by Doug Ankney

The Supreme Court of Maryland held that police officers lacked reasonable suspicion to conduct a traffic stop based solely on their observation of a driver manipulating, touching, or pressing the screen of a mobile phone while operating a vehicle. The Court explained that because Maryland’s transportation statutes expressly permit numerous lawful uses of mobile phones while driving – including GPS navigation, contacting emergency services, and initiating or terminating calls – such generalized observations are consistent with innocent conduct engaged in by a substantial portion of law-abiding drivers. The Court ruled that where observed conduct is consistent with both legal and illegal phone use, an officer seeking to justify an investigatory stop “must be able to credibly identify specific facts, not applicable to a substantial portion of the general law-abiding public,” which, together with rational inferences, “reasonably establish that a violation” of the governing statutes “has occurred or may be occurring.”

Background

On May 5, 2023, at approximately 9:18 p.m., Officers Scott Huff and Travis Wheat of the Hagerstown Police Department observed a black Mercedes Benz traveling near North Potomac Street and Broadway in Hagerstown. The officers followed the vehicle and subsequently activated their emergency equipment to conduct a traffic stop. Michael Eugene Stone was identified as the driver.

At a suppression hearing, Huff testified that, while following the vehicle, he “observed the operator begin to manipulate the cellphone that was mounted to the dash or windshield, and it appeared like he was typing a message or placing a phone call.” When the prosecutor asked Huff to describe specifically what he observed, he responded: “I saw him with his right hand manipulate the phone, touching it while he was driving down the roadway.” Notably, upon this second inquiry, Huff did not reiterate that the conduct appeared like typing a message or placing a call. Wheat provided corroborating testimony, stating that he observed the driver with “a cellphone that was stuck to the windshield of the vehicle” and that he “saw him pressing the screen while he was driving.” Wheat testified that the reason for the traffic stop “was for using the mobile device while the vehicle was in motion.”

Following the stop, officers detected the odor of marijuana, searched the vehicle, discovered suspected controlled substances, and ultimately recovered fentanyl that was in Stone’s possession. He was charged with possession of fentanyl with intent to distribute and related offenses. He was not charged with any violation of the statutes governing mobile phone use while driving.

Stone moved to suppress all evidence recovered from the stop, arguing that officers lacked reasonable suspicion to initiate the traffic stop. The Circuit Court denied the motion, reasoning that observing “a person manipulating the phone is enough reasonable articulable suspicion because they, in this day and age they could easily be texting.” The Circuit Court further observed that even if the driver had been placing a telephone call, “making a telephone call looked exactly like texting.” Stone was convicted by a jury and sentenced to 10 years of imprisonment with all but six years suspended.

The Appellate Court of Maryland reversed, concluding that the officers had observed innocuous behavior that, absent additional observations, was not indicative of criminal activity. The State petitioned for a writ of certiorari, which the Supreme Court of Maryland granted.

Analysis

The Court began by examining Maryland’s distracted-driving statutes. Section 21-1124.1 prohibits writing, sending, or reading a text message while operating a motor vehicle, but it permits certain limited uses, such as contacting emergency services and using or entering information for a GPS or navigation service. Section 21-1124.2 restricts a driver’s use of hands to operate a handheld telephone while driving, while allowing limited actions such as initiating or terminating a call and turning the phone on or off. The Court noted that, taken together, the statutory scheme permits numerous common and lawful phone-related activities while a vehicle is in motion.

Fourth Amendment Principles Governing Reasonable Suspicion

The Court observed that construing these statutes in the context of reasonable suspicion presented a question of first impression. It based its analysis on established Fourth Amendment jurisprudence, beginning with the foundational principle from Terry v. Ohio, 392 U.S. 1 (1968), that an officer seeking to justify an investigatory stop “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” The Court stated that Terry’s “demand for specificity in the information upon which police action is predicated is the central teaching” of Fourth Amendment jurisprudence.

The Court reaffirmed holdings from Ferris v. State, 735 A.2d 491 (Md. 1999), and Cartnail v. State, 753 A.2d 519 (Md. 2000), both of which adopted reasoning from Karnes v. Skrutski, 62 F.3d 485 (3d Cir. 1995). Under this framework, “it is not enough that law enforcement officials can state reasons why they stopped a driver”; instead, the articulated facts “together must serve to eliminate a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied.” Karnes. The Court explained that although factors consistent with innocent conduct may collectively support reasonable suspicion, they must be “out of the ordinary” rather than “too common place to be probative in tending to show criminal activity.” Ferris; Cartnail.

Application to Observations of Cellphone Manipulation

Applying these principles, the Court held that an officer’s observation of a driver manipulating, touching, or pressing a cellphone screen “does not, alone, provide reasonable suspicion” of a statutory violation. Because the transportation statutes expressly permit GPS use, contacting emergency services, initiating or terminating calls, and turning phones on or off, such observations “uncover[] innocuous behavior that cannot, without additional observations, rise to the level of reasonable suspicion to justify an investigatory stop,” the Court reasoned.

The Court rejected the Circuit Court’s reasoning that phone manipulation justified a stop because drivers “could easily be texting” and because calling and texting look identical. Under this rationale, the Court observed, any driver lawfully placing a call or using GPS could be subjected to a traffic stop, a result that would “subject much of the State’s driving population ‘to virtually random seizures.’”

The Court was particularly critical of Huff’s testimony that the driver’s conduct “appeared like he was typing a message or placing a phone call.” The Court explained that this formulation acknowledged that the observed conduct could have been “completely innocent behavior (placing a phone call) or innocuous conduct indicative of lawful or unlawful activity (typing a message).” When an officer testifies in the alternative that conduct appeared to be either entirely lawful or potentially unlawful without explaining why the latter interpretation was reasonable, the reasonable suspicion standard is not satisfied, according to the Court.

The Court also found Wheat’s testimony insufficient. His stated reason for the stop was that the driver was “using the mobile device while the vehicle was in motion” demonstrated that the officers stopped Stone for conduct that does not itself constitute a violation. Given the numerous permitted uses of mobile phones under Maryland law, testifying that someone was using a phone while driving “provides neither a fact-specific nor objectively reasonable basis for the stop,” the Court explained.

Case Law from Other Jurisdictions

The Court surveyed decisions from other jurisdictions addressing similar issues. In State v. Morsette, 924 N.W.2d 434 (N.D. 2019), the Supreme Court of North Dakota found no reasonable suspicion where an officer observed a driver tapping a phone screen approximately 10 times over two seconds, because the officer “was unable to articulate why his suspicion was reasonable.” Similarly, in United States v. Paniagua-Garcia, 813 F.3d 1013 (7th Cir. 2016), the Seventh Circuit held that under Indiana’s texting law, which prohibited texting but permitted other phone uses, the Government failed to establish reasonable suspicion where 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.”

In contrast, in State v. Struve, 956 N.W.2d 90 (Iowa 2021), the Supreme Court of Iowa upheld a stop where officers observed a driver holding a phone in front of his face and actively manipulating the screen for at least 10 seconds, with video evidence confirming continuous manipulation. The Court distinguished Struve based on both the broader statutory prohibitions under Iowa law that prohibited “viewing” electronic messages, including images visible on the screen, and the significantly more detailed factual observations officers provided in that case.

Distinguishing In re D.D.

The State relied heavily on In re D.D., 277 A.3d 949 (Md. 2022), which held that the odor of marijuana provides reasonable suspicion for an investigatory detention even though possession of less than 10 grams was decriminalized. The Court rejected this analogy. It explained that the odor of marijuana remained “evidence of a crime” because possession of 10 grams or more was still criminal, and the odor constituted a “concrete observation” supporting suspicion. The premise that officers may generally conduct stops whenever they observe conduct equally consistent with lawful or unlawful activity “was not discussed or even mentioned in D.D.”

The Court further observed that the General Assembly effectively superseded D.D. by enacting Md. Code Ann., Crim. Proc. § 1-211, which prohibits stops or searches based solely on the odor of cannabis. The Court explained that this legislative response undermined any suggestion that D.D. endorsed broad authority to stop individuals whenever observed conduct might indicate either lawful or unlawful activity.

Privacy Concerns and Practical Consequences

The Court acknowledged the governmental interest in preventing distracted driving but cautioned that permitting stops based on generalized observations of phone use would create significant intrusion concerns. An investigatory stop to determine whether a driver violated the texting statutes might involve questioning and potentially seeking consent to inspect the driver’s phone. The Court observed that cellphones contain “a digital record of nearly every aspect of” people’s lives. Riley v. California, 573 U.S. 373 (2014). Permitting stops to resolve ambiguity about lawful phone use “would potentially allow officers the opportunity to seek access to private information contained in the cell phones of people who have engaged in no suspicious, let alone illegal, conduct at all,” the Court stated.

The Court declined to prescribe particular circumstances required for reasonable suspicion of a texting violation, noting that the concept is inherently “fluid.” See Ornelas v. United States, 517 U.S. 690 (1996). However, it observed that the officers here failed to provide basic information such as how long they observed the phone manipulation, whether the driver appeared to be looking at the phone, or why the conduct appeared consistent with texting rather than lawful uses. Thus, the Court held that the stop of Stone’s vehicle was not justified by reasonable suspicion, and the Circuit Court erred in denying the motion to suppress.

Conclusion

Accordingly, the Court affirmed the judgment of the Appellate Court of Maryland. See: State v. Stone, 2026 Md. LEXIS 10 (2026).  

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