Court Shuts Down Trooper's Attempt To Portray New-ish Minivans With Imperfect Drivers As Justification For A Traffic Stop

from the all's-fair-in-love-and-pretext dept

Anything you do can be suspicious. Just ask our guardians of public safety. People interacting with law enforcement can't be too nervous. Or too calm. Or stare straight ahead. Or directly at officers. When traveling, travelers need to ensure they're not the first person off the plane. Or the last. Or in the middle. When driving, people can't drive too carefully. Or too carelessly. Traveling on interstate highways is right out, considering those are used by drug traffickers. Traveling along back roads probably just looks like avoiding more heavily-patrolled interstates, thus suspicious.

Having too much trash in your car might get you labelled a drug trafficker -- someone making a long haul between supply and destination cities. Conversely, a car that's too clean looks like a "trap" car -- a vehicle carefully kept in top condition to avoid raising law enforcement's suspicion. Too clean is just as suspicious as too dirty. Air fresheners, a common fixture in vehicles, are also suspicious. Having too many of them is taken as an attempt to cover the odor of drugs. There's no specific number that triggers suspicion. It's all left up to the officer on the scene.

So, avoiding rousing suspicion is impossible. Fortunately, courts can push back against law enforcement assertions about suspicious behavior. Some have pushed back more forcibly than others. Thanks to another court pushback, we have two new items to add to the list of suspicious indicators. From the Texas Appeals Court decision [PDF]:

At the motion to suppress hearing, the Trooper who pulled Cortez over testified that he began following Cortez’s minivan down Interstate 40 because it had “a newer registration” on it, and because it was “[a] minivan, clean, with the two occupants in it:” Q. So you’re telling the Court that because you see a van, it’s clean and it’s got two people in it, that was [sic] indicators of potential criminal activity for you? A. Yes, sir, they are. . . .

Beware, soccer moms and shuttle drivers: newer minivans with more than one person in them are indicative of drug trafficking. In this case, the stop resulted in the discovery of drugs in a spare tire. But the court won't allow the government to keep its illegally-obtained evidence. According to the court, no traffic violation occurred to justify the stop and the mere existence of a newer minivan with two people in it does not even come close to "reasonable" suspicion.

There's a long discussion about the supposed moving violation that instigated the stop. It's worth reading as well. The government's assertions about state laws and driving on the shoulder would make it impossible for any driver to avoid being stopped by law enforcement. The officer testified he saw the vehicle's tire hit the fog line twice, supposedly in violation of state law. But the court points out two things: first, the law allows vehicles to drive on improved shoulders under certain circumstances, including the circumstances surrounding this stop. It repeats the trial court's findings.

As [the Trooper’s] vehicle approached and pulled into the left hand lane, defendant’s vehicle moved toward the improved shoulder. A short time later, Defendant’s vehicle moved toward the improved shoulder a second time as the Defendant’s vehicle exited the Interstate to the right at a marked exit ramp. The State produced no evidence that [the Trooper] observed, or believed he had observed, any portion of the Defendant’s vehicle pass outside the outermost edge of the fog line. The improved shoulder of a state roadway begins at the point of the fog line which is furthest from the center of the roadway. The defendant’s vehicle did not cross outside the outermost edge of the fog line onto the improved shoulder of the roadway. Crossing over the portion of the fog line nearest the center of the roadway or upon the fog line is not a violation of Texas traffic law; therefore the vehicle was not operated on the improved shoulder of the roadway on either occasion made the basis for [the Trooper’s] traffic stop.

The state's evidence included the officer's dashcam, which didn't show what he claimed it did. The officer expended a lot of words trying to make a mere momentary touch of the white fog line into "driving on an improved shoulder," but the court doesn't buy it. And there's no way it could, thanks to the officer's testimony, which included this apparent physical impossibility.

Q. So, Trooper, tell the Court exactly where my client was at the time you say you witnessed the first violation? A. The first violation was just – just as I’m paralleling him, I’m off his left quarter. Actually, I usually run the license plate at that point. I’m sitting there and you see him fade to the right-hand side, crossing the white line. But, we conclude that, from the vantage point of driving in the left lane, next to a vehicle in the right lane, it cannot be seen, and there is no way to know, that the vehicle in the right lane is touching the fog line on that vehicle’s right. Thus, the dashcam video dispels the Trooper’s testimony that Cortez crossed the fog line.

Even if the trooper's testimony hadn't veered detailing his super-heroic ability to see through opaque body panels, the court still would have found a couple of momentary tire rubs on the fog line would not have constituted a violation of the law. As the court points out, there are times when it's legal to drive on the shoulder and the vehicle stopped by the trooper satisfied two of those exceptions to the "don't drive on the shoulder" law.

Regarding the first “offense” observed by the Trooper, as the trial court found, because section 545.058(a)(5) allows a driver to drive on an improved shoulder to “allow another vehicle traveling faster to pass,” and since it appeared that the Trooper was intending to pass Cortez’s vehicle on the left, Cortez was statutorily permitted to drive on the improved shoulder during that very brief period of time. Regarding the second “offense” observed by the Trooper, the dash cam video shows Cortez driving steadily in the right hand lane on the highway, turning on his right turn signal to exit the highway. By the time that there was any type of contact between Cortez’s right tires and the white fog line, Cortez was at the end of the exit ramp, almost to the access road, and he was still signaling a right turn. Because section 545.058(a)(3) allows a driver to drive on an improved shoulder “to decelerate before making a right turn,” and since it was clear that Cortez was intending to exit the highway and turn right, Cortez was statutorily permitted to drive on the improved shoulder for that brief period of time.

Even if this wasn't the case, the court does not expect drivers to maintain perfect driving lines on roads -- no more than it expects officers to know every nuance of every law they're tasked with enforcing. Never touching a fog line is an impossibility. To do so is human, not a violation of the law.

As the court of appeals pointed out, “[d]riving is an exercise in controlled weaving. It is difficult enough to keep a straight path on the many dips, rises, and other undulations built into our roadways.” Even a driver who is sober, alert, and careful may occasionally drift within their lane only because the roadway surface is not perfectly smooth. Moreover, drivers are not able to see if their tires are touching the fog line. They are likely to veer over at some point and touch the fog line alongside the roadway without being aware they have done so.

So ends this trooper's unconstitutional attempt to turn a non-violation into a drug bust. And the court prevents minivan+1 from entering the "suspicious behavior" lexicon. Imperfect driving is nothing more than that, not a tacit admission of drug trafficking.

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Filed Under: drug ctrafficking, law enforcement, new car, probable cause, texas