COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00429-CR
MICHAEL NNAMANI APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY
TRIAL COURT NO. 1342673
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DISSENTING OPINION
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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