     Case: 19-40635      Document: 00515440760         Page: 1    Date Filed: 06/04/2020




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

                                      No. 19-40635
                                                                                Fifth Circuit

                                                                              FILED
                                                                           June 4, 2020

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellee

v.

FRANCISCO VALENZUELA-GODINEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas


Before DAVIS, GRAVES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Francisco Valenzuela-Godinez challenges the district court’s order
denying his motion to suppress, arguing that the evidence resulting from his
traffic stop is fruit of the poisonous tree. Valenzuela-Godinez contends that the
officer who pulled him over had no reasonable suspicion that he had violated
Texas’s traffic code. Because we hold that the officer’s interpretation of the law,
even if mistaken, was objectively reasonable, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-40635
                             I. BACKGROUND
      On July 24, 2018, Anthony Abel Zertuche, a corporal with the La Salle
County Sheriff’s Office, was answering dispatch calls in his patrol car when an
agent with the Drug Enforcement Agency (DEA) informed him of a white
Chevrolet Suburban “of interest” that had recently crossed the border. Soon
thereafter, Zertuche spotted the vehicle driving in the right-hand lane of I-35,
and pulled onto the interstate to follow at a two-lengths distance in the left-
hand (passing) lane. Both cars drove below the speed limit.
      As he followed the white Chevrolet, Zertuche observed the vehicle veer
over the fog line “several times” over a span of approximately ten minutes.
Zertuche believed the drifting amounted to probable cause and pulled over the
Suburban for failing to drive in a single traffic lane. He admitted, however,
that he never saw the vehicle drift over the fog line unsafely.
      Behind the wheel was defendant Francisco Valenzuela-Godinez,
accompanied by his wife and two children. Valenzuela-Godinez did not protest
Zertuche’s explanation that he had been pulled over for veering over the fog
line, which dashcam footage later confirmed. Zertuche ran both Valenzuela-
Godinez’s and his wife’s identifications, as he and Deputy Michael Sauceda
(who had arrived separately) independently asked both parties about their
travel, receiving conflicting answers.
      At this point, approximately eleven minutes into the stop, Zertuche
asked if he could search the vehicle for narcotics. Valenzuela-Godinez
consented, and Zertuche promptly uncovered nine wrapped bundles of cocaine
underneath the back seat. Valenzuela-Godinez later permitted a search of his
cellphone, and DEA agents found text messages that revealed he had agreed
to transport the drugs from Mexico to Houston for $4,000.
      Valenzuela-Godinez was arrested and charged with one count of
conspiracy to possess with intent to distribute, and one count of possession
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                                     No. 19-40635
with intent to distribute five kilograms or more of cocaine in violation of 21
U.S.C. §§ 846, 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2. He moved to suppress all
evidence from the traffic stop, contending that the stop was invalid and any
evidence that resulted was fruit of the poisonous tree.
      Following a suppression hearing, during which the court reviewed
Zertuche’s testimony and video from his bodycam and dashcam, the magistrate
judge recommended that Valenzuela-Godinez’s motion be denied. The judge
held that Valenzuela-Godinez had violated Texas Transportation Code
§ 545.060 by driving over the fog line, and that Zertuche’s pursuit did not cause
the traffic violation.
      The district court agreed with the magistrate judge’s recommendation.
It held, however, that Valenzuela-Godinez had not in fact violated the Texas
Transportation Code, but that Zertuche’s misunderstanding was a reasonable
mistake of the law that supported a finding of reasonable suspicion.
Valenzuela-Godinez entered a conditional guilty plea, reserving his right to
challenge the district court’s denial of his motion to suppress. He timely
appealed.
                                  II. DISCUSSION
      When evaluating a denial of a defendant’s motion to suppress, we review
the district court’s factual findings for clear error and its legal conclusions de
novo. 1 In conducting our review, we consider “the evidence in the light most
favorable to the Government as the prevailing party.” 2
      The Fourth Amendment protects against “unreasonable searches and
seizures.” 3 “The stopping of a vehicle and detention of its occupants constitutes




      1 United States v. Garcia-Lopez, 809 F.3d 834, 838 (5th Cir. 2016).
      2 United States v. Gomez, 623 F.3d 265, 269 (5th Cir. 2010).
      3 U.S. CONST. am. IV.

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                                     No. 19-40635
a ‘seizure’ under the Fourth Amendment.” 4 Any evidence derived from an
unreasonable seizure must be disregarded under the fruit-of-the-poisonous-
tree doctrine. 5
      While the Fourth Amendment generally demands warrants to search or
seize individuals, there are certain well-established exceptions, such as the
Terry stop. 6 Terry allows police officers to briefly detain individuals if they
reasonably suspect criminal activity is afoot. 7 To show the suspicion was
reasonable, the officer must identify “specific and articulable facts” that
justified the stop. 8 “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.” 9 Such reasonable suspicion, the Supreme Court has
held, can rest on a mistaken understanding of the law, so long as the mistake
is objectively reasonable. 10 At issue here is whether Zertuche had reasonable
suspicion to stop Valenzuela-Godinez—that is, whether he committed a
reasonable mistake of law in his interpretation of § 545.060(a).
      Section 545.060(a) of the Texas Transportation Code states: “An operator
on a roadway divided into two or more clearly marked lanes for traffic: (1) shall
drive as nearly as practical entirely within a single lane; and (2) may not move
from the lane unless that movement can be made safely.” Texas appellate
courts that initially addressed the statute held that the State must prove both
prongs of § 545.060(a): the State is required to show the driver unsafely failed




      4 United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc).
      5 United States v. Cotton, 722 F.3d 271, 278 (5th Cir. 2013).
      6 See Terry v. Ohio, 392 U.S. 1, 28–29 (1968).
      7 Id. at 30.
      8 United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014).
      9 Whren v. United States, 517 U.S. 806, 810 (1996).
      10 Heien v. North Carolina, 574 U.S. 54, 60–61 (2014).

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                                         No. 19-40635
to stay entirely within a single lane. 11 In Leming v. State, however, the eight
judges of Texas’s highest criminal court evenly split in their statutory
interpretation of § 545.060(a). 12 Four judges agreed with the lower criminal
courts’ interpretation. 13 Yet the other four judges concluded that the State may
prove either that the driver failed to stay entirely within a single lane, or that
the driver moved into another lane unsafely. 14 Since Leming, courts of Texas
are split. At least two Texas appellate courts have held that failing to maintain
a single lane constitutes an independent offense. 15 Other courts continue to
adhere to their precedent. 16
       Valenzuela-Godinez argues that because the Fourth Court of Appeals in
San Antonio (which has jurisdiction over appeals from La Salle County courts)
held twenty-one years ago in State v. Arriaga that the State must prove both




       11  See, e.g., State v. Cerny, 28 S.W.3d 796, 801 (Tex. App.—Corpus Christi 2000, no
pet.) (holding that a police officer did not have a reasonable belief that defendant violated
§ 545.060 because while defendant weaved, there was no evidence his actions were unsafe);
Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.—Austin 1998, pet. ref'd) (“We believe the
statutory language shows a legislative intent that a violation of section 545.060 occurs only
when a vehicle fails to stay within its lane and such movement is not safe or is not made
safely.”). See also United States v. Raney, 633 F.3d 385, 393 (5th Cir. 2011) (per curiam)
(arguably understanding the statute to require both a failure to maintain lanes and that said
failure was unsafe).
        12 493 S.W.3d 552, 553 (Tex. Crim. App. 2016) (plurality op.).
        13 Id. at 567–68 (Keasler, J. dissenting) and 573 (Newell, J., dissenting).
        14 Id. at 560–61 and 576 (Richardson, J. concurring).
        15 See, e.g., State v. Meras, 10-18-00345-CR, 2020 WL 103805, at *2 (Tex. App.—Waco

Jan. 8, 2020, pet. filed) (“[W]e agree that it is an independent offense to fail to remain entirely
within a marked lane of traffic when it is otherwise practical to do so, regardless of whether
the deviation from the marked lane is, under the particular circumstances, unsafe.”); State
v. Virginia S., 12-17-00176-CR, 2018 WL 636085, at *4 (Tex. App.—Tyler Jan. 31, 2018, pet.
ref’d) (agreeing with Leming in overturning a motion to suppress).
        16 See, e.g., State v. Hardin, 13-18-00244-CR, 2019 WL 3484428, at *3 (Tex. App.—

Corpus Christi Aug. 1, 2019, pet. granted) (adhering to precedent because plurality opinions
“do not constitute binding authority”); State v. Bernard, 503 S.W.3d 685, 691 (Tex. App.—
Houston [14th Dist.] 2016), petition for discretionary review granted, judgment vacated on
other grounds, 512 S.W.3d 351 (Tex. Crim. App. 2017) (holding the court was bound by its
precedent).
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                                       No. 19-40635
prongs of § 545.060(a), its precedent controls. 17 Relying on the Arriaga
decision, Valenzuela-Godinez maintains that Zertuche’s understanding of the
statute was unreasonable. We disagree. In light of the statute’s ambiguous
text, coupled with the clear divide among Texas courts over its meaning, we
hold that Zertuche’s belief that Valenzuela-Godinez broke the law by failing to
maintain a single lane of traffic, even if mistaken, was objectively reasonable.
Our conclusion is consistent with previous decisions by this court. 18
       Valenzuela-Godinez contends that regardless of whether he violated
§ 545.060(a), Zertuche caused him to veer by following him at a close distance
for ten minutes in the left-hand lane. Valenzuela-Godinez relies on United
States v. Jones, where we held that a defendant swerving onto pavement was
“the natural, innocent-man’s response to being tailgated and not so much the
apprehension of the guilty at being caught.” 19 Valenzuela-Godinez’s reliance
on Jones is misplaced. Here, dashcam footage shows Zertuche never tailgated
Valenzuela-Godinez, nor did he drive recklessly while following in the left-
hand lane. The district court did not err in holding that Zertuche’s presence
did not result in Valenzuela-Godinez’s failure to maintain a single lane.
       To conclude, we do not endorse either possible interpretation of
§ 545.060(a). We hold only that Zertuche’s belief that Valenzuela-Godinez
violated the statute, mistaken or not, was objectively reasonable. Zertuche
therefore had reasonable suspicion, justifying the traffic stop. Because the stop
was lawful, any resulting evidence was not fruit of the poisonous tree.



       17  See State v. Arriaga, 5 S.W.3d 804, 807 (Tex. App.—San Antonio 1999, pet. ref’d).
       18  United States v. Neal, 777 F. App’x 776, 776–77 (5th Cir. 2019) (per curiam). The
court, citing Leming and Heien, held, “[A]ny belief by the officers that § 545.060(a) required
only failure to maintain a lane (and not, in addition, unsafe movement), even if mistaken,
was objectively reasonable.” Id. An unpublished opinion issued after January 1, 1996 is not
controlling precedent, but may serve as persuasive authority. 5th CIR. R. 47.5.4.
        19 United States v. Jones, 149 F.3d 364, 371 (5th Cir. 1998). The officer in that case

admitted to following the defendant at an unsafe distance. Id. at 366 n.2.
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                               No. 19-40635
                           III. CONCLUSION
     Based on the foregoing reasons, the district court did not err in denying
Valenzuela-Godinez’s motion to suppress.
     AFFIRMED.




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