Affirmed and Majority and Dissenting Opinions filed December 5, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00062-CR

                     ERICK LIONEL MILLER, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 221st District Court
                          Montgomery County, Texas
                    Trial Court Cause No. 12-04-04401-CR

                    DISSENTING OPINION

      Officer Cooke had no reasonable suspicion of criminal activity when he
stopped the vehicle in which appellant was a passenger, and the trial judge abused
her discretion in denying appellant’s motion to suppress. Because the majority
concludes otherwise, I respectfully dissent.

      I agree with the majority that because the trial court did not issue findings of
fact or conclusions of law, we must view the evidence in the light most favorable
to the trial court’s implied findings. However, the evidence must support the
court’s ruling.
       I agree with the majority that appellant has standing, though merely a
passenger, to challenge the validity of the stop. I also agree that there was no
evidence of a violation of section 545.060 of the Texas Transportation Code.1 And
I agree that an officer’s stated purpose for a stop can neither validate an illegal stop
nor invalidate a legal stop because its legality rests on the totality of the
circumstances viewed objectively. See ante p. 6; Simpson v. State, 29 S.W.3d 324,
328 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).2

       Although the majority found the evidence supports the trial court’s implied
finding that Cooke had a reasonable suspicion to stop the subject vehicle (“SUV”),
it is unclear what criminal activity could possibly have triggered that suspicion.3
The only evidence presented at the hearing was Cooke’s testimony and a
videotaped recording of the traffic stop. Both must be considered.

       Cooke testified that the videotape began recording when he activated his
overhead lights. The recording device is designed to begin capturing images one
minute before the time of activation. When questioned by the prosecutor, Cooke

       1
         The majority distinguishes the section 545.060 cases cited by appellant because they did
not involve “evidence that the officers suspected the defendants might be intoxicated,” but does
not specifically address whether there otherwise was evidence of a violation in this case. See
ante pp. 6–7. I have found no Texas cases holding that merely straddling a divider line briefly
without evidence of heavy traffic or otherwise unsafe conditions constitutes a violation of
545.060.
       2
          Although the majority purports not to reach appellant’s argument that Cooke was not
exercising a “community caretaking” function, which I agree does not apply here, see infra p. 5
n.5, it appears to accept the officer’s testimony in this regard. See ante pp. 2, 3, 8. I would not
credit that testimony to support a reasonable suspicion of intoxication.
       3
          The majority holds that the trial court could have reasonably concluded that Cooke
“observed driving behavior that reasonably led him to believe appellant was driving while
intoxicated, asleep [sic], over-medicated, or otherwise impaired” and, thus, that Cooke did not
stop the vehicle solely for failing to maintain a single lane. See ante p. 8. This leaves it unclear,
however, just what criminal activity the majority is stating supported the stop. A lane change
while sleepy? While over-medicated? While otherwise impaired? While intoxicated? Does the
majority consider all of these behaviors criminal?
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testified that it was “possible” that there was a traffic violation that did not appear
on the videotape, but he did not articulate any. On cross-examination, Cooke
acknowledged that he only observed the SUV cross the dividing line on one
occasion, and he could not recall any instance that drew his attention to the SUV
other than what appeared on the videotape. He further acknowledged that the
movement of the SUV was not erratic but was a “slow drift” over the dividing line.

      The majority emphasizes the officer’s training and law enforcement
experience. See ante pp. 2, 7–8. What training and experience did Cooke testify
to? The officer has 21 years’ law enforcement experience and 2,400 training hours
in unspecified subjects. He has made countless traffic stops, including hundreds
for failure to maintain a single lane of traffic. He has taken part in a number of
narcotics investigations, most of them involving traffic stops. Cooke attended a
class called Desert Snow, which taught him to look for “dope and money in
vehicles” and “how to deal with people that move dope and money.” Cooke
testified that he was trained to look for indicators such as out-of-state plates and
other things that would give him suspicion that somebody is involved in moving
drugs north. He has made hundreds of drug-related traffic stops where he has
found drugs.

      Although not mentioned by the majority, Cooke testified that one of the
things that could have drawn his attention to the SUV was the fact it had Michigan
plates and was traveling along a known drug corridor. He further acknowledged
that the out-of-state license plate may have been a factor in his decision to stop the
SUV. Cooke additionally testified that he did not initiate the stop until he had
driven alongside the SUV and observed the driver. The majority, instead, focuses
on Cooke’s answering “yes” to the question, “And have you in the course of your
experience often encountered folks that did the same thing that Ms. Downs did

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that, in fact, were based on your experience intoxicated, sleepy, overmedicated,
drowsy, whatever?” However, neither Cooke nor the majority take the additional
step of explaining how observing the SUV slowly and briefly drift over a lane
dividing line (not established to be an illegal act under the circumstances
presented) gave Cooke reasonable suspicion to stop the SUV in the absence of
additional observations. See generally Coble v. State, 330 S.W.3d 253, 277 & n.62
(Tex. Crim. App. 2010) (explaining that a matter cannot be established merely by
the ipse dixit of a witness no matter how well-qualified; the basis of the statement
must be shown, linking the conclusions to the facts).

       The videotape reveals that the SUV was traveling in the center lane of a
three-lane divided highway at a constant speed. No other vehicle passed or was
passed by either Cooke or the SUV before the stop, which occurs at about the one
minute and forty-five second mark of the videotape. As Cooke approached the
SUV from behind in the right-hand lane, the SUV drifted towards the left. The
videotape is not definitive, but the left wheels of the SUV may have straddled the
dividing line between the center and left lanes for a few seconds. At highway
speeds, the few seconds could have covered “hundreds of feet,” as testified to by
Cooke. As Cooke dropped back and moved to the center lane, the SUV drifted
back into the center of its lane, where it remained. Rather than pulling over the
SUV at this time, however, Cooke continued into the left lane and accelerated until
he drew even with the SUV driver’s window. Only then did Cooke drop behind
the SUV and initiate the traffic stop.

       In order to stop the vehicle based on a reasonable suspicion of the possibility
of intoxication,4 Cooke needed to have specific and articulable facts known to him,

       4
         If the majority intended to identify other criminal activity that would validate the stop,
this argument applies to that conduct also.

                                                4
coupled with his training, general experience, and rational inferences from those
facts, such that it would objectively justify the conclusion that the action taken by
the officer was appropriate. Davis v. State, 947 S.W.2d 240, 243-44 (Tex. Crim.
App. 1997). The reasonableness of a detention is determined from a totality of the
circumstances. Eichler v. State, 117 S.W.3d 897, 900 (Tex. App.—Houston [14th
Dist.] 2003, no pet.). We determine, using an objective standard, whether the facts
available to the officer at the moment of detention would warrant a person of
reasonable caution to believe that the action taken was appropriate. Id. In the
present case, the sole evidence concerning intoxication was Cooke’s statement that
the driver might be “sleepy, intoxicated, overmedicated.” The officer did not
provide observations, other than a “slow drift” over the dividing line to support his
opinion that the driver of the SUV might be intoxicated. See Castro v. State, 227
S.W.3d 737, 742 (Tex. Crim. App. 2007); see also Bass v. State, 64 S.W.3d 646,
649-50 (Tex. App.—Texarkana, 2001, pet. ref’d) (holding officer’s testimony of
swerving was not sufficient to carry burden of presenting articulable facts
demonstrating the reasonableness of traffic stop on suspicion driver was
intoxicated, noting officer did not provide additional circumstances, such as time,
location, or the vehicle’s movement, that would have led a reasonable officer to
suspect driver was intoxicated). Although Cooke additionally testified that he
observed the SUV had Michigan plates and was traveling along a known drug
corridor and that he did not initiate the traffic stop until he had driven alongside the
SUV and observed the driver, neither the State nor the majority suggests that these
additional factors objectively justified the stop as a reasonable one.

      As seen on the videotape, there was no action on the part of the driver of the
SUV aside from briefly straddling the lane divider that would indicate intoxication.
Therefore, the validity of the stop is not countenanced on the theory of reasonable


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suspicion of intoxication. See Ehrhart v. State, 9 S.W.3d 929, 930 (Tex. App.—
Beaumont 2000, no pet.); see also Graham v. State, No. 08-03-00315-CR, 2005
WL 182691, at *2 (Tex. App.—El Paso Jan. 27, 2005, no pet.) (not designated for
publication) (holding evidence was insufficient to support reasonable suspicion to
stop motorist for suspected intoxication where vehicle briefly contacted curb one
time).5

       At the suppression hearing, the State failed to demonstrate that Cooke
possessed knowledge of specific and articulable facts sufficient to objectively
justify the conclusion that stopping the SUV was an appropriate action. See Ford
v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). As the subsequent search
of the vehicle is a fruit of the illegal stop, the evidence obtained from the search
should have been suppressed. Accordingly, the trial court erred in overruling the
motion to suppress. See State v. Mazuca, 375 S.W.3d 294, 306 (Tex. Crim. App.
2012); Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992); Smith v. State, 58
S.W.3d 784, 793-94 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). I would
reverse the judgment and remand the case for further proceedings.


                                                             /s/    Martha Hill Jamison
                                                                    Justice


Panel consists of Chief Justice Frost and Justices Boyce and Jamison (Jamison, J.,
dissenting).
Publish — TEX. R. APP. P. 47.2(b).
       5
          At two points in his testimony, Cooke stated that his primary motivation for stopping
the vehicle was community caretaking; however, the circumstances presented do not meet the
standards set forth by the Court of Criminal Appeals for validating such stops. See Corbin v.
State, 85 S.W.3d 272, 277-78 (Tex. Crim. App. 2002). Therefore, the stop was not supported by
Cooke’s reference to the community caretaking function. The Majority purports not to reach this
issue.

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