State v. Cortez

• Decision Date: 24 January 2018
• Docket Number: NO. PD-0228-17,PD-0228-17
• Citation: 543 S.W.3d 198
• Parties: The STATE of Texas v. Jose Luis CORTEZ, Appellee
• Court: Texas Court of Criminal Appeals

543 S.W.3d 198

The STATE of Texas

v.Jose Luis CORTEZ, Appellee

NO. PD-0228-17

Court of Criminal Appeals of Texas.

DELIVERED: January 24, 2018

Rehearing Denied March 21, 2018

Q. Todd Hatter, Hatter Law Firm, PLLC, Amarillo, TX, for appellee.

John R. Messinger, Assistant State Prosecuting Attorney, Stacey Soule, Austin, TX, for The State.

OPINION

Richardson, J., delivered the opinion of the Court in which Hervey, Alcala, Newell, Keel, and Walker, JJ., joined.

Appellee, Jose Luis Cortez, was stopped by a State Trooper for unlawfully driving on the improved shoulder of the highway¹ because the tires on Cortez’s minivan purportedly touched the white painted "fog line" separating the roadway from the shoulder. Upon searching Cortez’s vehicle, the Trooper found drugs and arrested Cortez.² Finding that the Trooper did not have a lawful basis for the traffic stop, the trial court granted Cortez’s motion to suppress. The court of appeals upheld the trial court’s suppression order. We agree that the Trooper did not have a reasonable basis to stop Cortez’s vehicle. We affirm the judgment of the court of appeals.

OVERVIEW

After a hearing on the motion to suppress, the trial court issued detailed findings, concluding that, (1) it was not clear from the Trooper’s dashcam video whether Cortez’s vehicle even touched the fog line; (2) even if Cortez’s vehicle touched the fog line, there was no proof that he crossed over the fog line and drove on the improved shoulder; and (3) even if Cortez drove on the improved shoulder, he was statutorily entitled to do so.

The court of appeals upheld the trial court’s suppression order, concluding that driving on an improved shoulder requires more than the mere touching of the fog line.³ The State urged in its petition for discretionary review that touching the fog line does equate to driving on the improved shoulder and argued that the court of appeals erred to hold otherwise.

Although we generally limit our review to " ‘decisions’ of the court of appeals," this is one of the "exceptional case[s]" where, in the name of judicial economy, we are able to, and will, dispose of the case.⁴

There is no need to send this case back to the court of appeals to look at it a third time.⁵ The trial court thoroughly covered in its written Findings of Fact and Conclusions of Law the factual and legal issues related to the stop. The State challenged the trial court’s entire decision on appeal, briefed all of the issues before the court of appeals, and the court of appeals has twice upheld the trial court’s suppression order.⁶ We have kicked the can down the road long enough. It is time that we dispose of the core issue here, which is whether, under the totality of these circumstances, the Trooper had an objectively reasonable basis to stop Cortez’s vehicle. We hold that he did not. The record supports the conclusions reached by the trial court. We affirm the judgment of the court of appeals.

THE MOTION TO SUPPRESS

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....

The Trooper testified that he ultimately stopped the minivan because it had twice driven on an improved shoulder in violation of Texas Transportation Code, section 545.058(a). According to the Trooper, "on two different occasions" he observed Cortez’s vehicle drive on the improved shoulder—when Cortez "drifted across" the line when the Trooper was driving next to Cortez in the left lane, and when Cortez "came across the white stripe" when exiting the highway.

At the suppression hearing, the State produced a video of the stop. It was played for the trial court, and in response to several questions on cross examination, the Trooper pointed out on the video that Cortez crossed the white line: "[Y]ou see him fade to the right-hand side, crossing the white line;" "Casting a shadow, it completely crossed the white line here;" "The tire crossed the line;" "It is my testimony that he crossed the white line on two different occasions;" "The white line (indicating) the break in the white line—this is the fog line. The vehicle crosses on two different occasions. Once, being here; the second, being at the exit."

On cross-examination, however, it became evident that the Trooper believed that merely touching the fog line constituted driving on the shoulder:

Q. Can you walk up to the board and show the court what you claim to be a violation.

A. With my—with the naked eye, the camera doesn't show it as greatly, but right here, he’s on the—he’s on the white fog line right there.

* * *

Q. So you're saying that he’s on the shoulder—driving on the improved shoulder right now?

A. He’s on the fog line right now, yes, sir.

* * *

A. The lane ends at the inside of that fog line.

Q. I'm sorry?

A. The lane—excuse me—the driving lane ends at that fog line.

Q. Where do you find that definition? If you're telling the court that is the law, where do you find that definition that the driving lane ends at the inside edge of a fog line?

A. It ends at the fog line.

Q. Where does the shoulder begin?

A. At the fog line.

Q. Which side of the fog line?

A. I say inside; you say outside.

Q. Do you have any law to support your stop, Officer?

A. Yes, sir, I do.

Q. Okay. What is that law that you're referring to? ... What law says where the shoulder begins?

A. There’s not a law—I don't know, to my knowledge, if there’s a law that states where the exact lane ends.

Q. Okay. So you're not aware of a definition that says this is what an improved shoulder is. Correct?

A. The improved shoulder is the edge of the roadway.

Q. The part that’s on the other side of the line. Right?

A. Not in my interpretation.

In granting Cortez’s motion to suppress, the trial court made the following findings and concluded that driving on the fog line does not constitute crossing over the fog line and into the shoulder:

• 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.

In affirming the trial court’s suppression order, the court of appeals agreed that simply touching the fog line does not constitute driving on the shoulder.⁷

ANALYSIS

At the heart of Cortez’s motion to suppress is the Fourth Amendment. The "touchstone of the Fourth Amendment is reasonableness."⁸ The issue resolved by the trial court and presented by the State on direct appeal is the issue that we are addressing today—whether the Trooper’s stop was objectively reasonable.⁹ "A trial court’s ruling on a motion to suppress is reviewed on appeal for abuse of discretion."¹⁰ We can sustain the trial court’s decision if we conclude that the decision is correct under any applicable theory of law.¹¹ A trial court’s ruling should be reversed only if it is arbitrary, unreasonable, or "outside the zone of reasonable disagreement."¹² We use a bifurcated standard of review to evaluate whether the totality of circumstances is sufficient to support an officer’s reasonable suspicion of criminal activity. First, we "give ‘almost total deference to the trial court’s determination of the historical facts that the record supports,’ and second, we review de novo the trial court’s application of the law to facts, which do not turn on credibility and demeanor."¹³ Moreover, "we review de novo whether the totality of circumstances is sufficient to support an officer’s reasonable suspicion of criminal activity."¹⁴

Each case involving an officer’s stop must be evaluated objectively, under the totality of the circumstances, to determine whether the officer acted reasonably. "An officer may make a warrantless traffic stop if the ‘reasonable suspicion’ standard is satisfied."¹⁵ "Reasonable suspicion exists if the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaged in criminal activity."¹⁶ We review a reasonable suspicion determination by considering the totality of the circumstances.¹⁷ When a police officer stops a defendant without a warrant, the State has the burden of proving the reasonableness of the stop at a suppression hearing.¹⁸ Because Cortez was arrested without a warrant, the State had the burden to prove that the initial detention was legal.¹⁹

A. It is not clear that Cortez’s vehicle even touched the fog line.

Texas Transportation Code, section 545.058(a) provides that,

(a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only:

(1) to stop, stand, or park;

(2) to accelerate before entering the main traveled lane of traffic;

(3) to decelerate before making a right turn;

(4) to pass another vehicle that is

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