                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-15-00429-CR


MICHAEL NNAMANI                                                  APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

      FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY
                   TRIAL COURT NO. 1342673

                                   ----------

                         DISSENTING OPINION

                                   ----------

      Reasonable suspicion is not probable cause.1 Probable cause provides

grounds for search or arrest, with or without a warrant, depending on the

exigency of the circumstances or the applicability of another exception to the




      1
        See Worley v. State, 912 S.W.2d 869, 872 (Tex. App.—Fort Worth 1995,
pet. ref’d).
warrant requirement.2 Reasonable suspicion, in contrast, provides a ground for

temporary detention to allow for further investigation.3 But stopping Appellant did

not provide the officer an opportunity to investigate whether Appellant was

speeding because it would yield no evidence of that moving violation.             The

conscientious majority addresses this conundrum, suggesting that

      the officer could have questioned Appellant about the speed at
      which Appellant believed—based upon his own speedometer
      reading—he was travelling.      Appellant’s response could yield
      additional facts that convert reasonable suspicion into probable
      cause.4
      Essentially, the majority is put in the position of holding that a police officer

may detain a motorist for the sole purpose of attempting to secure a confession

of wrongdoing. But what about the transportation code sections requiring an

officer who stops a motorist for speeding to release the motorist immediately

upon the motorist’s signing a promise to appear?5 The law is well-established

that “the detention must be temporary and last no longer than necessary to

effectuate the purpose of the intrusion.”6 And how long is that, when the purpose

of the detention is to secure a confession? Until the motorist confesses? Or
      2
       See Tex. Code Crim. Proc. Ann. arts. 14.01–.04 (West 2015 & Supp.
2016); Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135 (1993);
Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005).
      3
       Baldwin v. State, 278 S.W.3d 367, 370 (Tex. Crim. App. 2009).
      4
       Maj. Op. at 16.
      5
       See Tex. Transp. Code Ann. §§ 543.003, 543.004(a)(1), 543.005 (2011).
      6
       Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).


                                          2
does the transportation code control, limiting the interrogation period to the time

necessary for the motorist to sign his agreement to appear to answer to the

suspicion of traveling at an unknown unreasonably high speed? If the motorist

was detained for the purpose of securing a confession, was the motorist free to

leave without responding to questions?        That is, was the officer obligated to

inform the motorist of his rights under Miranda?7 Is this conduct truly consistent

with the original intent of the framers of our constitution?

        As for the officer’s contention that Appellant may have committed a traffic

offense by briefly straddling a lane line, we have addressed this issue in the past

in a thorough and thoughtful discussion by Justice Gardner, who explained in

part,

        The relevant provision of the          transportation    code—section
        545.060(a)—provides as follows:

                   (a) 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.

              Although the statute has two subparts, it does not create two
        separate offenses, but rather only one: moving out of a marked lane
        when it is not safe to do so. In Hernandez, the Austin court
        analyzed the legislative history of section 545.060 and determined
        that because neither section 545.060 nor its predecessor created


        7
        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).


                                          3
      two offenses, the words “unless that movement can be made safely”
      necessarily modify both subsections, adding,

            [T]he very vagueness of the requirement that the
            operator of a vehicle drive within a single lane “as nearly
            as practical” indicates that the legislature did not intend
            for the initial clause of the statute to create a discrete
            offense apart from some element of unsafety. This
            conclusion is bolstered by the use of the term “practical”
            rather than “practicable.”      The latter term has a
            somewhat more definite meaning: “capable of being
            accomplished; feasible; possible,” while the former term
            is more ambiguous: “manifested in practice; capable of
            being put to good use.”8

      Straddling a lane, as the officer described it here, did not constitute a traffic

offense.9 And the officer clearly stated that he did not stop Appellant because he

saw him speeding; that is, the officer did not stop Appellant because he saw

Appellant commit a traffic offense in his presence. Rather, the officer suspected

that Appellant might be speeding. The scholarly majority has ably explained the

often misunderstood distinction between probable cause and reasonable

suspicion. If the officer observed Appellant commit a traffic offense, then the

officer had probable cause to detain him.10 If the officer had only reasonable


      8
        Fowler v. State, 266 S.W.3d 498, 502–03 (Tex. App.—Fort Worth 2008,
pet. ref’d) (citations omitted), overruled on other grounds by State v. Varley, No.
02-15-00076-CR, 2016 WL 4540491, at *7 (Tex. App.—Fort Worth Aug. 31,
2016, pet. filed).
      9
       See id.
      10
        See Tucker v. State, 183 S.W.3d 501, 507 (Tex. App.—Fort Worth 2005,
no pet.) (citing Tex. Code Crim. Proc. Ann. art. 14.01; Williams v. State, 726
S.W.2d 99, 101 (Tex. Crim. App. 1986); and Tyler v. State, 161 S.W.3d 745, 748
(Tex. App.—Fort Worth 2005, no pet.)).


                                          4
suspicion to detain Appellant, then the stop was perforce for the purpose of

further investigation of the criminal activity that the officer suspected.11

      Further, if the officer pulled Appellant over based only on a generalized

suspicion that Appellant might be violating a traffic law, but the officer had no

specific, articulable facts upon which to base a conclusion that he saw Appellant

commit a traffic offense, then the record does not support the validity of the

stop.12 An inarticulate hunch or intuition will not support a seizure.13 The officer

had the opportunity to check Appellant’s speed against his own speedometer to

verify whether Appellant was violating the traffic law before stopping him but did

not do so.

      An officer who testifies to an unsupported general conclusion that a car

was following another vehicle too closely has not testified to sufficient facts to

justify a detention for a traffic violation.14   Similarly, the officer’s testimony here

that Appellant might have been speeding or might have been violating the traffic

law requiring maintaining a single lane to the extent possible and not driving




      11
        Baldwin, 278 S.W.3d at 370; Terrell v. State, 473 S.W.3d 420, 423 (Tex.
App.—Houston [14th Dist.] 2015, no pet.) (citing Hiibel v. Sixth Judicial Dist.
Court of Nev., 542 U.S. 177, 185, 124 S. Ct. 2451, 2458 (2004)).
      12
        Ford v. State, 158 S.W.3d 488, 493–94 (Tex. Crim. App. 2005).
      13
        Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013).
      14
        Ford, 158 S.W.3d at 493–94.


                                            5
outside his lane unsafely was insufficient to justify a detention for a traffic

violation.

       Based on the record before this court, I cannot agree with my

conscientious colleagues that the record as it stands supports the lawfulness of

the seizure of Appellant. For these reasons, I must respectfully dissent from the

majority opinion.



                                                 /s/ Lee Ann Dauphinot
                                                 LEE ANN DAUPHINOT
                                                 JUSTICE

PUBLISH

DELIVERED: November 17, 2016




                                       6
