Does Leming Change the Law on Reasonable Suspicion for a Traffic Stop?
A divided Court of Criminal Appeals issued a decision in April 2016 that on first glance seems to have rejected 23 years of established case law surrounding the issue of reasonable suspicion to stop a driver.
For almost a quarter century, Texas courts have held that it is a violation of the Failure to Drive in a Single Marked Lane statute only when a driver moves from a single marked lane without first ascertaining that such movement can be made with safety. A motorist violated the statute, according to earlier decisions, only when a vehicle failed to stay within its lane and such movement was not safe or was not made safely. In what appears to be a departure from earlier interpretations, the Court in Leming v. State,
PD-0072-15, 2016 WL 1458242 (Tex.Crim.App. 2016) stated:
[I]t is an offense to change marked lanes when it is unsafe to do so; but it is also an independent offense to fail to remain entirely within a marked lane of traffic so long as it remains practical to do so, regardless of whether the deviation from the marked lane is, under the particular circumstances, unsafe.
The holding is troubling from a defense standpoint for two reasons. First, the Court’s interpretation changes the statute now allowing a prosecution for two separate manner and means when historically the statute prohibited only one act comprised of two requirements. Second, this new interpretation allows an officer to form reasonable suspicion to stop a vehicle if the vehicle fails to cleave to a perfectly straight line. The dissent stated this holding “waters down reasonable suspicion to almost no standard at all by creating permissible DWI investigations from weaving alone.”
While it may be too soon to say, on closer inspection Leming does not seem to undo the 4th Amendment’s protection against unreasonable detentions. The facts of Leming are unique and the holding was limited to the facts of the case. A 911 dispatcher received a call from a civilian motorist who explained that he was following a Jeep that was “swerving from side to side.” The court gave some consideration to the fact that the caller was identified and still driving behind the Jeep at the time the officer drove up. The officer personally observed the Jeep “swerving”. The caller’s tip was corroborated by the officer’s own verification of his report. The officer’s video captured the Jeep swerve 7 times, in 2 miles, in less that 4 minutes. The officer’s testimony and video showed that the Jeep had drifted in its lane several times, almost hitting the curb twice. According to the officer, the traffic was pretty heavy but there was no real danger of of the Jeep colliding with another vehicle in an adjacent lane. The Jeeps speed changed travelling 13 mph below the speed limit, then slowed down more and more as the officer followed behind him. As a separate reason for the stop, the officer stated he was concerned that Leming may have had a “medical issue … [such as] diabetic shock”. These facts suggest a high degree of suspicion attaching to these particular circumstances. Not every case involving driving presents this particular set of facts nor this level of corroboration.
Earlier cases found a violation of the Failure to Drive in a Single Marked Lane statute only if a motorist failed to drive as nearly as practical entirely within a single lane and the movement was not done safely. Those courts acknowledged however, that weaving within a single lane sometimes does present reasonable suspicion. Many of the cases had facts not altogether different from the facts in Leming. Conduct that gave ample reason to suspect that a defendant was driving while intoxicated included: weaving randomly in and out of three lanes of traffic; weaving left and hitting a grassy median, kicking up dirt and grass, then continuing to weave inside his lane two or three times; Weaving “line to line” multiple times; Speed fluctuated between 40 and 55 miles per hour four times over four miles during which time the driver was weaving within his lane; Weaving back and forth in his lane, then exit interstate at “high rate of speed”; Weaving back and forth across three traffic lanes; Weaving within his lane and making two improper turns; Driving in an erratic manner, including rapid acceleration, weaving, and excessive speed. See cases cited in Hernandez v. State, 983 S.W.2d 867, 870 (Tex. App.—Austin 1998, pet. ref’d). Perhaps weaving once or twice over a longer stretch of road is not a reason to stop a driver.
It may be as is likely the case that Leming is just another in a series of decisions that attempts to redefine the outer bounds of what might pass for specific and articulable facts to support a finding of reasonable suspicion. Just as important as the unique facts presented, Leming is a split decision with only 4 members agreeing with the holding. A plurality opinion does not carry the force of binding precedent. State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 943 (Tex.Crim.App.1994); Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App.2001).