THE INVESTIGATORY STOP OF RESPONDENT’S VEHICLE BASED ON "WEAVING" WAS WHOLLY WITHOUT REASONABLE SUSPICION OR PROBABLE CAUSE, AND THEREFORE UNCONSTITUTIONAL UNDER THE FOURTH AMENDMENT, REQUIRING SUPPRESSION OF ALL EVIDENCE OBTAINED THEREFROM.

An officer must have reasonable suspicion that a driver has violated the Vehicle Code or some other law in order to make a legal stop. (People v. Miranda (1993) 17 Cal.App.4th 917, 926.) Absent such a showing, the stop is without constitutional support, and any and all fruits garnered therefrom must be suppressed because of the unlawfulness of the arrest.

In the present case, the officer stopped the driver because of "WEAVING".

Respondent was not speeding and was not traveling at an unlawfully slow speed. There is no indication that the speed was unsafe or interfered with other traffic. Movement within the traffic lanes is entirely normal behavior and in no way contributes to a finding that the vehicle stop was justified.

The weaving within one’s lane itself is not unlawful and without more does not establish lawful justification for a detention. Under some circumstances, this wholly lawful behavior can provide sufficient cause to justify a detention for a suspected violation of Vehicle Code section 23152. The California courts first addressed the issue of “weaving within a lane” in People v. Perez (1985) 175 Cal.App.3d Supp. 8. Today, the standard annunciated in Perez remains the benchmark by which these types of cases are measured.

In Perez, the officers followed the defendant for three quarters of a mile as he weaved within his lane two feet in either direction for the entire distance. (Id. at 9.) In finding reasonable suspicion to stop Mr. Perez, the court held that “pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance.” (Perez, supra 175 Cal.App.3d Supp. at 11-12., emphasis supplied.) Clearly, the court intended its holding to be read narrowly given its choice of adjectives and the corresponding facts of that case. Likewise, in People v. Bracken (2000) 83 Cal.App.4th Supp. 1, the defendant was stopped because the experienced officer observed extremely pronounced weaving within the lane for approximately one-half mile.

In both Perez and Bracken, the defendants were weaving within their lanes, but had done so for a considerable distance. Further, the weaving was severe and pronounced.
The weaving within a lane issue was also addressed by the Ninth Circuit Court of Appeal. In United States v. Colin, 314 F.3d 439 (9th Cir. 2002), the Ninth Circuit held that only in cases where the weaving was pronounced and where the distance traveled was substantial did the Perez holding have valid application.

In Colin, the police observed the defendant for 35-40 seconds, during which time he drifted to the far side of the lane he was in for approximately 10 seconds, before drifting back toward the other side.
Colin then made a legal lane change, and proceeded to repeat the drifting conduct.
The Colin court held that these circumstances did not warrant application of Perez. The court explained that “if failure to follow a perfect vector down the highway...[was] sufficient [reason] to suspect a person of driving while impaired, a substantial portion of the public would be subject every day to an invasion of their privacy.” (Colin, supra at 446.)

In the instant case, there is no evidence that the weaving was so pronounced or lasted any specific distance.

Courts have limited their decisions in the weaving, drifting and straddling cases to permit a stop only in those cases where the movements are pronounced, recur over a substantial distance and specifically affects other traffic or while speeding:

United States v. Smith (11th Cir. 1986) 799 F.2d 704 [crossing fog line by 6 inches not grounds for stop]
United States v. Gregory (10th Cir. 1996) 79 F.3d 973 [isolated incident of swerving into emergency lane under windy conditions not a violation of statutory requirement to stay in one lane]
Rowe v. State (Md. App. 2001) 769 A.2d 879 [momentary crossing of edge line of roadway and later touching of same line not a valid basis for traffic stop]
State v. Binette (Tenn. 2000) 33 S.W.3d 215 [non-exaggerated weaving entirely within one lane not grounds for a traffic stop]
Frasier v. Driver (2001) 172 Ore. App. [lane travel statute requires more for a violation than a momentary crossing or touching of an edge or lane line]
Commonwealth v. Chernosky (2004) WL 1576569 (Pa. Super.) [probable cause lacking over 5 minutes where driver drifted to the right so as to almost strike a telephone pole, crossed the center line more than once, drifted from the left side to the right side of the road and swerved within the lane of travel with no other traffic on the road but did not speed and obeyed all stop signs]
State v. Tague (Iowa 2004) 676 N.W.2d 197 [no probable cause when both tires drift across the left edge line during 1 mile distance]
State v. Brite (1997) 698 N.E.2d 478 [crossing right side road edge twice in a mile not grounds for stop]
Montana v. Lafferty (1998) 967 P.2d 363 [crossing fog line 2 times, driving on it once, is not grounds for stop]
Crooks v. State (1998) 710 So. 2d 1041 [failure to maintain a single lane of travel is not a violation of the statute unless the vehicle is being operated unsafely]
State v. Drogi (1994) 96 Ohio App. 3d 466 [no probable cause when left front tires cross 1 foot over centerline, then moves towards right edge line close to that line and eventually crosses the right edge line]
State v. Gullett (1992) 604 N.E.2d 176 [crossing lane edge 2 times not enough to justify stop where no speeding]
State v. Cerny (2000) 28 S.W.3d 796 (Texas) [touching or going over fog line, absent unsafe/erratic driving, is not grounds for stop]
Hernandez v. State (1998) 983 S.W.2d 867 [no grounds for stop when vehicle drove 18 inches across lane divider out of its main lane of travel when no showing it was unsafe to other vehicles]
State v. Boley (2005) WL 1225614 (Iowa App.) [no grounds to stop where officer vehicle made wide but legal turn, then over 2 miles drifted slowly from the center of lane towards curb on the right 4 times coming close to curb 2 times but not hitting it]
State v. Palmer (2005) WL 555281 (Texas App.) [no reasonable suspicion to stop when:
1) vehicle was driving 5 miles below the speed limit and riding the right line;
2) drove in an entrance ramp lane;
3) signaled his intention to turn right when there was nowhere to turn;
4) applied his brakes in sudden & unsafe manner when exiting the road;
5) touched the double white lines;
6) drove partially into the right-turn-only lane before rolling into the go-straight lane;
7) during early morning hours; and
8) near a number of local bars]
Salter v. North Dakota (1993) 505 N.W.2d 111 [no reasonable suspicion when weaving within own lane while traveling 30-35 mph in a 50 mph zone]

There is still no probable cause for a stop even in those above cases involving straddling unless the movement were unsafe to other vehicles or while speeding. In these cases, no matter how bad the driving is, if other traffic is not specifically affected, there lacks a basis for a stop.

Clearly a division line is necessary to preserve a meaningful definition of “reasonable suspicion.” This is precisely what the court in Perez seems to have established.

Respondent might not have driven in a straight vector within the lane for a short distance, but this wholly lawful conduct over any minuscule distance observed by the officer is a far cry from reasonable suspicion to stop.

For the foregoing reasons, the evidence fails to establish legal or probable cause for a traffic stop.




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