The Leming Opinion Is Not the Silver Bullet Prosecutors Claim

Safe Weaving Is No Basis for a Stop

Those familiar with criminal defense in the state of Texas have likely encountered the issue of weaving within the lane as a basis for a police stop. It’s been referred to numerous ways: “weaving within the lane,” “safe weaving,” “failure to maintain the lane,” etc. What it ultimately boils down to is someone being stopped by an officer for either weaving within the lane they are driving in, or maybe even slightly out of the lane, and subsequently being arrested for a DWI or some other offense. This is fertile ter­ri­tory for Motions to Suppress, as Texas case law has long stated that there needs to be some additional, unsafe element to justify a stop by law enforcement.

However, prosecutors across the state are now rejoicing with release of the Court of Criminal Appeals’ Leming opinion. This case is now being cited by prosecutors as the magic new case that makes suppression matters based on weaving within the lane a moot point, and a cursory glance at the opinion may suggest as much. But this opinion is hardly the super weapon that prosecutors think it is. The purpose of this article is to explore what has long been the practice of this state’s courts in dealing with these issues and interpreting the relevant statutes. It will also look to why the argument relied on by prosecutors based on the Leming opinion is, at best, persuasive dicta, and how to argue against it.

First, a brief discussion of the history of cases that have shaped how the defense approaches this issue is necessary. The statute controlling this matter is Texas Transportation Code Sec. 545.060, titled “Driving on Roadway Laned for Traffic.” In relevant part, it states:

(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.

Courts have traditionally held that this means, in the event of a driver not maintaining their lane (weaving lightly outside of the lane, tires touching the lane dividers on either side, etc.), the “and” at the end of subsection (a)(1) makes subsection (a)(2) an additional requirement for there to be suspicion of any actual statutory violation. Therefore, something unsafe must accompany this weaving to justify a stop.

This has been illustrated in numerous cases. First, in State v. Tarvin, 972 S.W.2d 910 (Tex.App.—Waco 1998), a police officer stopped the Appellant after observing Appellant’s car drift two or three times to the right side of a two-lane road, causing his tires to go over the solid white line at the right-hand side of the road. The Court determined that mere weaving in one’s own lane of traffic can justify an investigatory stop only when that weaving is erratic, unsafe, or tends to indicate intoxication or other criminal activity. Since the Court found that there was nothing in the record to show that the officer there believed that to be the case, the stop was not justified. Id. at 912.

The same determination was made in Hernandez v. State, 983 S.W.2d 867 (Tex.App.—Austin 1998). In this case, the Court concluded that a single instance of crossing a lane dividing line by 18 to 24 inches into a lane of traffic traveling the same direction without showing the movement unsafe or dangerous does not give an officer a reasonable basis for suspecting that the defendant had committed a criminal traffic offense. Violations occur only when a vehicle failed to stay within its lane and the movement was not safe or was not made safely.

This can also be seen in State v. Cerney, 28 S.W.3d 796 (Tex.App.—Corpus Christi 2000), wherein the testimony established that Appellant was weaving somewhat within his own lane of traffic. There was no evidence that his actions were unsafe, and the court concluded the evidence did not support a finding that the trooper had a reasonable belief that the defendant had vio­lated Section 545.060 of the Transportation Code. Similar decisions were made in Ehrhart v. State, 9 S.W.3d 929 (Tex.App.—Beaumont 2000, no pet.), Eichler v. State, 117 S.W.3d 897 (Houston, 2003), State v. Palmer, 2005 SW3d LWC 1646 (Tex.App.—Fort Worth 2005), and Fowler v. State, 266 S.W.3d 498 (Tex. App.—Fort Worth 2008).

The Court of Criminal Appeals has looked at this issue regarding a Community Caretaking argument. In Corbin v. State, 85 S.W.3d 272 (Tex.Crim.App. 2002), the Court found that slow driving and crossing into another lane, or onto the shoulder, for a length of 20 feet is not enough to constitute a stop under the Community Caretaking doctrine. The Court found that it was not objectively reasonable for an officer to believe that the Appellant’s driving conduct showed them to be in need of assistance. In short, while many an arresting agency has undoubtedly used weaving within the lane as basis to pull citizens over, ample case law exists to have these stops and any subsequent evidence suppressed.

The Leming Opinion

Leming is the new plurality opinion released by the Court of Criminal Appeals on April 13, 2016 (PD-0072-15, 2016 WL 1458242). At the trial court level, appellant filed a Motion to Suppress the product of the traffic stop by which the offense was discovered. The motion was denied, and later appealed to the Texarkana Court of Appeals, where the trial court’s ruling was reversed in Leming v. State, 454 S.W.3d 78 (Tex.App.—Texarkana 2014). In this case, the established facts were that the arresting officer received a report from a dispatcher that a car was driving erratically. The officer was able to find the vehicle that the citizen was calling in about. Upon following the appellant’s vehicle, the officer observed the vehicle weaving back and forth, from almost touching the curb on the right and back to touching the lane dividing line on the left multiple times. The arresting officer also observed the Appellant driving 13 mph under the posted speed limit, and continuously decelerating further. The plurality opinion analyzed both the relevant statute and what constitutes reasonable suspicion for a stop under said statute—and whether the driving behavior presented in the case was, in and of itself, a reasonable basis for a stop.

The plurality opinion, written by Justice Yeary, joined by Justice Keller (justices Richardson and Meyers concurring), re-analyzes Texas Transportation Code Sec. 545.060. This analysis goes against the aforementioned history of Texas courts’ application of the statue. Primarily, the plurality determined that Texas Transportation Code Sec. 545.060(a)(1) and (2)’s conjunction “and” makes both of these subsections an independent basis for a police stop, not one that requires both a vehicle to weave within the lane and for there to be something fundamentally unsafe about it. Instead, the opinion determines that either of these can be a legal basis for a stop.

First and foremost, a four-judge plurality opinion is not binding, and has questionable precedential value. See Vernon v. State, 841 S.W.2d 407, 410 (Tex.Crim.App.1992). While concurring, Justice Alcala specifically does not concur with the section of the opinion about the interpretation of Texas Transportation Code Sec. 545.060. The dissenting justices Newell, Keasler, Johnson, and Hervey also obviously disagree with the plurality’s statutory interpretation. The dissent of Justice Keasler, which is joined by justices Johnson and Hervey, specifically points to the ridiculousness of interpreting the plain meaning of the word “and” to mean “or.” It additionally distinguishes the other statutes that the opinion of Justice Yeary relies on in the plurality interpretation of the statute. As stated for various reasons by a majority of the Court of Criminal Appeals, this heretofore unheard-of analysis of the statute is not sound, and should not be applied. Justice Newell’s dissent specifically agrees with Keas­ler’s regarding the interpretation of the statute.

Ultimately, a majority of the justices do not agree on this new interpretation of Texas Transportation Code Sec. 545.060, and defense attorneys should be articulating this early and often. The only thing that a majority of the Court may be agreeing on in this case is that failure to maintain the lane—when combined with a confirmed 911 call for erratic driving and driving 13 mph under the speed limit and continuing to decelerate—may be a reasonable cause for an officer to conduct a traffic stop. Fur­ther­more, as of the time of this writing the Leming opinion has not been released for publication in the permanent law re­ports, and while unlikely, it could be subject to revision or withdrawal until it is released. This plurality’s radical departure from established case law and statutory interpretation should not be applied unless or until a majority of the Court determines it should be. Indeed, there is a history of such opinions falling to the wayside in Texas jurisprudence.

The Autran Legacy

Precedent exists of ignoring the reasoning of a three-judge plurality opinion, and one need look no further than history of the Court of Criminal Appeals’ Autran decision for an excellent example. Regarding inventory searches, the Supreme Court of the United States has essentially determined that so long as reasonable police procedure is in place and there is no bad faith, inventory searches, even of closed containers, of a vehicle are allowed. See Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987), and Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632, 109 L.Ed. 2d (1990). States, however, may offer greater protections of their citizens’ rights than the constitutional minimums, and that is exactly what a plurality of the Court of Criminal Appeals purported to do in Autran v. State, 887 S.W.2d 31 (Tex.Crim.App. 1994).

This case involved a search of closed containers in the trunk of a van incident to arrest. The Appellants argued that while it is technically legal under case law regarding the Fourth Amendment, the Texas Constitution offers broader protections. After in-depth analysis of Texas’ Constitution Art I § 9, the Court held Texas offers broader protection. Specifically:

that art. I, § 9, provides a privacy interest in closed containers which is not overcome by the general policy considerations underlying an inventory. This holding is consistent with the comparable jurisprudence discussed in Part IV, D, of this opinion. Just as those courts found greater protection under their state constitutional provisions concerning searches and seizures, we hold art. I, § 9, provides greater protection than the Fourth Amendment in the context of inventories. The officers’ interest in the protection of appellant’s property, as well as the protection of themselves from danger and the agency from claims of theft, can be satisfied by recording the existence of and describing and/or photographing the closed or locked container. This is not to say that officers may never search a closed or locked container, only that the officers may not rely upon the inventory exception to conduct such a warrantless search. We refuse to presume the search of a closed container reasonable under art. I, § 9, simply because an officer followed established departmental policy.

Id. at 41–42.

However, this was a three-judge plurality opinion, with four of the judges concurring in three separate concurrences, and the presiding judge dissenting. This opinion was applied once, in State v. Lawson, 886 S.W.2d 554 (Tex.App.—Fort Worth 1994), in which the Fort Worth Court of Appeals decided to apply the Autran reasoning to inventory searches, specifically stating: “As an intermediate appellate court, we follow the law as enunciated by the highest courts in this state. Accordingly, the State’s only point of error is overruled.” Id. at 556. However, numerous other appellate cases followed that chose not to apply Autran. In Madison v. State, 922 S.W.2d 610 (Tex.App.—Texarkana 1996), the Court refused to recognize Autran as binding precedent. Furthermore, in Hatcher v State, 916 S.W.2d 643 (Tex.App.—Texarkana 1996), the same court chose to expressly ignore Autran as binding precedent due to its being a plurality opinion. The Texarkana Court of Appeals specifically pointed to other opinions since made that failed to recognize or mention Autran, though it was relevant, and called the plurality opinion “unsound law.”

The Dallas Court of Appeals summed up the issues well in Trullijo v. State, 952 S.W.2d 879 (Tex.App.—Dallas 1997), where it discussed the split between the Fort Worth and Texarkana Court of Appeals application of Autran. The Dallas Court also discussed the fact that a three-judge plurality is not binding precedent—and the Court of Criminal Appeals’ refusal to provide a definitive answer on the issue in the face of conflicting decisions by two courts of appeals—and chose not to apply it either. Even the Fort Worth Court of Appeals later reversed its position in Lawson in Jurdi v. State, 980 S.W.2d 904 (Tex.App.—Fort Worth 1998).

The Takeway

While the Leming opinion creates a new challenge for defense attorneys, one should not allow the prosecution to characterize it as anything more than what it is, which is, at best, persuasive dicta. And with only three of the nine Justices of the Court of Criminal Appeals taking the stance that matters most here, even its persuasiveness is suspect.

Lanny Begley
Lanny Begley
Lanny Begley received his B.A. in Political Science from Austin Peay State University in Tennessee and his JD from Baylor University School of Law, where he was active in both Phi Alpha Delta and the Order of Barristers. Lanny previously worked in both civil and federal administrative law before going into criminal defense full time. Since 2015, he has had the pleasure of defending clients throughout Dallas–Fort Worth as an associate attorney with the Coffey Firm. He is a member of the National College of DUI Defense, the Tarrant and Dallas County Criminal Defense Lawyers Associations, and sits on the Board of Directors for the Arlington Young Lawyers Association. He can be reached at .

Lanny Begley received his B.A. in Political Science from Austin Peay State University in Tennessee and his JD from Baylor University School of Law, where he was active in both Phi Alpha Delta and the Order of Barristers. Lanny previously worked in both civil and federal administrative law before going into criminal defense full time. Since 2015, he has had the pleasure of defending clients throughout Dallas–Fort Worth as an associate attorney with the Coffey Firm. He is a member of the National College of DUI Defense, the Tarrant and Dallas County Criminal Defense Lawyers Associations, and sits on the Board of Directors for the Arlington Young Lawyers Association. He can be reached at .

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