UNITED STATES OF AMERICA, Plaintiff - Appellee v. COREY A. RANEY, Defendant - Appellant
United States Court of Appeals for the Fifth Circuit
February 9, 2011
REVISED FEBRUARY 10, 2011
Lyle W. Cayce, Clerk
PER CURIAM:
Appellant Corey Raney was convicted by a jury for being a felon in possession of a firearm in violation of
I.
On September 15, 2008, Raney was stopped by Houston Police Officer Rohan Walker for driving in the wrong lane of traffic. Following a search of his person, Raney was arrested and indicted in a single count indictment for being a felon in possession of a firearm. Before trial, Raney filed a motion to suppress challenging the legality of the traffic stop. To establish the constitutionality of the stop, the government offered the following evidence at the suppression hearing and at trial.
During the suppression hearing, Officer Walker testified that he and Houston Police Officer John Watson had been settling disturbances stemming from Hurricane Ike-related gasoline shortages at a gas station located at the intersection of Almeda-Genoa Road and Chiswick Road. Cars waiting to enter the gas station were backed up on the eastbound lane of Almeda-Genoa and the southbound lane of Chiswick. Because Chiswick was the only street providing access to a subdivision, cars attempting to exit the subdivision were also lined up in the southbound lane. The record does not reflect which cars were waiting to enter the gas station and which were waiting to exit the subdivision. Officers Walker and Watson testified that the southbound lane of traffic on Chiswick was blocked and thus access to and exit from the subdivision was limited to one lane. Officers Walker and Watson were stationed on Chiswick and controlling traffic by temporarily permitting vehicles not queuing for the gas station to travel in the northbound lane of Chiswick, drive around the stopped cars, and exit the subdivision. Officer Watson was stationed at the intersection and Officer Walker was stationed north of the intersection on Chiswick.
Raney‘s car was in the line of cars traveling southbound on Chiswick towards the intersection. Officer Walker testified that Raney pulled into the northbound lane of Chiswick without his direction and began driving southbound at approximately ten to fifteen miles per hour. Officer Walker signaled for Raney to turn onto a side street off of the northbound lane of Chiswick. Raney immediately complied with Officer Walker‘s direction. The officers’ testimony did not establish the distance Raney had traveled between where his car was waiting in line and the side street where he pulled into.
Officer Walker testified that as he approached the stopped car, the car windows were lowered and he could smell “a strong odor of marijuana.” Officer Walker directed Raney to step out of the car. As Raney did so, Officer Walker observed a brown object fall to the ground, which he believed to be a marijuana cigarette. Officer Walker then signaled to Officer Watson that his assistance was needed. Officer Walker detained Raney for the marijuana, placed Raney in handcuffs, and conducted a search of his person. During
Afer presenting its evidence at the suppression hearing, the government argued that it established that Raney committed three traffic violations: (1) driving in the wrong lane of traffic, (2) failing to obey a police officer‘s directions, and (3) reckless driving, and thus the officers had an objective basis justifying the traffic stop. Raney argued that because he did not actually commit a traffic violation, Officer Walker did not have probable cause to conduct the initial traffic stop and any evidence obtained from the subsequent search must be suppressed. The district court held that Raney committed a traffic violation per se when he drove in the wrong lane of traffic, thus the officers had probable cause to conduct the traffic stop. The district court did not make any findings with respect to the government‘s arguments that Raney failed to obey the police officer‘s directions or was driving recklessly.
At trial, Raney‘s sole defense was that he was not in possession of a firearm at the time of his arrest. Officers Walker and Watson testified for the government. The officers’ trial testimony was substantially similar to the testimony offered at the suppression hearing. Raney‘s wife Jasmine Raney testified for the defense. Jasmine testified that she had been in the car with Raney prior to the traffic stop, but left the car before Raney pulled out of line because of an altercation between the two. She testified that on the day in question, Raney was wearing a “muscle shirt” and gray cotton shorts with a missing drawstring. She stated that she did not think Raney could have concealed a gun in the shorts. She could not recall whether Raney had been wearing the gray shorts after his release from custody later that day. She further testified that she did not see a gun or ammunition before she left the car. Finally, she stated that she saw Raney had been stopped and arrested but did not approach or intervene.
The jury found Raney guilty of being a felon in possession of a firearm in violation of
II.
When reviewing the denial of a motion to suppress, we review a district court‘s factual findings for clear error and review de novo its legal conclusions under the Fourth Amendment. See United States v. Zavala, 541 F.3d 562, 573-74 (5th Cir. 2008). “A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole.” United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). “[W]e may consider all of the evidence presented at trial, not just that presented before the ruling on the suppression motion, in the light most favorable to the prevailing party,” which in this case is the government. United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007).
A.
The stop of a vehicle and detention of its occupants constitutes a “seizure” under the Fourth Amendment. United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc). However, “[a] police officer may stop a vehicle if he has probable cause to believe a traffic violation has occurred.” United States v. Cole, 444 F.3d 688, 689 (5th Cir. 2006) (citing Whren v. United States, 517 U.S. 806, 810 (1996)). “The rule articulated by the Supreme Court in Whren provides law enforcement officers broad leeway to conduct searches and seizures regardless of whether their subjective intent corresponds to the legal justifications for their actions.” United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998). “[T]he flip side of that leeway is that the legal justification must be objectively grounded.” Id. (citing Whren, 517 U.S. at 812-14). If the alleged traffic violation forming the basis of the stop was not a violation of state law, there is no objective basis for justifying the stop. See id. (citing Goodwin v. Johnson, 132 F.3d 162, 173 (5th Cir. 1998)); Cole, 444 F.3d at 689; United States v. Lopez-Valdez, 178 F.3d 282, 288 (5th Cir. 1999). “[T]he constitutionality of the officer‘s stop of [a defendant]‘s vehicle must stand or fall based on whether [the defendant] violated Texas law.” Cole, 444 F.3d at 689. The government argues only that the stop was proper because Raney committed one or more traffic violations. Thus, this appeal requires us to determine whether the stop was justified at its inception.
B.
The district court found that driving in the wrong lane of traffic was a per se traffic violation justifying the stop. The Texas Transportation Code provides that a driver shall drive on the right half of the roadway unless “the operator is passing another vehicle; . . . an obstruction necessitates moving the vehicle left of the center of the roadway and the operator yields right-of-way to a vehicle; . . . or the operator is on a roadway restricted to one-way traffic.”
Raney arguably crossed into the oncoming lane of traffic to pass the line of cars waiting to enter the gas station, which, as recognized by the government, “entirely blocked” the road for cars attempting to exit the subdivision, circumstances that may constitute an obstruction or limit travel to one lane of traffic. See
C.
The government argues that Raney violated the law when he failed to obey Officer Walker‘s traffic signals. Although not identified by the parties, the government is presumably asserting that Raney violated Code provision § 542.201(1), which states that “[a] person may not willfully fail or refuse to comply with a lawful order or a direction of . . . a police officer.”
There is no evidence in the record demonstrating that Raney was aware that the officers were directing traffic. The evidence establishes that Officers Watson and Walker were approximately 100 feet, or one-half a block, apart and could see each other. Officer Watson was directing traffic at the intersection of Chiswick and Almeda-Genoa and Officer Walker was stationed in the northbound lane of Chiswick, south of the side street where Raney was searched. The evidence further established that the line of cars on Chiswick extended north of the side street by “at least” five to seven cars. Officer Walker testified at trial that he had positioned himself such that “they,” the cars in line on Chiswick, could see him. However, he did not testify that he could see Raney‘s vehicle or establish that Raney could have seen him or have been aware that he was directing traffic. Further, Officer Watson testified that their patrol car was parked at the gas station at the intersection of Almeda-Genoa and Chiswick. Finally, the evidence established that Raney complied with all of the officers’ instructions as soon as he pulled into the northbound lane of traffic and became aware of Officer Walker‘s presence. Because the government did not offer evidence to establish that Raney was aware of the presence of the officers, we find that Raney did not violate
D.
Under Texas law, a driver commits the offense of reckless driving if he “drives a vehicle in wilful or wanton disregard for the safety of persons or property.”
Officer Walker testified that he believed Raney was driving recklessly when he pulled into the northbound lane where Officer Walker was standing simply because Officer Walker “would have been hit” if he had not moved. This argument is specious. Recklessness clearly requires a showing of willful and wanton disregard for the persons or property of others. See id. Officer Walker testified that Raney was driving approximately ten to fifteen miles per hour in a lane with no oncoming traffic. Officer Walker did not testify as
E.
Although the government does not so request, this court generally remands to the district court to make factual findings on probable cause in the first instance. See Devenpeck v. Alford, 543 U.S. 146, 156 (2004) (declining to address issue of probable cause in the first instance on appeal); Cole, 444 F.3d at 688 (remanding for factual development to determine whether a traffic violation had been committed because the court was unable to “resolve the legality of the stop without additional fact finding“).
At the suppression hearing, the government presented evidence to establish that Raney committed three traffic violations: (1) driving in the wrong lane of traffic, (2) disobeying an officer directing traffic, and (3) reckless driving. The government bears the burden of proving that the stop was constitutional when, as here, the stop and search were conducted without a warrant. See United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001). Thus, the suppression hearing provided the government the opportunity and obligation to present evidence establishing the validity of the traffic stop. Although the district court did not make specific findings on failure to obey and reckless driving, the record has nonetheless been developed as to these arguments. We will not afford the government a second opportunity to present evidence to the district court in an attempt to meet their burden of proof. Because the government failed to establish the necessary objective basis justifying the traffic stop, we need not remand on these grounds.2
F.
The government asserts for the first time on appeal that Raney committed other violations of Texas law in an attempt to establish the necessary objective basis: (1) failure to stay within a single lane on a roadway divided into two or more clearly marked lanes outside of which he could not safely move,
Raney argues that this court should consider these grounds forfeited because they were raised for the first time on appeal. See United States v. Scroggins, 599 F.3d 433, 448 (5th Cir. 2010) (“[F]ailure to raise specific issues or arguments in pre-trial suppression proceedings operates as a waiver of those issues or arguments for appeal.“) (emphasis and quotations omitted). We need not determine whether the government forfeited these bases because assuming arguendo that it did not, we find that the evidence does not support a finding that Raney committed these traffic violations.
The evidence establishes that Raney did not violate Texas Transportation Code §§ 545.060(a) and 545.054(a). Section 545.060(a) states that “[a]n 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.” Section 545.054(a) states that “[a]n operator may not drive on the left side of the center of the roadway in passing another vehicle unless . . . the left side is clearly visible and free of approaching traffic for a distance sufficient to permit passing without interfering with the operation of the passed vehicle or a vehicle approaching from the opposite direction.” There is no evidence in the record to establish that Raney could not move safely into the northbound lane. The evidence demonstrates that the northbound lane was free of traffic at the time Raney pulled into it. The evidence does not establish that Raney could not have moved safely around the line of waiting cars at the speed of ten to fifteen miles per hour.
The evidence further demonstrates that Raney did not violate Texas Transportation Code § 545.056(a). Section 545.056(a) states that “[a]n operator may not drive to the left side of the roadway if the operator is . . . approaching within 100 feet of an intersection.” Officer Watson testified that he was positioned at the intersection of Almeda-Genoa and Chiswick, approximately 100 feet south from where Officer Walker was stationed on Chiswick. Officer Walker testified that the line of cars north of his position was “at least” five to seven cars long. Thus, the testimony demonstrates that Raney was not within 100 feet of an intersection.
Finally, the evidence establishes that Raney did not violate Texas Penal Code § 38.15(a)(1). Section 38.15(a)(1) states that “[a] person commits an offense if the person with criminal negligence interrupts, disrupts, or otherwise interferes with . . . a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.”
Because the government did not establish that Raney committed a traffic violation on any of the argued grounds, we find that as a matter of law there was no objective basis justifying the traffic stop. We therefore vacate the district court‘s
III.
Raney also challenges several statements made by the prosecutor during closing arguments. First, in reference to the firearm found on Raney, the prosecutor stated that “[t]he gun was loaded, a round in the chamber, ready to be fired. Bang, bang, bang.” Raney did not object. Next, the prosecutor told the jury that “Jasmine Raney‘s testimony . . . directly accus[ed] the officers of lying to you [and] planting evidence.” Raney objected. The district court sustained the objection and issued a curative instruction. Finally, the prosecutor asked the jurors to decide whether the police officers had a motive to “tell something other than truth,” and indicated that they did not by asking “[w]ere the officers going to put their careers on the line?” Raney objected. The district court sustained the objection and issued a curative instruction.4
This court uses a two-step analysis to determine whether the prosecutor‘s remarks constitute reversible error. See United States v. Munoz, 150 F.3d 401, 414 (5th Cir. 1998). First, this court determines whether the prosecutor‘s remarks were improper. Id. If an improper remark was made, this court next determines whether the remark “prejudiced the defendant‘s substantive rights.” Id. at 415. The prejudice determination involves “(1) the magnitude of the statement‘s prejudice, (2) the effect of any cautionary instructions given, and (3) the strength of the evidence of the defendant‘s guilt.” United States v. Tomblin, 46 F.3d 1369, 1389 (5th Cir. 1995). “The magnitude of prejudicial effect is measured by ‘looking at the prosecutor‘s remarks in the context of the trial in which they were made and attempting to elucidate their intended effect.‘” United States v. Ramirez-Velasquez, 322 F.3d 868, 875 (5th Cir. 2003) (quoting United States v. Fields, 72 F.3d 1200, 1207 (5th Cir. 1996)). When determining whether a prosecutor‘s comment was improper, we look at the comments in context of the proceedings as a whole. See United States v. Washington, 44 F.3d 1271, 1278 (5th Cir. 1995).
Because we have found that Raney‘s conviction cannot stand as a matter of law, we need not actually determine whether the remarks constituted reversible error. However, we feel it prudent to address this issue because the government has been cautioned repeatedly by this court against making such arguments, yet we continue to face them on appeal.
A prosecutor is “not permitted to make an appeal to passion or prejudice calculated to inflame the jury.” United States v. Crooks, 83 F.3d 103, 107 n.15 (5th Cir. 1996). During closing arguments, “[a] prosecutor is confined in closing argument to discussing properly admitted evidence and any reasonable inferences or conclusions that can be drawn from that evidence.” United States v. Vargas, 580 F.3d 274, 278 (5th Cir. 2009). This court has also “held it improper for a prosecutor to ask a jury the rhetorical question whether federal agents would risk their careers to commit perjury” thereby implying that because they are government officials they would not lie. United States v. Gracia, 522 F.3d 597, 600-02 (5th Cir. 2008) (finding it improper for the prosecutor to ask the jury whether the federal agents “would put their careers . . . on the line for committing the offense of aggravated perjury“); see also United States v. Pittman, 2010 WL 4561398, at *3 (5th Cir. Nov. 12, 2010) (unpublished) (finding the prosecutor improperly bolstered federal agents’ credibility by indicating that “they ‘were just doing their job’ and had no reason to lie“); Ramirez-Velasquez, 322 F.3d at 873-74 (finding improper the prosecutor‘s rhetorical question asking the jury “[d]o the agents have any reason? Do they have any reason to throw away their career, to say, . . . I‘m going to give up my twenty-year law enforcement career, because I really care that two people get convicted“); United States v. Gallardo-Trapero, 185 F.3d 307, 319-21 (5th Cir. 1999). Further, it is improper for a prosecutor to vouch for the credibility of a federal agent because this type of statement impermissibly invokes the “aegis of a governmental imprimatur.” See id. at 320.
It is troubling to this court that the government made these types of improper remarks in the present matter because the primary inculpatory evidence was the testimony of the law enforcement witnesses whose credibility was bolstered by the prosecution. As emphasized numerous times by the prosecutor during closing argument, this case came down to the credibility of Jasmine Raney and the police officers. The prosecution told the jury: “Who are you going to believe; that‘s what this case is about“, and later stated, “Who do you believe? Officers Walker and Watson or Jasmine Raney? That‘s it . . . .” The prosecutor then proceeded to diminish Jasmine Raney‘s credibility by telling the jury to “make no mistake . . . [she] is directly accusing Officers Walker and Watson of lying to you, of planting evidence.” Although Raney‘s defense that he did not possess a weapon arguably supports such an inference, this argument was not proper when it directly attributed the accusation to the sole defense witness who did not actually offer such testimony. In fact, Jasmine Raney testified that she never saw a gun and based on the shorts Raney was wearing, she did not believe that a gun could have been hidden in the waistband. She further testified that she was not present
Despite our precedent clearly condemning such remarks, the government continues to disregard our admonishments. Indeed, the government conceded as much at oral argument by stating “cases in the Fifth Circuit ha[ve] admonished the government [not to] make such statements” and “we have been admonished and encouraged not to do that time after time.” Further frustrating the issue is the quandary defendants often find themselves in: if they object to improper remarks during the trial, they likely receive a curative instruction that frequently forms the basis for this court to affirm; if they do not object in order to avoid this result they have to overcome the very difficult hurdle of plain error review. These types of improper remarks substantially effect a defendant‘s rights and the integrity of this court. As such, we write once more to do all that we can–state clearly and unequivocally that these types of remarks and arguments are improper and if the government continues to ignore our reproval, perhaps it is time for this court to reconsider our jurisprudence on curative instructions and plain error in this context.
IV.
For the foregoing reasons, we VACATE the judgment of the conviction and RENDER judgment of acquittal in favor of the defendant.
VACATED and RENDERED.
UNITED STATES OF AMERICA, Plaintiff - Appellee v. COREY A. RANEY, Defendant - Appellant
No. 10-20007
United States Court of Appeals for the Fifth Circuit
BENAVIDES, Circuit Judge, dissenting.
I respectfully dissent. I would affirm the district court‘s suppression ruling: the stop was justified because Raney violated the law by driving on the wrong side of the road. Uncontested record evidence indicates that at the time of the stop, Raney was driving on the lefthand side of the road, which is a violation of
The majority reverses the district court‘s suppression ruling, holding that the district court erred in finding probable cause because Raney was driving on the wrong side of the road at the time of the stop. In particular, the majority takes umbrage with the district court‘s conclusion that driving on the wrong side of the road is a per se traffic violation. I do not understand this to be the district court‘s holding.1 Moreover, even if the district
Remand would be appropriate if there were contested factual issues, like whether Raney actually drove on the lefthand side of the street.2 But here, there is no dispute as to the facts relevant to
Raney‘s conduct violated
An operator on a roadway of sufficient width shall drive on the right half of the roadway, unless:
- the operator is passing another vehicle;
- an obstruction necessitates moving the vehicle left of the center of the roadway and the operator yields the right-of-way to a vehicle that:
- is moving in the proper direction on the unobstructed portion of the roadway; and
- is an immediate hazard . . . .4
It is undisputed that Raney was driving on the left half of Chiswick when the officers effected the stop. Thus, the relevant question is whether any of the statutory exceptions apply.
Neither the exception for passing another vehicle nor the exception for avoiding an obstruction applies here. As to the first of these, Raney‘s driving on the left side of the road cannot properly be termed “passing.” The Texas Transportation Code explains: “‘Pass’ or ‘passing’ used in reference to a vehicle means to overtake and proceed past another vehicle moving in the same direction as the passing vehicle
The second statutory exception, avoidance of an obstruction, is similarly inapplicable. I disagree with the majority that the line of cars waiting to enter the gas station “constitutes an obstruction.” Uncontested record evidence indicates that this was a garden-variety traffic jam.6 It was not, for instance, a situation where a stalled car blocked the righthand lane. I decline to join the majority in holding that an ordinary traffic jam is an “destruction” that would make driving on the wrong side of the road legal under Texas law for two reasons. First, I cannot imagine that the Code‘s drafters intended to allow anyone who does not care to wait in traffic to drive with impunity on the wrong side of the street. Second, even if a traffic jam is an “obstruction” under the
Code, the majority neglects a crucial portion of the statute: driving on the left side is only permitted when “an obstruction necessitates moving the vehicle left of the center of the roadway.”7 The Code also does not define “necessitate,” but I cannot think that an ordinary traffic jam is the kind of obstruction that necessitates driving on the wrong side of the road. To interpret the statute otherwise would invite chaos.
The majority argues that the Government failed to meet its burden to negate the applicability of the statutory exceptions (exceptions which were neither pointed out nor claimed by the appellee in the court below). It also appears to suggest that we cannot affirm because the district court did not make a finding as to whether either statutory exception applies. I disagree on both points. As discussed above, whether particular conduct constitutes an offense is a pure question of law that we review de novo. The relevant facts are undisputed: the lane in which Raney was driving was blocked by a traffic jam. Cars were standing still; some were waiting to turn into a gas station, while others, like Raney, were waiting to exit the subdivision. Rather than wait in line with the rest of the cars, Raney chose to drive on the wrong side of the street. The sole question is whether this conduct was legal under
Finally, I disagree with the majority that the Government “essentially conced[ed]” that Raney did not violate
district court‘s judgment was in error.8 The Government‘s
I turn briefly to the subject of the Government‘s use of various lines of improper argument. Like my colleagues in the majority, I am deeply troubled by the Government‘s persistence in making such improper arguments despite our repeated admonishments. The majority does not, however, reach the question of whether such improper arguments constitute reversible error. In my view, the panel should reach this question. In any event, I dissent from the majority‘s decision to overturn the district court‘s denial on the suppression motion and its judgment ordering an acquittal.
Notes
The government had presented three alternative grounds for probable cause: driving on the wrong side of the road, reckless driving, and disobeying a police officer. Essential to both of these latter offenses was exactly where Raney‘s vehicle was located and whether he was aware that the officers were directing traffic. But the district court held that it need not make these factfindings because “Mr. Raney committed a traffic violation by driving on the wrong side of the street, period.” Thus, I understand the district court‘s use of “period” here to mean “end of discussion,” not that driving on the wrong side of the street is a per se traffic offense.I am a little bit on the fence, frankly . . . about where Mr. Raney was and why—and whether or not it would be a fair inference that he was aware that the officers were directing traffic, but I don‘t believe I need to get there. Mr. Raney committed a traffic violation by driving on the wrong side of the street, period.