IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60684
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTIAGO J. ESCALANTE,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Mississippi
January 17, 2001
Before GARWOOD, HIGGINBOTHAM, and STEWART, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Santiago Escalante appeals the denial of his motion to
suppress evidence found during a traffic stop. A sheriff’s deputy
stopped Escalante, ostensibly for careless driving, and discovered
twenty kilos of cocaine in his car. Escalante challenges the
constitutionality of the Mississippi careless driving statute and
argues that the sheriff’s deputy lacked probable cause to conduct
the traffic stop. We affirm.
I
On the afternoon of July 11, 1998, Deputy Robert Sanders was
parked on the northbound side of I-55 in Madison County,
Mississippi, near the 107 mile marker. When he noticed the brake
lights of Escalante’s car come on as it passed him, his suspicion
was aroused. He also surmised that the vehicle may have been
speeding, although he did not have a radar gun. He pulled onto the
interstate and began to follow Escalante.
After catching up with Escalante, Sanders noticed Escalante
watching him through his rear-view mirror, which caused Escalante
to weave across the lane divider lines two or three times. Sanders
pulled him over after following for about three miles. He testified
that because Escalante was watching him and weaving, he thought
that “something was wrong” and that Escalante was engaging in
“careless driving.”
During the stop, Escalante consented to a search of his car.
Deputy Sanders, who had a drug-sniffing dog with him, found twenty
kilograms of cocaine in a secret compartment in the trunk.
Escalante was charged with possession of cocaine with intent
to distribute.1 He moved to suppress the drugs found by the search,
arguing that the deputy did not have probable cause to stop him.
Deputy Sanders argued that his stop was justified under
Mississippi’s careless driving statute. The motion to suppress was
denied. Escalante pleaded guilty, conditional on the appeal of the
suppression ruling. He appeals.
1
See 21 U.S.C.A. § 841(a)(1) (1999).
2
II
Escalante argues that the Mississippi careless driving statute
is unconstitutionally vague. It reads: “Any person who drives any
vehicle in a careless or imprudent manner, without due regard for
the width, grade, curves, corner, traffic and use of the streets
and highways and all other attendant circumstances is guilty of
careless driving.”2
We employ the two-part void-for-vagueness test described in
City of Chicago v. Morales.3 It states:
Vagueness may invalidate a criminal law for either of two
independent reasons. First, it may fail to provide the
kind of notice that will enable ordinary people to
understand what conduct it prohibits; second, it may
authorize and even encourage arbitrary and discriminatory
enforcement.4
Although the language of the statute is broad, ordinary people
can understand its meaning. The Mississippi Supreme Court, in Leuer
v. City of Flowood,5 has held that the terms “careless or
imprudent” describe the “familiar tort law standard, requiring . .
2
Miss. Code Ann. § 63-3-1213 (1996).
3
527 U.S. 41, 56 (1999) (plurality). Morales is the Court’s
most thorough discussion of void-for-vagueness in the criminal
context in recent years. Although the Morales test appears in a
plurality opinion, it encapsulates a longstanding test employed by
the Court. See Hill v. Colorado, 120 S. Ct. 2480, 2498 (2000);
Kolender v. Lawson, 461 U.S. 352, 357 (1983).
4
Morales, 527 U.S. at 56.
5
744 So. 2d 266 (Miss. 1999).
3
. the same standard of care as a prudent person would [exercise].”6
This ubiquitous standard does not defy common understanding but
relies on it. In the context of rules of the road, few people
misapprehend what constitutes careful driving and what does not.
Nor does the law lack “minimal guidelines” to prevent
arbitrary enforcement. Because it applies only to conduct that is
negligent, such that the conduct endangers the motorist or others,
the Mississippi law does not empower the police to punish whatever
conduct they choose.7
The Mississippi careless driving statute is constitutional.
III
Escalante argues that the stop was illegal because Deputy
Sanders did not have probable cause to stop him for careless
driving. He contends that he did not violate the Mississippi
careless driving statute, and that his weaving across the line is
excusable because it was caused by Deputy Sanders following him.
6
Id. at 270. As state courts are the ultimate authority on
issues of state law, federal courts are bound by their
interpretations of state law. See Morales, 527 U.S. at 61 (“We
have no authority to construe the language of state statute more
narrowly than the construction given by that State’s highest
court.”).
7
Cf. Morales, 527 U.S. at 60-64 (opinion of the court).
4
The traffic stop may have been pretextual.8 But under Whren v.
United States,9 a traffic stop, even if pretextual, does not
violate the Fourth Amendment if the officer making the stop has
“probable cause to believe that a traffic violation has occurred.”10
This is an objective test based on the facts known to the officer
at the time of the stop, not on the motivations of the officer in
making the stop. On the other hand, if it is clear that what the
police observed did not constitute a violation of the cited traffic
law, there is no “objective basis” for the stop, and the stop is
illegal.11
As Deputy Sanders followed Escalante, Escalante weaved across
the divider lines at least twice. Under Mississippi precedent,
Deputy Sanders correctly believed that Escalante’s driving violated
the careless driving statute.12 The Court of Appeals of Mississippi,
8
Officer Sanders’s own testimony does not conceal the fact
that at the time he suspected smuggling. Although he was not
carrying a radar gun, he did have a drug-sniffing dog with him.
9
517 U.S. 806 (1996).
10
Id. at 810.
11
United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998).
See also United States v. Lopez-Valdez, 178 F.3d 282, 288 (5th Cir.
1999).
12
“[W]e interpret the state statute the way we believe the
state Supreme Court would . . . . If a state’s highest court has
not spoken on the issue, we look to the intermediate appellate
courts for guidance.” Vielma v. Eureka Co., 218 F.3d 458, 462 (5th
Cir. 2000)(internal quotation marks omitted).
5
in Guerrero v. State,13 held that a driver whose vehicle crossed
over the yellow lines into the turning lane of a road “two or three
times” violated the Mississippi careless driving statute, thereby
justifying a traffic stop.14 In Guerrero, as in the instant case,
the police were following the defendant when they observed his
vehicle cross over the lane markers; the court, however, did not
discuss this fact.
Escalante contends that his weaving did not create probable
cause to believe that he was driving carelessly. He argues that
Deputy Sanders was following him closely, and he was paying
attention to the sheriff’s vehicle following him, as any prudent
driver would. His weaving, he suggests, was merely the result of
his divided attention.
Although the record does not establish how closely Deputy
Sanders was following Escalante, Escalante’s arguments have
persuasive force, and we acknowledge that this is a close case. But
we recognize that Deputy Sanders could have reasonably concluded
that a careful and prudent driver would not swerve out of his lane
even if his attention was drawn by a law enforcement vehicle
approaching from behind. Indeed, perhaps the prudent driver should
be more careful to maintain his lane in such a situation. In any
13
746 So. 2d 940 (Miss. App. 1999).
14
Id. at 943.
6
case, we cannot conclude that Deputy Sanders lacked probable cause
to stop Escalante for careless driving.
IV
The Mississippi careless driving statute is constitutional,
and Deputy Sanders had probable cause at the time of the stop to
believe Escalante had violated the statute. Therefore, we hold that
the stop and consequent consent search were constitutionally valid
and AFFIRM the district court’s denial of Escalante’s motion to
suppress.
ENDRECORD
7
CARL E. STEWART, Circuit Judge, dissenting:
I agree with the majority that Mississippi’s careless driving
statute is constitutional. However, on the issue of probable
cause, I respectfully dissent.
When reviewing a suppression ruling, we view the evidence in
the light most favorable to the prevailing party, and we accept the
factual findings of the district court unless they are clearly
erroneous or were influenced by an incorrect interpretation of the
law. United States v. Rodea, 102 F.3d 1401, 1404 (5th Cir. 1996).
Under the recitation of the facts by the majority, with which I do
not disagree, I do not conclude that Deputy Sanders had probable
cause to stop Escalante for careless driving.
Deputy Sanders testified that his suspicions were aroused when
he noticed the brake lights of Escalante’s car illuminate as it
passed him. He also noted that the vehicle may have been speeding.
However, this observation is surely makeweight because Deputy
Sanders did not have a radar gun, and he did not articulate any
observations consistent with an assessment of speeding.
Additionally, Deputy Sanders made no claim that the mere brief
illumination of the brake light was necessarily probative of any
moving violation for which a ticket might have been written. As
the majority opinion notes, Sanders candidly acknowledged at the
suppression hearing that he suspected drug smuggling when Escalante
passed him. Even allowing for our deferential standard for
reviewing the facts, it is fair to conclude that after following
Escalante for three miles, Deputy Sanders had pulled very closely
behind his vehicle. This conclusion is supported by Deputy
Sanders’ heavy reliance in his testimony on his observation of
Escalante checking his rear-view mirror, an observation which
indicates close proximity to the vehicle. As a result of Deputy
Sanders’ tailgating pursuit of the vehicle, Escalante weaved at
least twice, crossing the white lane divider. The majority finds
that, while Escalante’s arguments that Deputy Sanders’ conduct
distracted him and caused him to weave across the divider lines are
persuasive, Deputy Sanders could have reasonably concluded that a
careful driver would not have reacted as Escalante did.
The candid testimony of Deputy Sanders reveals that he had no
basis upon which to stop Escalante for a traffic violation but that
he simply had a hunch. His main goal that day was obviously not to
catch speeders but instead to employ his drug-sniffing dog.
Notwithstanding the difficult job that law enforcement officers
have and the preeminent societal need to vigilantly thwart drug
trafficking, I cannot agree that though armed with a salutary
purpose, an officer can manufacture probable cause by tailgating a
motorist.
While it is true that under Whren v. United States, 517 U.S.
806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), a pretextual stop
does not violate the Fourth Amendment if there is probable cause,
a police officer cannot constitutionally create the very probable
9
cause upon which he relies to make a stop. Whren rejected the
notion that the subjective intent of an officer can be used in
assessing the constitutional reasonableness of a stop. See Whren,
517 U.S. at 813-14. However, the Court did not give police
officers carte blanche to create probable cause.
There is an important distinction between pretext, addressed
in Whren, and the creation of probable cause, which is the scenario
in this case. Where an officer conducts a pretextual stop, he does
“under the guise of enforcing the traffic code what [he] would like
to do for different reasons.” Whren, 517 U.S. at 814. However, in
this case, Deputy Sanders proceeded after Escalante on a hunch,
distracted him, and essentially created the probable cause that he
needed to stop him. In other words, Deputy Sanders elicited a
response from Escalante, whose conduct to that point had not given
rise to probable cause, and then used that response against him.
In the context of the exigent circumstances exception, we have
found that police officers cannot create urgent circumstances and
then rely on them to make a warrantless search. See United States
v. Blount, 123 F.3d 831, 838 (5th Cir. 1997) (en banc) (“It is true
that the prosecution may not rely upon an exigency that the police
themselves created through unreasonable investigatory tactics.”);
Rodea, 102 F.3d at 1409 (“Needless to say, the exigent
circumstances exception does not apply if the Government created or
‘manufactured’ the exigency.”). Similarly, here, Deputy Sanders’
10
reliance on the probable cause that he created is impermissible in
my view.
Even assuming that Escalante’s conduct fits within
Mississippi’s careless driving statute, and even given the
elasticity of Whren, I cannot hold that an officer can simply have
a hunch and then create probable cause to stop a motorist.
Therefore, I respectfully dissent.
11