One of the pressing questions in search and seizure law is what excuses won’t suffice for a cop to justify a search on the road. The Seventh District Court of Appeals in Amarillo, on remand from the Court of Criminal Appeals, faced a tough one.
At the suppression hearing, the trooper was asked: “So you’re telling the Court that because you see a van, it’s clean and it’s got two people in it, that [sic] was indicators of potential criminal activity for you?” The trooper answered: “Yes, sir, they are. They – in and of themselves are nothing, but in the total – when you start adding them all together, they can be.” When two people in a clean car indicate criminal activity, then the words of John Lennon have come to fruition: “Strange days indeed – most peculiar, mama.”
So they affirmed the trial court’s suppression? Well yes, they did, but not because of this. The basis for the stop was that the tire of Jose Luis Cortez’s minivan touched the fog line. Twice. Or more to the Whren point, Cortez had “twice driven on an improved shoulder in violation of Texas Transportation Code, section 545.058(a).”
In its second shot at the case, the Texas Court of Criminal Appeals affirmed the Amarillo court’s ruling. Like the court below, they discussed at length whether tires touching the fog line was sufficient to justify a stop.
Based on the totality of the circumstances in this case, we conclude that the court of appeals did not err in holding that, if Cortez’s tires touched the fog line at all, which is debatable, his momentary touch of the fog line, without any other indicator of criminal activity, was not enough to justify the stop of Cortez’s minivan for driving on an improved shoulder.
Remarkably, nobody was at all concerned that some guy named Cortez was targeted for driving a clean minivan, followed for no better reason, and finally stopped because his tire may have, though nobody seems to have been able to see it, touched a fog line.
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.
And thereupon the majority drops a footnote addressing the dissents. Yes, plural, because the question of whether touching a fog line is sufficient to justify a stop is not merely a big enough issue to suck up the time of the Texas Court of Appeals, but to evoke dispute and compel some judges, like “Killer” Keller, to write.
The dissents note that we should not address the issue of whether Cortez was authorized under the statutory language to drive on the improved shoulder, for the reason that the court of appeals did not address it. While the court of appeals may not have resolved that issue, the issue has by no means gone unaddressed by either the parties or the court of appeals.
The judges not only dissented, but sought to have the case remanded again for the appellate court to decide whether Cortez, if his tire touched the fog line, was authorized under the statute to do so. To their credit, the majority of the Court of Criminal Appeals held that a third round of appeals was unnecessary, noting that in response to its prior remand, the Seventh District Court of Appeals addressed its Heien question.
The first time that the State petitioned this Court to review the Seventh Court of Appeals’s
unanimous decision affirming the trial court’s order granting Cortez’s motion to suppress, this Court vacated the decision of the court of appeals and remanded the case for reconsideration under Heien v. North Carolina, 135 S. Ct. 530 (2014) (holding that an officer’s mistake of law was reasonable if the statute contained at least some ambiguity and the issue has not been resolved by a State’s appellate court).
And despite the thousands of words murdered by the Court of Criminal Appeals, not one dealt with the absurd claim that the cop’s suspicion of criminality was piqued because Cortez’s minivan was clean. Most peculiar, judges.