IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50745

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARCO ANTONIO ALVARADO-ZARZA, also known as Marco Antonio 

Alvarado Zarza,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

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.

United States Court of Appeals

Fifth Circuit

FILED

April 6, 2015

Lyle W. Cayce

Clerk

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No. 13-50745

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 leftturn 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 

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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 Alvarado-Zarza signaled more than 100 feet before turning, Officer 

Barrientos reasonably suspected that he had not done so.

Following the denial of his motion to suppress, Alvarado-Zarza entered 

a conditional guilty plea in which he reserved the right to appeal the district 

court’s determination regarding the legality of his traffic stop.1

DISCUSSION

“In evaluating a district court’s denial of a defendant’s motion to 

suppress, we review factual findings, including credibility determinations, for 

clear error, and we review legal conclusions de novo.” United States v. Gomez, 

623 F.3d 265, 268 (5th Cir. 2010) (citation omitted). We view “the evidence in 

the light most favorable to the Government as the prevailing party.” Id. at 269 

(citation omitted).

Evidence derived from an unreasonable search or seizure generally must 

be suppressed under the fruit-of-the-poisonous-tree doctrine.2 See United 

1 The government argues that Alvarado-Zarza only preserved review of the “basis” for 

the traffic stop. While it is true that the plea agreement reserved Alvarado-Zarza’s right to 

appeal “the sufficiency of [the] basis [of the] stop,” the next paragraph more broadly preserved

issues “relative to the district court’s ruling on Defendant’s Motion to Suppress.” Because we 

must interpret appeal waivers narrowly against the government, the broader reading

controls. See United States v. Cooley, 590 F.3d 293, 296 (5th Cir. 2009).

2 One exception is when an arrestee consents to the search and that consent is: (1) 

“voluntarily given” and (2) “an independent act of free will.” United States v. ChavezVillarreal, 3 F.3d 124, 127 (5th Cir. 1993). The same standard applies to an arrestee’s 

admissions. See United States v. Tovar, 719 F.3d 376, 387-88 (5th Cir. 2013). Here, we 

decline to analyze the validity of Alvarado-Zarza’s consent to the search of his vehicle or his 

post-arrest statements. First, the district court did not address the “free will” element, and 

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States v. Cotton, 722 F.3d 271, 278 (5th Cir. 2013). Warrantless seizures are 

“per se unreasonable under the Fourth Amendment – subject only to a few 

specifically established and well-delineated exceptions.” United States v. Hill, 

752 F.3d 1029, 1033 (5th Cir. 2014) (quoting Katz v. United States, 389 U.S. 

347, 357 (1967)). One such exception comes from Terry v. Ohio, 392 U.S. 1 

(1968). Id. Under Terry, police officers may stop and briefly detain an 

individual if they reasonably suspect that criminal activity is occurring or 

about to occur. Id. Reasonable suspicion must be “particularized,” United 

States v. Cortez, 449 U.S. 411, 417-18 (1981), meaning that “the police officer 

must be able to point to specific and articulable facts” justifying the stop, Terry, 

392 U.S. at 21. Additionally, reasonable suspicion cannot rest upon a mistake 

of law or fact unless the mistake is objectively reasonable. See Heien v. North 

Carolina, 135 S. Ct. 530, 536 (2014) (mistake of law); Illinois v. Rodriguez, 497 

U.S. 177, 185 (1990) (mistake of fact).

We examine whether reasonable suspicion existed to stop AlvaradoZarza, and particularly whether the arresting officer committed unreasonable 

mistakes of law and fact. 

I. Arresting Officer’s Mistake of Law

In Texas, “[a]n 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.” TEX. TRANSP. CODE ANN. § 545.104(b). As we explain 

the government has not done so on appeal. Accordingly, the government has waived the 

argument. See United States v. Macias, 658 F.3d 509, 523 (5th Cir. 2011); see also Burnley 

v. City of San Antonio, 470 F.3d 189, 200 & n.10 (5th Cir. 2006) (applying waiver doctrine to 

appellee). Second, the government conceded at oral argument that, if the stop is deemed 

illegal, the evidence must be suppressed. See, e.g., United States v. Banks, 624 F.3d 261, 263 

& n.1 (5th Cir. 2010) (declining to address issue conceded at oral argument).

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below, this requirement applies only to turns, not to lane changes. Officer 

Barrientos did not interpret the statute that narrowly, and his mistaken 

interpretation was not objectively reasonable. 

The Supreme Court recently discussed the effect of a mistake of law 

committed by a police officer who stopped a car for having only one working 

brake light; the officer did not realize that state law required only one working 

brake light. See Heien, 135 S. Ct. at 535. The Court determined that the 

mistake was reasonable based on two considerations. First, the statute 

contained at least some ambiguity because it referenced “rear lamps” multiple 

times. Id. at 540. Second, the state’s appellate courts had not previously 

addressed the issue. Id.

As to this Texas statute, the Heien analysis compels the opposite 

conclusion. First, Section 545.104(b) is unambiguous. Its 100-foot 

requirement only applies to turns; lane changes are not mentioned. See TEX.

TRANSP. CODE ANN. § 545.104(b). Furthermore, the statute elsewhere refers 

to turns and lane changes separately, thereby setting out a distinction between 

the two. See § 545.104(a). This distinction is further indicated by the Texas 

Driver’s Handbook, which defines a lane change as a “lateral maneuver moving 

the vehicle from one lane to another” and a turn as a “vehicle maneuver to 

change direction to the left or right.” See Mahaffey v. State, 316 S.W.3d 633, 

641 (Tex. Crim. App. 2010) (citations and quotations omitted). The former

definition confirms that a lane change, as its name implies, occurs when 

moving from one lane to another. A “turn,” on the other hand, involves a 

change to a vehicle’s direction. The terms “turn” and “lane change,” therefore, 

signify distinct actions. Thus, Section 545.104(b), by its plain terms, does not 

apply to lane changes.

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Second, seven months prior to Alvarado-Zarza’s stop, the Texas Court of 

Criminal Appeals in Mahaffey addressed the distinction between a turn and a 

lane change. In that case, a policeman mistakenly concluded that a driver was 

“turning” by moving out of a lane that was ending. See id. at 635-40. Although 

the court did not discuss Section 545.104(b)’s 100-foot requirement, it drew a 

clear distinction between a turn and other movements, including a lane 

change. See id. at 640-41 & nn.35, 43 & 46. The court deemed this distinction 

“plain[] and unambiguous.” Id. at 638. We interpret Mahaffey to be a rejection

of Officer Barrientos’ view.

Because the caselaw far predates the stop in this case, and because the 

statute facially gives no support to Officer Barrientos’ interpretation of the 

100-foot requirement, we conclude that his mistake of law was not objectively 

reasonable.

II. Officer Barrientos’ Mistake of Fact

The remaining question is whether Officer Barrientos possessed a 

reasonable suspicion that Alvarado-Zarza failed to activate his turn signal 100 

feet prior to making a turn. McKay, Alvarado-Zarza’s expert witness, testified 

that Alvarado-Zarza activated his signal approximately 200 feet before 

changing lanes and 300 feet before turning. The court found that this

testimony lacked credibility because McKay could not answer certain 

questions relating to the speed of the vehicles and the effects the video 

recording would have on a viewer’s depth perception. 

McKay based his testimony on physical measurements of the distance 

between the crosswalk sign where Alvarado-Zarza activated his turn signal 

and the spot where he ultimately turned. It is unclear whether the district 

court’s findings were intended to indicate that McKay incorrectly determined 

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the points at which Alvarado-Zarza activated his turn signal or turned, erred 

in measuring the distance between those points, or both. The video, though,

plainly supported McKay’s conclusions regarding the points at which

Alvarado-Zarza activated his turn signal and later turned. The government

has not challenged the accuracy of the measurement of the distance between

those locations. As McKay noted, the factors identified by the court were 

irrelevant to his distance calculations. Those calculations only required him 

to measure the distance from one point to another; the speed of the cars did 

not matter. Additionally, no distortions appear on the video. As a result, the 

district court clearly erred in determining that McKay’s testimony lacked 

credibility.

The final question is whether it was objectively reasonable for Officer 

Barrientos to conclude that Alvarado-Zarza failed to signal 100 feet prior to 

turning when he in fact signaled 300 feet prior to turning. See Rodriguez, 497 

U.S. at 185. We have not previously addressed questions about the 

reasonableness of errors in estimating distances. Other courts have held that 

the government failed to demonstrate reasonable suspicion when the actual 

distance between the signal and the turn was unknown and the only evidence 

that the turn occurred less than 100 feet after the activation of the signal was 

the officer’s conclusory statements. See United States v. Gipson, No. 3:12-CR393-K, 2013 WL 6027908, at *3 (N.D. Tex. Nov. 14, 2013); State v. Hneidy, No. 

04-12-00692-CR, 2013 WL 3279743, at *4 (Tex. App.—San Antonio June 26, 

2013 pet. denied); cf. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). 

The conclusion in those cases comports with the requirement that reasonable 

suspicion be supported by “specific and articulable facts.” See Terry, 392 U.S. 

at 21; see also Cortez, 449 U.S. at 417-18.

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In this case, Officer Barrientos conceded that he acted quickly and could 

not “really be measuring” the exact signaling distance. Because of his 

mistaken assumption about the application of the 100-foot requirement, his 

estimations of distance related to the point where Alvarado-Zarza changed 

lanes rather than the point where he turned. Taken as a whole, Officer 

Barrientos’ testimony did not provide the sort of specific, articulable facts 

which would allow a court to determine that he possessed a reasonable 

suspicion that Alvarado-Zarza had committed a traffic violation. The fact that 

the actual distance between the signal and the turn was approximately 300 

feet, and that Officer Barrientos provided no explanation as to why he might 

have thought the distance was less than 100 feet, only reinforces this 

conclusion.

The district court clearly erred in concluding that Alvarado-Zarza’s stop 

was justified by reasonable suspicion. Accordingly, the evidence obtained 

pursuant to that stop must be suppressed.

REVERSED and REMANDED.

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