United States v. Pena

United States Court of Appeals
Fifth Circuit
F I L E D
March 28, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-50287
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ELIEL PENA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m 05-CR-417
______________________________
Before HIGGINBOTHAM, SMITH, and
DEMOSS, Circuit Judges.
PER CURIAM:*
Eliel Pena appeals the denial of his motion
to suppress evidence found by a highway
patrolman during a traffic stop and search of
his truck. We affirm.
I.
Texas Department of Public Safety officer
Patrick Davis conducted a traffic stop of Pe-
na’s truck for failing to maintain a single lane
of traffic. During the stop, Davis obtained Pe-
na’s consent to search the truck and discov-
ered twenty-one bundles of marihuana hidden
inside a converted L-shaped fuel tank. Pena
was arrested and charged with possession of,
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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with intent to distribute, more than 100 kilo-
grams and less than 1000 kilograms of mari-
huana in violation of 21 U.S.C. § 841.
Pena filed a motion to suppress and argued
that the initial stop was unconstitutional. At
the suppression hearing, the government
played a video of the stop showing Pena’s ve-
hicle crossing the shoulder line several times.
Davis testified that he saw Pena cross the
shoulder line several times before he activated
the camera. Davis said this manner of driving
posed a danger to the driver and other vehicles
and could be caused by many things, such as
sleepiness, intoxication, medication, or me-
chanical difficulties. He perceived Pena’s driv-
ing to be a traffic violation, and that was the
sole reason for initiating the stop. The district
court denied the motion to suppress, and Pena
subsequently entered a plea of guilty condi-
tioned on his right to appeal the denial of the
motion.
II.
Pena argues that the initial stop was uncon-
stitutional; he concedes that, if the stop was
justified, the search was proper. We review
the district court’s factual findings for clear er-
ror and its legal conclusions, including the ul-
timate conclusion as to the constitutionality of
the law enforcement action, de novo. See
United States v. Jones, 185 F.3d 459, 462 (5th
Cir. 1999). The stop was constitutional.
We analyze traffic stops under Terry v.
Ohio, 392 U.S. 1 (1968). See United States v.
Santiago, 310 F.3d 336, 340 (5th Cir. 2002).
“[L]imited searches and seizures are not un-
reasonable when there is a reasonable and ar-
ticulable suspicion that a person has committed
a crime.” Id. (citing Terry, 392 U.S. at 21).
We consider two factors when evaluating the
reasonableness of a traffic stop: (1) whether
the stop was justified at its inception; and
(2) whether the officer’s actions were reason-
ably related in scope to the circumstances that
justified the interference. United States v.
Sanchez-Pena, 336 F.3d 431, 437 (5th Cir.
2003). Pena concedes that Davis’s actions
were reasonably related to his stated reason
for initiating the stop, so the second prong is
satisfied as long as the first is as well.
Davis testified that he stopped Pena for fail-
ing to maintain a single lane of traffic in vio-
lation of TEX. TRANSP. CODE § 545.060(a).1
The elements of this traffic violation are (1) a
person (2) drives or operates (3) a motor ve-
hicle (4) within a single marked lane, and
(5) moves from that lane without ascertaining
that such movement can be made with safety.
Aviles v. State, 23 S.W.3d 74, 77 (Tex. App.
SSHouston [14th Dist.] 2000, pet. ref’d). Al-
though Pena concedes that his truck swerved
across the shoulder line several times, he
claims that Davis’s suspicion was unreason-
able, because Pena did not drive in an unsafe
manner.
Although Pena cites a number of Texas
cases failing to find a violation of § 545.060(a)
where a driver’s behavior did not endanger the
safety of others, we need not address that
caselaw, because regardless of whether Pena
violated the statute, Davis was reasonable in
his belief that a violation had occurred. “The
issue . . . is not whether Defendant actually
violated the statute, but whether it was reason-
able for the [the officer] to believe that he had
violated it.” United States v. Ramirez, 213 F.
Supp. 2d 722, 724 (S.D. Tex. 2002). In
1 “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.”

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United States v. Zucco, 71 F.3d 188 (5th Cir.
1995), we upheld a traffic stop where officers
saw a vehicle veer onto the shoulder at least
three times.2 Accordingly, Davis had reason-
able suspicion that a provision of the Texas
Transportation Code had been violated and
was justified in stopping Pena’s vehicle. Be-
cause Pena concedes that the search was con-
stitutional if the stop was justified, the district
court correctly denied the motion to suppress.
AFFIRMED.
2 Zucco, 71 F.3d at 190 (“This driving arguably
was a violation of [TEX. TRANSP. CODE § 545.-
060]. The stop was justified and the first prong of
the Terry analysis is satisfied.”). See also United
States v. Cosby, 32 Fed. Appx. 129 (5th Cir. 2002)
(“From the automobile’s weaving it could be in-
ferred that the driver failed to safely maintain a sin-
gle traffic lane in violation of 545.060(a) of the
Texas Transportation Code.”).

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