Galindo v. State, CR-04-0614.
| Decision Date | 30 September 2005 |
| Docket Number | CR-04-0614. |
| Citation | 949 So.2d 951 |
| Court | Alabama Court of Criminal Appeals |
| Parties | Virginia GALINDO v. STATE of Alabama. |
Appeal from Tuscaloosa Circuit Court (CC-04-474); William S. Donaldson, Judge.
R. Hays Webb, Tuscaloosa, for appellant.
Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
AFFIRMED BY UNPUBLISHED MEMORANDUM.
Drug trafficking is a serious menace to this State and to this nation and, in my opinion, law-enforcement agencies must use every available means at their disposal toward its elimination, provided that those means do not run afoul of the protections afforded by the United States Constitution. In a similar vein, I think that it goes without saying that appellate courts should refrain from making decisions that unnecessarily impinge upon the ability of law enforcement to protect the people of Alabama from those who would violate this State's criminal laws and thereby endanger lives and property. However, these personal observations notwithstanding, I must respectfully disagree with the majority's handling and resolution by an unpublished memorandum of the important Fourth Amendment issue squarely presented in this case, a case that appears to be one of first impression in this State: Whether a single 6- to 12-inch deviation from a driver's course across the "fog line" and onto the shoulder of an interstate highway, under circumstances that do not appear to pose a safety risk to the driver or other motorists, provides the necessary reasonable basis for the police to stop the driver on suspicion that a lane-change violation has occurred under § 32-5A-88, Ala. Code 1975. After carefully reviewing the record, and after reading the entire testimony of the only witness appearing at the suppression hearing, Deputy Sergeant Tom Hammonds, I cannot agree with the majority that the stopping of Virginia Galindo's truck was objectively based on probable cause or reasonable suspicion.
As a threshold matter, I note that Sgt. Hammonds conceded at the suppression hearing that although his attention was first drawn to Galindo's pickup truck because the tailgate, which was down, obstructed his view of the license plate, he later testified that after following Galindo for a period of time he realized that the license plate was properly visible from the rear:
(R. 33-35.)
Therefore, it is clear from the record that there is no objective basis for concluding that an obstructed view of the license plate could have provided probable cause or reasonable suspicion for stopping Galindo's truck.
The record indicates that Sgt. Hammonds initiated his stop based solely on Galindo's single 6- to 12-inch deviation from the lane onto the shoulder of the highway.1 Sgt. Hammonds testified that Galindo promptly corrected the deviation and that he observed no other action on Galindo's part that could be characterized as erratic or unsafe driving. Likewise, Sgt. Hammonds did not testify to the weather conditions at the time of the stop. When specifically asked whether another motorist was placed in danger by Galindo's movement, Sgt. Hammonds answered in the negative:
(R. 49-50.)
There would be no question in this case that Sgt. Hammonds had probable cause or reasonable suspicion to believe that Galindo had committed a traffic violation when she crossed the line if the statute in question required a vehicle to be driven entirely within a single lane at all times. However, § 32-5A-88 provides, in pertinent part:
(Emphasis added.) Under this statute, a driver is required to remain exclusively within a single lane only "as nearly as practicable" under the circumstances. The express language of this statute constitutes recognition by the legislature that it is not practicable, perhaps not even possible, for a motorist to maintain a single lane at all times and under all circumstances and that the crucial legislative concern is safety rather than precision driving. The statute signals a clear legislative intent to avoid penalizing momentary and minor deviations outside the marked lines of a roadway — minor deviations that pose no safety risk to the occupants of the vehicle or to other motorists or pedestrians. The statute specifically provides that even when a brief deviation from a lane occurs, no traffic violation results unless the driver fails to ascertain that his or her movements could be made with safety.
The record here reflects no objective evidence indicating that Galindo was not driving "as nearly as practicable" within her lane or that she failed to ascertain that her movements could be safely made or that her brief deviation across the fog line endangered anyone. Stated another way, the record indicates that the specific and articulable facts that were before Sgt. Hammonds at the time of the stop — that Galindo's vehicle had drifted across the line one time under circumstances that did not endanger anyone — were simply not sufficient to allow a police officer in Sgt. Hammonds's position to reasonably infer that § 32-5A-88 had been violated. Sgt. Hammonds's subjective belief, as reflected in his testimony, that Galindo might at some point in the future drive her truck so as to endanger an occupant of the truck or a motorist or pedestrian that she might encounter somewhere down the road is simply not sufficient to satisfy the objective standard by which courts determine whether probable cause or reasonable suspicion exists.2 I also note that the record does not indicate, and the State does not argue, that there was an objective basis for Sgt. Hammonds to conclude that Galindo was driving while intoxicated or while she was otherwise impaired.
Research provided by Galindo's counsel on appeal, along with my independent research, indicates that there is extensive caselaw from numerous jurisdictions addressing the issue presented here. It appears that courts reach different conclusions as to whether probable cause or reasonable suspicion exists, depending on the circumstances presented. One circumstance discussed in some of the cases concerns the weather conditions at the time of the stop that might impact the handling or maneuverability of a vehicle on a certain roadway. Many courts have held that a driver's slightly crossing over the fog line one time for a moment does not, standing alone, justify a traffic stop, and many of those cases involved lane-change statutes similar or identical to Alabama's statute. See, e.g., State v. Abeln, 136 S.W.3d 803 (Mo.Ct.App.2004); Rowe v. State, 363 Md. 424, 769 A.2d 879, 883-89 (2001); Crooks v. State, 710 So.2d 1041, 1042-43 (Fla.Dist.Ct.App.1998); State v. Lafferty, 291 Mont. 157, 967 P.2d 363, 365-66 (1998); Brown v. State, 188 Ga.App. 184, 372 S.E.2d...
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