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February 29, 2012

Is Texting Evidence of Criminal Conduct?

Busy_texting400Is texting evidence of criminal behavior? That was the issue before a federal judge in U.S. v. Dukins, Dist. Court, ED Tennessee 2012.

In Dukins, the defendants faced counterfeiting charges. One of the issues was a stop and frisk of the defendants by the police. The officer noted, among other factors, that "it was significant that the men appeared to be texting because, in her experience, scammers are often texting someone inside or outside the store who is acting as a lookout during the scam."

To review, police may make a brief, investigatory stop (a Terry stop) if the police have specific, articulable facts that gave rise to a "reasonable suspicion" that the suspect was engaged in criminal activity. Reasonable suspicion is determined in light of the "totality of the circumstances."

The defendants, among other objections, argued that the police could not rely on observations of texting as a basis for finding of reasonable suspicion. The defendants argued that "the mere fact one of the suspects was texting is no longer probative of criminal activity (if it ever was), given how widespread the behavior is."

The court rejected this argument, noting only that "the Court finds plausible Defendant's argument that texting should not be considered inherently suspicious." In the view of the court, "even if an innocent or innocuous explanation is plausible for individual facts," the facts, taken as a whole, may still give rise to reasonable suspicion. The court said that the investigative stop was permissible based on a number of factors, including the use of "cell phones to send text messages in a suspicious manner."

What this means: be careful how you text, as the police might deem texting to be suspicious behavior justifying a stop. Really.

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