     Case: 14-60149       Document: 00512837615         Page: 1     Date Filed: 11/14/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 14-60149                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                November 14, 2014
                                                                        Lyle W. Cayce
                                                  Plaintiff - Appellant      Clerk

v.

RENIERI JOEL ROSALES-GIRON,

                                                  Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:13-CR-96-1


Before SMITH, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
      This interlocutory appeal concerns the district court’s granting Renieri
Rosales-Giron’s motion to suppress, regarding a Mississippi Highway Patrolman’s
conducting a traffic stop of Rosales’ vehicle. Primarily at issue is whether the
Trooper had probable cause to believe Rosales committed a traffic violation
(careless driving), justifying the stop. REVERSED and REMANDED.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                     No. 14-60149

                                            I.
      The following factual recitation is based on evidence presented by the
Government (testimony by the Trooper and his video recording of Rosales’ vehicle)
at the hearing on the suppression motion. Rosales did not present evidence.
      The Trooper was assigned to the Highway Patrol’s Traveling Criminal
Apprehension Program, which focuses on interstate criminal activity. On 23
October 2013, he was in the median of Interstate 20 at mile-marker 61 in Rankin
County, Mississippi. In the median, his vehicle was surrounded by an open area
with an unobstructed view of oncoming and passing traffic. While observing
eastbound traffic, the Trooper heard the sound of an eastbound vehicle driving on
the rumble strips (the indentations on the side of the road that alert drivers to
alter their trajectory), outside (to the right of) the fog line (a white line on the right
side of the right lane on a highway). Because this rumbling “caught [his] eye”, the
Trooper concluded the vehicle had run off the road.
      Based on his training, the Trooper was suspicious of the vehicle, a van. He
knew perpetrators of crimes involving highway transportation of illegal drugs and
aliens often operate with two vehicles: the first serves as a decoy to attract the
attention of law-enforcement officers, while the second perpetrates the principal
offense, such as transporting drugs or aliens. Consequently, the Trooper waited
about one minute to pursue the van, after concluding another vehicle was not
following it.
      After reaching the van in approximately one minute, the Trooper drove
side-by-side with it and observed it move over onto the fog line. (The Trooper was
unable to see into the van because its windows were tinted black.) He then
changed lanes, drove behind the van, and activated his vehicle’s bar light (blue).
A video camera displaying a Trooper’s view from the front of his vehicle activates
automatically when the vehicle’s bar light is activated. (The Trooper could not
recall whether he manually initiated the recording or whether it commenced

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because he activated the bar light.) Subsequently, the Trooper observed the van
drive on (“hit” or “bump”) the fog line (depicted in the video recording), which
prompted him to conduct the stop.
      The Trooper stopped the van for careless driving, a violation of Mississippi
law. Miss. Code Ann. § 63-3-1213 (“Any person who drives any vehicle in a careless
or imprudent manner, without due regard for the width, grade, curves, corner,
traffic and use of the streets and highways and all other attendant circumstances
is guilty of careless driving.”). Rosales was the driver of the van. The Trooper
issued him a warning citation for, inter alia, careless driving. During the stop,
the Trooper discovered numerous individuals in Rosales’ vehicle, later claimed to
be illegal aliens.
      On 23 November 2013, Rosales was charged in a single-count indictment
with transporting aliens for the purpose of commercial advantage or private gain,
in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). He moved to suppress the evidence
discovered during the stop. In that regard, as expressed during the suppression
hearing, Rosales challenged only whether the initial stop was lawful, not any of
the conduct following the stop.
      In his suppression-hearing testimony, the Trooper explained why he
stopped Rosales.     The Trooper justified the stop based only on violations of
Mississippi’s careless-driving statute, which he explained occurred three times:
Rosales drove on the rumble strips, outside of the fog line, when he passed the
Trooper at mile-marker 61; and Rosales hit or bumped the fog line twice after the
Trooper began following him–while the Trooper and Rosales were side-by-side and
later, when the Trooper was behind Rosales while the video camera was recording.
Concerning the Trooper’s observing Rosales’ hitting the fog line, the Government
asked the Trooper: “So did he run off the side of road more than once before you
stopped him?” He replied: “Yes. He was weaving once I pulled out on him as well.
He hit [the fog line] a couple of times.”

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      The video recording made by the Trooper was shown during the hearing,
with his being questioned about it while it was being shown. As noted, Rosales
did not present evidence.
      In ruling from the bench, the district court stated: “I would have a hard
time sustaining the ticket for careless driving when the driver didn’t run off the
road” and “ran over the fog line because the Trooper was riding along – beside
him. That would make me nervous to have . . . a trooper riding beside me for an
extended period of time”. Regarding the vehicles being side-by-side, the court
found, inter alia, that Rosales “simply moved over and happened to run onto the
fog line”. The court stated to the Government: “You’d be raising Cain with the
judge if you got a ticket for deviating six inches . . . onto the white [fog] line . . . ,
wouldn’t you?” In granting the motion, the court ruled: “There just simply was
not enough carelessness in this to be a danger to anybody”.
      The Government’s motion for reconsideration was denied. United States v.
Rosales, No. 13-CR-96 (WHB-FKB), slip op. at 1-4 (S.D. Miss. 26 Feb. 2014)
(unpublished). In doing so, the court elaborated on its rationale for suppressing
the evidence: the Trooper lacked credibility because, first, he could not have heard
Rosales’ vehicle driving on the rumble strips when it passed him at mile-marker
61; second, Rosales’ driving on the fog line once without other evidence of unsafe
or impaired driving was insufficient to justify a stop (was not careless driving);
and third, the Trooper’s actions in following the van did not support the reason
provided for the stop by the Trooper – the court stated that, instead of stopping
the van promptly, the Trooper stopped the van because of the Trooper’s extensive
experience and only after he followed Rosales for a considerable distance, noted
the van’s out-of-state license plate, and observed Rosales’ ethnicity.               (But
regarding ethnicity, and as noted, the Trooper was unable to see into the van
because its windows were tinted black.)



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                                   No. 14-60149

                                         II.
      Pursuant to 18 U.S.C. § 3731 (“An appeal by the United States shall lie to
a court of appeals from a decision . . . of a district court suppressing or excluding
evidence . . . in a criminal proceeding . . . .”), we have jurisdiction for this
interlocutory appeal. It goes without saying that, generally, “[t]he government
may not use evidence obtained in violation of the Fourth Amendment’s prohibition
against unreasonable searches and seizures to prove a defendant’s guilt at trial”.
United States v. Breeland, 53 F.3d 100, 102 (5th Cir. 1995).
      In appeals concerning suppression of evidence, the district court’s legal
conclusions are reviewed de novo; its findings of fact, for clear error. E.g., United
States v. Jenson, 462 F.3d 399, 403 (5th Cir. 2006) (citation omitted). “A finding
of fact is clearly erroneous when[,] although there is evidence to support it, the
reviewing court on the entire evidence is left with a firm and definite conviction
that a mistake has been committed.” United States v. Gomez-Moreno, 479 F.3d
350, 354 (5th Cir. 2007) (citation and quotation marks omitted).
      As reflected in the clear-error standard, district courts are afforded
substantial deference in their factual determinations, especially when, as here,
they involve credibility assessments derived from live testimony. E.g., United
States v. Robinson, 741 F.3d 588, 594 (5th Cir. 2014) (citation omitted). The court
not only observed, but questioned, the Trooper during the hearing and, as stated
in the denial of the Government’s motion to reconsider, was “not convinced that
the testimony of the [T]rooper was credible”, referencing: the first claimed offense,
when Rosales drove by the Trooper at mile-marker 61 (the court “doubt[ed]” the
Trooper could hear the van driving on the rumble strips); the Trooper’s making
the stop based on careless driving; and the stop, in the court’s view, being based,
instead, on other factors, such as the van’s out-of-state tag.
      For the first time on appeal, Rosales asserts the rumble strips were inside
the fog line; therefore, according to Rosales, the Trooper’s testimony that he heard

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Rosales drive on the strips does not mean Rosales necessarily crossed the fog line.
We will not consider this fact-based issue, which was not raised in district court
in support of Rosales’ motion to suppress. E.g., United States v. Pope, 467 F.3d
912, 918-19 & n.20 (5th Cir. 2006). (Even if we were to review the issue instead
for plain error, it would fail because, for such questions of fact, they cannot provide
a basis for plain (clear or obvious) error. E.g., United States v. McCaskey, 9 F.3d
368, 376 (5th Cir. 1993) (resolution of a factual issue not presented to the district
court cannot be plainly erroneous in sentencing context).)
      For resolving this appeal, we need consider only the third claimed offense,
which was recorded in, and verified by, the video while the Trooper was following
the van, subsequent to having been beside it: the Trooper testified the van hit, or
bumped, the fog line. In short, was this sufficient to justify the traffic stop? If it
was, it is not necessary, as explained infra, to engage in a balancing analysis to
determine whether the stop was otherwise justifiable based on reasonable
suspicion. Accordingly, it would not be necessary to decide whether the district
court clearly erred in finding, inter alia: the Trooper did not hear the van drive
on the rumble strips at mile-marker 61; and, during the side-by-side instance, it
was reasonable for the van to “[run] over on the fog line because the [T]rooper
was riding . . . beside [it] . . . . for an extended period of time”. (Accordingly,
contrary to the position taken by the dissent at 2, we do not “reverse the district
court based upon testimony of the [T]rooper as the district court is entitled to
make the credibility determinations based upon its live assessment of the
witness”. As stated, regarding the third violation provided by the Trooper, the
video shows the fog line was hit. United States v. White, 401 U.S. 745, 753 (1971)
(“An electronic recording will many times produce a more reliable rendition . . .
than will the unaided memory of a police agent.”); see also United States v. Vickers,
442 F. App’x 79, 86, 87 & n.7 (5th Cir. 2011) (no error in disregarding witness’
testimony when testimony conflicted with video evidence). Likewise, despite the

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dissent’s concerns at 6, remand is not required for the district court to clarify its
findings of fact and conclusions of law.)
      “The reasonableness of traffic stops and investigative detentions of
motorists who are suspected of criminal activity is analyzed under the framework
established in Terry v. Ohio, 392 U.S. 1 (1968).” United States v. Stevens, 487 F.3d
232, 244 (5th Cir. 2007) (citing cases).        “Under Terry, we determine the
reasonableness of an investigative stop by examining: (1) whether the officer’s
action of stopping the vehicle was justified at its inception, and (2) whether the
officer’s actions were reasonably related in scope to the circumstances that
justified the stop.” Id. (citing Terry, 392 U.S. at 19-20). As noted, during the
suppression hearing, Rosales expressly declined to contest the second prong of
Terry, contesting only whether the stop was justified at its inception. Accordingly,
we consider only the first prong of Terry.
      For a traffic stop to be justified at its inception, an officer need only have
reasonable suspicion that “some sort of illegal activity, such as a traffic violation,
occurred, or is about to occur, before stopping the vehicle”. United States v. Lopez-
Moreno, 420 F.3d 420, 430 (5th Cir. 2005) (citing Breeland, 53 F.3d at 102).
“Reasonable suspicion” analysis requires assessing the totality of the
circumstances to ascertain the reasonableness of the suspicion. United States v.
Powell, 732 F.3d 361, 369 (5th Cir. 2013) (citation omitted). This is consistent
with the “touchstone of Fourth Amendment analysis [being] reasonableness”,
which “requires a balancing of the public interest with an individual’s right to be
free from arbitrary intrusions by law enforcement”. United States v. Brigham,
382 F.3d 500, 507 (5th Cir. 2004) (en banc) (citations omitted).
      In that regard, the Supreme Court held unanimously in Whren v. United
States, 517 U.S. 806 (1996): “As a general matter, the decision to stop an
automobile is reasonable where the police have probable cause to believe that a
traffic violation has occurred.” Id. at 810. “Probable cause exists when the totality

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of facts and circumstances within a police officer’s knowledge at the moment of
arrest are sufficient for a reasonable person to conclude that the suspect had
committed, or was in the process of committing, an offense.” United States v.
Zavala, 541 F.3d 562, 575 (5th Cir. 2008) (quoting United States v. Castro, 166
F.3d 728, 733 (5th Cir. 1999) (en banc)). Therefore, probable cause to make a
traffic stop exists, inter alia, when a defendant commits a traffic violation and a
law-enforcement officer observes the violation.            E.g., United States v.
Khanalizadeh, 493 F.3d 479, 482 (5th Cir. 2007). “Where probable cause has
existed, the only cases in which we have found it necessary actually to perform
the ‘balancing’ analysis involved searches or seizures conducted in an
extraordinary manner, unusually harmful to an individual’s privacy or even
physical interests . . . .” Whren, 517 U.S. at 818. An “extraordinary-manner”
exception is neither asserted, nor applicable, in this instance.
      As is well known, “[t]he rule established by the Supreme Court in Whren
allows officers to justify a stop by the occurrence of a traffic violation even though
this is not the real reason for the stop”, United States v. Cole, 444 F.3d 688, 689
(5th Cir. 2006); but, on the other hand, the legal justification for the traffic stop
must be “objectively grounded”, id. (citation omitted). As noted, the district court
concluded, inter alia, that the third claimed careless-driving offense, documented
in the video recording, when Rosales hit the fog line, did not justify the stop.
      The Mississippi Court of Appeals, however, has found probable cause for a
careless-driving violation based on hitting, or bumping, the fog line. In 2004, it
ruled a court must reasonably interpret a wide range of factors when determining
carelessness under the careless-driving statute. Henderson v. State, 878 So. 2d
246, 247 (Miss. Ct. App. 2004). Subsequently, the court held an officer’s stating a
driver bumped the fog line was sufficient to constitute probable cause to stop the
driver for careless driving. Dominick v. State, 108 So. 3d 452, 455-56 (Miss. Ct.
App. 2012) (probable cause existed where an officer testified the defendant’s car

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bumped the fog line prior to changing lanes and a review of videotape evidence
did not contradict the officer’s testimony); Martin v. State, 43 So. 3d 533, 535
(Miss. Ct. App. 2010) (“[T]he circuit court judge stated that[,] by his
understanding of the rules of the road, hitting the fog line while driving clearly
constituted probable cause for an officer to perform a traffic stop”, and “the circuit
court did not err in finding that probable cause existed for the traffic stop”.).
      The underlying facts of these cases include additional incidences of
carelessness, such as swerving or quickly driving back-and-forth, but they do not
distinguish the importance of each violation in finding probable cause. See, e.g.,
Martin, 43 So. 3d at 535. Mississippi’s careless-driving statute is broadly worded
to encompass drivers who fail to exercise “due regard for the width . . . of the
streets and highways”, the offense for which the Trooper stopped Rosales. Miss.
Code Ann. § 63-3-1213. We conclude from this broad language and the cited cases
that a traffic stop for careless driving is justified in Mississippi when a law-
enforcement officer observes an automobile hit the fog line. (The dissent fails to
cite a Mississippi decision that holds a stop for careless driving is unjustified when
a driver hits the fog line only once. Contrary to the dissent’s statement at 3, note
2, our noting this failure is not a “suggestion that [the dissent] need[s] the support
of a Mississippi case [with that] holding”; on the other hand, the dissent’s failure
to do so adds weight to our holding that there was probable cause for the stop in
this instance after the van hit the fog line only once.) But, even if more is required
(as the dissent urges at 3-6), such additional factors exist preceding the third
claimed offense, such as the van’s weaving when the Trooper pulled out from the
median, and the van’s later hitting the fog line when the Trooper’s vehicle was
beside the van. (For that side-by-side instance, although the court ruled it was
reasonable for the van to do so in those circumstances, it nevertheless found the
van ran on the fog line. Regarding a driver’s reaction in the presence of a law-
enforcement vehicle, the dissent at 5–6, and note 5 at 6, fails to cite United States

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v. Escalante, 239 F.3d 678, 681 (5th Cir. 2001). There, it was claimed the Deputy
caused defendant to weave. But, in addition to stating defendant’s “arguments
ha[d] persuasive force”, our court “recognize[d]” the Deputy had an equally valid
position: a driver would not swerve even if an officer’s vehicle was “approaching
from behind”. Id. Our court then stated, “[i]ndeed, perhaps the prudent driver
should be more careful to maintain his lane in such a situation”, and held it could
not conclude probable cause was lacking for the stop. Id.)
      Therefore, the district court erred in granting the motion to suppress by
holding no reasonable law-enforcement officer would conduct a stop under these
circumstances. This is the exact issue Whren resolved by holding an officer may
conduct a stop where probable cause exists, 517 U.S. at 810; and probable cause
to conduct a stop exists when law enforcement officers observe traffic violations,
e.g., Khanalizadeh, 493 F.3d at 482. Although the Trooper only issued Rosales a
warning citation for careless driving, it nevertheless was issued because the
Trooper observed Rosales drive carelessly. Based on the third claimed offense,
and pursuant to Mississippi’s careless-driving statute, the requisite probable
cause existed for the stop.
      Along that line, and as discussed supra, in granting the suppression motion,
the district court also addressed the Trooper’s subjective intentions as a trained
highway law-enforcement officer and the suspicions that arose from such training.
Although, in denying the Government’s motion to reconsider, the court expressly
eschewed reliance on the Trooper’s subjective intentions, it proceeded to discuss
the Trooper’s experienced-based suspicions and Rosales’ ethnicity as reasons for
suppressing the evidence. As also discussed supra, this constituted error. Whren,
517 U.S. at 813 (“Subjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis.”); see also, e.g., Cole, 444 F.3d at 689 (test for traffic-
stop legality is objective).



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                                     III.
     For the foregoing reasons, the suppression order is REVERSED, and this
matter is REMANDED to district court for further proceedings.




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                                  No. 14-60149

HAYNES, Circuit Judge, dissenting:

      The majority opinion correctly notes that we review the district court’s
factual findings for clear error and its legal conclusions de novo. See United
States v. Jenson, 462 F.3d 399, 403 (5th Cir. 2006). However, the majority
opinion fails to give appropriate deference to the district court’s credibility
determinations and resulting factual findings and also incorrectly assesses
Mississippi law. Viewed properly, the district court order did not commit
reversible error in its order suppressing evidence. Accordingly, I respectfully
dissent.
       We must review the district court’s findings of fact for clear error, only
disregarding them when, “on the entire evidence[,] [this court] is left with a
firm and definite conviction that a mistake has been committed.” United States
v. Gomez-Moreno, 479 F.3d 350, 354 (5th Cir. 2007) (citation and internal
quotation marks omitted) (emphasis added); see United States v. Raney, 633
F.3d 385, 389 (5th Cir. 2011) (“A factual finding is not clearly erroneous as long
as it is plausible in light of the record as a whole.” (citation and internal
quotation marks omitted)). When factual findings derive from live testimony
and credibility determinations, district courts are afforded even more
deference. See, e.g., United States v. Robinson, 741 F.3d 588, 594 (5th Cir.
2014); United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005) (“‘One of the
most important principles in our judicial system is the deference given to the
finder of fact who hears the live testimony of witnesses because of his
opportunity to judge the credibility of those witnesses.’” (quoting Louis v.
Blackburn, 630 F.2d 1105, 1109 (5th Cir. 1980))). Finally, we “may affirm on
any basis established by the record, considering the evidence presented at the
suppression hearing in the light most favorable to the prevailing party.”
United States v. Aguirre, 664 F.3d 606, 610 (5th Cir. 2011) (citations and
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                                       No. 14-60149
internal quotation marks omitted); United States v. Scroggins, 599 F.3d 433,
440 (5th Cir. 2010) (citations and internal quotation marks omitted).
       Two pieces of evidence are relevant to the determination of the propriety
of this stop and resultant findings: the trooper’s testimony and the videotape
he recorded. The district court found the trooper not to be credible: it was “not
convinced that the testimony of the trooper was credible.” Thus, we cannot
reverse the district court based upon testimony of the trooper as the district
court is entitled to make the credibility determinations based upon its live
assessment of the witness. See Robinson, 741 F.3d at 594; Gibbs, 421 F.3d at
357.
       Turning to the video, it shows Rosales-Giron’s van driving close to the
right-hand edge of the lane, but does not definitively show the van touching
the fog line; it certainly does not show the van swerving within its lane or
crossing the fog line. We should defer to the district court’s findings that “the
only justification that this officer makes for stopping this particular car” was,
as “the video shows[,] that while the trooper was up beside the van, the van
didn’t swerve; simply moved over and happened to run onto the fog line.” 1
Accordingly, under a particularly deferential clear error standard, I am
certainly not left with a firm and definite conviction that the district court
erred in finding, at most, a “run onto the fog line.”
       Considering only this alleged violation as we are bound to do, it becomes
clear that, at most, “while the trooper was up beside the van, the van didn’t
swerve; simply moved over and happened to run onto the fog line.” (emphasis



       1 The district court appears to be referring to the first part of the video, from about 0
to 10 seconds. At that point, the video shows the trooper’s car traveling very close to the
centerline as the van gradually comes into view, with the van driving closer to the fog line
and keeping a distance between itself and the trooper’s car as the trooper’s car drops behind
the van.
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added).    The trooper admitted during the hearing that, during all of the
violations he alleged, the van was only “on [the fog line]. I don’t know that [the
van] crossed it, but [it] hit it.” Thus, we turn to the question of law: whether
one instance of hitting or moving onto the fog line constitutes careless driving
under Mississippi law. It does not. A careful reading of Mississippi case law
interpreting the careless driving statute shows that simply bumping or hitting
the fog line by itself does not suffice to justify a careless-driving finding;
instead, all the cases involve additional conduct. See generally MISS. CODE
ANN. § 63-3-1213. 2
       Indeed, every single Mississippi case supporting a finding of careless
driving involves more serious and imprudent conduct than bumping the fog
line one time. 3      Even in cases upholding traffic stops based on the most


       2  I disagree with the majority opinion’s suggestion that I need the support of a
Mississippi case holding that bumping the fog line once does not justify a stop in order to
affirm the district court’s conclusion that the stop was unreasonable under the Fourth
Amendment. The touchstone of our Fourth Amendment analysis is reasonableness,
considering how state law classifies the allegedly illegal conduct. See Ohio v. Robinette, 519
U.S. 33, 39 (1996) (“We have long held that the touchstone of the Fourth Amendment is
reasonableness. Reasonableness, in turn, is measured in objective terms by examining the
totality of the circumstances.” (citations and internal quotation marks omitted)). When we
give proper deference to the trial court’s factual findings, Rosales-Giron’s conduct included
only one bump of the fog line. Since no Mississippi court has found a careless driving stop
justified for just one bump of the fog line without additional conduct, I agree with the district
court’s conclusion that it was objectively unreasonable for the trooper to stop Rosales-Giron’s
van under the totality of the circumstances.
       3 See, e.g., Ludwig v. State, 122 So. 3d 1229, 1231–33 (Miss. Ct. App. 2013) (finding
probable cause where a defendant drove so close to the edge of the road that “the mirror could
have struck the officer” standing there conducting a traffic stop, before the vehicle ran off the
road onto the shoulder twice and the defendant admitted to running off the road (internal
quotation marks omitted)); Shelton v. State, 45 So. 3d 1203, 1208–09 (Miss. Ct. App. 2010)
(finding probable cause where a vehicle crossed the fog line, then overcompensated to cross
the lane-dividing lines, then repeated this pattern); Drummer v. State, 42 So. 3d 563, 564–65
(Miss. Ct. App. 2009) (finding probable cause where a vehicle weaved from the outside of the
lane and across the center yellow lines more than once in a residential area); Loveless v. City
of Booneville, 972 So. 2d 723, 724–25, 731 (Miss. Ct. App. 2007) (finding probable cause where
a vehicle blared loud music at a stop sign, then crossed the centerline of the road with both
driver’s side tires as it proceeded down the road).
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                                        No. 14-60149
minimal conduct, drivers at least weaved or definitively crossed the fog line,
rather than simply bumping it. See, e.g., Williams v. State, 126 So. 3d 85, 89
(Miss. Ct. App. 2013) (finding reasonable suspicion justified a traffic stop
where a vehicle “weave[d] out of [its] lane of traffic and across the fog line”);
Tran v. State, 963 So. 2d 1, 13–14 (Miss. Ct. App. 2006) (holding officer had a
reasonable basis to stop a motorist for “crossing the fog line” and that “failure
to have regard for the width and use of the street by swerving off the side of the
road or crossing the marker lines constitutes probable cause for a traffic stop”)
(emphasis added), aff’d sub nom. Quang Thanh Tran v. State, 962 So. 2d 1237
(Miss. 2007); Adams v. City of Booneville, 910 So. 2d 720, 721, 725 (Miss. Ct.
App. 2005) (finding probable cause for a careless-driving stop in the totality of
the circumstances, considering the defendant’s car was “traveling in the middle
of two lanes of traffic” and “swerv[ing]” “around 2:30 a.m.” on “New Year’s
Day”); Saucier v. City of Poplarville, 858 So. 2d 933, 934 (Miss. Ct. App. 2003)
(finding probable cause where a vehicle decreased its speed, “bump[ed] the
centerline,” then crossed “into the center lane and jerked . . . back into the right
lane”). No Mississippi case validating a careless-driving traffic stop involves
only the minimal conduct present here. 4
       The majority opinion also cites a case for the proposition that under
Mississippi law, “a court must reasonably interpret a wide range of factors when



       4  In Dominick v. State, the trial court credited an officer’s testimony that a car changed
lanes, “bumped or simply rode the fog line,” and then changed lanes again, “bump[ing] the
center line to the right” after changing lanes. 108 So. 3d 452, 456 (Miss. Ct. App. 2012)
(internal quotation marks omitted). The Mississippi Court of Appeals acknowledged that the
trial judge had credited the officer’s testimony, that video evidence proved unclear, and that
nothing contradicted the officer’s testimony before affirming the trial court’s finding that the
officer had probable cause to stop the vehicle. Id. In Martin v. State, a trooper observed a
car swerve and drift over the fog line: the “vehicle went from point A to point B and right
back. [It] didn’t [simply] drift over to the fog line.” 43 So. 3d 533, 535 (Miss. Ct. App. 2010)
(internal quotation marks omitted). The Mississippi Court of Appeals thus upheld the trial
court’s finding of probable cause. Id.
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                                    No. 14-60149
determining carelessness under the careless-driving statute.” See Henderson v.
State, 878 So. 2d 246, 247 (Miss. Ct. App. 2004) (finding probable cause where a
vehicle almost hit a curb, stopped at a stop sign, and then almost hit another curb
in the early morning hours). No “wide-ranging” factors are present here: at most,
there is one bump of the fog line. Cf. Saucier, 858 So. 2d at 934–35 (comparing
case law and noting “there was not a one-time and brief drifting across the painted
stripe separating lanes . . . but [] multiple intrusion[s] across the dividing stripe
on the highway,” and that “[t]he frequency of the failure to maintain the proper
lane suggests a greater degree of risk and carelessness,” as does crossing “into the
lane for traffic going the opposite direction”).
      Although we employ de novo review of the legal question, determining
what constitutes “due regard for the width . . . and use of the streets” and what it
means to “drive[] any vehicle in a careless or imprudent manner” requires
consideration of a wide range of factors, including some that are inherently based
on factual findings. MISS. CODE ANN. § 63-3-1213; see also Henderson, 878 So. 2d
at 247.   In analogous contexts, we have allowed district courts to assess a
defendant’s conduct in light of the pursuing officer’s actions. Here, the trooper’s
vehicle was stationed alongside the van, potentially very close to the centerline.
Our own case law shows that this court may account for the effect of an officer’s
presence immediately behind or beside a defendant’s vehicle when analyzing
that defendant’s driving behavior. Cf. United States v. Rivera-Gonzalez, 413
F. App’x 736, 739–40 (5th Cir. 2011) (unpublished) (noting that “when the
officer’s actions are such that any driver, whether innocent or guilty, would be
preoccupied with his presence, then any inference that might be drawn from
the driver’s behavior is destroyed,” and that even “abnormal turn-signaling
might qualify as innocent” because “[e]ven an innocent driver wondering why




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                                       No. 14-60149
a Border Patrol car is following for several miles might forget to turn off a turn
signal.” (citations and internal quotation marks omitted)). 5
       To the extent that the majority opinion concludes that the district court’s
findings are unclear, the proper remedy is a remand for clarification, not
reversal. See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 386, 388
(2008) (vacating with instructions to remand to the district court for
clarification, holding that “[w]hen a district court’s language is ambiguous, as
it was here, it is improper for the court of appeals to presume that the lower
court reached an incorrect legal conclusion. A remand directing the district
court to clarify its order is generally permissible and would have been the
better approach in this case”); cf. Gomez-Moreno, 479 F.3d at 354. As it stands,
I conclude that the record and the district court’s findings are sufficiently clear
to distinguish this case from every other Mississippi case that has condoned a
traffic stop for careless driving based on a driver’s interaction with the fog line
(and more). Reasonably interpreting carelessness and what it means to give
due regard for the width and use of the road in light of a wide range of factors,
I disagree with holding that an officer can stop a van in Mississippi simply for
bumping the fog line one time. Such a holding to reverse a district court
expands the definition of careless driving under § 63-3-1213 beyond the
boundary Mississippi courts have drawn.




       5 Although Rivera-Gonzalez is not “controlling precedent,” it “may be [cited as]
persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH
CIR. R. 47.5.4). For cases where this court has taken account of an officer’s presence in
examining a defendant’s driving behavior, see also United States v. Zapata-Ibarra, 212 F.3d
877, 882–83 (5th Cir. 2000) (finding that deceleration of a vehicle and its swerving within its
lane only slightly supported reasonable suspicion when the vehicle did so in reaction to a
rapidly-approaching police car that had activated its high-beam lights); United States v.
Jones, 149 F.3d 364, 370–71 (5th Cir. 1998) (finding that a driver’s act in drifting off the
roadway did not give rise to reasonable suspicion in the totality of the circumstances, because
the driver was glancing back at the officer, who was tail-gaiting the driver).
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                                      No. 14-60149
       Because the district court did not err in concluding that the trooper
lacked lawful justification to stop Rosales-Giron’s van, 6 I would affirm the
district court’s suppression of evidence. Accordingly, I respectfully dissent
from the judgment of the court reversing the district court.




       6Of course, I agree with the majority opinion that the trooper’s subjective intentions
in making the traffic stop play no part in the probable cause analysis and that the district
court should not have discussed them. See Whren v. United States, 517 U.S. 806, 813 (1996)
(“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment
analysis.”); United States v. Cole, 444 F.3d 688, 689 (5th Cir. 2006). Again, if we are
concerned about whether this mention of subjective intent affected the district court’s
conclusions, we should remand, not reverse. See Sprint/United Mgmt. Co., 552 U.S. at 386,
388.
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