                Filed 3/15/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 84


State of North Dakota,                                       Plaintiff and Appellee

      v.

Travis James Morsette,                                    Defendant and Appellant


                                  No. 20180076


       Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.

      REVERSED AND REMANDED.

      Opinion of the Court by McEvers, Justice.

       Derek K. Steiner, Assistant State’s Attorney, Bismarck, ND, for plaintiff and
appellee.

      Christopher M. Redmann, Bismarck, ND, for defendant and appellant.
                                  State v. Morsette
                                    No. 20180076


       McEvers, Justice.
[¶1]   Travis Morsette appeals from a judgment entered upon a guilty plea to
possession of a controlled substance and unlawful possession of drug paraphernalia,
reserving his right to appeal the district court’s order denying his motion to suppress
evidence. Because we conclude there was not reasonable suspicion to initiate the
traffic stop, we reverse the judgment and remand for further proceedings to allow
Morsette to withdraw his guilty plea.


                                           I
[¶2]   On September 8, 2017, a law enforcement officer, while on patrol stopped at
a red light, observed a driver in the adjacent lane manipulating his touchscreen cell
phone for approximately two seconds. The officer testified to observing the driver,
later identified as Morsette, tap approximately ten times on the illuminated cell phone
screen. The officer initiated a traffic stop based on his observations of the cell phone
screen manipulations. Morsette told the officer he was changing the music on his cell
phone. The officer conducted an investigation and Morsette was arrested and charged
with possession of a controlled substance and unlawful possession of drug
paraphernalia.
[¶3]   Prior to trial, Morsette moved to suppress all evidence, claiming the officer
lacked reasonable suspicion to conduct the traffic stop. The district court denied
Morsette’s motion, holding the traffic stop was an investigatory stop and the officer
had reasonable and articulable suspicion to initiate it.
[¶4]   On appeal, Morsette argues the district court erred in determining the officer
had reasonable and articulable suspicion to conduct the traffic stop and that the
officer’s actions cannot be excused as a mistake of fact or law.



                                           1
                                           II
[¶5]   When reviewing a district court’s decision on a motion to suppress, we:
       defer to the district court’s findings of fact and resolve conflicts in
       testimony in favor of affirmance. We affirm the district court’s
       decision unless we conclude there is insufficient competent evidence
       to support the decision, or unless the decision goes against the manifest
       weight of the evidence.
State v. Wolfer, 2010 ND 63, ¶ 5, 780 N.W.2d 650 (internal quotations and citations
omitted). “Questions of law and the ultimate conclusion about whether the facts
support a reasonable and articulable suspicion are fully reviewable on appeal.” State
v. Smith, 2005 ND 21, ¶ 11, 691 N.W.2d 203 (citation omitted).


                                           III
[¶6]   “Investigatory traffic stops are valid when the officer conducting the stop had
a reasonable and articulable suspicion the motorist has violated or is violating the
law.” Wolfer, 2010 ND 63, ¶ 6, 780 N.W.2d 650 (internal quotation and citation
omitted). “The ultimate issue is whether a reasonable person in the officer’s position
would have been justified in stopping the vehicle because of some objective
manifestation to suspect potential criminal activity.” State v. James, 2016 ND 68, ¶
7, 876 N.W.2d 720 (internal quotations and citations omitted). “The reasonable and
articulable suspicion standard requires more than a ‘mere hunch,’ but less than
probable cause.” Gabel v. N.D. Dep’t of Transp., 2006 ND 178, ¶ 20, 720 N.W.2d
433 (quoting Lapp v. N.D. Dep’t of Transp., 2001 ND 140, ¶ 11, 632 N.W.2d 419).
“Whether an officer had a reasonable and articulable suspicion is a fact-specific
inquiry that is evaluated under an objective standard considering the totality of the
circumstances.” State v. Rahier, 2014 ND 153, ¶ 13, 849 N.W.2d 212 (citation
omitted); see also U.S. v. Arvizu, 534 U.S. 266, 273 (2002) (“When discussing how
reviewing courts should make reasonable-suspicion determinations, we have said
repeatedly that they must look at the ‘totality of the circumstances’ of each case to see
whether the detaining officer has a ‘particularized and objective basis’ for suspecting
legal wrongdoing.”) (citation omitted).          Additionally, “an officer’s objectively
                                           2
reasonable mistake, whether of fact or law, may provide the reasonable suspicion
necessary to justify a traffic stop.” State v. Hirschkorn, 2016 ND 117, ¶ 14, 881
N.W.2d 244. “The reasonable suspicion standard does not require an officer to see
a motorist violating a traffic law or to rule out every potential innocent excuse for the
behavior in question before stopping a vehicle for investigation.” Gabel, at ¶ 20
(citation omitted). As such, the actual commission of criminal activity is not required
to support a finding of reasonable suspicion.
[¶7]   Here, the State concedes a seizure occurred but argues it was a reasonable
investigatory traffic stop not in violation of the Fourth Amendment.
[¶8]   North Dakota’s law proscribing certain cell phone activity while driving reads:
       1.     The operator of a motor vehicle that is part of traffic may not
              use a wireless communications device to compose, read, or send
              an electronic message.
       2.     Under this section:
              a.     “Electronic message” means a self-contained piece of
                     digital communication that is designed or intended to be
                     transmitted between physical devices. The term includes
                     electronic mail, a text message, an instant message, a
                     command or request to access a worldwide web page, or
                     other data that uses a commonly recognized electronic
                     communications protocol. The term does not include:
                     (1)     Reading, selecting, or entering a telephone
                             number, an extension number, or voice mail
                             retrieval codes and commands into an electronic
                             device for the purpose of initiating or receiving a
                             telephone or cellular phone call or using voice
                             commands to initiate or receive a telephone or
                             cellular phone call;
                     (2)     Inputting, selecting, or reading information on a
                             global positioning system device or other
                             navigation system device;
                     (3)     Using a device capable of performing multiple
                             functions, such as fleet management systems,
                             dispatching devices, phones, citizen band radios,
                             music players, or similar devices, for a purpose
                             that is not otherwise prohibited;
                     (4)     Voice or other data transmitted as a result of
                             making a telephone or cellular phone call;

                                           3
                     (5)     Data transmitted automatically by a wireless
                             communication device without direct initiation by
                             an individual; or
                      (6)    A wireless communications device used in a
                             voice-activated, voice-operated, or any other
                             hands-free manner.
              b.      “Traffic” means operation of a motor vehicle while in
                      motion or for the purposes of travel on any street or
                      highway and includes a temporary stop or halt of motion,
                      such as at an official traffic-control signal or sign. The
                      term does not include a motor vehicle that is lawfully
                      parked.
       3.     This section does not apply if a wireless communications device
              is used for obtaining emergency assistance to report a traffic
              accident, medical emergency, or serious traffic hazard or to
              prevent a crime about to be committed, in the reasonable belief
              that an individual’s life or safety is in immediate danger, or in
              an authorized emergency vehicle while in the performance of
              official duties.
N.D.C.C. § 39-08-23 (emphasis added). The statute provides several proscribed
phone-related activities as well as several permitted phone-related activities. Both
proscribed and permitted activities appear to encompass actions that may require
finger-to-phone tapping; for example, the proscribed activity of composing an
electronic message could involve finger-to-phone tapping and the permitted activity
of entering a telephone number could involve finger-to-phone tapping.
[¶9]   Morsette argues the Seventh Circuit in U.S. v. Paniagua-Garcia, 813 F.3d
1013 (7th Cir. 2016), supports a finding that the officer in this case did not have
reasonable and articulable suspicion to conduct the traffic stop. In Paniagua-Garcia,
the Seventh Circuit analyzed the applicability of an Indiana statute reading:
       (a) A person may not use a telecommunications device to:
              (1) type a text message or an electronic mail message;
              (2) transmit a text message or an electronic mail message; or
              (3) read a text message or an electronic mail message;
       while operating a moving motor vehicle unless the device is used in
       conjunction with hands free or voice operated technology, or unless the
       device is used to call 911 to report a bona fide emergency.



                                          4
Ind. Code § 9-21-8-59 (emphasis added). In Paniagua-Garcia, while passing a car,
an officer observed the driver (1) holding a cell phone in his right hand, (2) with his
head bent toward the phone, and (3) appearing to be texting. 813 F.3d at 1014. The
officer never “explained what created the appearance of texting as distinct from any
one of the multiple other—lawful—uses of a cellphone by a driver.” Id. In holding
reasonable suspicion did not exist, the court in Paniagua-Garcia stated:
               Almost all the lawful uses we’ve listed would create the same
       appearance—cellphone held in hand, head of driver bending toward it
       because the text on a cellphone’s screen is very small and therefore
       difficult to read from a distance, a finger or fingers touching an app on
       the cellphone’s screen. No fact perceptible to a police officer glancing
       into a moving car and observing the driver using a cellphone would
       enable the officer to determine whether it was a permitted or a
       forbidden use.
Id. (citation omitted). Morsette argues that the North Dakota statute, like the Indiana
statute in Paniagua-Garcia, does not proscribe merely “manipulating” a cell phone.
Morsette also argues the absence of any evidence in the record supporting an
inference he was using his phone for a prohibited purpose rather than any number of
the permitted purposes allowed for by the statute is similar to Paniagua-Garcia.
[¶10] The State argues Paniagua-Garcia is distinguishable from Morsette’s case
because the Indiana statute only proscribes typing, transmitting, or reading “text
messages” and “electronic mail messages” whereas the North Dakota statute
proscribes composing, reading, or sending “electronic messages” which is defined to
include electronic mail, text messages, instant messages, a command or request to
access a worldwide web page, or other data that uses a commonly recognized
electronic communications protocol. The State argues that in North Dakota, “the few
specifically allowed uses for cell phones while driving are outweighed by the
numerous impermissible uses for cell phones; the exact opposite of Indiana’s
regulation of cell phone usage.” The significance of this distinction seems to be that
an officer in North Dakota, under North Dakota law, might have greater reason to
believe that an individual using their phone while driving would be using it in a
manner proscribed by N.D.C.C. § 39-08-23 compared to an officer observing the
                                          5
same activity in Indiana merely because the North Dakota statute outlines more
proscribed activities than the Indiana statute.
[¶11] The State further attempts to distinguish this case from the Paniagua-Garcia
case by noting that the officer in Morsette’s case observed more inculpatory activity
than the officer in Paniagua-Garcia. Here, the officer observed: (1) Morsette
manipulating the cell phone screen approximately ten times within two seconds, and
(2) light emanating from Morsette’s cell phone screen. In Paniagua-Garcia, the
officer observed: (1) the driver holding the cell phone in one hand, (2) the driver’s
head bent toward the phone, and (3) the driver appeared to be texting. However, it
is unclear in Paniagua-Garcia what facts led the officer to believe the driver
“appeared to be texting.”
[¶12] The State cites to People v. Corrales to support the proposition that other
courts have found reasonable and articulable suspicion to stop motorists appearing to
be using their phones, but that citation is misplaced. 152 Cal. Rptr.3d 667, 670 (Cal.
Ct. App. 2nd Dist. 2013). In Corrales, the officers first observed the defendant
parked by the side of the road texting on his cell phone. Id. Approximately five
minutes later, the same officers returned and observed the defendant pulling into
traffic in front of them while leaning and looking down a few times “as though he was
still using his cellular telephone.” Id. The State’s argument disregards the fact that
the officers in Corrales initially observed the defendant actually texting. Id. The
officer here did not testify to previously encountering Morsette and observing him
actually texting; his first encounter with Morsette in this case was on the road. The
facts here are not analogous.
[¶13] When confronted with matters of first impression involving North Dakota
statutes, this Court may glean insight from other states’ and our own past
interpretations concerning similar statutes.




                                           6
                                          A
[¶14] Like the cell phone statute, a stop based on a perceived violation of a tinted-
window statute also requires an officer ascertain a reasonable likelihood of unlawful
conduct under a statutory scheme providing for both permitted and proscribed
conduct, arguably uneasily discernable at a distance. North Dakota’s tinted-window
statute reads, in pertinent part:
       An individual may not operate a motor vehicle with any object,
       material, or tinting displayed, affixed, or applied on the front
       windshield or any window unless the object, material, or tinting in
       conjunction with the windshield upon which it is displayed, affixed, or
       applied has a light transmittance of at least seventy percent or the
       object, material, or tinting in conjunction with a window other than the
       windshield upon which it is displayed, affixed, or applied has a light
       transmittance of at least fifty percent. This subsection does not apply
       to windows behind the operator if the motor vehicle is equipped with
       outside mirrors on both sides that meet the requirements of section 39-
       21-38.
N.D.C.C. § 39-21-39(4) (emphasis added). We have upheld an officer’s finding of
reasonable suspicion to stop a vehicle where, on the basis of his training and
experience, the officer observed a vehicle which he perceived had excessive tint when
he drove next to it. State v. $127,930 United States Currency, 2017 ND 282, ¶ 9, 904
N.W.2d 307.
[¶15] Other jurisdictions have considered the existence of reasonable suspicion for
stops based on perceived violations of similar statutes proscribing tinted windows.
See People v. Hanes, 72 Cal. Rptr.2d 212, 214 (Cal. App. Dep’t Super. Ct. 1997)
(reasonable suspicion upheld where officer testified the tinting in question was “so
dark as to appear black and prevent the officer from seeing the occupants of the front
seats”); State v. Cohen, 790 A.2d 202, 205 (N.J. Super. 2002) (reasonable suspicion
upheld where officer’s “initial observation that the windows were so darkly tinted as
to obstruct vision” pointed to a reasonable likelihood of unlawful conduct under
statute proscribing “tinted spray or plastic material added to previously approved
glazing in the front windshield or windows”).


                                          7
[¶16] In Morsette’s case, the arresting officer testified that (1) at the time of the
violation he had worked for the police department for two-and-a-half years, (2) he
observed Morsette manipulating his cell phone for approximately two seconds,
tapping the illuminated screen about ten times, and (3) he could not see the content
of the screen at the time of the tapping. No testimony was elicited about Morsette’s
past success rate at identifying violations of the cell phone-use-while-driving law or
any unique training he received enabling him to conclude the facts he observed
amounted to violations of the law. Although he testified to observing the screen’s
illumination and finger-to-phone tapping, there is absent a link between those
observations and an objectively reasonable basis to suspect a violation. The officer
here was unable to articulate why his suspicion was reasonable.


                                          B
[¶17] The State argues whether or not a traffic violation actually occurred does not
vitiate a finding of reasonable and articulable suspicion. North Dakota law permits
a finding of reasonable suspicion even in instances where the officer operates under
a mistaken belief of fact or law:
       In Heien v. North Carolina, 135 S.Ct. 530 (2014), the United States
       Supreme Court held an officer’s objectively reasonable mistake of fact
       or law may provide the reasonable suspicion necessary to justify a
       traffic stop, stating:
               Reasonable suspicion arises from the combination of an
               officer’s understanding of the facts and his understanding
               of the relevant law. The officer may be reasonably
               mistaken on either ground. Whether the facts turn out to
               be not what was thought, or the law turns out to be not
               what was thought, the result is the same: the facts are
               outside the scope of the law. There is no reason, under
               the text of the Fourth Amendment or our precedents, why
               this same result should be acceptable when reached by
               way of a reasonable mistake of fact, but not when
               reached by way of a similarly reasonable mistake of law.
       Id. at 536. Where an officer makes a mistake, whether of fact or law,
       such mistake may provide the reasonable suspicion justifying a traffic


                                          8
       stop only when objectively reasonable because the “Fourth Amendment
       tolerates only reasonable mistakes . . . .” Id. at 539.
State v. Hirschkorn, 2016 ND 117, ¶ 14, 881 N.W.2d 244. The Heien case provided
an example of a reasonable mistake of fact: “An officer might, for example, stop a
motorist for traveling alone in a high-occupancy vehicle lane, only to discover upon
approaching the car that two children are slumped over asleep in the backseat.”
Heien, at 534.
[¶18] At the hearing on the motion to suppress, the officer testified he understood
what constituted a violation of the statute. Therefore, there was no mistake of law.
Further, he was unable to articulate how Morsette’s conduct violated the statute, even
if that observed conduct was a mistake of fact. If the officer is unable to articulate
why he thought Morsette’s conduct violated the statute, it is not reasonable to
conclude he made a reasonable mistake of fact. A suspicion so broad that would
permit law enforcement to stop a substantial portion of the lawfully driving public is
not reasonable. See U.S. v. Flores, 798 F.3d 645, 649 (7th Cir. 2015) (relying on
Delaware v. Prouse, 440 U.S. 648, 661 (1979) (observing that courts must
circumscribe “standardless and unconstrained discretion” that would otherwise allow
officers to stop all drivers)). We conclude there was no mistake of fact.


                                         IV
[¶19] We reverse the judgment and remand to allow Morsette to withdraw his guilty
plea and for further proceedings consistent with this opinion.
[¶20] Lisa Fair McEvers
      Daniel J. Crothers
      Jon J. Jensen
      Jerod E. Tufte




       VandeWalle, Chief Justice, dissenting.

                                          9
[¶21] Because I believe the fact that a person may be using a wireless
communications device, here, a cell phone, for a valid purpose does not negate the
reasonable suspicion that the person is using the cell phone for a prohibited purpose,
I respectfully dissent. Indeed, when one examines the provisions of N.D.C.C. § 39-
08-23 it is as probable that the cell phone is used to send or receive prohibited
electronic messages as it is that the device is being used for one of the lawful
purposes, perhaps more so. My position is, admittedly, based on what I perceive to
be the reasonable probabilities rather than the possibilities. But, reasonable suspicion
is more than a hunch but it is surely a much lesser standard than proof beyond a
reasonable doubt required for conviction and a lesser standard than probable cause
required for arrest for an offense.
[¶22] It appears to me that it is improbable that someone observing at a distance a
person using a cell phone is able to determine the specific use of the device. As a
practical matter, I understand that the result is that either every driver using a cell
phone may be reasonably suspected of using the cell phone for a prohibited purpose
or no driver may be reasonably suspected of using the device for an unlawful purpose.
The statute was likely drafted with little thought of how offenders are to be
apprehended in the first instance.      It seems to me that the majority opinion
substantially reduces, if not eliminates, the effective enforcement of the statute.
[¶23] I would affirm the district court.
[¶24] Gerald W. VandeWalle, C.J.




                                           10
