Reversed and Remanded and Opinion filed August 26,
2003.
In The
Fourteenth
Court of Appeals
____________
NO.
14-01-00945-CR
JOEL
NEIL EICHLER,
Appellant
V.
THE
STATE OF TEXAS,
Appellee
On
Appeal from the 253rd District Court
Chambers
County,
Texas
Trial
Court Cause No. 11,504
O
P I N I O N
Appellant,
Joel Neil Eichler, pled guilty to possession with
intent to deliver a controlled substance and was sentenced to fifteen
years=
imprisonment. In one point of
error, appellant claims the trial court committed reversible error by denying a
motion to suppress evidence obtained as a result of an illegal stop. We reverse and
remand.
Factual
Background
On
June 13, 2000, at approximately 12:30 a.m., Officer Matt Ashby of the Chambers
and Liberty County Narcotics Task Force conducted a traffic stop of appellant,
who was heading eastbound on Interstate 10. After obtaining appellant=s
consent to search, Officer Ashby found 446 grams of marijuana and 335 grams of
methamphetamine in a cracker box in appellant=s
vehicle.
Appellant
filed a pretrial motion to suppress the fruits of the vehicle search, contending
that the initial traffic stop was not justified and, therefore, the court should
exclude all evidence obtained as a result of the stop. The only witness who testified at the
hearing on appellant=s
motion was Officer Ashby. Because
the details of his testimony are crucial to our determination of the validity of
the traffic stop, we cite verbatim the following relevant
excerpts:
Q:
How did you come into contact with the defendant that
morning?
A:
I stopped Mr. Eichler on a traffic
violation.
Q:
And for what violation did you stop him?
A:
Failure to maintain a single marked lane of traffic.
Q:
What did this involve?
A:
This involved him crossing over the left handCthe
left line of his lane.
.
. .
Q:
Officer Ashby, in yourCbased
on your training and experience, what, if anything, does weaving or failure
toCfailure
to stay in the same lane indicate to you as a possible
problem?
A:
One of the most important things is usually they=re
intoxicated. They could be tired or
they could be eating, could be changing a radio station, could be on a cell
phone. I mean, there=s
all kinds of different scenarios, and the main thing is the welfare concern of
the driver.
Q:
And are those also the reasons why you stopped the defendant, to see if he had
any of these problems?
A:
Yes.
Q:
Was the traffic heavy or light orC
A:
It was light.
Q:
Was he about the only one eastbound right there in that
vicinity?
A:
Maybe him and maybe a big truck.
Q:
Is that aChow
many lanes is that right there? Is that three?
A:
That is a three lane highway, yes.
Q:
Okay. And what lane was Mr. Eichler in when you
noticed him?
A:
As far as I can rememberCI=m
not real sure on thisCI
believe it was the middle lane.
Q: And you=re
saying that the probable cause for the stop was that hisCwell,
you tell us what the probable cause for the stop was.
A:
He crossed over the left line of his lane.
Q:
How was it unsafe?
A:
Well, I don=t
know. Next time he goes all the way
over and hits the concrete median.
Officer
Ashby also testified that there were no cars, cattle, children, debris, or
potholes near appellant=s
vehicle. There was no testimony concerning the speed at which appellant was
driving.
Motion
to Suppress
The
historical facts are not disputed; therefore, we review the ruling on the motion
to suppress de novo. See Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).
We first consider the legality of appellant=s
detention. The State argues two
grounds as justification for appellant=s
detention: (1) his alleged traffic violation and (2) the officer=s
exercise of his community-caretaking function. We will consider each of these arguments
to determine whether the stop was legal.
Traffic Offense
An
investigative detention requires a police officer to have a reasonable suspicion
of criminal activity. See Terry
v. Ohio, 392 U.S. 1, 30 (1968); Woods v. State, 956 S.W.2d 33, 35
(Tex. Crim. App. 1997); Reynolds v. State, 962
S.W.2d 307, 311 (Tex.
App.CHouston [14th Dist.]
1998, pet. ref=d). The reasonableness of a temporary
detention is determined from a totality of the circumstances. See Woods, 956 S.W.2d at 38. We determine, using an objective
standard, whether the facts available to the officer at the moment of detention
warrant a person of reasonable caution to believe that the action taken was
appropriate. See Terry, 392
U.S. at 21-22; Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.CAustin
1998, pet. ref=d)
(quoting Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997)).
If an officer has a reasonable basis for suspecting a person has
committed a traffic offense, the officer may legally initiate a traffic
stop. See McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993).
The
State alleges the appellant committed a traffic violation when he made a single
swerve over a white hash-marked line.
However, making such a maneuver is not a per se violation of any
law. See Aviles v. State, 23
S.W.3d 74, 77 (Tex.
App.CHouston [14th Dist.]
2000, pet. ref=d). Section 545.060(a) of the Transportation
Code provides:
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.
Tex.
Transp. Code Ann. '
545.060(a) (Vernon 1999).
AThe
elements of failure to drive in a single marked lane are: (1) a person (2)
drives or operates (3) a motor vehicle (4) within a single marked lane, and (5)
moves from that lane without first ascertaining that such movement can be
made with safety.@ Hernandez, 983 S.W.2d at 871
(quoting Atkinson v. State, 848 S.W.2d 813, 815 (Tex. App.CHouston [14th Dist.]
1993, pet. ref=d))
(emphasis in original). This court
must determine Awhether
a person of reasonable caution would believe that the lane change could not have
been made safely given the facts and experiences related by the
officer.@ Aviles, 23 S.W.3d at 77.
In
Hernandez, the defendant=s
truck crossed partially into the adjacent lane and thus failed to stay in a
single marked lane.
Hernandez, 983 S.W.2d at 868. The State failed to show this movement
was unsafe or dangerous, and the court concluded the police officer did not have
a reasonable basis for believing the defendant had committed a ticketable traffic offense. Id. at 871-72. In Aviles, this court followed
Hernandez and held that a multiple lane change, without evidence
demonstrating that it was accomplished in an unsafe manner, did not provide a
reasonable basis for an officer to believe the driver had committed a ticketable traffic offense. See Aviles, 23 S.W.3d at 78;
see also, Benavides v. State, 2001 WL 101787, * 2 (Tex. App.CHouston [14th Dist.]
Feb. 8, 2001, pet. ref=d)
(not designated for publication) (factually distinguishing Hernandez;
driver came up fast on officer and failed to maintain lane by driving over
Afog
line@
onto the highway shoulder); Cook v. State, 63 S.W.3d 924, 927
(Tex. App.CHouston [14th Dist.]
2002, pet. ref=d.)
(found constant crossing over broken white line into other lane constituted
reasonable suspicion of lane violation and driving while
intoxicated).
Like
Hernandez, this case involves (1) a single instance (2) of crossing a
lane-dividing line with the left front and rear tires of appellant=s
vehicle (3) into a lane of traffic traveling the same direction (4) when the
movement is not shown to be unsafe or dangerous. Just as in Aviles and
Hernandez, the State presented no evidence that appellant=s
failure to stay in a single marked lane was unsafe. Therefore, Officer Ashby could not have
had a reasonable basis for suspecting that appellant had committed a traffic
offense.
Community-Caretaking Exception
The
State maintains that because Officer Ashby
testified the failure to
stay in the same lane may indicate
the individual is intoxicated, tired, eating, changing a radio station,
or talking on a cell phone, and the main concern is the welfare of the driver,
the stop was justified under the Acommunity-caretaking@
exception.
A
police officer=s
duties encompass a community-caretaking function that goes beyond traditional
investigation and enforcement of the law.
Cady v. Dombrowski, 413 U.S. 433, 441
(1973); Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999).
As part of an officer=s
duty to Aserve
and protect,@
an officer Amay
stop and assist an individual whom a reasonable person, given the totality of
the circumstances, would believe is in need of help.@ Wright, 7 S.W.3d at 151. An officer may not properly invoke the
caretaking function if not primarily motivated by it. See Wright, 7 S.W.3d at 151. In determining whether an officer acted
reasonably in stopping an individual to determine if he needs assistance, we
consider the following four non-exclusive factors: (1) the nature and level of
the distress exhibited by the individual; (2) the location of the individual;
(3) whether or not the individual was alone and/or had access to assistance
other than that offered by the officer; and (4) to what extent the individual,
if not assisted, presented a danger to himself or others. Corbin, 85 S.W.3d at 277;
Wright, 7 S.W.3d at 152.
Officer
Ashby contends he was concerned that the appellant could have been tired,
distracted, or intoxicated.
However, under the Corbin-Wright factors, we conclude it was
unreasonable for the officer to believe appellant needed assistance. The first factor, nature and level of
distress, is given the greatest weight.
Corbin, 85 S.W.3d at 277.
Here, there is little to support the conclusion that appellant had any
type of distress. According to
Ashby=s
testimony, the cause for his concern was a single instance of swerving over the
dividing line. It was not continual
swerving or swerving accompanied by any other erratic behavior. See, e.g., Cunningham v. State,
966 S.W.2d 811 (Tex.
App.CBeaumont
1998, no pet.) (finding temporary stop of driver was justified when officer
observed defendant driving a vehicle with a flat tire about 5 m.p.h. on the
shoulder of the road). Officer Ashby acknowledged there could be several
non-emergency reasons that would cause a car to weave, including talking and
eating. A single swerve alone, as
Ashby himself conceded, does not necessarily constitute a driver in
distress.
Second,
we look to the location of the driver.
At the time of the stop, appellant was in the center lane of a three-lane
interstate highway. Nothing
indicated the area was isolated or that appellant would be unable to obtain
assistance if needed. He was
traveling along Interstate 10 to Lake Charles, LouisianaCa
highly populated and well traveled stretch of road. However, Ashby also indicated there was
no traffic, supporting a need to offer assistance. We find these interests balance each
other out, making the second factor neutral.
Next, we look to whether appellant was alone and/or had access to
assistance other than the officer.
Corbin, 85 S.W.3d at 278.
Here, we find that he did not.
Appellant was driving alone in the truck, and the officer reported no
other vehicles in the vicinity. It
would seem that no other assistance was readily available if appellant were to
have a traffic accident.
Finally,
we consider the extent to which the individual presented a danger to himself or
others if not assisted. This factor
weighs against the stop. The risk
of falling asleep and losing control of the vehicle is a serious one. It would present a significant traffic
danger. However, as in Corbin,
the distress exhibited by the appellant ended almost immediately and
Ashby even conceded that it might have been an isolated incident, such as
changing the radio station. Without
more to support that appellant actually was asleep or in distress, we find this
factor does not support a reasonableness
finding.
Applying
the Corbin-Wright factors, we find Officer Ashby=s
exercise of his community-caretaking function unreasonable. A single swerve over the dividing-line
by the appellant was simply too minor for Ashby to reasonably believe that the
appellant was falling asleep and in need of assistance. If appellant were Asleepy
or falling asleep while driving, a reasonable person would expect to see more
indications of fatigue.@ Id. at 278.
Conclusion
We
conclude that the State did not carry its burden of demonstrating the
reasonableness of the stop on the basis of a suspicion that appellant had
violated section 545.060(a) of the Transportation Code or as part of the
officer=s
community-caretaking function.
Therefore, we reverse the trial court=s
judgment of conviction and remand the cause to that court for further
proceedings consistent with this opinion.
/s/
Leslie Brock Yates
Justice
Judgment
rendered and Opinion filed August 26, 2003.
Panel
consists of Justices Yates, Anderson, and Frost.
Publish
C
Tex. R. App. P. 47.2(b).
We note
that in the present case, the State did not argue to the trial court or on
appeal that Officer Ashby stopped appellant based on reasonable suspicion of
intoxication. The officer testified
that a swerve such as that done by appellant might indicate, in his experience,
that a driver is intoxicated.
However, Officer Ashby also identified several other reasons why a driver
might fail to maintain a single lane of traffic. Officer Ashby never testified that he
suspected appellant was intoxicated, nor did the State present any other
evidence that would support such a
suspicion.