United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 30, 2006
Charles R. Fulbruge III
Clerk
No. 05-50686
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRIC MONTIQUE COLE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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Before HIGGINBOTHAM, DAVIS and STEWART, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant Demetric Cole appeals the denial of his motion to
suppress drugs found in his vehicle following a traffic stop.
Because we are unable to resolve the legality of the traffic stop
without additional fact finding, we vacate the district court’s
order denying Cole’s motion to suppress and remand for further
proceedings.
I.
Cole was stopped for a traffic violation in Odessa, Texas at
the intersection of Tanglewood and Oakwood Streets. This
intersection is governed by a stop sign. Officer Julian, the
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arresting officer, was traveling South on Tanglewood, on the same
street as Cole and directly behind Cole. After stopping Cole,
Julian told Cole that he failed to stop at the designated white
line at the stop sign. The officer gave no other reasons for
stopping Cole’s vehicle. Cole argued at the suppression hearing
that he committed no traffic violation because he stopped before
he reached the crosswalk at the intersection.
When Officer Julian approached the vehicle he smelled
marijuana emanating from the car. While waiting to run Cole’s
arrest record, the officer asked Cole to exit the car and sit on
the curb of the sidewalk. Cole refused to give permission to
search the car and Officer Julian called a K-9 unit, which
arrived in approximately 10 minutes. The canine officer also
smelled marijuana emanating from the vehicle. The dog alerted to
the driver’s window. When the canine officer opened the driver’s
side door, the dog alerted to a bag under the driver’s seat. The
bag was found to contain approximately one kilogram of powder
cocaine. Cole was arrested and charged with possession with
intent to distribute 500 grams or more of cocaine.
Cole filed a motion to suppress the cocaine on the basis
that the initial traffic stop was illegal. Following a hearing,
the district court denied the motion to suppress. Cole entered a
conditional guilty plea and preserved his right to appeal the
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district court’s ruling on the motion to suppress. Cole now
appeals the denial of that motion.
II.
In this challenge to the district court’s denial of his
motion to suppress, Cole argues that the initial stop was
invalid. A police officer may stop a vehicle if he has probable
cause to believe a traffic violation has occurred. Whren v.
United States, 517 U.S. 806, 810 (1996). If an officer stops a
vehicle for conduct by a motorist that does not in fact
constitute a traffic violation, courts are leery of extending the
good faith exception to the exclusionary rule to justify the
stop. United States v. Lopez-Valdez, 178 F.3d 282, 289 (5th Cir.
1999).
Lopez-Valdez discusses the problem with extending the good-
faith exception to the exclusionary rule to traffic stop
situations. The 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.
Whren, 517 U.S. 806 (1996). Because of this allowance, if courts
permitted officers to justify a stop based on their subjective
belief that traffic laws have been violated, when no violation
has in fact occurred, the potential for abuse of traffic stops as
pretext for effecting stops for other purposes “seems boundless
and the costs to privacy rights excessive.” Lopez-Valdez, 178
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F.3d at 289. Thus, instead of allowing an officer to justify a
traffic stop based on the officer’s subjective belief that a
violation occurred, courts require that the legal justification
for a traffic stop be objectively grounded. United States v.
Miller, 146 F.3d 274, 279 (5th Cir. 1998). 146 F.3d at 279.
Our research reveals no case in this circuit which has
relied on the good faith exception to justify a traffic stop when
the police officer erroneously believed the conduct he observed
was a traffic violation. See Lopez-Valdez; United States v.
Granado, 302 F.3d 421 (5th Cir. 2002); United States v. Miller,
146 F.3d 274 (5th Cir. 1998). We decline to extend that
exception to this case. Accordingly, the constitutionality of the
officer’s stop of Cole’s vehicle must stand or fall based on
whether Cole violated Texas law in the manner in which he stopped
at the intersection.
III.
Texas law dictates different stopping places at
intersections governed by stop signs depending on whether the
intersection has a crosswalk. If there is a crosswalk, motorists
must “stop before the crosswalk on the near side of the
intersection. In the absence of a cross walk, the operator shall
stop at a clearly marked stop line.” Texas Transp. Code Ann. §
544.010(c)(Vernon 1999).
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It was apparently unclear to the district court whether this
intersection had a crosswalk. It is also unclear to us from the
record. Officer Julian testified only that Cole failed to stop
at the designated stopping line at the intersection. He stated
that when Cole stopped, his front and rear tires were straddling
the stop line with the line underneath the back door of the
vehicle. A photograph of the intersection entered as an exhibit
clearly shows a white stop line but we cannot determine whether a
crosswalk was in place between the stop line and the corner of
the intersection. The district court did not make a factual
finding on whether the intersection had a crosswalk and if so
whether Cole stopped past the near side of the crosswalk.
Instead, the court relied on the good faith exception and
concluded that Officer Julian in good faith believed that Cole’s
manner of stopping violated § 544.10(c).
The district court erred in applying the good faith
exception to justify this traffic stop. See Lopez-Valdez. We
must remand this case to the district court to make the necessary
factual findings to determine whether Cole violated § 544.10(c).
Specifically, the district court should determine whether the
intersection had a crosswalk and, if so, whether Cole stopped his
vehicle before reaching it. If the intersection has no
crosswalk, the district court should find whether Cole stopped
his vehicle before reaching the stop line. If Cole committed a
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traffic violation, the stop is justified. If he did not violate
§ 544.10(c), the stop is not justified and the motion to suppress
should be granted without regard to the officer’s subjective good
faith.
IV.
For the foregoing reasons, we vacate the order of the
district court denying Cole’s motion to suppress and remand this
case to the district court for further proceedings.
VACATED. REMANDED.
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