good morning arse samuel lance on behalf of the opponent may please the court the issue i think before the court is whether the objective facts observed by the stopping officer gave that officer a particular ised basis to reasonably subsists fact that an infraction had occurred in this instance he reached the subjective conclusion that the driver was texting while driving however that conclusion was happened to be in cracked i don't think it matters what it was and correct or not if he had so you're on your arguments the same whether even if you had been correct right even if you had been correct in still  not adequate objective information from which a reasonable officer could find that you could believe that he was texting while driving they're for the stop was illegal with respect to the government's argument that the mistake of fact is the issue i would direct remind the court of united states versus garcia garcia which states that the officer subjective  largely irrelevant to the inquiry of probable cause or reasonable suspicion and i think that a mistake of fact is more appropriate when we're talking about a predicate fact that gives rise to a reasonable inference that infraction or a crime has occurred but in this case the officers mistake was his legal conclusion that there was a reasonable suspicion and because a cell phone can be used for so many things holding the phone with his right hand looking tilting his head down towards the phone and the officer said that he appeared to be texting on the keypad which i think it was was he using his fingers  for it's not clear that he was holding it with his right hand so presumably he's holding the steering wheel with the other hand if he wasn't on the steering wheel i think that would have been noted so more weight or his knee perhaps his knee but i think the officer still would have noted that if he's able to observe the cell phone it's not being held up these because the officer said he had his head tilted down so we know the cell phone is is held down where one might typically hold a cell phone and that he appeared to be texting which i think is a possible but i don't know how you tell whether somebody is how he could tell whether he was texting or it whether he was type b in a phone number which is legal under the indiana law correct exactly or a text message that i'll be home s texting on the keypad there's no indication he could actually see the phone itself it was there who's down reading it it's not clear if you see if his head is tilted down and the officer isn't it a standard patrol car in the skies in a regular sedan i think it would be difficult to see over the door down into the into the driver's compartment so it's not clear whether he could actually see the phone or the top of the phone or he could just tell that he was manipulating what appeared to be a phone but i think that the it's worth noting that the indiana legislature recently outlawed all phone use for teenagers  i think that would that creates a situation where there could be a mistake of a predicate fact which were a mistake of fact would be the appropriate certainly is easier that's for sure sure sure so if you if an officer sees someone who looks like he's a teenager but he's twenty three years old and he's using the phone to call someone or use g p s or listen to music or whatever that may be a reasonable mistake of fact to believe that a teenager is operating a phone in what is now a hands free state for teenagers was in the last legislature so yes it is just went into effect in july ok thanks to ask you briefly mystery and so the district judge mentioned the pew survey that you had put into the record i gather about the different ways that cell phones are used it was just a survey showing that you know i have to say i thought her observation that it really wasn't terribly helpful because it doesn't have to do with uses while driving let alone uses while driving it where it's you some uses are legal was was was correct right i don't think it really informs the core what what someone would be or informs the officer what someone didn't likely or unlikely to be doing while they're driving with a phone  could you address specifically the government has made the point that that if the officers observations here are not sufficient to initiate a stop the law will in essence be a dead letter in the interview if you could well i don't think applying fourth amendment analysis to this i don't know that the law is what it is it's widely known that it's on and forcible there been to at least use articles  with high level state police and police chief saying that look we we have no idea whether someone's texting or e mailing or listening to music or making a phone call and that's why in indiana so few tickets have been written so i think that i'm sorry i lost my train of thought what well i guess the part of this is goes back to the notion of be curious here the government's thoughts on this is well and there was a lot of concern about just how broad the prohibitions would be and the i guess to borrow language from another  another arena these problems are bugs but features of the law that answered legislature chose quite specifically to make it limited in its  and it's in force ability because that's what their constituents want to correct so i think that to to apply proper fourth amendment analysis to a traffic stop based on this on this statute is that it's not this court's responsibility to protect a statute that's poorly written if it's on an forcible it's on an forcible it ought not be a pretext to be able to pull over anyone who happens to be operating a phone while they're driving in indiana when that's simply not against the law is there there an offense or at least  this distracted driving right it's a distracted he doesn't have to be a fun but doesn't have to be a phone with this particular statute did it well i understand that's for sure what isn't there a general  for police to make a stoppard distracted driver correct and i think in this instance it would have been it if the stop may have been reasonable if the officers or some other indicator that that this driver was you had ended ice off the road looking down to the phone sure but i mean you can have your eyes off the road to look at the radio you can have your eyes off the road drove with that's all it would destroy i'm driving correct but i don't think it's it rises to the level of making this reasonable stop if he had like lost control for a second swerve within his lane or something like that it happened then the stop would it would seem more reasonable but just seeing so in a whole that event would have been a female putting on makeup while i or male putting on makeup for that right or maybe someone just putting on some chapstick because their lips are dry i mean there's there's things that i mean we we we lead we let people do what they have to do and up to a certain point to be responsible for their act does that driving saying that accounting as distracted driving even though specifically doesn't prohibit putting on make the statue it could i suppose yes but i don't think that that is dispositive to this issue i think in this in this instance you have a situation where the conduct that was observed by the officer was indistinguishable from legal conduct and just like in the case of flores where it the license plate may have covered some some information that needs to be observable it this to to enforce this stop as as valid would basically mean that anyone who happens to be looking at their phone for a moment while they're driving presume which judge caney was asking you did the officer say that there was anything wrong or  any problem with his driving no just there wasn't any weaving before  court the german question before this court is not whether or not indiana exercised wisdom in crafting the most perfect statute regarding prohibition of texting while driving beyon stupid you know they did it it's ridiculous and i you know it will certainly if those are extended why they single are texting from all the ways in which you feel in danger yourself and everybody else by fiddling with your cell phone texting is just another way of you know becoming distracted from driving that's certainly true or not and i don't know what if you dialing the telephone that certainly might lead to you distracted driving as well your honor and i think that the the articles i think in fact the appellate makes maybe he's making a great point for indiana to enlarge the categories of prohibited behavior while you're driving but the point is your honor and the only question really that this court should consider is whether or not the actions of deputy semmens were reasonable and they were or how did he know that th is how did he know that it was texting rather than making a phone call doing the other permitted things that you can do with yours for well in fact after the fact it became clear to the officer  appendix page fifteen this is a probable cause affidavit for the criminal complaint now deputy simmons was not the fine but in this problem cause affidavit it says the deputy sent and saw the appellant holding a phone in his hand his head was a typing the telephone number if anyone asked him what does it mean appear what did you see if all you saw was someone holding a cell phone he could be doing anything anything with it but he could be texting as well your honor yes but this is judged hamilton's question his cup of coffee could be spying it well your honor in that factual scenario though with no one that is in you know different from this one all he did was see a person fussing with his cell phone and that's no different from seen a persian drinking a cup of coffee cup of coffee maybe spike and what he may be doing with his cell phone number it's going to look exactly as if i am texting that's right your honor but someone just drinking a cup of coffee does not look exactly like you are sitting down just because look what percentage of people who are who are holding a cell phone while driving are texting well that i don't know your honor but yes you don't know you don't know anything that really could could create an objective basis for this for this action by the call making a difference it might your honor unfortunately that wasn't made part of the record here so it's unclear what deputy simmons his experience was but well what if it is a one percent probability is that enough for reason honor i'm not sure i don't know that this is why officers have to make these judgments in the field and well because that's that's not really what is the judgment what is the judgment you haven't told us what is it about eight could be texting there's no reason to think he was texting there's no but it to me your honor that fits within the reasonable mistakes of fact that officer came with will judge hamilton's coffee coffee example i think your honor with the officer says well you know some people drink their coffee spiked right and some people tex and that's the same thing and how do you distinguish those i think with respect i think a more helpful analogy now you tell me how you distinguish those two cases you know honored boils down to a courts consider rate it's a no it does mean you tell me how those two cases differ his case in this case it differs your honor because i don't think that there would be a reasonable basis for what if it turns out the probability of drinking spiked wealthy is a definite go to the probability of texting and how would you possibly distinguish those two cases i'm not sure you are right you know it every police officer has to make a snap judgment in the in the field the supreme court recognizes that officer is not herdsmen and irrational snap judgment that any time there's like a one percent probability of some regularity some possible violation the police officer  arrest hers it would be a question of it goes directly to the reasonable question your honor i think it would be unreasonable for officers to pull over everybody they saw drinking out of a cup of the law because you think they can do that do that with everybody who's holding a cell phone but that but then again your honor if there was a study that said that there was a large percentage of people when in fact we have studies cited in these articles that are attached to the opponents brief that indicate that there is a huge number of accidents that do involve texting if there was some study that said that there was a huge number of people in a particular location that were drinking alcohol out about a coffee and it's in the in in that officers judgment based on the got what we've got is here is is is really no no indication of any specific articulable fact that would distinguish legal from illegal activity and it doesn't matter whether he's right or wrong ultimately about what happens but he's got to have a reasonable basis let me ask you mr mccuskey to follow up on one just came his question is does india have a separate distracted driving statute i believe so your honor but i don't want to misstate it i'm not resolve the case would resolve the case your honour's i would just wanted to point out that it seems to be that the consensus among law enforcement based on these news articles is that they can't distinguish texting from any other use of the phone and that's why they're having such trouble with the statue ok well thank you