     Case: 13-50745   Document: 00512994045    Page: 1   Date Filed: 04/06/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                No. 13-50745                         April 6, 2015
                                                                   Lyle W. Cayce
                                                                        Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee

v.

MARCO ANTONIO ALVARADO-ZARZA, also known as Marco Antonio
Alvarado Zarza,

                                          Defendant-Appellant


                Appeals from the United States District Court
                      for the Western District of Texas


Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Marco Antonio Alvarado-Zarza appeals the district court’s denial of his
motion to suppress the evidence of cocaine found during a stop for a traffic
violation premised on his failure to signal properly before turning.                We
REVERSE the judgment of conviction and REMAND for further proceedings.


                FACTS AND PROCEDURAL BACKGROUND
      In February 2011, Texas Highway Patrol Officer Juan Barrientos
stopped Alvarado-Zarza near the U.S.-Mexico border for purportedly violating
a Texas law requiring drivers to signal 100 feet in advance of a turn. See TEX.
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TRANSP. CODE ANN. § 545.104(b).         Officer Barrientos briefly questioned
Alvarado-Zarza and then obtained consent to search his vehicle.              After
discovering cocaine, Officer Barrientos placed Alvarado-Zarza under arrest.
Before receiving warnings about his constitutional rights, Alvarado-Zarza
directed Officer Barrientos to additional cocaine in his vehicle.
      Alvarado-Zarza was charged with possession with intent to distribute
cocaine. He moved to suppress the evidence of the cocaine, arguing that the
traffic stop was illegal and that all evidence obtained was inadmissible. At a
suppression hearing, while a dash-camera video played, Officer Barrientos
explained the events of the stop. He believed that Alvarado-Zarza violated
Texas law by failing to signal 100 feet before turning. He also claimed that the
“turn” occurred when Alvarado-Zarza moved into the left-turn lane from a
through-lane, not when he actually turned left.
      Alvarado-Zarza argued that the 100-foot requirement did not apply to
lane changes. He called James McKay, a private investigator and former
policeman, as an expert witness.       Using the dash-camera video, McKay
determined that Alvarado-Zarza was adjacent to a crosswalk sign when he
activated his turn signal.    McKay went to the scene and measured the
distances from that sign to the point where Alvarado-Zarza moved into the left-
turn lane and then to the point where he turned left. He testified that those
distances were approximately 200 and 300 feet, respectively. Based on this
testimony, Alvarado-Zarza argued that Officer Barrientos could not reasonably
have suspected that he failed to meet the 100-foot requirement, even if the
requirement was construed to apply to lane changes.
      The district court denied the motion. It noted that Alvarado-Zarza had
changed lanes only to effectuate a turn. It concluded, therefore, that the lane
change and subsequent turn constituted “one prolonged turn.” It also found

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that Alvarado-Zarza’s expert witness lacked credibility because he could not
answer certain questions relating to “physical observations such as the rate of
speed of both vehicles and what distorting effect, if any, would the video
recording have, i.e. depth perception . . . .” Finally, the court found that even
if Alvarado-Zarza signaled more than 100 feet before turning, Officer
Barrientos reasonably suspected that he had not done so.
       Following the denial of his motion to suppress, Alvarado-Zarza entered
a conditional guilty plea in which he reserved the right to appeal the district
court’s determination regarding the legality of his traffic stop. 1


                                       DISCUSSION
       “In evaluating a district court’s denial of a defendant’s motion to
suppress, we review factual findings, including credibility determinations, for
clear error, and we review legal conclusions de novo.” United States v. Gomez,
623 F.3d 265, 268 (5th Cir. 2010) (citation omitted). We view “the evidence in
the light most favorable to the Government as the prevailing party.” Id. at 269
(citation omitted).
       Evidence derived from an unreasonable search or seizure generally must
be suppressed under the fruit-of-the-poisonous-tree doctrine. 2                  See United


       1  The government argues that Alvarado-Zarza only preserved review of the “basis” for
the traffic stop. While it is true that the plea agreement reserved Alvarado-Zarza’s right to
appeal “the sufficiency of [the] basis [of the] stop,” the next paragraph more broadly preserved
issues “relative to the district court’s ruling on Defendant’s Motion to Suppress.” Because we
must interpret appeal waivers narrowly against the government, the broader reading
controls. See United States v. Cooley, 590 F.3d 293, 296 (5th Cir. 2009).
        2 One exception is when an arrestee consents to the search and that consent is: (1)

“voluntarily given” and (2) “an independent act of free will.” United States v. Chavez-
Villarreal, 3 F.3d 124, 127 (5th Cir. 1993). The same standard applies to an arrestee’s
admissions. See United States v. Tovar, 719 F.3d 376, 387-88 (5th Cir. 2013). Here, we
decline to analyze the validity of Alvarado-Zarza’s consent to the search of his vehicle or his
post-arrest statements. First, the district court did not address the “free will” element, and
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States v. Cotton, 722 F.3d 271, 278 (5th Cir. 2013). Warrantless seizures are
“per se unreasonable under the Fourth Amendment – subject only to a few
specifically established and well-delineated exceptions.” United States v. Hill,
752 F.3d 1029, 1033 (5th Cir. 2014) (quoting Katz v. United States, 389 U.S.
347, 357 (1967)). One such exception comes from Terry v. Ohio, 392 U.S. 1
(1968).    Id.   Under Terry, police officers may stop and briefly detain an
individual if they reasonably suspect that criminal activity is occurring or
about to occur. Id. Reasonable suspicion must be “particularized,” United
States v. Cortez, 449 U.S. 411, 417-18 (1981), meaning that “the police officer
must be able to point to specific and articulable facts” justifying the stop, Terry,
392 U.S. at 21. Additionally, reasonable suspicion cannot rest upon a mistake
of law or fact unless the mistake is objectively reasonable. See Heien v. North
Carolina, 135 S. Ct. 530, 536 (2014) (mistake of law); Illinois v. Rodriguez, 497
U.S. 177, 185 (1990) (mistake of fact).
        We examine whether reasonable suspicion existed to stop Alvarado-
Zarza, and particularly whether the arresting officer committed unreasonable
mistakes of law and fact.


   I.      Arresting Officer’s Mistake of Law
        In Texas, “[a]n operator intending to turn a vehicle right or left shall
signal continuously for not less than the last 100 feet of movement of the
vehicle before the turn.” TEX. TRANSP. CODE ANN. § 545.104(b). As we explain



the government has not done so on appeal. Accordingly, the government has waived the
argument. See United States v. Macias, 658 F.3d 509, 523 (5th Cir. 2011); see also Burnley
v. City of San Antonio, 470 F.3d 189, 200 & n.10 (5th Cir. 2006) (applying waiver doctrine to
appellee). Second, the government conceded at oral argument that, if the stop is deemed
illegal, the evidence must be suppressed. See, e.g., United States v. Banks, 624 F.3d 261, 263
& n.1 (5th Cir. 2010) (declining to address issue conceded at oral argument).
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below, this requirement applies only to turns, not to lane changes. Officer
Barrientos did not interpret the statute that narrowly, and his mistaken
interpretation was not objectively reasonable.
      The Supreme Court recently discussed the effect of a mistake of law
committed by a police officer who stopped a car for having only one working
brake light; the officer did not realize that state law required only one working
brake light. See Heien, 135 S. Ct. at 535. The Court determined that the
mistake was reasonable based on two considerations.           First, the statute
contained at least some ambiguity because it referenced “rear lamps” multiple
times. Id. at 540. Second, the state’s appellate courts had not previously
addressed the issue. Id.
      As to this Texas statute, the Heien analysis compels the opposite
conclusion.    First, Section 545.104(b) is unambiguous.            Its 100-foot
requirement only applies to turns; lane changes are not mentioned. See TEX.
TRANSP. CODE ANN. § 545.104(b). Furthermore, the statute elsewhere refers
to turns and lane changes separately, thereby setting out a distinction between
the two. See § 545.104(a). This distinction is further indicated by the Texas
Driver’s Handbook, which defines a lane change as a “lateral maneuver moving
the vehicle from one lane to another” and a turn as a “vehicle maneuver to
change direction to the left or right.” See Mahaffey v. State, 316 S.W.3d 633,
641 (Tex. Crim. App. 2010) (citations and quotations omitted). The former
definition confirms that a lane change, as its name implies, occurs when
moving from one lane to another. A “turn,” on the other hand, involves a
change to a vehicle’s direction. The terms “turn” and “lane change,” therefore,
signify distinct actions. Thus, Section 545.104(b), by its plain terms, does not
apply to lane changes.


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         Second, seven months prior to Alvarado-Zarza’s stop, the Texas Court of
Criminal Appeals in Mahaffey addressed the distinction between a turn and a
lane change. In that case, a policeman mistakenly concluded that a driver was
“turning” by moving out of a lane that was ending. See id. at 635-40. Although
the court did not discuss Section 545.104(b)’s 100-foot requirement, it drew a
clear distinction between a turn and other movements, including a lane
change. See id. at 640-41 & nn.35, 43 & 46. The court deemed this distinction
“plain[] and unambiguous.” Id. at 638. We interpret Mahaffey to be a rejection
of Officer Barrientos’ view.
         Because the caselaw far predates the stop in this case, and because the
statute facially gives no support to Officer Barrientos’ interpretation of the
100-foot requirement, we conclude that his mistake of law was not objectively
reasonable.


   II.     Officer Barrientos’ Mistake of Fact
         The remaining question is whether Officer Barrientos possessed a
reasonable suspicion that Alvarado-Zarza failed to activate his turn signal 100
feet prior to making a turn. McKay, Alvarado-Zarza’s expert witness, testified
that Alvarado-Zarza activated his signal approximately 200 feet before
changing lanes and 300 feet before turning.         The court found that this
testimony lacked credibility because McKay could not answer certain
questions relating to the speed of the vehicles and the effects the video
recording would have on a viewer’s depth perception.
         McKay based his testimony on physical measurements of the distance
between the crosswalk sign where Alvarado-Zarza activated his turn signal
and the spot where he ultimately turned. It is unclear whether the district
court’s findings were intended to indicate that McKay incorrectly determined

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the points at which Alvarado-Zarza activated his turn signal or turned, erred
in measuring the distance between those points, or both. The video, though,
plainly supported McKay’s conclusions regarding the points at which
Alvarado-Zarza activated his turn signal and later turned. The government
has not challenged the accuracy of the measurement of the distance between
those locations. As McKay noted, the factors identified by the court were
irrelevant to his distance calculations. Those calculations only required him
to measure the distance from one point to another; the speed of the cars did
not matter. Additionally, no distortions appear on the video. As a result, the
district court clearly erred in determining that McKay’s testimony lacked
credibility.
      The final question is whether it was objectively reasonable for Officer
Barrientos to conclude that Alvarado-Zarza failed to signal 100 feet prior to
turning when he in fact signaled 300 feet prior to turning. See Rodriguez, 497
U.S. at 185.     We have not previously addressed questions about the
reasonableness of errors in estimating distances. Other courts have held that
the government failed to demonstrate reasonable suspicion when the actual
distance between the signal and the turn was unknown and the only evidence
that the turn occurred less than 100 feet after the activation of the signal was
the officer’s conclusory statements. See United States v. Gipson, No. 3:12-CR-
393-K, 2013 WL 6027908, at *3 (N.D. Tex. Nov. 14, 2013); State v. Hneidy, No.
04-12-00692-CR, 2013 WL 3279743, at *4 (Tex. App.—San Antonio June 26,
2013 pet. denied); cf. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).
The conclusion in those cases comports with the requirement that reasonable
suspicion be supported by “specific and articulable facts.” See Terry, 392 U.S.
at 21; see also Cortez, 449 U.S. at 417-18.


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      In this case, Officer Barrientos conceded that he acted quickly and could
not “really be measuring” the exact signaling distance.        Because of his
mistaken assumption about the application of the 100-foot requirement, his
estimations of distance related to the point where Alvarado-Zarza changed
lanes rather than the point where he turned.       Taken as a whole, Officer
Barrientos’ testimony did not provide the sort of specific, articulable facts
which would allow a court to determine that he possessed a reasonable
suspicion that Alvarado-Zarza had committed a traffic violation. The fact that
the actual distance between the signal and the turn was approximately 300
feet, and that Officer Barrientos provided no explanation as to why he might
have thought the distance was less than 100 feet, only reinforces this
conclusion.
      The district court clearly erred in concluding that Alvarado-Zarza’s stop
was justified by reasonable suspicion.    Accordingly, the evidence obtained
pursuant to that stop must be suppressed.
      REVERSED and REMANDED.




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