### 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 Centra l 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 guil ty plea to possession of a controlled substance and unlawful possession of drug paraphernalia, reserving his right to appeal the district court’s order denyin g his motion to suppress evidence. Because we conclude there was not reasonable suspici on to initiate the traffic stop, we reverse the judgment and remand for further pr oceedings to allow Morsette to withdraw his guilty plea.

I [¶2] On September 8, 2017, a law enforcement officer, while on p atrol stopped at a red light, observed a driver in the adjacent lane manipulatin g his touchscreen cell phone for approximately two seconds. The officer testified to observing the driver, later identified as Morsette, tap approximately ten times on th e illuminated cell phone screen. The officer initiated a traffic stop based on his obse rvations of the cell phone screen manipulations. Morsette told the officer he was changin g 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 possessi on of drug paraphernalia. [¶3] Prior to trial, Morsette moved to suppress all evidence, cl aiming the officer lacked reasonable suspicion to conduct the traffic stop. The d istrict court denied Morsette’s motion, holding the traffic stop was an investigator y stop and the officer had reasonable and articulable suspicion to initiate it. [¶4] On appeal, Morsette argues the district court erred in dete rmining 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

.

1II [¶5] When reviewing a district court’s decision on a motion to s uppress, we: defer to the district court’s findings of fact and resolve conf licts in testimony in favor of affirmance. We affirm the district court ’s decision unless we conclude there is insufficient competent evi dence to support the decision, or unless the decision goes against th e 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 review able 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 con ducting the stop had a reasonable and articulable suspicion the motorist has violate d or is violating the
law.” Wolfer , 2010 ND 63, ¶ 6, 780 N.W.2d 650 (internal quotation and citat ion omitted). “The ultimate issue is whether a reasonable person i n the officer’s position would have been justified in stopping the vehicle because of so me 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 consideri ng 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 determination s, we have said repeatedly that they must look at the ‘totality of the circumst ances’ of each case to see whether the detaining officer has a ‘particularized and objecti ve basis’ for suspecting legal wrongdoing.”) (citation omitted). Additionally, “an offi cer’s objectively
2reasonable mistake, whether of fact or law, may provide the rea sonable suspicion necessary to justify a traffic stop.” State v. Hirschkorn , 2016 ND 117, ¶ 14 , 881 N.W.2d 244. “The reasonable susp icion standard does not requir e an officer to see a motorist violating a traffic law or to rule out every potenti al innocent excuse for the behavior in question before stopping a vehicle for investigatio n.” Gabel , at ¶ 20 (citation omitted). As such, the actual commission of criminalactivity is not required to support a finding of reasonable suspicion. [¶7] Here, the State concedes a seizure occurred but argues it w as 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 n ot 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 sev eral proscribed phone-related activities as well as several permitted phone-rel ated activities. Both proscribed and permitted activities appear to encompass actions that may require finger-to-phone tapping; for example, the proscribed activity o f composing an electronic message could involve finger-to-phone tapping and th e permitted activity of entering a telephone number could involve finger-to-phone ta pping. [¶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 th is case did not have reasonable and articulable suspicion to conduct the traffic sto p. In Paniagua-Garcia, the Seventh Circuit analyzed the applicability of an Indiana st atute 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 unlessthe device is used in conjunction with hands free or voice operated technology, or unlessthe device is used to call 911 to report a bona fide emergency.

4Ind. 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. 8 13 F.3d at 1014. The officer never “explained what created the appearance of textingas distinct from any one of the multiple other—lawful—uses of a cellphone by a drive r.” 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 towar d it because the text on a cellphone’s screen is very small and ther efore difficult to read from a distance, a finger or fingers touchingan 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 wo uld enable the officer to determine whether it was a permitted or a forbidden use.
Id . (citation omitted). Morsette argues that the North Dakota st atute, 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, transmittin g, or reading “text messages” and “electronic mail messages” whereas the North Dako ta 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 commonlyrecognized electronic communications protocol. The State argues that in N orth 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 dist inction 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 woul d be using it in a manner proscribed by N.D.C.C. § 39-08-23 compared to an officer observing the
5same activity in Indiana merely because the North Dakota statut e 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 mor e inculpatory activity
than the officer inPaniagua-Garcia . Here, the officer observed: (1) Morsette manipulating the cell phone screen approximately ten times with in 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 t exting. 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 defe ndant 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 Corralesinitially observed the defendant actuallytexting. Id . The officer here did not testify to previously encountering Morsett e and observing him actually texting; his first encounter with Morsette in this cas e was on the road. The facts here are not analogous. [¶13] When confronted with matte rs of first im pressi on involvingNorth Dakota statutes, this Court may glean insight from other states’ and o ur own past interpretations concerning similar statutes.

6A [¶14] Like the cell phone statute, a stop based on a perceived v iolation of a tintedwindow 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 tintin g in conjunction with the windshield upon which it is displayed, aff ixed, 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 sec tion 39- 21-38. N.D.C.C. § 39-21-39(4) (emphasis added). We have upheld an off icer’s finding of reasonable suspicion to stop a vehicle where, on the basis of h is training and experience, the officer observed a vehicle which he perceived h ad 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 reaso nable 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 we re so darkly tinted as to obstruct vision” pointed to a reasonable likelihood of unlaw ful 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 approximatelytwo seconds, tapping the illuminated screen about ten times, and (3) he coul d not see the content of the screen at the time of the tapping. No testimony was eli cited about Morsette’s past success rate at identifying violations of the cell phone-u se-while-driving law or any unique training he received enabling him to conclude the fa cts he observed amounted to violations of the law. Although he testified to ob serving 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 v iolation. The officer here was unable to articulate why his suspicion was reasonable.

B [¶17] The State argues whether or not a traffic violation actual ly 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 o fficer 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 justif y 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

8stop only when objectively reasona ble 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 i n the backseat.”
Heien , at 534. [¶18] At the hearing on the motion to suppress, the officer test ified 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 vio lated 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 n ot 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 law fully 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 w ould otherwise allow officers to stop all drivers)). We conclude there was no mist ake of fact.

IV [¶19] We reverse the judgment and remand to allow Morsette to wi thdraw 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 wi reless communications device, here, a cell phone, for a valid purpose does not negate the reasonable suspicion that the person is using the cell phone fo r a prohibited purpose, I respectfully dissent. Indeed, when one examines the provisio ns 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 o n 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 th an 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 observ ing at a distance a person using a cell phone is able to determine the specific useof the device. As a practical matter, I understand that the result is that either e very 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 fo r an unlawful purpose. The statute was likely drafted with little thought of how offen ders are to be apprehended in the first instance. It seems to me that the maj ority opinion substantially reduces, if not eliminates, the effective enforce ment of the statute. [¶23] I would affirm the district court. [¶24] Gerald W. VandeWalle, C.J.

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