United States Court of Appeals

Fifth Circuit

FILED

March 30, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-50686

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEMETRIC MONTIQUE COLE,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Texas

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Before HIGGINBOTHAM, DAVIS and STEWART, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant Demetric Cole appeals the denial of his motion to

suppress drugs found in his vehicle following a traffic stop. 

Because we are unable to resolve the legality of the traffic stop

without additional fact finding, we vacate the district court’s

order denying Cole’s motion to suppress and remand for further

proceedings.

I.

Cole was stopped for a traffic violation in Odessa, Texas at

the intersection of Tanglewood and Oakwood Streets. This

intersection is governed by a stop sign. Officer Julian, the
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arresting officer, was traveling South on Tanglewood, on the same

street as Cole and directly behind Cole. After stopping Cole,

Julian told Cole that he failed to stop at the designated white

line at the stop sign. The officer gave no other reasons for

stopping Cole’s vehicle. Cole argued at the suppression hearing

that he committed no traffic violation because he stopped before

he reached the crosswalk at the intersection.

When Officer Julian approached the vehicle he smelled

marijuana emanating from the car. While waiting to run Cole’s

arrest record, the officer asked Cole to exit the car and sit on

the curb of the sidewalk. Cole refused to give permission to

search the car and Officer Julian called a K-9 unit, which

arrived in approximately 10 minutes. The canine officer also

smelled marijuana emanating from the vehicle. The dog alerted to

the driver’s window. When the canine officer opened the driver’s

side door, the dog alerted to a bag under the driver’s seat. The

bag was found to contain approximately one kilogram of powder

cocaine. Cole was arrested and charged with possession with

intent to distribute 500 grams or more of cocaine. 

Cole filed a motion to suppress the cocaine on the basis

that the initial traffic stop was illegal. Following a hearing,

the district court denied the motion to suppress. Cole entered a

conditional guilty plea and preserved his right to appeal the
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district court’s ruling on the motion to suppress. Cole now

appeals the denial of that motion.

II.

In this challenge to the district court’s denial of his

motion to suppress, Cole argues that the initial stop was

invalid. A police officer may stop a vehicle if he has probable

cause to believe a traffic violation has occurred. Whren v.

United States, 517 U.S. 806, 810 (1996). If an officer stops a

vehicle for conduct by a motorist that does not in fact

constitute a traffic violation, courts are leery of extending the

good faith exception to the exclusionary rule to justify the

stop. United States v. Lopez-Valdez, 178 F.3d 282, 289 (5th Cir.

1999).

Lopez-Valdez discusses the problem with extending the goodfaith exception to the exclusionary rule to traffic stop

situations. The rule established by the Supreme Court in Whren

allows officers to justify a stop by the occurrence of a traffic

violation even though this is not the real reason for the stop.

Whren, 517 U.S. 806 (1996). Because of this allowance, if courts

permitted officers to justify a stop based on their subjective

belief that traffic laws have been violated, when no violation

has in fact occurred, the potential for abuse of traffic stops as

pretext for effecting stops for other purposes “seems boundless

and the costs to privacy rights excessive.” Lopez-Valdez, 178
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F.3d at 289. Thus, instead of allowing an officer to justify a

traffic stop based on the officer’s subjective belief that a

violation occurred, courts require that the legal justification

for a traffic stop be objectively grounded. United States v.

Miller, 146 F.3d 274, 279 (5th Cir. 1998). 146 F.3d at 279. 

Our research reveals no case in this circuit which has

relied on the good faith exception to justify a traffic stop when

the police officer erroneously believed the conduct he observed

was a traffic violation. See Lopez-Valdez; United States v.

Granado, 302 F.3d 421 (5th Cir. 2002); United States v. Miller,

146 F.3d 274 (5th Cir. 1998). We decline to extend that

exception to this case. Accordingly, the constitutionality of the

officer’s stop of Cole’s vehicle must stand or fall based on

whether Cole violated Texas law in the manner in which he stopped

at the intersection. 

III.

Texas law dictates different stopping places at

intersections governed by stop signs depending on whether the

intersection has a crosswalk. If there is a crosswalk, motorists

must “stop before the crosswalk on the near side of the

intersection. In the absence of a cross walk, the operator shall

stop at a clearly marked stop line.” Texas Transp. Code Ann. §

544.010(c)(Vernon 1999). 
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It was apparently unclear to the district court whether this

intersection had a crosswalk. It is also unclear to us from the

record. Officer Julian testified only that Cole failed to stop

at the designated stopping line at the intersection. He stated

that when Cole stopped, his front and rear tires were straddling

the stop line with the line underneath the back door of the

vehicle. A photograph of the intersection entered as an exhibit

clearly shows a white stop line but we cannot determine whether a

crosswalk was in place between the stop line and the corner of

the intersection. The district court did not make a factual

finding on whether the intersection had a crosswalk and if so

whether Cole stopped past the near side of the crosswalk. 

Instead, the court relied on the good faith exception and

concluded that Officer Julian in good faith believed that Cole’s

manner of stopping violated § 544.10(c). 

The district court erred in applying the good faith

exception to justify this traffic stop. See Lopez-Valdez. We

must remand this case to the district court to make the necessary

factual findings to determine whether Cole violated § 544.10(c). 

Specifically, the district court should determine whether the

intersection had a crosswalk and, if so, whether Cole stopped his

vehicle before reaching it. If the intersection has no

crosswalk, the district court should find whether Cole stopped

his vehicle before reaching the stop line. If Cole committed a
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traffic violation, the stop is justified. If he did not violate

§ 544.10(c), the stop is not justified and the motion to suppress

should be granted without regard to the officer’s subjective good

faith.

IV. 

For the foregoing reasons, we vacate the order of the

district court denying Cole’s motion to suppress and remand this

case to the district court for further proceedings.

VACATED. REMANDED.