The Prosecutor, November-December 2015, Volume 45, No. 6

Must a suspect actually commit a traffic ­violation to give an ­officer ­reasonable suspicion?

2015

A warrantless temporary de-tention, such as a traffic stop, is lawful when a peace officer has reasonable suspicion to believe that an individual is violating the law. Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a person has engaged, is engaging, or will soon be engaging in criminal activity.1 Officers make this determination by considering the totality of the circumstances at the time of the detention.2
    The Court of Criminal Appeals’ recent decision in Jaganathan v. State examines the reasonableness of a traffic stop where, in addition to the officer’s testimony, there was video evidence of the traffic stop. The defendant in this case was driving her vehicle eastbound on Interstate 10 in Chambers County. A DPS State Trooper initiated a traffic stop because Ms. Jaganathan was driving in the left lane without passing. During the stop, the officer smelled marijuana, and a search of the truck revealed more than 5 pounds of marijuana. After her arrest and indictment for possession of marijuana, the defendant challenged the traffic stop, and both a court of appeals and the Court of Criminal Appeals have weighed in on the issue—with differing results.

Left lane for ­passing only
The Transportation Code states that the operator of a vehicle shall comply with applicable official traffic-control devices and that a “left lane for passing only” sign is such a device.3 If there is a sign present that says the left lane is for passing only, it is a traffic offense to drive in the left lane when not passing another vehicle.4
    The officer in this case was traveling on a section of Interstate 10 that has three lanes. While he was in the right lane, he observed traffic in the middle and left lanes. The defendant, who was traveling in the left lane, passed a “left lane for passing only” sign. The video from the cruiser’s dashboard camera shows that the defendant was at the front of a short line of vehicles traveling in the left lane. After passing the sign, she continued in the left lane.
    The officer began shifting his vehicle from the right lane to the left lane and eventually got behind the defendant. As he followed her, the middle lane was clear of traffic, and the defendant did not pass any other vehicles. The defendant flipped on her left turn signal, then turned it off and activated her right turn signal before moving into the middle lane. The officer then initiated a traffic stop for remaining in the left lane of the highway without passing, and then he found all that marijuana.

Motion to suppress
The defendant filed a motion to suppress evidence of the marijuana, challenging the validity of the traffic stop. The trial court denied her motion, but the Fourteenth Court of Appeals disagreed with that ruling because the officer did not have reasonable suspicion that Jaganathan committed the traffic violation of driving in the left lane without passing.5
    In coming to this decision, the Fourteenth Court reviewed prior authority from the Court of Criminals Appeals analyzing the offense of driving in the left lane without passing, Abney v. State. In that case, the high court determined that the officer did not have reasonable suspicion to stop the defendant for this offense based on the following facts:
•    the officer followed the defendant for one mile,
•    the only sign that indicated “left lane for passing only” was approximately 15 miles earlier, and
•    he had no idea when the defendant entered the highway. There was simply no evidence to support that the defendant had driven past the sign and continued to drive in the left lane.6
    In Jaganathan, the Fourteenth Court relied heavily on evidence from the officer’s dashboard video camera to make a determination regarding reasonable suspicion. The court presented very detailed factual findings in its opinion regarding the defendant’s actions and her proximity to other vehicles. The court observed that the defendant did pass one vehicle while in the left lane after she drove past the “left lane for passing only” sign. The court reasoned that due to the placement of other vehicles on video, the defendant may have thought it unsafe to move back into the middle lane after passing.
    The court also took note that the officer’s actions may have influenced the defendant’s driving behavior, suggesting because he approach-ed her vehicle at a high rate of speed, she may have slowed down, thus hindering her ability to pass the car in the middle lane.
    And finally, the court had a real problem with the officer’s timetable and had no confidence that the officer allowed enough time to develop reasonable suspicion—this, based on the court’s calculations that only 45 seconds had elapsed from the time the defendant passed the “left turn for passing only sign” to when she was stopped.

The CCA weighs in
The Court of Criminal Appeals disagreed with the lower court’s analysis, finding that the Fourteenth Court improperly provided justifications for why Jaganathan could not move her vehicle to comply with the law. To correct course, the Court boldly stated that the question in this case is not whether the defendant was guilty of the traffic offense but whether the officer had reasonable suspicion that she was.7
    The video evidence in this case put the two appellate courts at odds. Obviously there is going to be a difference between what an officer sees during an ongoing event and the video surveillance depicting the event. In coming to its conclusion that the officer did not possess reasonable suspicion for the traffic stop, the lower court was presumably able to review and enlarge the video several times and make notations about the positions of each vehicle on the highway, their speeds, distances between cars, etc.—as did the Court of Criminal Appeals. But the high court’s review of events did not necessarily coincide with that of the Fourteenth Court.
    In bringing the focus (appropriately) back to the officer’s observations of the traffic violation, the Court of Criminal Appeals keenly noted: “We would be much closer to knowing what the officer observed if we were to view the video only one time, from start to finish, without stopping. But even then, we might not focus on what the officer focused on at the time of the stop.”8
    The Court criticized the lower court for failing to review the evidence as a whole (the officer’s testimony and the video) in the light most favorable to the trial court’s ruling, which is the proper standard of review. The Court disagreed with the lower court’s assertion that the video plainly showed the defendant could not safely change lanes and noted while that was certainly a possibility, it was not obvious from the video. This theory is more properly advanced as a defense of necessity to the traffic offense—an officer’s suspicion is not unreasonable just because facts surrounding the suspected offense might ultimately show a defense to the conduct. That is important to remember.
    Also key: A determination that reasonable suspicion exists does not equate to a determination of guilt, which would require ruling out defenses or the possibility of innocent conduct.9 The reasonable suspicion standard accepts the risk that officers may stop innocent people,10 and the mere possibility that an act is justified will not negate reasonable suspicion.11 Because the record in this case established that the defendant passed the “left lane for passing only” sign and stayed in the left lane without passing, the officer had reasonable suspicion to stop her.12
     Jaganathan is a great guideline case for evaluating reasonable suspicion when prosecutors have evidence from sources other than an officer’s testimony. In our society there is an increased preference for video evidence (“Was the receiver in bounds or out? Let’s run it back and see it in slow motion”), and the Court of Criminal Appeals reminds us that reasonable suspicion is established through an officer—even if a reviewing court disagrees after review of the play.

Endnotes

1 Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App. 2013).
2 Id. at 547.
3 Tex. Trans. Code §541.304(1).
4 Tex. Trans. Code §542.301; Abney, 394 S.W.3d at 548.
5 Jaganathan v. State, 438 S.W.3d 823 (Tex. App.—Houston [14th Dist.] 2014, pet. granted).
6 Abney, 394 S.W.3d at 549-550.
7 Jaganathan v. State, No. PD-1189-14, 2015 WL 5449576 (Tex. Crim. App. Sept. 16, 2015).
8 Jaganathan, 2015 WL 5449576 at *2.
9 United States v. Arvizu, 534 U.S. 266, 277 (2002).
10 Illinois v. Wardlow, 528 U.S. 119, 125 (2000).
11 Jaganathan, 2015 WL 5449576 at *3.
12 Id.