*3
over,
pulling
Aft'er
him
informed
Sheets
BARKSDALE,
and
Before
BENAVIDES
going
to issue
he
him a
Miller that
DENNIS,
Judges.
Circuit
warning
improper
citation for
use of
left
he
signal.
turn
then told Miller that
and
He
BENAVIDES,
Judge:
Circuit
Clay
looking
for
contraband and
were
Eugene
appeals
his convic-
Richard
Clay
if
mind
he and
asked if
would
marijuana
possession
with intent
tion for
the motor home. Miller indicated
searched
related forfeiture count.
to distribute
object
did not
to a search. The
he
sup-
challenges the
a motion to
He
denial
ap-
and found
officers undertook
press
and the
evidence
kilograms marijuana in
proximately eighty
supporting the conviction and forfei-
compartment
under a bed
the motor
We hold that the
court erred
ture.
district
they
home and
arrested Miller.
drugs
admitting
into evidence
that were
having
possession
with in-
stopped for
Miller was indicted
seized when Miller was
marijuana
prosecu-
tent to
and the
on without
distribute
of his
home.
Finding
sought
tion
forfeiture
motor
lanes.
pleaded
guilty
sup-
and moved to
is not
violation Miller
under these circumstances
marijuana
press
of Texas
and therefore did -not create
both
admission
law
after his
stop,
and certain statements he made
for the
Miller’s
judge
magistrate
cure
arrest. The
held
evi-
subsequent
to search did not
consent
hearing
dentiary
wé
and recommended
the taint of the unconstitutional
suppress
motion to
be denied. The district
‘persons’
tutes a ‘seizure’ of
within the mean
Amendment],
hearing
ing
court then conducted a
and denied
Fourth
[the
An automo
suppress
respect
the motion to
subject
with
bile
is thus
to the constitutional
granted
imperative
admission of the
but
that it not be ‘unreasonable’ un
matter,
Miller’s statements.
der the
general
circumstances. As a
the decision
an automobile is reason
juryA
days.
trial was held over two
Mil-
able
where the
cause to
possession
ler was convicted of
with intent to
believe that a traffic violation has occurred.”
841(a)(1)
§
distribute
violation of 21 U.S.C.
Whren v. United
808-
subject
and his motor home was found to be
1769, 1772,
by pointing § 545.104 of the Texas Trans- portation A. only Code to show that the autho- flashing lights rized signal uses are to review determinations of turns, changes, lane or movements out of a novo, findings cause de accepting of fact ab parked position. states, Section 545.104 sent clear error. See Ornelas v. United full: 690, 698-700, 116 S.Ct. (1996). (a) “Temporary operator signal An shall use the autho- during detention of by individuals of an rized Section 545.1061 to indicate an by police, only turn, lanes, automobile even if a change for intention to or start period purpose, brief and for a parked limited consti- from position. a states, 1. Section 545.106 in full: top the distance from the center of the (a) steering post (b),. Except provided by left outside limit of the as Subsection cab, body, operator or required give load of the motor vehicle is signal more or turn feet; by: than two shall do so or arm; using top the hand the distance from the center of the or (2) lighting signal steering post lamps approved by body the de- to the rear limit of the load, partment. including body or or load of a combi- (b) vehicles, highway A motor vehicle in use aon shall be nation of is more than 14 feet. equipped signal (Vernon lamps, Transp. and the Supp. Tex. Code 545.106 1997). given by lighting lamps, shall be if: operating from ve- (b) prohibiting vehicle owners intending to turn a vehicle operator An lights. It equipped with non-standard continuously hicles right or left shall go saying penal statutes should without feet of movement the last 100 not less than construed, strictly to be see United are turn. before the of the vehicle (5th Daniel, Cir.1987), F.2d States (c) signals may operator An to infer that we find strained parked on a one side of vehicle 547.305(c) phrase- in section reference signals or use or disabled vehicle signal that is used as authorized “turn opera- signal to the courtesy pass” “do or violations for all uses creates a series of law” approaching from vehicle tor of another explicitly are not authorized. The rear. phrase readily to be not- is more understood (Vernon Supp. § 545.104 Transp. Tex. Code types lights excepted that are from ing the 1997). motor against operating vehicle the rule provisions that the cited points out white, red, or blue beacon equipped with flashing a explicitly do not state specifying than to be light, rather lanes is signal without any particular lights that are uses inappropriate that it is violation and asserts reading infractions. This constitute allowed section read such a violation into chapter strengthened is the fact 547.305(c), provision which concerned *5 provision appears separate in has a which the lighting types equipment that with section, identifies “General Offense” which required and to are forbidden have. vehicles entailing operation of vehicles violations position that the did support In statute appropriately equipped, that are not without a provide sufficient notice of such viola- not chapter it a any suggestion that the makes tion, quotes the Assistant U.S. Attor- lights that one is allowed to violation to use at trial that stat- ney’s “[t]he own statement any way.2 particular on in a vehicle [her], you clear to but almost have ute is real striking is the fact that section Even more read it to backwards.” prosecu- 545.104—the section from which the tion seeks to derive what counts as plain a agree Miller that by explic- signaling that is “authorized reading provisions at issue law”— of the Code does signaling itly two in which indicates instances having support the view that a turn not parked prohibited: is when a vehicle is or turning changing or lanes a on without is signal. pass” as and when used a “do disabled 547.305(c) law. violation of Texas Section legislature’s It hard to reconcile view is chapter in a appears in the titled “Vehi Code particular signaling these uses of had to that Equipment,” subchapter cle in “General be as if it intended that identified violations Regarding Require Lighting Provisions any specifically other uses not authorized Although the section has the head ments.” were to be considered violations. Lights,” a ing “Restrictions Use it Moreover, prosecution the section that ad review of indicates no evi- offers lighting equipment kinds of are practice dresses what dence that in Texas Code has vehicles, prohibited interpreted on various to establish the violation been lights sum, alleged prosecution how or when are to rather than be hére. is particular provision advocating interpretation the Texas The aim of the an law used. by reading by clearly supported plain is not prosecution seems be that cited (b) person A an that is a Offenses section reads: commits offense mis- 2. The General person operates (a) if demeanor vehicle person A offense that is a mis- commits an person operates equipped equip- or moves with an item of vehicle demeanor if or, owner, knowingly permits person anoth- ment that the knows has been de- move, (1) operate er that: is or vehicle compliance proceeding termined in a un- endanger person; unsafe so as to is comply der Section 547.206 not with a complies equipped not in a manner that department standard. equipment with the vehicle standards and (Vernon Transp. Supp. Code 547.004 Tex. chapter; requirements established this 1997). equipped prohibited in is a manner chapter. this
279
anyone
cured the
taint on the
statute and
evidence that
constitutional
without
reading.
previously adopted
during
that
that
has
such
was found
search. Under
“[a]ny
that
prosecution simply asserts
rea-
doctrine,
poisonous
the fruit of
tree
all
person
agree
public
would
is
sonable
exploitation
evidence derived
from
endangered if
no enforceable in-
there are
suppressed,
search or seizure must be
code to
of the motor vehicle
restrict
fractions
government
unless the
shows that there was
operating
from
vehicles with turn
drivers
break
the chain of events
sufficient
turning.”
signals flashing
But even
and not
refute
that
the inference
the evidence
awas
any
person
is true
if it
that
reasonable
would product of the constitutional violation. See
public
endangered
be
if
agree that the
would
Illinois,
590, 597-603,
Brown v.
95
such
this claim
violation exists —and
2254,
45
S.Ct.
arguable
at least
seems
would
be
—that
(discussing Wong
Sun United
371
ground
a violation
to create
sufficient
(1963));
U.S.
441
S.Ct.
L.Ed.2d
legislature
clearly
did not
establish. As
Cherry,
United States v.
759 F.2d
above,
prosecution’s
theory
sole
we noted
(5th Cir.1985).
1210-11
The burden on the
ease is that
this
prosecution
consent to a
show
a turn
voluntary
significantly
is
heavier when
is in
a violation of the
lanes
itself
follows a constitutional violation. See Cher-
Code;
Transportation
ry,
analysis
F.2d at 1210-11.
argued,
therefore do not
has
must be undertaken
this situation
ex-
consider,
danger
any
might
whether
plained in
Chavez-Villarre-
having
pro-
associated with
(5th
al,
Cir.1993) (citing
3 F.3d
127-28
any
vides
other basis of
cause for a
Brown,
S.Ct.
stop.
416):
L.Ed.2d
*6
The rule articulated
the Su
though voluntarily given,
Even
consent
provides
Court in
preme
Whren
law enforce
the
illegal
does not remove
taint of an
leeway
officers
to conduct
ment
broad
product
detention if it
the
of that deten-
regardless
and
of
searches
seizures
whether
independent
tion and not an
act of free
subjective
corresponds
their
intent
to the
justifications
legal
for their actions.3 But the
will. To determine whether
the causal
legal
flip
leeway
broken,
side of that
is that
the
chain was
we consider:
the
objectively grounded.
justification must be
temporal proximity
of the
conduct
Whren,
812-14,
B. record, adequate Having before it is us judicial economy un- the interest of that we We next address whether Miller’s analysis. appropriate to the his motor home dertake the consent search of clear, course, the Fourteenth Amend- as the Court makes laws that would violate 3. Of Whren Whren, subjective leeway regarding ment. U.S. at allowed intent does See discriminatory protect any application at 1774. Walters, F.3d in Brown verdict.” United States factor identified first (5th Cir.1996). result, in re- temporal proximi As a and Chavez-Villarreal — sufficiency viewing challenge of the suppression ty strongly favor militates — evidence,, apply a now standard: familial’ police asked for consent given here that the having ninety seconds of search within whether, viewing the evi- we determine of his stopped the basis Miller on may dence and inferences comes second factor also signal. light most favorable drawn from in the given clearly suppression in favor of down verdict, jury have a rational could to the arguments to no that the offers of- the essential elements found intervening suggest any factors relevant beyond a reasonable doubt. We fenses repord Furthermore, suggests none. recognize jury was free choose purpose testified that the officers themselves among constructions of the all reasonable stops seek the consent of their traffic was to evidence, accept credibility all and we sug drugs, thereby to search for drivers jury’s support choices that tend to intervening gesting that factors would evidence, verdict. both direct We view necessary to them to seek have been induce circumstantial, as as all reason- well flagrancy respect to the fac consent. With evidence, in the able inferences from tor, egregious more violations while to the More- most favorable verdict. rights possible, are Fourth Amendment over, jury we determine whether stopping suspect type violation here — decision, made not whether its a rational probable cause —is the sort of of guilt verdict was correct issue behavior the Brown/Chavez-Villarreal Further, the evidence need innocence. Thus, discourage. light of test is meant to every in- hypothesis of exclude reasonable factors, relevant we find that Mil three However, we nocence. must reverse did not cure the taint ler’s consent if in fa- conviction the evidence construed marijua stop, and the of the unconstitutional gives nearly equal vor of the verdict suppressed. na should been found support theory equal circumstantial guilt theory innocence of C. charged. crime Although erroneous admission of Dean, 59 F.3d remand, we will necessitates (5th Cir.1995) (internal quotation marks and challenge consider Miller’s *7 omitted). citations any preempt of evidence in order to 841(a)(1), pos 21 U.S.C. Under arising possibility jeopardy of a double issue marijuana session of with intent to distribute retry prosecution should the this choose knowing posses has three elements: Miller, See_ v. F.2d case. United States 952 distribute. See sion with intent to United (5th Cir.1992) 866, (“Although man 874 not (5th Garcia, 1370, v. F.2d States 917 1376 clause, jeopardy it is dated the double Cir.1990). argues that there was not accordingly clearly practice the better for the support knowledge sufficient evidence to appeal dispose appellate court on an initial points in this element. He out that circuit any presented properly claim to that hidden in com when contraband is the secret legally evidence at trial was insufficient vehicle, partment control over the vehi conviction.”). challenged warrant the thus knowledge is cle not alone sufficient infer conducting review under contraband, of the United States v. Re see circumstances, consider all of the such we (5th Cir.1995), sio-Trejo, 45 F.3d 911 jury including that was before the — he not asserts that did erroneously evidence that admitted. See was provide the additional evidence Nelson, Lockhart v. 488 U.S. 109 S.Ct. knowledge. disagree. guilty establish 285, 102 (1988); v. L.Ed.2d 265 (5th Cir.1985). Marshall, 419 762 F.2d presence nar “Knowledge of we, may inferred from the exer “It is fundamental cotics often be court, great jury over the vehicle which appellate deference to a cise control owe Resio-Trejo, 45 to sustain the conviction with to the illegal drugs are concealed.” omitted). (citation true that It is forfeiture. F.3d at 911 compartments involving hidden in cases reasons, foregoing For the we VACATE support find- additional factors require that judgement of conviction on each count guilt, ing see United States consciousness proceedings and REMAND for further (5th Olivier-Becerril, F.2d v. opinion. inconsistent with this Cir.1988), “proof noted that but we have knowing is will usu- possession of contraband BARKSDALE, RHESA HAWKINS circumstantial ally depend on inference and Judge, dissenting: Circuit Richardson, evidence.” United States stopped by County, Miller was Randall Cir.1988). (5th single piece F.2d No Texas, Sheriff, Deputy consented to a conclusive evidence need be circumstantial vehicle, of his recreational and was found to isolation; question, when considered kilograms marijuana in' transporting 80 rather, evidence, consid- when whether majority, compartment. a secret inter- whole, provides a substantial basis ered as Code, preting Transportation the Texas jury to find that the defendant’s for the Deputy holds that the lacked knowing. See id. possession was concluding to initiate the that the event trial, prosecution introduced evi- At driving he for an extended dis- witnessed — bought his motor home dence that Miller had lane, right including through tance in the arrested, long he that Miller before was intersection, with the flash- left cash, purchased the motor home with ing, but without ever impatient kept and that he had been when not a violation of Texas law. Be- lanes —was night pros- it. The waiting purchased he stop properly cause the was based on a viola- ecution also offered evidence motor respectfully tion of Texas I dissent from storage com- home did not have the secret opinion. Parts IIA and B of the acquired it. partment when Miller matter, general “As a the decision to motor home to testified that he had taken the an automobile is reasonable where the mechanic, seeking repairs on the brakes cause to believe that a traffic Although and modifications bed. occurred.” violation has Whren United Miller’s account he could have believed the 806, 808-10, benign, jury free modifications were (1996). The Govern- testimony part to disbelieve or all of his reasons, ment, supports for its own to draw inferences from the fact that he ground that Texas law was violat- admitted that he was aware bed Hence, possible supporting ed. other bases drugs were later found had under which violation, especially such a in the evidence, been modified. We find that this Whren, another the avenues offered await cumulatively in addition to the fact taken day. that Miller was control of the vehicle when found, provided Deputy suppression a substan- testified at the *8 jury hearing on which a reasonable could that the violation Miller committed tial basis requisite signal conclude that Miller had the knowl- was that Miller “left his left-hand turn through edge. period of time an intersec- on for intersection, tion, completely through the Finally, challenges change attempting to distance without supporting the forfeiture count that, further Deputy lanes”. The testified him; challenge solely against he makes this upon initiating he relied when count con- on the basis that the forfeiture majority (quoted §§ 545.104 and 547.305 tingent underlying drug offense which Transportation Code. opinion) of the Texas supported by he claims is not substantial 545.104(a), § According to Miller could Accordingly, because we find that evidence.- signal indicate an authorized turn to evidence to sustain the use there was sufficient turn, change an intention to or to possession with either conviction with lanes, intent, parked position. or to start from a we find there was sufficient evidence (Vernon Barnhart, Department 545.104(a) Bryan Texas § See Tex. TRAns. Code Safety Officer; 547.305(c) Moreover, provides § of Public Supp.1997). Defendant-Appellant. vehicle operate not with that Miller could light, alternating unless was or No. 96-40634. signal lamp used as authorized that was 547.305(c) § by law. See Tex. TRANS. Code Appeals, United States Court (Vernon Supp.1997). Fifth Circuit. 545.104(a), § Obviously, contrary to signal an indication using July his turn as was 1998. lanes, turn, or to change
of an intent Thus, his parked position. use
start from a signal was not authorized
of the turn 547.305(c),
and, accordingly, pursuant law. a violation of Texas
constituted
short, probable cause to believe there was occurred; violation traffic Whren, at See
reasonable. 1772.
116 S.Ct. at majority require leg- the Texas would traveling expressly proscribe
islature to distance, signal
a turn on for an extended intersection, through
including lanes, before such
ever By law.
an act be violation Texas would reasoning, every unautho-
such conceivable expressly a turn
rized use of must Instead,
prohibited in the Code. limited,
legislature chose state autho- signal. Consequently, a turn
rized uses of manner
the use used use —a Miller constituted unauthorized
violation of Texas law. I would hold Miller’s
Because unreasonable, respectfully I dissent the opinion.
from IIA and B of Parts COLSTON, Plaintiff-Appellee,
Lorenzo Colston, Individually Michelle
Yolanda Next Friend of Lauren Colston *9 Quinton Colston, Children, Minor Plaintiff-Appellee,
Intervenor
Bryan BARNHART, Department al., Safety Officer; et Public
Defendants,