Search by Cops of Wrong-Way Driver Was Improper

(CN) - A Texas man who was pulled over for driving on the wrong side of the road wasn't breaking the law, the 5th Circuit found in a split decision. Lacking a reason to search the man's car, the court threw out the man's subsequent conviction for being a felon in possession of a firearm.

The government failed to point to any objective basis that could justify the traffic stop, according to the unsigned majority opinion.

Corey A. Raney was stopped by a police officer on Sept. 15, 2008, for driving on the wrong side of the road. Hurricane Ike had hit two days earlier, causing fuel shortages and massive lines at gas stations. Raney was trying to leave a subdivision that has a gas station on the corner, and the line for the station was blocking the subdivision's only exit.

Officers at the intersection were directing cars leaving the subdivision to go around cars waiting for gas, but Raney did not have the officers' permission before he pulled into the oncoming lane to pass the line.

The officer who pulled him over testified that "a strong odor of marijuana" was coming from Raney's car, so he detained Raney to conduct a search. While patting Raney down, the officer allegedly found a .45 caliber firearm in the waistband of Raney's pants and ammunition in his glove compartment.

Raney was arrested after a check of his criminal history revealed prior felony convictions. At trial, police pointed to three traffic violations that they said justified their search: driving in the wrong lane, failing to obey a police officer and reckless driving.

Raney, in defense, said that the gun was not on him at the time of his arrest. His wife testified that Raney was wearing shorts on the day of the arrest and probably could not have held a gun in the waistband.

During closing arguments, a federal prosecutor said Raney's wife accused officers of lying and planting evidence. He asked the jury if police would "tell something other than the truth." He also said, "The gun was loaded, a round in the chamber, ready to be fired - bang, bang, bang."

After a federal jury convicted Raney, the trial judge later found police had probable cause.

On appeal, Raney argued that the evidence should have been suppressed and that the prosecutor's remarks were improper.

Since the Texas Transportation Code allows motorists to drive on the wrong side of the road when there are obstructions, Raney was not breaking the law, according to the Feb. 9 ruling

"There is no evidence in the record demonstrating that Raney was aware that the officers were directing traffic," Judges Harold DeMoss and Jennifer Elrod wrote.

The majority also rejected the reckless driving charge.

"This argument is specious," the opinion states. "Recklessness clearly requires a showing of willful and wanton disregard for the persons or property of others ... Officer Walker testified that Raney was driving approximately ten to fifteen miles per hour in a lane with no oncoming traffic."

Judge Fortunato Benavides dissented from the panel, finding that the exceptions do not apply Raney's situation.

"I would affirm the District Court's suppression ruling: the stop was justified because Raney violated the law by driving on the wrong side of the road," Benavides wrote.

The majority also noted that the prosecutor was wrong to make inflammatory remarks.

"Despite our precedent clearly condemning such remarks, the government continues to disregard our admonishments," the opinion states. "These types of improper remarks substantially effect (sic) a defendant's rights and the integrity of this courts."

Though the remarks were improper, the court noted that the inadmissibility of the search precluded it from having to rule that the remarks "constituted reversible error."

"However, we feel it prudent to address this issue because the government has been cautioned repeatedly by this court against making such arguments, yet we continue to face them on appeal," the judges wrote.

Benavides said the panel should have ruled as to reversible error.

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