic Safety Administration, Summary of Statistical Findings: Distracted Driving 2014, U.S. DEP’T OF TRANSPORTATION 1 (Apr. 2016), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812260. 75 Understanding the distracted brain: Why Driving While Using Hands-Free Cell Phones is Risky Behavior, NATIONAL SAFETY COUNCIL 4 (Apr. 2012), http://www.nsc.org/DistractedDrivingDocuments/Cognitive-Distraction-White- Paper.pdf (“However, a third type of distraction can occur when using cell phones while driving—cognitive, taking your mind off the road.”). 76 David L. Strayer et al., A Comparison of the Cell Phone Driver and the Drunk Driver, 48 J. OF THE HUM. FACTORS & ERGONOMICS SOC’Y 381, 388 (2006). Professor Strayer conducted a study to compare the driving performance of cell phone drivers with drivers who were intoxicated from ethanol using a high- fidelity driving simulator. Id. at 383–85. The study found that the impairments associated with cell phone use are comparable to the impairments associated with a driver with a blood alcohol level above the legal limit. Id. at 390. 77 Understanding the distracted brain, supra note 82, at 3. 78 National Highway Traffic Safety Administration, supra note 81, at 1. 79 Id. 80 Id. 542 ALBANY GOVERNMENT LAW REVIEW [Vol. 10 cell phones, especially ,81 have become more omnipresent in our society, and text-messaging has become a more popular form of communication in American society. Notably, use has increased substantially in recent years. Pew Research Center estimates that by 2015, nearly two- thirds of American adults owned a smartphone of some kind, compared to just thirty-five percent of American adults in 2011.82 The prevalence of smartphones underscores the steady increase in traffic accidents related to cell phone use while driving.83 Smartphones offer computing functions that earlier model cell phones did not offer and that many distracted driving statutes do not address, including: GPS, e-mail, virtual gaming, and a broad array of applications. In addition, the development of “wearable technology”84 is also presenting new forms of distraction for drivers.85 In the post-Heien world, the rapid development of mobile phones and technology has magnified the importance of the statutory language in many distracted driving statutes. The failure of state legislatures to adequately reform texting-while- driving legislation to account for advanced functions and new technologies has created an environment in which law enforcement is tasked with enforcing ambiguous

81 Smartphone, OXFORD LIVING DICTIONARIES, https://en.oxforddictionaries.co m/definition/smartphone (last visited Feb. 17, 2017) (“A mobile phone that performs many of the functions of a computer, typically having a touchscreen interface, Internet access, and an operating system capable of running downloaded apps.”). 82 Aaron Smith, U.S. Smartphone Use in 2015, PEW RESEARCH CENTER 2 (Apr. 1, 2015), http://www.pewinternet.org/files/2015/03/PI_Smartphones_04011 51.pdf. 83 David Morgan, Smartphones may have role in rise of U.S. traffic deaths, REUTERS (Nov. 25 2015, 2:09 PM), http://www.reuters.com/article/usa-autos- deaths-idUSL1N13J1X420151124 (“‘The increase in smartphones in our hands is so significant, there’s no question that has to play some role. But we don’t have enough information yet to determine how big a role,’ said Mark Rosekind, who heads the National Highway Traffic Safety Administration, the federal government’s auto safety watchdog.”). 84 Dan Sung, What is wearable tech? Everything you need to know explained, WAREABLE (Aug. 3, 2015), https://www.wareable.com/wearable-tech/what-is- wearable-tech-753. 85 Aaron Mamiit, Apple Watch may lead to more road accidents, warns UK group, TECH TIMES (Sept. 17, 2014, 8:24 AM), http://www.techtimes.com/articles/ 15786/20140917/apple-watch-may-lead-to-more-road-accidents-warns-uk- group.htm (citing to a report by the Institute of Advanced Motorists (IAM) finding that use of the Apple Watch while driving may be just as dangerous as using a traditional cell phone). 2017] REASONABLE MISTAKES OF LAW IN THE DIGITAL AGE 543 statutes. Ambiguous statutes risk falling into the reasonableness inquiry established by the Court in Heien.

A. Brief Overview of Texting-While-Driving Statutes Throughout the United States

The vast majority of states in the United States have enacted legislation to address the issue of texting while driving, and cell phone use.86 Currently, forty-six states and the District of Columbia, Puerto Rico, Guam, and U.S. Virgin Islands have prohibited texting while driving for all drivers in some form.87 A majority of states and the District of Columbia have banned all cell phone use by novice drivers.88 States, and even the federal government, have imposed restrictions on cell phone use for employees.89 A smaller group of states and the District of Columbia, Puerto Rico, Guam, and U.S. Virgin Islands have even gone further and prohibited all drivers from using hand-held cell phones while driving.90 Importantly, the majority of statutes banning hand-held cell phone use, and texting while driving, are primary enforcement statutes.91 Though states impose penalties for violation of texting-while- driving statutes, the penalties for violating those statutes vary. In a majority of states with a complete ban on texting-while- driving, the average fine issued to first-time offenders is between $100-$200.92 A few states impose stricter penalties, including

86 See Cellular Phone Use and Texting While Driving Laws, NAT’L CONF. OF ST. LEG. (Mar. 10, 2016), http://www.ncsl.org/research/transportation/cellular- phone-use-and-texting-while-driving-laws.aspx. See also Distracted Driving, GOVERNORS HIGHWAY SAFETY ASS’N, (Jan. 20, 2017), http://www.ghsa.org/state- laws/issues/Distracted-Driving; Catherine Chase, U.S. State and Federal Laws Targeting Distracted Driving, 58 ANNALS OF ADVANCES IN AUTO. MED. 84, (Mar. 2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4001667/pdf/009.pdf. 87 GOVERNORS HIGHWAY SAFETY ASS’N, supra note 93. 88 Id. 89 Id. (explaining that twenty states and the District of Columbia have banned cell phone use by school bus drivers); Exec. Order No. 13513, 74 Fed. Reg. 192, 51225 (Oct. 6, 2009) (Executive Order signed by President banning federal employees from while driving on the job or driving a government-owned vehicle.) 90 GOVERNORS HIGHWAY SAFETY ASS’N, supra note 93. 91 Chase, supra note 93, at 84 (noting the effectiveness of primary enforcement statutes compared to secondary enforcement statutes.). See also GOVERNORS HIGHWAY SAFETY ASS’N, supra note 93 (describing primary enforcement laws as laws permitting an officer to cite a driver for using a hand- held cell phone without any other traffic offense taking place.). 92 Dave Johnson, The Penalty for Texting and Driving in Your State, CBS 544 ALBANY GOVERNMENT LAW REVIEW [Vol. 10 larger fines,93 and driver-violation points that are added to the driving records of an offender for subsequent violations.94 In , a state without a statewide restriction on texting-while- driving, approximately ninety municipalities have adopted ordinances restricting the use of cell phones while driving.95 The restrictions on text messaging while driving vary from state-to-state, and even among states with similar restrictions, the language used in the statutes varies greatly. For instance, in , all drivers are forbidden from composing, reading, or sending an “electronic message” while driving.96 However, Massachusetts does not define what constitutes an “electronic message.”97 In some other states, drivers are prohibited from composing, reading, or sending “text-based communications.”98 Unlike, Massachusetts though, prohibits “text-based communications” and defines “text-based communications,” to include “text message, instant message, or electronic mail.”99 ’ statute uses the term “written communications,” and defines “written communication” to include a “text message, instant message, or electronic mail.”100 However,

MONEYWATCH, (Nov. 6, 2013), http://www.cbsnews.com/news/the-penalty-for- texting-and-driving-in-your-state/. 93 See MINN. STAT. § 169.475 (2015); N.J. STAT. ANN. § 39:4-97.3 (2014); WIS. STAT. ANN. §§ 346.89(3)(a), 346.95 (2016). 94 M.E. REV. STAT. ANN. tit. 29-A § 2119 (2016). 95 See Cell Phone Ordinances, TEX. DEP’T OF TRANSP., http://www.txdot.gov/driver/laws/cellphones.html (last visited on Jan. 22, 2017). 96 MASS. GEN. LAWS ANN. Ch. 90, § 13B(a) (2010) (“No operator of a motor vehicle shall use a mobile telephone, or any handheld device capable of accessing the Internet, to manually compose, send or read an electronic message while operating a motor vehicle.”) 97 Id. 98 See WYO. STAT. ANN. § 31-5-237(a) (2010) (“No person shall operate a motor vehicle on a public street or highway while using a handheld electronic wireless communication device to write, send or read a text-based communication.”); WYO. STAT. ANN. § 31-5-237(d)(iv) (2010) (“‘Write, send or read a text-based communication’ means using an electronic wireless communication device to manually communicate with any person using text- based communication including, but not limited to, communications referred to as a text message, instant message or electronic mail.”). 99 Id. 100 See KAN. STAT. ANN. § 8-15,111 (a)(2) (2010) (“‘Write, send or read a written communication’ means using a wireless communication device to manually type, send or read a written communication, including, but not limited to, a text message, instant message or electronic mail.”). See also KAN. STAT. ANN. § 8-15,111 (b) (2010) (“Except as provided in subsections (c) and (d), no person shall operate a motor vehicle on a public road or highway while using a wireless communications device to write, send or read a written communication.”) 2017] REASONABLE MISTAKES OF LAW IN THE DIGITAL AGE 545 despite the differences in statutory language between Wyoming and Massachusetts, both jurisdictions apply the ban on texting- while-driving to a “handheld device.” Thus, permitting drivers to compose, read, or send text message with the assistance of hands- free, Bluetooth-enable features. These examples represent a microcosm of the subtle distinctions between the texting-while- driving statutes in various states. However, despite the distinctions, the statutes do not account for new technologies and are open to ambiguity.

B. Failure of Texting While Driving Statutes to Account for New Technologies

The rapid pace at which wearable technology and smartphone applications have developed has made it difficult for distracted driving statutes to adequately address new distractions that drivers now face. Distracted driving has evolved to include use of social media applications such as Snapchat.101 In addition, virtual video games such as Pokémon Go have been described as distractions to drivers, and cited as the cause for several traffic accidents.102 The majority of distracted driving statutes fail to address the rapid development of wearable technology, including and devices meant to be worn as glasses, i.e. Google Glass103 and Spectacles104. Though several states had proposed legislation to prohibit the use of and other head-mounted technology while driving,105 resistance to such efforts were strong.106 Wearable technology is slowly gaining traction, but is not yet accessible to a significant number of

101 See Alex Heath, A Woman Caused a Car Crash While Trying to Use Snapchat’s Speed Filter, BUSINESS INSIDER (Apr. 26, 2016), http://www.businessi nsider.com/woman-causes-car-crash-while-on-snapchat-2016-4. 102 See Maggie Fox, Pokémon Go Really Really Distracts Drivers: Study, NBCNEWS (Sept. 16, 2016), http://www.nbcnews.com/health/health-news/pokem on-go-really-really-distracts-drivers-study-n649556 (citing a study by the Journal of American Medical Association’s JAMA Internal Medicine finding that Pokémon Go is a distraction for young drivers.) 103 See Adam M. Gershowitz, Google Glass While Driving, 47 ARIZ. ST. L.J. 755, 755 (2015). 104 See Paresh Dave, What it’s Like Wearing Snapchat Spectacles, LA TIMES (Dec. 29, 2016), http://www.latimes.com/business/technology/la-fi-tn-snap-specta cles-20161229-story.html. 105 See Gershowitz, supra note 110, at 757. 106 See Dan Levine, Exclusive: Google Sets Roadblocks to Stop Distracted, REUTERS (Feb. 25, 2014), http://www.reuters.com/article/us-google-glass-lobbyin g-idUSBREA1O0P920140225. 546 ALBANY GOVERNMENT LAW REVIEW [Vol. 10 drivers.107 Presently, smartphone applications and virtual games present a more immediate threat to driving safety. Yet, most texting-while-driving statutes do not have explicit statutory language addressing wearable technology.108 Distracted driving statutes use varying language to describe the prohibited activity the statute aims to ban. As mentioned above, some statutes include a ban on “written communication”109 while others impose a ban on “text-based communication[s].”110 In other states the language differs even further. For instance, in , drivers are forbidden from reading or writing “text messag[es],” which are defined as “electronic communications.”111 In , the prohibition is defined differently and includes a prohibition on “wireless interactive communications.”112 Arkansas defines “wireless interactive communication” as “typing, text messaging, emailing, or accessing information on the Internet with a handheld wireless telephone.”113 The examples above are a microcosm of the differences in statutory language, and the absence of language explicitly forbidding the use of social media applications, and other activities that serve as a distraction for drivers. Recently, updated the state’s distracted driving statute to include a prohibition on accessing social media websites.114 However, Louisiana is the exception and not the rule. Distracted driving statutes targeting only hand-held wireless communication devices provide implicit limits on the use of social media applications, and other distracting mobile functions, but do not necessarily account for wearable technology which can be equally distracting.115 Other jurisdictions have adopted language

107 Accord Sam Sanders, Public Sales of Google Glass to End Later This Month, NPR (Jan. 15, 2015), http://www.npr.org/sections/thetwo-way/2015/01/15 /377507746/public-sales-of-google-glass-to-end-later-this-month (explaining that Google ended public sale of Google Glass in January 2015). See Dave, supra note 111 (explaining that Snap has sold Spectacles in limited locations). 108 See Gershowitz, supra note 110, at 761. 109 See KAN. STAT. ANN. § 8-15,111 (a)(2) (West 2010). 110 See WYO. STAT. ANN. § 31-5-237(a) (2010). 111 See ME. REV. STAT. ANN. tit. 29-A § 2119 (2013). 112 See ARK. CODE ANN. § 27-51-1504 (2009). 113 See ARK. CODE ANN. § 27-51-1503(3) (2009). 114 See LA. STAT. ANN. § 32:300.5(a)(2) (2016) (“No person shall operate any motor vehicle upon any public road or highway of this state while using a wireless telecommunications device to access, read, or post to a social networking site.”) 115 See CAL. VEH. CODE §23123.5(a) (West 2017) (“A person shall not drive a motor vehicle while holding and operating a handheld wireless telephone or an 2017] REASONABLE MISTAKES OF LAW IN THE DIGITAL AGE 547 similar to Arkansas and prohibited Internet use and access while driving,116 however, as smartphone capabilities have increased these statutes have only become more ambiguous and challenging to enforce and interpret.

C. Battling Ambiguity While Enforcing Texting-While-Driving Statutes

The Rhode Island Traffic Tribunal’s Appeals Panel decision highlights the ambiguity that law enforcement officials confront in their efforts to enforce these laws and state courts face as they try to interpret texting-while-driving statute.117 State courts throughout the United States have been confronted with challenges to the application of texting-while-driving statutes. In , state courts have been forced to confront whether various functions, such as using a mobile phone as a watch,118 or turning on a phone’s Bluetooth feature,119 constitutes a violation of New York’s texting-while-driving statute. In 2014, a New York state court was forced to interpret the texting-while-driving statute, and determine whether holding a cellphone while driving a car constituted a violation of the statute.120 In People v. A.N., the Defendant was issued a citation after a State Trooper observed the defendant driving and “holding [his] cell phone eight to twelve inches from his head.”121 The Court electronic wireless communications device unless the wireless telephone or electronic wireless communications device is specifically designed and configured to allow voice-operated and hands-free operation, and it is used in that manner while driving.”). See also FLA. STAT. ANN. § 316.305(a) (LexisNexis 2014) (“As used in this section, the term ‘wireless communications device’ means any handheld device used or capable of being used in a handheld manner, that is designed or intended to receive or transmit text or character-based messages, access or store data, or connect to the Internet or any communications service as defined in s. 812.15 and that allows text communications.”); ARK. CODE ANN. § 27-51-1503(3) (2009). 116 See N.D. CENT. CODE § 39-08-23 (2011). See also FLA. STAT. ANN. § 316.305(3)(a) (LexisNexis 2014). 117 See State v. Joseph Furtado, R.I. Traffic Tribunal CA. No. T16-0004, 15001516934 (2016). 118 See People v. Riexinger, 968 N.Y.S.2D 832, 834 (Town Ct. 2013) (holding that New York’s distracted driving statute does not encompass the use of a cell phone as a clock or watch.) 119 See People v. Goldstein, 957 N.Y.S.2d 265, 1 (J.P. Ct. 2012) (addressing the New York distracted driving’s statute requirement that use be while the car is in motion.) 120 See People v. A.N., 985 N.Y.S.2d 835, 838 (Rye City Ct. 2014). 121 Id. at 836. 548 ALBANY GOVERNMENT LAW REVIEW [Vol. 10 noted that New York’s statute creates a presumption that a person holding a cell phone is presumed to be using the cell phone and the Defendant is permitted to rebut that presumption.122 In this case, the Defendant’s testimony was not sufficient to overcome the presumption that a driver holding a cellphone while driving was “using” the cellphone.123 In issuing the opinion, the Court made several observations that applies broadly to texting- while-driving statutes throughout the United States. First, the Court observed that the Legislature had the opportunity to avoid involving the courts with more explicit statutory language.124 Furthermore, the Court noted that new technology will soon make New York’s statute will soon nullify the impact of the state’s texting-while-driving statute as technology become as vehicles become able to respond to voice commands for reading e- mails and sending text messages.125 The Court’s observation underscores the importance of texting-while-driving statutes to adapt to new technologies to ensure that drivers and pedestrians are protected by these statutes. Just as state courts have struggled to interpret texting-while- driving statutes, law enforcement officials have also faced challenges while enforcing these statutes. The case of People v. Fortini, another New York state court case, is an illustration of the enforcement challenges that texting-while-driving statutes present.126 In Fortini, a police officer charged a driver with violating a provision of a New York statute prohibiting drivers from using a mobile phone to engage in a phone call while driving.127 However, the testimony of the Defendant and the police officer were consistent in stating that the Defendant had the mobile phone extended outside of the driver side window as if the Defendant was using the camera feature of the phone to record something.128 The Court found that the police officer applied the wrong provision of the statute and should have applied the provision prohibiting drivers from “using” a mobile phone and dismissed the charge.129 The Court’s holding in Fortini

122 Id. at 838–39 (referring to N.Y. VEH. & TR. LAW § 1225-d(2)(b) (McKinney 2014). 123 See People v. A.N., 985 N.Y.S.2d at 837, 839. 124 Id. 125 Id. at 840. 126 See People v. Fortini, 17 N.Y.S.3d 384, 3 (Peekskill City Ct. 2015). 127 Id. at 1. 128 Id. at 3. 129 Id. at 3. 2017] REASONABLE MISTAKES OF LAW IN THE DIGITAL AGE 549 followed the letter of the law, but demonstrates the difficulties in enforcing texting-while-driving statutes.

D. The Fourth Amendment & Texting-While-Driving Statutes

The Fourth Amendment, arguably the most recognized constitutional amendment, protects against unreasonable search and seizure.130 The Supreme Court has held a “‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.”131 The Court has held, a ‘“seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.”132 The Fourth Amendment also states that, “[N]o Warrants shall issue, but upon probable cause. . . .”133 The Supreme Court has recognized that probable cause simply means “fair probability.”134 In Terry v. Ohio, the Supreme Court adopted the reasonable suspicion standard for investigative detentions that do not encroach on a person’s liberty in the same manner as an arrest.135 Since Terry, the Court has only expanded the basis for reasonable suspicion,136 including the Court’s recent ruling in Heien. As this Note has demonstrated, distracted driving statutes throughout the United States are riddled with ambiguity, and are ill-equipped to address the challenges presented by new technologies. Moreover, police have struggled with the enforcement of these statutes. Two troublesome complications these statutes present, are in the realm of: (1) warrantless searches of cell phones, and (2) traffic stops for texting-while- driving violations.

1. Fourth Amendment Searches of Cell Phones

An unshakable foundation of criminal procedure is the requirement that law enforcement obtain a warrant based on probable cause before conducting a search for evidence. The

130 U.S. CONST. amend. IV. 131 See United States v. Jacobsen, 466 U.S. 109, 113 (1984). 132 Id. 133 U.S. CONST. amend. IV. 134 See U.S. v. Sokolow, 490 U.S. 1, 7 (1989) (citing to v. Gates, 462 U.S. 213, 238 (1983)). 135 See Terry v. Ohio, 392 U.S. 1, 30 (1968). 136 See Illinois v. Rodriguez, 497 U.S. 177, 184–185 (1990). 550 ALBANY GOVERNMENT LAW REVIEW [Vol. 10

Supreme Court has recognized exceptions to the warrant requirement that are fundamental elements of criminal procedure.137 As technology has advanced and cell phones have developed into an essential component of everyday life, a question that has flummoxed courts is how to apply the Fourth Amendment to cell phones, as they are now miniature computers that store a significant amount of data.138 The answer to this question is significant because theoretically, statutory bans on texting-while-driving has empowered law enforcement to conduct warrantless searches on cell phones. The Supreme Court has relied on a “privacy” standard in Fourth Amendment jurisprudence since the Court’s ruling in Katz v. United States.139 In 2014, the Court ostensibly applied the “privacy” standard in Riley v. when the court addressed the issue of whether cell phones were subject to warrantless searches.140 Before Riley, courts had held that police officers had authority to conduct a warrantless search of a cell phone under the Fourth Amendment’s search incident to arrest exception.141 The Court’s ruling in Riley established that the police, without a warrant, may not search the digital information on a cell phone of a person who has been arrested.142 The Court in Riley recognized the unique privacy interests that people have

137 See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (holding that law enforcement may conduct a search without a warrant if a person with authority has voluntarily consented). See also Horton v. California, 496 U.S. 128, 136–37 (1990) (finding a plain view exception to the warrant requirement of the Fourth Amendment if the law enforcement agent is in a lawful position to observe and access the evidence and the incriminating character of the evidence is readily apparent); United States v. Robinson, 414 U.S. 218, 235 (1973) (holding that law enforcement may, without a warrant, conduct a “full search” of a person under arrest and a more limited search of the person’s surrounding area). 138 See United States v. Finley, 477 F.3d 250, 259–260 (5th Cir. 2007) (finding that a police officer could search the defendant’s cell phone incident to arrest). 139 See Katz v. United States, 389 U.S. 347, 353 (1967) (finding that the Government’s electronic eavesdropping and recording of the petitioner’s phone conversation in a telephone booth violated the privacy upon which the petitioner justifiably relied on and constituted a “search and seizure” under the Fourth Amendment). 140 See Riley v. California, 134 S. Ct. 2473, 2494–95 (2014). 141 See Finley 477 F.3d at 259–260. See also United States v. Pineda-Areola, 372 F. App’x. 661, 663 (7th Cir. 2010); United States v. Fuentes, 368 F. App’x 95, 99 (11th Cir. 2010); United States v. Young, 278 F. App’x 242, 246 (4th Cir. 2008). 142 See Riley v. California, 134 S. Ct. at 2495. 2017] REASONABLE MISTAKES OF LAW IN THE DIGITAL AGE 551 in their cell phones.143 As this Note has acknowledged, only one jurisdiction, , has a texting-while-driving statute that imposes a jail sentence for first time offenders. Thus, the likelihood of police officers utilizing the search incident to arrest exception for violations of texting-while-driving statutes remained low unless the statutory landscape changed drastically. However, the search incident to arrest exception is not the only exception that potentially empowered police officers to conduct warrantless searches of a cell phone. For instance, the plain view exception also theoretically provides police with the authority to conduct a limited, warrantless search of information a cell phone within their view. The plain view exception grants law enforcement the power to search and seize evidence that is in their plain view without a warrant.144 Practically, the plain view exception has arisen in contexts where police officers have a valid search warrant, but discover evidence of a separate crime that falls outside the scope of the search warrant.145 Consequently, before Riley, the likelihood of a police officer conducting a warrantless search of a cell phone to determine if a statutory violation of a texting-while-driving statute had taken place was low. Following Riley, the odds of such an occurrence dropped even lower.

2. Texting-while-Driving Violations and the Reasonableness Inquiry

The interplay between the Fourth Amendment and distracted driving statutes will likely be demonstrated in factual circumstances mirroring Nicholas Heien’s arrest.146 The ambiguity present in many texting-while-driving statutes can foreseeably result in a police officer’s reasonable mistake of law serving as the basis for a traffic stop. This exact issue presented itself in an case, State v. Rabanales-Ramos.147 In Rabanales-Ramos, a state police trooper stopped the

143 Id. at 2494–95 (“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life. . . .’”) 144 See generally Horton v. California, 496 U.S. 128 (1990) (describing the plain view requirement utilized by the police, and underlying requisites for it to come into play). 145 Cf. U.S. v. Wong, 334 F. 3d 831, 836, 837 (9th Cir. 2003). 146 See Heien v. North Carolina, 135 S. Ct. at 534–35. 147 State v. Rabanales-Ramos, 273 Or. App’x 229, (Or. Ct. App. 2015). 552 ALBANY GOVERNMENT LAW REVIEW [Vol. 10 defendant for driving while using a cellular phone.148 Based on several observations, the police trooper administered a field sobriety test, and subsequently arrested defendant for driving under the influence of intoxicants.149 The trial court granted a motion by the defendant to suppress the evidence obtained during the traffic stop on the grounds that the police trooper did not have probable cause to stop the defendant for violating Oregon’s texting-while-driving statute.150 The appellate court affirmed the trial court’s ruling.151 The issue before the appellate court was whether the trooper’s belief that the defendant has violated the statute was objectively reasonable.152 The appellate court in resolving the issue was forced to interpret the phrase “uses a mobile communication device” as set forth in the Oregon statute.153 The court analyzing the legislative history of the statute found that the Oregon legislature sought to prohibit only talking and texting on a cell phone while driving.154 Thus, the police trooper’s observation did not support a conclusion that the defendant was using the phone in a prohibited manner.155 The Rabanales-Ramos case demonstrates not only the ambiguity courts face with texting-while-driving statutes, but also how these statutes can serve as the basis for an initial traffic stop that results in more serious charges. In California, an appellate court faced a similar issue in People v. Corrales, when a police officer pulled a defendant over for violating California’s texting-while-driving statute, and subsequently arrested the defendant for driving under the influence.156 Police officers also found a controlled substance during a search incident to arrest.157 The defendant moved to suppress the evidence on the grounds that the initial stop for texting while driving was unreasonable.158 The trial court denied

148 Id. at 229, 231. 149 Id. at 231. 150 Id. at 232. 151 Id. at 240. 152 Id. at 234. 153 Rabanales-Ramos, 273 Or. App’x at 235. See generally OR. REV. STAT. § 811.507(2)(2014) (“A person commits the offense of operating a motor vehicle while using a mobile communication device if the person, while operating a motor vehicle on a highway, uses a mobile communication device.”) 154 See Rabanales-Ramos, 273 Or. App’x at 235. 155 Id. at 256. 156 See People v. Corrales, 213 Cal. App. 4th 696, 698–99 (2d Dist. 2013). 157 Id. at 699. 158 Id. 2017] REASONABLE MISTAKES OF LAW IN THE DIGITAL AGE 553 the motion to suppress and the appellate court affirmed finding that there was not a Fourth Amendment violation.159 The California court concluded that an experienced police officer could reasonably believe that the defendant was texting and driving.160 Several factors contributed to the divergent rulings between the California and Oregon court, however the primary difference appears to be the contrasting statutory language.161 Though the outcome differed in Corrales, and the court did not find a Fourth Amendment violation, the case is still indicative of how texting while driving statutes will continue to result in Fourth Amendment challenges. Moreover, both cases are illustrative of the significance of statutory language in providing courts, and law enforcement, with guidance on the enforcement of distracted driving statutes.

III. PROTECTING FOURTH AMENDMENT RIGHTS WHILE APPLYING HEIEN

The majority and concurrence in Heien went to great lengths to highlight the restrictiveness of the “reasonableness” inquiry the Court adopted. Both the majority and concurrence articulated the reasonableness inquiry adopted in Heien as more onerous than the qualified immunity standard.162 The concurrence went a step further, describing a reasonable mistake as one that occurs when the statute is “genuinely ambiguous,” or poses a “reallydifficult,” or “very hard question of statutory interpretation.”163 The concurrence did not offer any further

159 Id. at 699–700. 160 Id. (analyzing the relevant portions of California’s distracted driving statute, the California appellate court found that based on the statute and the observations of the police officer, the officer could reasonably believe that the defendant was texting while driving.) 161 See OR. REV. STAT. § 811.507(2) (2013) (“A person commits the offense of operating a motor vehicle while using a mobile communication device if the person, while operating a motor vehicle on a highway, uses a mobile communication device.”). But see CAL. VEH. CODE §23123.5(a) (2012) (A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication, unless the electronic wireless communications device is specifically designed and configured to allow voice-operated and hands-free operation to dictate, send, or listen to a text-based communication, and it is used in that manner while driving.) 162 See Heien, 135 S. Ct. at 539, 541. 163 Id. at 541 (Kagan, J., concurring). 554 ALBANY GOVERNMENT LAW REVIEW [Vol. 10 direction on the statutes that would fall within the bounds genuine ambiguity. Thus, as the dissent notes, the reasonableness inquiry outlined by the majority will likely prove “murky in application.”164 Distracted driving statutes present an fitting example of how application of the Court’s reasonableness inquiry can prove difficult in practice. With technology evolving, and many distracted driving statutes unable to account for new technologies available to users, many statutes can rightfully be described as “genuinely ambiguous,” and posing “very hard question[s] of statutory interpretation.” To apply the reasonableness inquiry outlined in Heien, while ensuring Fourth Amendment protections, the Supreme Court should look to a set of considerations the Eight Circuit has recognized. Moreover, state legislators, the federal government, and transportation officials should look to develop a model law, in the mold of the Model Business Corporation Act, for states to follow to bring uniformity, and clarity to distracted driving statutes across the nation.

A. Adoption of Eight Circuit Considerations

The Supreme Court’s standard of reasonableness as defined in Heien may be broadened over time despite the Court’s best effort to paint it as an extremely demanding standard. By allowing an officer’s reasonable mistake of law to give rise to reasonable suspicion, an opportunity exists for broader range of interpretations of statutes. The Eight Circuit in United States v. Martin, considered several circumstances in deciding whether the officer’s actions were objectively reasonable, including: prior enforcement of the statutory code at issue, previous judicial interpretations of the statutory provision, and training of police officers concerning the requirements of the statutory code.165 The Eight Circuit, contrary to the Supreme Court in Heien, assessed whether a legal mistake was objectively reasonable based on the knowledge that the police officer reasonably had at the time of the stop.166 The Eight Circuit’s considerations help to limit the

164 Id. at 547 (Sotomayor, J., dissenting). 165 See Martin, 411 F.3d at 1001. 166 See Smart, 393 F. 3d at 770 (“‘The determination of whether probable cause [or reasonable suspicion] existed is not to be made with the vision of hindsight, but instead by looking to what the officer reasonably knew at the time.’”) 2017] REASONABLE MISTAKES OF LAW IN THE DIGITAL AGE 555 breach of separation of powers that may be present in Heien. By assessing additional circumstances regarding an officer’s mistake of law, courts are restricted from simply deciding whether an officer’s interpretation was reasonable. Thus, in more instances, courts would be compelled to interpret statutes and reduce the amount of delay in clarifying the law.

B. Adoption of Model Act for Distracted Driving Statutes

A proposed uniform, model act addressing distracted driving would substantially contribute to modernizing distracted driving statutes across the United States. A model act similar to the Model Business Corporation Act, or even the Uniform Trade Secrets Act167 (prior to the enactment of the Defend Trade Secrets Act168) represents a possible solution that would bring uniformity to the statutory landscape of distracted driving statutes without federal legislation. The Model Business Corporation Act is a model of corporate statutes prepared by the Committee on Corporation Laws of the Section of Corporation, Banking and Business Law (now the Business Law Section) of the American Bar Association.169 The Model Act was intended to serve as a flexible guide for states looking to revise corporate statutes, and an alternative to ’s corporate statute.170 The Committee on Corporation Laws of the Section of Corporation, Banking and Business Law issued its first Model Business Corporation Act in 1950.171 In 1984, a complete revision of the Model Act was published, and since 1984 the committee has continued to review and revise provisions of the Model Act.172 The Model Act is now the general corporation statute for twenty-four states.173 The time has come for similar guidance to be developed for distracted driving statutes. Additionally, a model act would increase uniformity in distracted driving statutes among states, and reduce ambiguity.

167 See UNIF. TRADE SECRETS ACT § 1 (amended 1985), 14 U.L.A. 538-39 (2005). 168 Defend Trade Secrets Act of 2016, 18 U.S.C. 1832 (2016.) 169 See ABA Comm. on Corporate Laws, Model Business Corporation Act xix, §1.20 (2005). 170 See ABA Comm. on Corporate Laws at xxii, §7.44. 171 Id. at xxii. 172 Id. 173 Id. 556 ALBANY GOVERNMENT LAW REVIEW [Vol. 10

For instance, “communications” under a model act would have a singular meaning, thus reducing ambiguity in many states regarding what is considered an “electronic message,”174 “text- based communication[s],”175 or a “written communications.”176 Moreover, a model act would be able to address other issues, such as: (1) whether to permit use of cell phones while driving with the assistance of hands-free, Bluetooth-enabled devices, and (2) whether to prohibit use of wearable technology while driving, and if so, to what extent. A proposed model act should incorporate a broad range of ideas from various stakeholders. Therefore, a committee tasked with developing this proposed model act should be staffed with state legislators, federal legislators, officials from the U.S. Department of Transportation, officials from the National Highway Traffic Safety Administration, officials from the National Safety Council, attorneys, and law enforcement representatives. Penalties for distracted driving is a topic that should be left to respective jurisdictions, specifically since penalties for distracted driving vary greatly among jurisdictions.177 By adopting a model act targeting distracted driving, the probability of a police officer’s mistake of law while enforcing distracted driving statutes will be greatly reduced. Consequently, reducing the need for the reasonableness inquiry adopted in Heien in this evolving statutory framework.

174 Id. 175 See WYO. STAT. ANN. § 31-5-237(a) (2010) (“No person shall operate a motor vehicle on a public street or highway while using a handheld electronic wireless communication device to write, send or read a text-based communication.”); WYO. STAT. ANN. § 31-5-237(d)(iv) (2010) (“‘Write, send or read a text-based communication’ means using an electronic wireless communications device to manually communicate with any person using text- based communication including, but not limited to, communications referred to as a text message, instant message or electronic mail.”). 176 See KAN. STAT. ANN. 8-15,111 (a)(2) (2010) (“‘Write, send or read a written communication’ means using a wireless communication device to manually type, send or read a written communication, including, but not limited to, a text message, instant message or electronic mail.”). See also KAN. STAT. ANN. 8- 15,111 (b) (2010) (“Except as provided in subsections (c) and (d), no person shall operate a motor vehicle on a public road or highway while using a wireless communications device to write, send or read a written communication.”) 177 See Johnson, supra note 99.