Appeals from the United States District Court for the Western District of Texas.
REVERSED and REMANDED.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX; Jennifer Sheffield Freel, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, Austin, TX.
For MARCO ANTONIO ALVARADO-ZARZA, also known as Marco Antonio Alvarado Zarza, Defendant - Appellant: James Stafford, Houston, TX.
Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge.
Marco Antonio Alvarado-Zarza appeals the district court's denial of his motion to suppress the evidence of cocaine found during a stop for a traffic violation premised on his failure to signal properly before turning. We REVERSE the judgment of conviction and REMAND for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
In February 2011, Texas Highway Patrol Officer Juan Barrientos stopped Alvarado-Zarza near the U.S.-Mexico border for purportedly violating a Texas law requiring drivers to signal 100 feet in advance of a turn. See Tex. Transp. Code Ann. § 545.104(b). Officer Barrientos briefly questioned Alvarado-Zarza and then obtained consent to search his vehicle. After discovering cocaine, Officer Barrientos placed Alvarado-Zarza under arrest. Before receiving warnings about his constitutional rights, Alvarado-Zarza directed Officer Barrientos to additional cocaine in his vehicle.
Alvarado-Zarza was charged with possession with intent to distribute cocaine. He moved to suppress the evidence of the cocaine, arguing that the traffic stop was illegal and that all evidence obtained was inadmissible. At a suppression hearing, while a dash-camera video played, Officer Barrientos explained the events of the stop. He believed that Alvarado-Zarza violated Texas law by failing to signal 100 feet before turning. He also claimed that the " turn" occurred when Alvarado-Zarza moved into the left-turn lane from a through-lane, not when he actually turned left.
Alvarado-Zarza argued that the 100-foot requirement did not apply to lane changes. He called James McKay, a private investigator and former policeman, as an expert witness. Using the dash-camera video, McKay determined that Alvarado-Zarza was adjacent to a crosswalk sign when he activated his turn signal. McKay went to the scene and measured the distances from that sign to the point where Alvarado-Zarza moved into the left-turn lane and then to the point where he turned left. He testified that those distances were approximately 200 and 300 feet, respectively. Based on this testimony, Alvarado-Zarza argued that Officer Barrientos could not reasonably have suspected that he failed to meet the 100-foot requirement, even if the requirement was construed to apply to lane changes.
The district court denied the motion. It noted that Alvarado-Zarza had changed lanes only to effectuate a turn. It concluded, therefore, that the lane change and subsequent turn constituted " one prolonged turn." It also found that Alvarado-Zarza's expert witness lacked credibility because he could not answer certain questions relating to " physical observations such as the rate of speed of both vehicles and what distorting effect, if any, would the video recording have, i.e. depth perception . . . ." Finally, the court found that even if ...