Page 27 - TPA Journal March - April 2018

Q. Which side of the fog line? Trooper s] traffic stop.
A. I say inside; you say outside.
Q. Do you have any law to support your stop, In affirming the trial courts suppression order, the
Officer? court of appeals agreed that simply touching the
A. Yes, sir, I do. fog line does not constitute driving on the shoul-
Q. Okay. What is that law that youre referring to? der.
. . . What law says where the shoulder begins? At the heart of Cortezs motion to suppress is the
A. Theres not a lawI dont know, to my knowl- Fourth Amendment. The touchstone of the
edge, if theres a law that states where the exact Fourth Amendment is reasonableness. The issue
lane ends. resolved 8 by the trial court and presented by the
Q. Okay. So youre not aware of a definition that State on direct appeal is the issue that we are
says this is what an improved shoulder is. Correct? addressing todaywhether the Trooper s stop
A. The improved shoulder is the edge of the road- was objectively reasonable.
way.
Q. The part thats on the other side of the line. Each case involving an officer s stop must be
Right? evaluated objectively, under the totality of the cir-
A. Not in my interpretation. cumstances, to determine whether the officer
acted reasonably. An officer may make a war-
In granting Cortezs motion to suppress, the trial rantless traffic stop if the reasonable suspicion
court made the following findings and concluded standard is satisfied. Reasonable suspicion
that driving on the fog line does not constitute exists if the officer has specific articulable facts
crossing over the fog line and into the shoulder: that, when combined with rational inferences from
those facts, would lead him to reasonably suspect
As [the Trooper s] vehicle approached and that a particular person has engaged or is (or soon
pulled into the left hand lane, defendants vehicle will be) engaged in criminal activity. We review
moved toward the improved shoulder. a reasonable suspicion determination by consider-
A short time later, Defendants vehicle moved ing the totality of the circumstances. When a
toward the improved shoulder a second time as the police officer stops a defendant without a warrant,
Defendants vehicle exited the Interstate to the the State has the burden of proving the reason-
right at a marked exit ramp. ableness of the stop at a suppression hearing.
The State produced no evidence that [the Because Cortez was arrested without a warrant,
Trooper] observed, or believed he had observed, the State had the burden to prove that the initial
any portion of the Defendants vehicle pass out- detention was legal.
side the outermost edge of the fog line.
The improved shoulder of a state roadway begins Texas Transportation Code, section 545.058(a)
at the point of the fog line which is furthest from provides that,
the center of the roadway. (a) An operator may drive on an improved shoul-
The defendants vehicle did not cross outside the der to the right of the main traveled portion of a
outermost edge of the fog line onto the improved roadway if that operation is necessary and may be
shoulder of the roadway. Crossing over the portion done safely, but only:
of the fog line nearest the center of the roadway or (1) to stop, stand, or park;
upon the fog line is not a violation of Texas traffic (2) to accelerate before entering the main traveled
law; therefore the vehicle was not lane of traffic;
operated on the improved shoulder of the roadway (3) to decelerate before making a right turn;
on either occasion made the basis for [the (4) to pass another vehicle that is slowing or

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