     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          November 29, 2018

                               2018COA167

No. 16CA0749 People v. Johnston — Constitutional Law —
Fourth Amendment — Searches and Seizures — Motor Vehicles

     In this intoxicated driving case, a division of the court of

appeals concludes that, under the totality of the circumstances, a

police officer’s observation of a vehicle weaving continuously within

its lane for over five miles was sufficient to create a reasonable

suspicion that the driver was intoxicated.
COLORADO COURT OF APPEALS                                    2018COA167


Court of Appeals No. 16CA0749
Arapahoe County District Court No. 15CR581
Honorable Ruthanne Polidori, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Santos Sanchez Johnston,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division V
                          Opinion by JUDGE ROMÁN
                      Furman and Lichtenstein, JJ., concur

                         Announced November 29, 2018


Cynthia H. Coffman, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Santos Sanchez Johnston, appeals his judgment of

 conviction for aggravated driving after revocation prohibited. In so

 doing, he raises an issue of first impression in Colorado: whether

 weaving within a single lane of traffic can create reasonable

 suspicion of criminal activity to justify an investigatory stop.

¶2    We recognize that slight degrees of incidental weaving within a

 traffic lane do not alone give rise to the reasonable suspicion

 necessary to justify a stop of a vehicle. But we conclude that,

 under the totality of the circumstances, the police officer’s

 observation of defendant’s vehicle weaving continuously within its

 own lane for over five miles was sufficient to create a reasonable

 suspicion justifying the traffic stop. Accordingly, we affirm.

                           I.    Background

¶3    An Arapahoe County sheriff’s deputy noticed defendant’s car

 weaving back and forth within the right-hand lane while traveling

 eastbound on Interstate 70. The deputy followed defendant for five

 to six miles before stopping him. During that time, defendant

 continuously weaved within his lane. The deputy stopped




                                    1
 defendant on suspicion that he was driving under the influence of

 alcohol.

¶4    During the stop, the deputy noticed defendant had slightly

 slurred speech and bloodshot eyes. The deputy also smelled a

 strong odor of alcohol. A second officer on the scene noticed

 alcoholic beverage containers in the front passenger seat and

 informed the deputy.

¶5    When asked for his license and insurance, defendant

 produced his registration information but stated his license was

 suspended and he did not have insurance. A check of his name

 and date of birth revealed an Oklahoma license and a showing of

 being a habitual traffic offender in Oklahoma.1

¶6    The deputy administered a horizontal gaze nystagmus test on

 defendant. Defendant exhibited clues of intoxication, and the

 deputy placed him under arrest. Defendant informed the deputy

 that he had been a habitual traffic offender for fourteen years and

 that his license was suspended.



 1 It was later discovered that defendant’s Colorado license had been
 revoked and that he was a habitual traffic offender in Colorado as
 well.
                                   2
¶7    The prosecution charged defendant with aggravated driving

 after revocation prohibited, driving under the influence, and lack of

 compulsory insurance. The prosecution dismissed the compulsory

 insurance charge at trial.

¶8    Defendant filed a pretrial motion to suppress evidence and

 statements as the product of an illegal stop under the Fourth

 Amendment. The trial court held a hearing to consider the motion.

 At the hearing, the prosecution called the deputy who had stopped

 defendant.

¶9    The deputy testified that, over the course of five to six miles,

           [defendant] was going back and forth in his
           lane, so he was getting to the left side where
           the dotted line was, and then he’d go back over
           to the right side where the solid line was. He
           would just keep going back and forth in his
           lane; wouldn’t quite cross over them, but he
           kept going back and forth between the two
           lines.

           ....

           He made a lane change I believe to go around a
           truck, and . . . again, he was weaving within
           the lane but never actually went outside of the
           lane. And then once he got past, he went back
           into the number two lane where he continued
           to weave, I want to say for several miles. At
           that point I decided just to initiate a stop

                                    3
             because he was back and forth in his own
             lane.

             ....

             [The weaving] was continuous the entire time.
             I mean, just back and forth within the lanes,
             other than when he made the lane change, the
             two times that he made the lane change.

             ....

             I believe[d] he was drunk. Weaving within
             your lane is reasonable suspicion that
             someone is driving under the influence of
             alcohol, so I used that to stop him.

¶ 10   On cross-examination, the deputy conceded that he did not

  see anything that he “would have specifically written a traffic

  citation for; so no weaving, [or] failure to stay within one lane.” He

  also agreed that he “didn’t make the stop based on an idea that

  careless driving was happening.” When asked if he generally

  observes some type of illegal traffic maneuver or defective vehicle

  before making stops on suspicion of drunk driving, he answered,

  “Sometimes I do; sometimes I don’t. Each one is different.”

¶ 11   During argument, defense counsel contended that there was

  insufficient evidence of reasonable, articulable suspicion of criminal

  activity. Defense counsel noted defendant committed no traffic

                                     4
  infractions and that weaving within a single lane was not a violation

  of Colorado law.

¶ 12   The prosecutor argued the stop was justified even in the

  absence of a driving violation, contending that “it is enough for an

  officer to believe that a person might be under the influence” and

  that police “need not wait for an independent traffic violation to

  occur.” The prosecutor further alleged there existed reasonable

  suspicion for “careless driving, distracted driving.”

¶ 13   The trial court denied the motion to suppress, concluding the

  officer had reasonable suspicion for the stop. The court found “the

  case law does not require an actual traffic violation for the officer to

  have a reasonable suspicion that a person is drunk driving.”

  Instead, the court held, “continuous weaving for a period of five to

  six miles observed by a police officer who had experience and

  training in DUI enforcement was sufficient to constitute a

  reasonable suspicion.”

¶ 14   The jury found defendant guilty of aggravated driving after

  revocation prohibited and the lesser included offense of driving

  while ability impaired. This appeal followed.


                                     5
                              II.   Analysis

¶ 15   Defendant argues that the trial court erred by denying his

  motion to suppress. We disagree.

                         A.   Standard of Review

¶ 16   In suppression cases, an appellate court defers to the trial

  court’s factual findings and will not disturb them if they are

  supported by competent evidence in the record. People v. Brown,

  217 P.3d 1252, 1255 (Colo. 2009). The appellate court reviews the

  trial court’s ultimate legal conclusions de novo. Id.

                   B.    Seizures for Traffic Violations

¶ 17   The United States and Colorado Constitutions protect against

  unreasonable searches and seizures. U.S. Const. amends. IV, XIV;

  Colo. Const. art. II, § 7. Traffic stops implicate these federal and

  state constitutional protections against unreasonable seizure.

  People v. Chavez-Barragan, 2016 CO 16, ¶ 10 (citing People v.

  Rodriguez, 945 P.2d 1351, 1359 (Colo. 1997)). But a brief,

  investigatory seizure is justifiable when the officer has a reasonable,

  articulable suspicion that criminal activity has occurred, is taking

  place, or is about to take place. Id. Suspicion of even a minor

  traffic offense can provide the basis for a stop. Id.
                                     6
¶ 18   “[A]n officer’s subjective motives for stopping a driver are

  irrelevant in determining whether an officer had reasonable

  suspicion.” People v. Vaughn, 2014 CO 71, ¶ 11; see also Whren v.

  United States, 517 U.S. 806, 810 (1996). An officer with “an

  objectively reasonable basis to believe that a driver has committed a

  traffic offense” is justified in making a stop. Vaughn, ¶ 11.

           C.    Intra-lane Weaving as Reasonable Suspicion

¶ 19   Defendant argues that his weaving within a single lane,

  without more, did not create reasonable suspicion of driving under

  the influence, despite the officer’s testimony that it did. We reject

  any bright line rule and emphasize that whether there exists

  reasonable suspicion of intoxicated driving2 is based on the totality

  of the circumstances. On the facts of this case, we conclude that

  the deputy had such reasonable suspicion, and that, therefore, the

  stop did not violate defendant’s constitutional right to be free from

  unreasonable searches and seizures.




  2For simplicity, in this opinion we use the phrase “intoxicated
  driving” to refer to both the offense of “driving under the influence”
  and the offense of “driving while ability impaired.” See § 42-4-
  1301(1)(a)-(b), C.R.S. 2018.
                                     7
¶ 20   The Fourth Amendment does not require that a police officer

  see the defendant actually commit a traffic violation before stopping

  him or her. See People v. Arias, 159 P.3d 134, 137-38 (Colo. 2007)

  (“Facts that might seem innocent when viewed in isolation can

  sustain a finding of reasonable suspicion when considered in the

  aggregate, so long as the officer maintains an objectively reasonable

  belief that the collective circumstances are consistent with criminal

  conduct.”); see also United States v. Botero-Ospina, 71 F.3d 783,

  787 (10th Cir. 1995) (“[A] traffic stop is valid under the Fourth

  Amendment if the stop is based on an observed traffic violation or if

  the police officer has reasonable articulable suspicion that a traffic

  or equipment violation has occurred or is occurring.”) (emphasis

  added).

¶ 21   Colorado courts have not addressed the issue of whether an

  officer may lawfully stop a driver who has been observed to be

  weaving within his lane of traffic. Other jurisdictions have

  considered this issue, however.

¶ 22   We agree with the “overwhelming weight of authority from

  other jurisdictions hold[ing] that repeated intra-lane weaving can


                                     8
  create reasonable suspicion of impaired operation.” State v. Pratt,

  932 A.2d 1039, 1041 (Vt. 2007) (emphasis added) (collecting cases);

  see People v. Greco, 783 N.E.2d 201, 205 (Ill. App. Ct. 2003)

  (collecting cases); Neal v. Commonwealth, 498 S.E.2d 422, 424-25

  (Va. Ct. App. 1998) (collecting cases).

¶ 23    Indeed, some jurisdictions recognize that intra-lane weaving

  can form the basis of an investigatory stop if the weaving is

  “repeated” or over a “substantial distance.” People v. Perez, 221

  Cal. Rptr. 776, 778 (Cal. Ct. App. Dep’t Super. Ct. 1985)

  (concluding that an officer has “reasonable cause to stop a vehicle

  on suspicion of driving under the influences where such weaving

  continues for a substantial distance”); State v. Field, 847 P.2d 1280,

  1285 (Kan. 1993) (“[T]he repeated weaving of a vehicle within its

  own lane may constitute sufficient reasonable suspicion for an

  officer to stop and investigate the driver of the vehicle.”); State v.

  Bailey, 624 P.2d 663, 664 (Or. Ct. App. 1981) (“[A] vehicle weaving

  within its own lane for a substantial distance gives rise to probable

  cause . . . .”).




                                      9
¶ 24   Still other jurisdictions recognize that intra-lane weaving can

  form the basis of an investigatory stop when the individual is

  “driving erratically” or there is “pronounced weaving or hard

  swerving.” Brown v. State, 595 So. 2d 270, 270 (Fla. Dist. Ct. App.

  1992) (concluding there was a valid stop when the car weaved and

  “slowed to 45 miles per hour and then accelerated to 55 miles per

  hour on several occasions”); State v. Binette, 33 S.W.3d 215, 219-20

  (Tenn. 2000) (“While Binette did move laterally at times within his

  lane . . . , we find that his movement was not pronounced, and

  therefore did not give rise to reasonable suspicion that he was

  under the influence of an intoxicant.”). But,

              [t]here are limits . . . on the extent to which
              weaving can serve as a factor creating
              reasonable suspicion of driving under the
              influence. For instance, an isolated incident of
              crossing into another lane will not ordinarily
              create reasonable suspicion of driving while
              impaired. Nor will weaving within a lane,
              without more, ordinarily create reasonable
              suspicion of driving under the influence.

  Amundsen v. Jones, 533 F.3d 1192, 1199 (10th Cir. 2008) (citations

  omitted).




                                     10
¶ 25   “Indeed, if failure to follow a perfect vector down the highway

  . . . were [a] sufficient reason[] to suspect a person of driving while

  impaired, a substantial portion of the public would be subject each

  day to an invasion of their privacy.” United States v. Lyons, 7 F.3d

  973, 976 (10th Cir. 1993), overruled on other grounds by Botero-

  Ospina, 71 F.3d at 787. As the deputy in this case acknowledged at

  the suppression hearing, in his experience people do not “tend to

  drive in a perfectly straight line.”

¶ 26   In agreeing with these authorities, therefore, we do not adopt a

  bright line rule that weaving within a single lane, by itself, gives rise

  to reasonable suspicion. Indeed, “slight degrees of intra-lane

  weaving alone do not justify a stop.” Pratt, 932 A.2d at 1042; see

  State v. Post, 733 N.W.2d 634, 639 (Wis. 2007) (rejecting a bright

  line rule because weaving that is “minimal or happens very few

  times over a great distance . . . can be insignificant enough that it

  does not give rise to reasonable suspicion”). Yet, we also do not

  adopt a bright line rule that weaving within a single lane gives rise

  to reasonable suspicion only when it is erratic, unsafe, or illegal.

  See Post, 733 N.W.2d at 641.


                                         11
¶ 27   Rather, we apply the well-established principle that reasonable

  suspicion for an investigative stop must be based on the totality of

  the circumstances. People v. Reyes-Valenzuela, 2017 CO 31, ¶ 12.

  Thus, other factors “such as pronounced or prolonged weaving or

  other suspicious aspects of driving” can support reasonable

  suspicion even if the driving was not erratic or unsafe. Post, 733

  N.W.2d at 641 (footnote omitted).

¶ 28   In this case, the deputy did not see defendant commit any

  traffic offense. But he observed defendant’s car continuously weave

  within a single lane for five or six miles. He identified this weaving

  behavior as an indication “that someone is driving under the

  influence of alcohol.” And when asked if it is normal for people to

  weave within one lane, he answered,

             Not in the frequency that he was doing it,
             no. . . . When you are going back and forth
             and almost playing pinball with the lanes, yes,
             he didn’t cross over a line, but he was just
             back and forth, back and forth. It was like a
             sign [sic] wave, watching a sign [sic] wave.

¶ 29   Considering the totality of the circumstances, we conclude

  that there existed reasonable suspicion that the driver was

  intoxicated. See People v. Loucks, 481 N.E.2d 1086, 1087 (Ill. App.

                                    12
  Ct. 1985) (upholding a stop where “the vehicle the defendant was

  driving was weaving within its own lane of travel continuously for a

  distance of about two blocks”); State v. Otto, 726 S.E.2d 824, 828

  (N.C. 2012) (upholding a stop where the defendant “was weaving

  ‘constantly and continuously’ over the course of three-quarters of a

  mile”); Pratt, 932 A.2d at 1041 (upholding a stop where “the trooper

  observed defendant drift back and forth within his lane several

  times over a distance of approximately five miles”).

¶ 30   Accordingly, the trial court did not err in denying defendant’s

  motion to suppress.3

                            III.   Conclusion

¶ 31   The judgment is affirmed.

       JUDGE FURMAN and JUDGE LICHTENSTEIN concur.




  3 Given our disposition of this case, we need not reach the People’s
  other arguments that there existed reasonable suspicion that
  defendant was about to violate section 42-4-1007(1)(a), C.R.S. 2018
  (weaving out of designated lanes), or section 42-4-1402(1), C.R.S.
  2018 (careless driving).
                                    13
