People v. Johnston , 440 P.3d 1223 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
November 29, 2018
2018COA167
No. 16CA0749 People v. Johnston — Constitutional Law —
Fourth Amendment — Searches and Seizures — Motor Vehicles
In this intoxicated driving case, a division of the court of
appeals concludes that, under the totality of the circumstances, a
police officer’s observation of a vehicle weaving continuously within
its lane for over five miles was sufficient to create a reasonable
suspicion that the driver was intoxicated.
COLORADO COURT OF APPEALS 2018COA167
Court of Appeals No. 16CA0749
Arapahoe County District Court No. 15CR581
Honorable Ruthanne Polidori, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Santos Sanchez Johnston,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE ROMÁN
Furman and Lichtenstein, JJ., concur
Announced November 29, 2018
Cynthia H. Coffman, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Santos Sanchez Johnston, appeals his judgment of
conviction for aggravated driving after revocation prohibited. In so
doing, he raises an issue of first impression in Colorado: whether
weaving within a single lane of traffic can create reasonable
suspicion of criminal activity to justify an investigatory stop.
¶2 We recognize that slight degrees of incidental weaving within a
traffic lane do not alone give rise to the reasonable suspicion
necessary to justify a stop of a vehicle. But we conclude that,
under the totality of the circumstances, the police officer’s
observation of defendant’s vehicle weaving continuously within its
own lane for over five miles was sufficient to create a reasonable
suspicion justifying the traffic stop. Accordingly, we affirm.
I. Background
¶3 An Arapahoe County sheriff’s deputy noticed defendant’s car
weaving back and forth within the right-hand lane while traveling
eastbound on Interstate 70. The deputy followed defendant for five
to six miles before stopping him. During that time, defendant
continuously weaved within his lane. The deputy stopped
1
defendant on suspicion that he was driving under the influence of
alcohol.
¶4 During the stop, the deputy noticed defendant had slightly
slurred speech and bloodshot eyes. The deputy also smelled a
strong odor of alcohol. A second officer on the scene noticed
alcoholic beverage containers in the front passenger seat and
informed the deputy.
¶5 When asked for his license and insurance, defendant
produced his registration information but stated his license was
suspended and he did not have insurance. A check of his name
and date of birth revealed an Oklahoma license and a showing of
being a habitual traffic offender in Oklahoma.1
¶6 The deputy administered a horizontal gaze nystagmus test on
defendant. Defendant exhibited clues of intoxication, and the
deputy placed him under arrest. Defendant informed the deputy
that he had been a habitual traffic offender for fourteen years and
that his license was suspended.
1 It was later discovered that defendant’s Colorado license had been
revoked and that he was a habitual traffic offender in Colorado as
well.
2
¶7 The prosecution charged defendant with aggravated driving
after revocation prohibited, driving under the influence, and lack of
compulsory insurance. The prosecution dismissed the compulsory
insurance charge at trial.
¶8 Defendant filed a pretrial motion to suppress evidence and
statements as the product of an illegal stop under the Fourth
Amendment. The trial court held a hearing to consider the motion.
At the hearing, the prosecution called the deputy who had stopped
defendant.
¶9 The deputy testified that, over the course of five to six miles,
[defendant] was going back and forth in his
lane, so he was getting to the left side where
the dotted line was, and then he’d go back over
to the right side where the solid line was. He
would just keep going back and forth in his
lane; wouldn’t quite cross over them, but he
kept going back and forth between the two
lines.
....
He made a lane change I believe to go around a
truck, and . . . again, he was weaving within
the lane but never actually went outside of the
lane. And then once he got past, he went back
into the number two lane where he continued
to weave, I want to say for several miles. At
that point I decided just to initiate a stop
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because he was back and forth in his own
lane.
....
[The weaving] was continuous the entire time.
I mean, just back and forth within the lanes,
other than when he made the lane change, the
two times that he made the lane change.
....
I believe[d] he was drunk. Weaving within
your lane is reasonable suspicion that
someone is driving under the influence of
alcohol, so I used that to stop him.
¶ 10 On cross-examination, the deputy conceded that he did not
see anything that he “would have specifically written a traffic
citation for; so no weaving, [or] failure to stay within one lane.” He
also agreed that he “didn’t make the stop based on an idea that
careless driving was happening.” When asked if he generally
observes some type of illegal traffic maneuver or defective vehicle
before making stops on suspicion of drunk driving, he answered,
“Sometimes I do; sometimes I don’t. Each one is different.”
¶ 11 During argument, defense counsel contended that there was
insufficient evidence of reasonable, articulable suspicion of criminal
activity. Defense counsel noted defendant committed no traffic
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infractions and that weaving within a single lane was not a violation
of Colorado law.
¶ 12 The prosecutor argued the stop was justified even in the
absence of a driving violation, contending that “it is enough for an
officer to believe that a person might be under the influence” and
that police “need not wait for an independent traffic violation to
occur.” The prosecutor further alleged there existed reasonable
suspicion for “careless driving, distracted driving.”
¶ 13 The trial court denied the motion to suppress, concluding the
officer had reasonable suspicion for the stop. The court found “the
case law does not require an actual traffic violation for the officer to
have a reasonable suspicion that a person is drunk driving.”
Instead, the court held, “continuous weaving for a period of five to
six miles observed by a police officer who had experience and
training in DUI enforcement was sufficient to constitute a
reasonable suspicion.”
¶ 14 The jury found defendant guilty of aggravated driving after
revocation prohibited and the lesser included offense of driving
while ability impaired. This appeal followed.
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II. Analysis
¶ 15 Defendant argues that the trial court erred by denying his
motion to suppress. We disagree.
A. Standard of Review
¶ 16 In suppression cases, an appellate court defers to the trial
court’s factual findings and will not disturb them if they are
supported by competent evidence in the record. People v. Brown,
217 P.3d 1252, 1255 (Colo. 2009). The appellate court reviews the
trial court’s ultimate legal conclusions de novo. Id.
B. Seizures for Traffic Violations
¶ 17 The United States and Colorado Constitutions protect against
unreasonable searches and seizures. U.S. Const. amends. IV, XIV;
Colo. Const. art. II, § 7. Traffic stops implicate these federal and
state constitutional protections against unreasonable seizure.
People v. Chavez-Barragan, 2016 CO 16, ¶ 10 (citing People v.
Rodriguez, 945 P.2d 1351, 1359 (Colo. 1997)). But a brief,
investigatory seizure is justifiable when the officer has a reasonable,
articulable suspicion that criminal activity has occurred, is taking
place, or is about to take place. Id. Suspicion of even a minor
traffic offense can provide the basis for a stop. Id.
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¶ 18 “[A]n officer’s subjective motives for stopping a driver are
irrelevant in determining whether an officer had reasonable
suspicion.” People v. Vaughn, 2014 CO 71, ¶ 11; see also Whren v.
United States, 517 U.S. 806, 810 (1996). An officer with “an
objectively reasonable basis to believe that a driver has committed a
traffic offense” is justified in making a stop. Vaughn, ¶ 11.
C. Intra-lane Weaving as Reasonable Suspicion
¶ 19 Defendant argues that his weaving within a single lane,
without more, did not create reasonable suspicion of driving under
the influence, despite the officer’s testimony that it did. We reject
any bright line rule and emphasize that whether there exists
reasonable suspicion of intoxicated driving2 is based on the totality
of the circumstances. On the facts of this case, we conclude that
the deputy had such reasonable suspicion, and that, therefore, the
stop did not violate defendant’s constitutional right to be free from
unreasonable searches and seizures.
2For simplicity, in this opinion we use the phrase “intoxicated
driving” to refer to both the offense of “driving under the influence”
and the offense of “driving while ability impaired.” See § 42-4-
1301(1)(a)-(b), C.R.S. 2018.
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¶ 20 The Fourth Amendment does not require that a police officer
see the defendant actually commit a traffic violation before stopping
him or her. See People v. Arias, 159 P.3d 134, 137-38 (Colo. 2007)
(“Facts that might seem innocent when viewed in isolation can
sustain a finding of reasonable suspicion when considered in the
aggregate, so long as the officer maintains an objectively reasonable
belief that the collective circumstances are consistent with criminal
conduct.”); see also United States v. Botero-Ospina, 71 F.3d 783,
787 (10th Cir. 1995) (“[A] traffic stop is valid under the Fourth
Amendment if the stop is based on an observed traffic violation or if
the police officer has reasonable articulable suspicion that a traffic
or equipment violation has occurred or is occurring.”) (emphasis
added).
¶ 21 Colorado courts have not addressed the issue of whether an
officer may lawfully stop a driver who has been observed to be
weaving within his lane of traffic. Other jurisdictions have
considered this issue, however.
¶ 22 We agree with the “overwhelming weight of authority from
other jurisdictions hold[ing] that repeated intra-lane weaving can
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create reasonable suspicion of impaired operation.” State v. Pratt,
932 A.2d 1039, 1041 (Vt. 2007) (emphasis added) (collecting cases);
see People v. Greco, 783 N.E.2d 201, 205 (Ill. App. Ct. 2003)
(collecting cases); Neal v. Commonwealth, 498 S.E.2d 422, 424-25
(Va. Ct. App. 1998) (collecting cases).
¶ 23 Indeed, some jurisdictions recognize that intra-lane weaving
can form the basis of an investigatory stop if the weaving is
“repeated” or over a “substantial distance.” People v. Perez, 221
Cal. Rptr. 776, 778 (Cal. Ct. App. Dep’t Super. Ct. 1985)
(concluding that an officer has “reasonable cause to stop a vehicle
on suspicion of driving under the influences where such weaving
continues for a substantial distance”); State v. Field, 847 P.2d 1280,
1285 (Kan. 1993) (“[T]he repeated weaving of a vehicle within its
own lane may constitute sufficient reasonable suspicion for an
officer to stop and investigate the driver of the vehicle.”); State v.
Bailey, 624 P.2d 663, 664 (Or. Ct. App. 1981) (“[A] vehicle weaving
within its own lane for a substantial distance gives rise to probable
cause . . . .”).
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¶ 24 Still other jurisdictions recognize that intra-lane weaving can
form the basis of an investigatory stop when the individual is
“driving erratically” or there is “pronounced weaving or hard
swerving.” Brown v. State, 595 So. 2d 270, 270 (Fla. Dist. Ct. App.
1992) (concluding there was a valid stop when the car weaved and
“slowed to 45 miles per hour and then accelerated to 55 miles per
hour on several occasions”); State v. Binette, 33 S.W.3d 215, 219-20
(Tenn. 2000) (“While Binette did move laterally at times within his
lane . . . , we find that his movement was not pronounced, and
therefore did not give rise to reasonable suspicion that he was
under the influence of an intoxicant.”). But,
[t]here are limits . . . on the extent to which
weaving can serve as a factor creating
reasonable suspicion of driving under the
influence. For instance, an isolated incident of
crossing into another lane will not ordinarily
create reasonable suspicion of driving while
impaired. Nor will weaving within a lane,
without more, ordinarily create reasonable
suspicion of driving under the influence.
Amundsen v. Jones, 533 F.3d 1192, 1199 (10th Cir. 2008) (citations
omitted).
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¶ 25 “Indeed, if failure to follow a perfect vector down the highway
. . . were [a] sufficient reason[] to suspect a person of driving while
impaired, a substantial portion of the public would be subject each
day to an invasion of their privacy.” United States v. Lyons, 7 F.3d
973, 976 (10th Cir. 1993), overruled on other grounds by Botero-
Ospina, 71 F.3d at 787. As the deputy in this case acknowledged at
the suppression hearing, in his experience people do not “tend to
drive in a perfectly straight line.”
¶ 26 In agreeing with these authorities, therefore, we do not adopt a
bright line rule that weaving within a single lane, by itself, gives rise
to reasonable suspicion. Indeed, “slight degrees of intra-lane
weaving alone do not justify a stop.” Pratt, 932 A.2d at 1042; see
State v. Post, 733 N.W.2d 634, 639 (Wis. 2007) (rejecting a bright
line rule because weaving that is “minimal or happens very few
times over a great distance . . . can be insignificant enough that it
does not give rise to reasonable suspicion”). Yet, we also do not
adopt a bright line rule that weaving within a single lane gives rise
to reasonable suspicion only when it is erratic, unsafe, or illegal.
See Post, 733 N.W.2d at 641.
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¶ 27 Rather, we apply the well-established principle that reasonable
suspicion for an investigative stop must be based on the totality of
the circumstances. People v. Reyes-Valenzuela, 2017 CO 31, ¶ 12.
Thus, other factors “such as pronounced or prolonged weaving or
other suspicious aspects of driving” can support reasonable
suspicion even if the driving was not erratic or unsafe. Post, 733
N.W.2d at 641 (footnote omitted).
¶ 28 In this case, the deputy did not see defendant commit any
traffic offense. But he observed defendant’s car continuously weave
within a single lane for five or six miles. He identified this weaving
behavior as an indication “that someone is driving under the
influence of alcohol.” And when asked if it is normal for people to
weave within one lane, he answered,
Not in the frequency that he was doing it,
no. . . . When you are going back and forth
and almost playing pinball with the lanes, yes,
he didn’t cross over a line, but he was just
back and forth, back and forth. It was like a
sign [sic] wave, watching a sign [sic] wave.
¶ 29 Considering the totality of the circumstances, we conclude
that there existed reasonable suspicion that the driver was
intoxicated. See People v. Loucks, 481 N.E.2d 1086, 1087 (Ill. App.
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Ct. 1985) (upholding a stop where “the vehicle the defendant was
driving was weaving within its own lane of travel continuously for a
distance of about two blocks”); State v. Otto, 726 S.E.2d 824, 828
(N.C. 2012) (upholding a stop where the defendant “was weaving
‘constantly and continuously’ over the course of three-quarters of a
mile”); Pratt, 932 A.2d at 1041 (upholding a stop where “the trooper
observed defendant drift back and forth within his lane several
times over a distance of approximately five miles”).
¶ 30 Accordingly, the trial court did not err in denying defendant’s
motion to suppress.3
III. Conclusion
¶ 31 The judgment is affirmed.
JUDGE FURMAN and JUDGE LICHTENSTEIN concur.
3 Given our disposition of this case, we need not reach the People’s
other arguments that there existed reasonable suspicion that
defendant was about to violate section 42-4-1007(1)(a), C.R.S. 2018
(weaving out of designated lanes), or section 42-4-1402(1), C.R.S.
2018 (careless driving).
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