REVISED, August 7, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-10472

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD EUGENE MILLER,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the

Northern District of Texas

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July 13, 1998

Before BARKSDALE, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

Richard E ugene Miller appeals his conviction for possession of marijuana with intent to

distribute and a related forfeiture count. He challenges the denial of a motion to suppress evidence

and the sufficiency of the evidence supporting the conviction and forfeiture. We hold that the district

court erred in admitting int o evidence drugs that were seized when Miller was stopped for having

a turn signal on without turni ng o r changing lanes. Finding that flashing a turn signal under these

circumstances is not a violation of Texas law and therefore did not create probable cause for the stop,

and that Miller’s subsequent consent to search did not cure the taint of the unconstitutional2

stop, we vacate the judgment of conviction with respect to each count and remand.

I. BACKGROUND

Shortly before 1:00 p.m. on September 27, 1996, Randell County Deputy Sheriff John Sheets

spotted Richard Eugene Miller driving a m otor home east on Interstate 40, near Amarillo, Texas.

Sheets was working as a member of the Criminal Interdiction Unit of t he Panhandle Regional

Narcotics Trafficking Task Force, which, according to Sheets, sought to interdict illegal drugs by

stopping motorists under the pretext of enforcing traffic laws in order to obtain voluntary consent to

search their vehicles. Sheets, observing that Miller’s motor home had no front license plate, turned

around to follow it to see if it had the re quired license registration in the rear. As Sheets was

fol lo wing, Miller exited Interstate 40, turning south onto Soncy Road. Sheets then saw that the

m otor home had a temporary Colorado registration tag, but also noticed that it had its left turn signal

on for a period of time during which it proceeded through an intersection but did not turn left nor

change lanes to the left. Sheets pulled Miller over, and they were joined shortly thereafter by Brent

Clay, an Amarillo police officer who was also a member of the Regional Narcotics Task Force.

After pulling him over, Sheets informed Miller that he was going to issue him a warning

citation for improper use of his left turn signal. He then told Miller that he and Clay were looking

for illegal contraband and asked if Miller would mind if he and Clay searched the m otor home. Miller

indicated that he did not object to a search. The officers undertook a search and found approximately

eighty kilograms of marijuana in a compartment under a bed in the mot or home and they arrested

Miller.

Miller was indicted for possession with intent to distribute mari juana and the prosecution3

sought forfeiture of his m otor home. Miller pleaded not guilty and moved to suppress both the

admission of the marijuana and certain statements he made after his arrest. The magistrate judge held

an evidentiary hearing and recommended that the motion to suppress be denied. The district court

then conducted a hearing and denied the motion to s uppress with respect to the admission of the

marijuana but granted it with respect to Miller’s statements.

A jury trial was he ld o ver t wo days. Miller was convicted of possession with intent to

distribute in violation of 21 U.S.C. § 841(a)(1) and his motor home was found to be subject to

forfeiture pursuant to 21 U.S.C. § 853. He was sentenced to four years and eight months

imprisonment and three years supervised release. He timely filed a notice of appeal.

II. DISCUSSION

Miller argues that the district court erred in denying his motion to suppress with respect to

the marijuana found in his m otor home because it was obtained as the result of an unconstitutional

stop. To justify the stop the prosecution relies solely, as it did in the court below, on the claim that

the police had probable cause to stop Miller because he violated Texas law by flashing his turn signal

without turning or changing lanes. Miller asserts that there is no such violation under Texas law, and

that therefore no probable cause to stop him existed. He also argues that his consent to search did

not cure the taint of the illegal stop. It cannot be disputed that the fruits of the stop were essential

in securing Miller’s conviction on each count.

A.

We review determinations of probable cause de novo

, accepting findings of fact absent clear

error. S ee Ornelas v. United States, 116 S.Ct. 1657, 1663 (199 6). “Temporary detention of1 Section 545.106 states, in full:

(a) Except as provided by Subsection (b), an operator required to give a stop or turn signal shall do

so by:

(1) using the hand and arm; or

(2) lighting signal lamps approved by the department.

4 individuals during the stop of an automobile by the police, even if only for a brief period and for a

limit ed purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].

An automobile stop is thus subject to the constitutional imperative that it not be ‘unreasonable’ under

the circumstances. As a general matter, the decision to stop an automobile is reasonable where the

police have probable cause to believe that a traffic violation has occurred.” Whren v. United States,

116 S. Ct. 1769, 1772 (1996) (internal citations omitted). The central question before us, therefore,

is whether Sheets had probable cause to believe that Miller had committed a traffic violation.

The prosecution argues that Sheets had probable cause to stop Miller because by flashing a

turn signal without turning or changing lanes he was in violation of section 547.305 of the Texas

Transportation Code. That section states, in full:

A person may not operate a m otor vehicle equipped with a red, w hite, or blue beacon,

flashing, or alternating light unless the equipment is: (1) used as specifically authorized by this

chapter; or (2) a running lamp, headlamp, taillamp, backup lamp, or turn signal that is used

as authorized by law.

Tex. Transp. Code § 547.305(c) (Vernon Supp. 1997). The prosecution argues that flashing a light

without turning or changing lanes is not “specifically authorized by law” by pointing to

§ 545.104 of the Texas Transportati on Code to show that the only authorized uses of flashing lights

are to signal turns, lane changes, or movements out of a parked position. Section 545.104

states, in full:

(a) An operator shall use the signal authorized by Section 545.106 1 to indicate an intention(b) A m

otor vehicle in use on a highway shall be equipped with signal lamps, and the required signal

shall be given by lighting the lamps, if:

(1) the distance from the center of the top of the steering post to the left outside limit

of the body, cab, or load of the motor vehicle is more than two feet; or

(2) the distance from the center of the top of the steering post to the rear limit of the

body or load, including the body or load of a combination of vehicles, is more than

14 feet.

Tex. Transp. Code § 545.106 (Vernon Supp. 1997).

5 to turn, change lanes, or start from a parked position.

(b) An operator intending to turn a vehicle right or left shall signal continuously for not less

than the last 100 feet of movement of the vehicle before the turn.

(c) An operator may not light the signals on only one side of t he vehicle on a parked or

disabled vehicle or use the signals as a courtesy or “do pass” signal to the operator of another

vehicle approaching from the rear.

Tex. Transp. Code § 545.104 (Vernon Supp. 1997).

Miller points out that the cited provisions do not explicitly st at e t hat flashing a turn signal

without turning or changing lanes is a violation and asserts that it is inappropriate to read such

a violation into section 547 .305(c), a provision which is concerned with the types of lighting

equipment that vehicles are required and forbidden to have. In support of his position that the statute

did not provide sufficient notice of such a violation, Miller quotes the Assistant U.S. Attorney’s own

statement at trial that “[t]he statute is real clear to [her], but you almost have to read it backwards.”

We agree with Miller that a plain reading of the Code provisions at issue does not support the

view that having a turn light on without turning or changing lanes is a violation of Texas law. Section

547.305(c) appears in the Code in a chapter titled “Vehicle Equipment,” in the subchapter “General2 The General Offenses section reads:

(a) A person commits an offense that is a misdemeanor if the person operates or moves

or, as an owner, knowingly permits another to operate or move, a vehicle that: (1) is

unsafe so as to endanger a person; (2) is not equipped in a manner that complies with

the vehicle equipment standards and requirements established by this chapter; or (3)

is equipped in a manner prohibited by this chapter.

(b) A person commits an offense that is a misdemeanor if the person operates a vehicle

equipped with an item of vehicle equipment that the person knows has

been determined in a compliance proceeding under Section 547.206 to not comply with a department

standard.

Tex. Transp. Code § 547.004 (Vernon Supp. 1997).

6 Provisions Regarding Lighting Requirements.” Although the section has the heading “Restrictions

on the Use of Lights,” a review of the section indicates that it addresses what kinds of light ing

equipment are required and prohibited on various vehicles, rather than how or when lights are to be

used. The aim o f t he particular provision cited by the prosecution clearly seems to be prohibiting

vehicle owners from operating vehicles equipped with non-standard lights. It shoul d go wi thout

saying that penal statutes are to be strictly construed, see United States v. Daniel, 813 F.2d 661 (5th

Cir. 1987), and we find it strained to infer that the reference in section 547.305(c) to the phrase “turn

signal that is used as authorized by law” creates a series of violations for all uses that are not explicitly

authorized. The phrase is more readily understood to be noting the types of lights that are excepted

from the rule against operating a m otor vehicle equipped with a red, white, or blue beacon or flashing

light, rather than to be specifying that any particular uses of the lights that are allowed c onstitute

infractions. This reading is strengthened by the fact that the chapter in which the provision appears

has a separate “General Offense” section, which ident ifies violations entailing the operation of

vehicles that are not appropriately equipped, without any suggestion t hat the chapter makes it a

violation to use lights that one is allowed to have on a vehicle in any particular way. 27

Even more striking is the fact that section 545.104--the section from which the prosecution

seeks to derive what counts as turn signaling that is “authorized by law ”--explicitly indicates two

instances in which signaling is prohibited: when a vehicle is parked or disabled and when used as a

“do pass” signal. It is hard to reconcile the legislature’s view that these particular uses of signaling

had to be identified as violations if it intended that any other uses not specifically authorized were to

be considered violations.

Moreover, the prosecution offers no evidence that in practice the Texas Code has been

interpreted to establish the violation alleged here. In sum, the pro secution is advocating an

interpr et at io n o f t he Texas law that is not supported by a plain reading of the statute and without

evidence that anyone has previously adopted such a reading. The prosecution simply asserts that

“[a]ny reasonable person would agree that t he public is endangered if there are no enforceable

infractions of the m

otor vehicle code to restrict drivers from o perat ing vehicles with turn signals

flashing and not turning.” But even if it is true that any reasonable person would agree that the public

would be endangered if no such violation exists--and this claim seems at least arguable--that would

not be sufficient ground to create a violation that the legislature did not c learly est ablish. As we

noted above, the prosecution’s sole theory of probable cause in this case is that flashing a turn signal

without turning or changing lanes is in and of itself a violation of the Texas Transportati on Code; the

prosecution has not a rgued, and we therefore do not consider, whether any danger that might be

associated with having a turn signal on provides any other basis of probable cause for a stop.

The rule articulated by the Supreme Court in Whren provides law enforcement officers broad

leeway to conduct searches and seizures regardless of whether their subjective intent corresponds to3 Of course, as the Whren Court makes clear, the leeway allowed regarding subjective intent

does no t protect any discriminatory application of laws that would violate the Fourteenth

Amendment. See Whren, 116 S. Ct at 1774.

8 the legal justifications for their actions. 3 But the flip side of that leeway is that the legal justification

must be objectively grounded. S ee Whren, 116 S. Ct. at 1774; see also Goodw in v. Johnson, 132

F.3d 162, 173 (5th Cir. 1998 ) (“ So long as a traffic law infraction that w ould have objectively

justified the stop had taken place

, the fact that the police officer may have made the stop for a reason

other than the o ccurrence of the traffic infraction is irrelevant for purposes of the Fourth

Amendment.” (emphasis added)). Here, given that having a turn signal on is not a violation of Texas

law, no objective basis for probable cause justified the stop of Miller.

B.

We next ad dress whet her Miller’s consent to the search of his motor home cured the

constitutional taint on the evidence that was found during t hat search. Under the fruit of the

poisonous tree doctrine, all evidence derived from the exploitation of an illegal search or seizure must

be suppressed, unless the government shows that there was a break in the chain of events sufficient

to refute the inference that the evidence was a product of the constitutional violation. S ee Brown v.

Illinois

, 95 S. Ct. 2254, 2259-2261 (1975) (discussing Wong Sun v. United States, 8 3 S. Ct. 407

(1963)); United States v. Cherry, 759 F.2d 1196, 1210-11 ( 5th Cir. 1985). The burden on the

prosecution to show that consent to a search was voluntary is significantly heavier when it follows

a constitutional violation. S ee Cherry

, 759 F.2d at 1210-11

. The analysis that must be undertaken

in this situation is explained in United States v. Chavez-Villarreal, 3 F.3d 124, 127-28 (5th Cir. 1993)

(citing Brown, 95 S. Ct. 2254):9

Even though voluntarily

given, consent does not remove the taint of an illegal

detention if it is the product of that detention and not an independent act of free will.

To determine whether the causal cha in was broken, we consider: (1) the temporal

pr o ximit y of the illegal conduct and the consent; (2) the presence of intervening

circumstances; and (3) the purpose and flagrancy of the init ial misconduct. The

burden of showing admissibility rests on the government.

The district court determined that Miller consented to the search of his motor home, but

,

because it had erroneously found that there was probable cause for the stop, it had applied only the

no rmal standard for consensual searches that occur subsequent to legal stops, rather than t he

heightened standard required by Brown and Chavez-Villarreal

. Having before us an adequate record,

it is in the interest of judicial economy that we undertake the appropriate analysis.

The first factor identified in Brown and Chavez-Villarreal --tempor al pro ximity--strongly

militates in favor of suppression here given that the police asked for consent to the search within

ninety seconds of having stopped Miller on the basis of his flashing turn signal. The second factor

also comes down clearly in favor of suppression given that the prosecution offers no arguments to

suggest any relevant intervening factors and the record suggests none. Furtherm ore, the officers

themselves testified that the purpose of their traffic stops was to seek the consent of drivers to search

for drugs, thereby suggesting that no intervening factors would have been necessary to induce them

to seek consent. With respect to the flagrancy fact o r, while more egregious violations of Fourth

Amendment rights are possible, the type of violation here--stopping a suspect without probable cause-

-is the sort of police behavior that the Brow n/Chavez-Villarreal test is meant to discourage. Thus,

in light of the three relevant factors, we find that Miller’s consent to search did not cure the taint of

the unconstitutional stop, and the marijuana found should have been suppressed.10 C.

Although the erroneous admission of the marijuana necessitates remand, we will consider

Miller’s challenge to the sufficiency of the evidence in order to preempt any possibility of a double

jeopardy issue arising should the prosecution choose to retry this case. S ee United States v. Miller,

952 F.2d 866, 874 (5th Cir. 1992) (“Although not mandated by the double jeopardy clause , it i s

accordingly clearly the better practice for the appellate court on an init ial appeal to dispose of any

claim properly presented to it t hat t he evidence at trial was legally insufficient to warrant the thus

challenged conviction.”). In conducting a sufficiency review under such circumstances, we consider

all of the evidence that was before the jury--including evidence that was erroneously admitted. See

Lockhart v. Nelson, 109 S. Ct. 285 (1988); United States v. Marshall, 762 F.2d 419 (5th Cir. 1985).

“It is fundamental that we, as an appellate court, owe gr e at deference to a jury verdict.”

United States v. Walters, 87 F.3d 663, 667 (5th Cir. 1996). As a result, in reviewing a challenge to

the sufficiency of the evidence, we apply a now familiar standard:

we determine whether, viewing the evidence and the inferences that may be drawn from it in

the light most favorable to the verdict, a rational jury could have found the essential elements

of the offenses beyond a reasonable doubt. We recognize that the jury was free to choose

among all reasonable constructions of the evidence, and we accept all credibility choices that

tend to support the jury’s verdict. We view the evidence, both direct and circumstantial, as

well as all reasonable inferences from that evidence, in the light most favorable to the verdict.

Moreover, we determine only whether the jury made a r at io nal decision, not whether its

verdict was correct on the issue of guilt or innocence. Further, the evidence need not exclude

every reasonable hypothesis of innocence. However, we must reverse a conviction if the

evidence construed in favor of the verdict gives equal or nearly equal circumstantial support

to a theory of guilt and a theory of innocence of the crime charged.

United States v. Dean, 59 F.3d 1479, 1484 (5th Cir. 1995) (internal quotati on marks and citations

omitted).11

Un der 21 U.S.C. § 841(a)(1), possession of marijuana with intent to distribute has three

elements: (1) knowing (2) possession (3) with intent to distribute. S ee United States v. Garcia, 917

F.2d 1370, 1376 (5th Cir. 1990). Miller argues that there was not sufficient evidence to support the

knowledge element. He point s o ut that in this circuit when contraband is hidden in the secret

compartment of a vehicle, control over the vehicle is not alone sufficient to infer knowledge of the

contraband, see United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995), and he asserts that

the prosecution did not provide the additional evidence required to establish guilty knowledge. We

disagree.

“Knowledge of the presence of narcotics often may be inferred from the exercise of control

over t he vehicle in which the illegal drugs are concealed.” Resio-Trejo, 45 F.3d at 911 (citation

omitted). It is true that in cases involving hidden compartments we require that additional factors

support finding consciousness of guilt, see United States v. Olivier-Becerril, 861 F.2d 424, 427 (5th

Cir. 1988), but we have noted th at “pro o f t hat possession of contraband is knowing will usually

depend on inference and circumstantial evidence.” United States v. Richardson, 848 F.2d 509, 514

(5th Cir. 1988). No single piece of circumstantial evidence need be conclusive when considered in

isolation; the question, rather, is whether the evidence, when considered as a whole, provi des a

substantial basis for the jury to find that the defendant’s possession was knowing. See id.

At trial, the prosecution introduced evidence that Miller had bought his m otor home not long

before he was arrested, that Miller had purchased the m otor home with cash, and that he had been

impatient when kept waiting the night he purchased it. The prosecution also offered evidence that the

motor home did not have the secret storage compartment when Miller acquired it. Miller testified12

that he had taken the m

otor home to a mechanic, seeking repairs on the brakes and modifications to

the bed. Although on Miller’s account he could have believed the modifications were benign, the jury

was free to disbelieve part or all of his testimony and to draw inferences from the fact that he

admitted that he was aware that the bed under which the drugs were later found had been modified.

We find that this evidence, taken cumulatively and in addition to the fact that Miller was in control

of the vehicle when the marijuana was found, provided a substantial basis on which a reasonable jury

could conclude that Miller had the requisite knowledge.

Finally, Miller challenges the su fficiency of the evidence supporting the forfeiture count

against him; he makes this challenge solely on the basis that the forfeiture count is contingent on the

underlying drug offense which he claims is not supported by substantial evidence. Accordingly,

because we find that there was sufficient evidence to sustain the conviction with respect to possession

with intent, we find ther e was sufficient evidence to sustain the conviction with respect to the

forfeiture.

For the foregoing reasons, we VACATE the judgemen t of conviction on each count and

REMAND for further proceedings not inconsistent with this opinion.

ENDRECORDRHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:

Miller was stopped by a Randall County, Texas, Deputy Sheriff,

consented to a search of his recreational vehicle, and was found to

be transporting 80 kilograms of marijuana in a secret compartment.

The m ajority, interpreting the Texas Transportation Code, holds

that the Deputy lacked probable cause to initiate the stop,

concluding that the event he witnessed

— driving for an extended

distance in the right lane, including through an intersection, with

the left turn signal flashing, but without ever turning or changing

lanes

— was not a violation of Texas law. Because the stop was

based properly on a violation of Texas law, I respectfully dissent

from Parts II A and B of the opinion.

“As a general matter, the decision to stop an automobile is

reasonable where the police have probable cause to believe that a

traffic violation has occurred.” W hren v. United States

,

___ U.S.

___, 116 S. Ct. 1769, 1772 (1996). The Government, for its own

reasons, supports the stop only on the ground that Tex as law was

violated. Hence, other possible supporting bases for such a

violation, especially in the light of the avenues offered by Whren

,

await another day.

The Deputy testified at the suppression hearing that the

violation Miller committed was that Miller “left his left-hand turn

signal on for a period of time through an intersection, completely

through the intersection, and for a distance without attempting to

change lanes”. The Deputy testified further that, when initiating

the stop, he relied upon §§ 545.10 and 547.305 (quoted in majority- 14 -

opinion) of the Texas Transportation Code.

According to § 545.104(a), Miller could only use an authorized

turn signal to indicate either an intention to turn, or to change

lanes, or to start from a parked position. See T EX

. T RANS

. C ODE §

545.104(a) (Vernon Supp. 1997). Moreover, § 547.305(c) provides

that Miller could not operate his vehicle with a flashing or

alternating light, unless it was a turn signal lamp that was used

as authorized by law. S ee T EX

. T RAN S

. C ODE § 547.305(c) (Vernon

Supp. 1997).

Obviously, contrary to § 545.104(a), Miller was not using his

turn signal as an indication of an intent to turn, or to change

lanes, or to start from a parked posi tion. Thus, his use of the

turn signal was not authorized by law , and, accordingly, pursuant

to § 547.305(c), constituted a violation of Texas law. In short,

there was probable cause to believe that a traffic vi olation

occurred; the stop was reasonable. S ee Whren

, 116 S. Ct. at 1772.

The majority would require the Texas legislature to expressly

proscribe traveling with a turn signal on for an extended distance,

including through an intersection, without ever turning or changing

lan es, before such an act would be a violation of Texas law. By

such reasoning, every conceivable unauthorized use of a turn signal

must be expressly prohibited in the Code. Instead, the Texas

legislature chose to state the limited, authorized uses of a turn

signal. Consequently, the use of a turn signal in the manner used- 15 -

by Miller constituted an unauthorized use

— a violation of Texas

law.

Because I would hold that Miller’s stop was not unreasonable,

I respectfully dissent from Parts II A and B of the opinion.