Gone in ten (10) seconds- The “commonsense suspicion” exception

In 2000 the world was wowed by the ability of Nicholas Cage and his crew of bandits to swiftly and efficiently snatch high-end cars from their rightful owners in the movie Gone in 60 Seconds.  The Iowa Supreme Court has now wowed the citizens of Iowa by swiftly and efficiently allowing officers to snatch the privacy rights of citizens in only ten (10) second with their decision in State v. Steven Edward Struve (19-1614).

In this case, the Iowa Supreme Court was asked to determine whether it was constitutional for a law enforcement officer to stop a driver’s vehicle after observing the driver thumbing through his cell phone, in an effort to determine if he was using the cell phone, in violation of  Iowa Code Section 321.276.  This code section precludes the driver of a motor vehicle from “writing, sending, or viewing, electronic messages” on a handheld device (i.e. cell phone).  “Electronic messages” specifically include a “text-based message, an instant message, a portion of an electronic email, an internet site, a social media application, or a game.”  However, all other uses of the phone, including but not limited to, dialing the phone to place a phone call and using GPS is perfectly legal.

Iowa has long adhered to the concept that an officer can stop a motorist if they have “reasonable suspicion” supported by “specific and articulable facts, taken together with rational inferences from those facts to believe criminal activity may have occurred.”  The only “articulable facts” that criminal activity was occurring in this case was that the officers observed Mr. Struve manipulating his cell phone for ten (10) seconds while driving his car.  The officers were not able to observe what the driver was doing on the phone.  Thus, the question presented was whether the officer needed some facts that would reasonably demonstrate the phone was being used illegally before he could constitutionally stop the motorist?  In a 4-3 split decision, the Court astonishingly said “no.”

Justice Dana Oxley drafted the decision of the Court, which interjected a standard of “common sense suspicion”  in justifying the stop of Mr. Sturve’s vehicle.  What is “common sense suspicion?”  Interestingly, this Court determined “the ‘common sense’ understanding of common sense, [is that is refers to] information that is accessible to people generally, not just some specialized subset of society.”  Yeah, go ahead and read that last sentence again just to make sure you understand!

Apparently, the Iowa Supreme Court has now allowed officers to effectuate seizures of Iowa Citizens after “drawing on factual inferences based on the commonly held knowledge they have acquired in their everyday lives.” In doing so, the court appears to have disavowed any requirement that an officer have “specific facts” to support a belief that a person is engaged in “criminal activity.”  In other words, a person engaging in non-criminal behavior is subject to a constitutionally permissible seizure if the law enforcement officer’s common sense tells him/her that the person might be doing something illegal.

Even more surprising is the fact that the Court concluded that “an officer’s common sense need not be based on specific training or law enforcement experience.”  Consider this situation for a moment, a 10-year veteran of your local police department knows from his training and experience that most motorists in your city generally do not operate motor vehicles with open containers of alcohol present.  However, common sense tells us that many people drink alcohol out of red solo cups.  Even Toby Keith has created a song based on this common sense understanding right!  In light of the Iowa Supreme Court’s adoption of a “common sense suspicion” standard, an officer now appears to be able to disregard his knowledge gained as a police officer and rely on Toby Keith to justify his seizure of a motorist drinking out of a red solo cup.

It is this author’s belief that this decision will be looked upon negatively by many courts throughout our great nation in the coming years.  In fact, the Iowa Supreme Court analyzed and reviewed four cases from other states which previously addressed this issue and three of the four found the traffic stops unconstitutional.  This author also predicts that the Iowa Supreme Court will likely revisit this decision in the future after experiencing situations where this holding has unintended consequences.  For example, will this common sense suspicion approach be applied differently across racial and social economic classes, gender, age, etc.?    However, until these lessons are learned the hard way, keep your cell phones in your pocket and your red solo cups at home!!