IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41425

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

v.

JOE ANGEL CASTILLO, 

 Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before CLEMENT, PRADO, and ELROD, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

This is an appeal from a motion to suppress evidence arising from a 

traffic stop. Defendant–Appellant Joe Angel Castillo conditionally pleaded 

guilty to bringing in and harboring aliens in violation of 8 U.S.C. § 1324. Texas 

Department of Public Safety Officer Jeremiah Collins discovered three 

unauthorized aliens in the backseat of Castillo’s vehicle during a traffic stop 

on Highway 59 outside of Victoria, Texas. Collins claims that he stopped 

Castillo for driving in a left lane reserved for passing, in violation of Texas law. 

Castillo contends the stop violated the Fourth Amendment because Collins had 

no reasonable suspicion to believe Castillo committed this traffic infraction. He 

appeals the district court’s denial of his motion to suppress the evidence Collins 

acquired as a result of the stop. We affirm.

United States Court of Appeals

Fifth Circuit

FILED

September 11, 2015

Lyle W. Cayce

Clerk

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I. BACKGROUND

In the early morning hours of November 11, 2013, Officer Collins was 

conducting a traffic patrol on Highway 59 in Victoria County, Texas. He was 

parked at a gas station along the highway observing traffic when he saw a 

white Ford Explorer driving north in the left-most lane. A sign reading “left 

lane for passing only” is located 5.3 miles from where Collins first saw the 

Explorer. A video recorded by Collins’s dashboard camera at a later date 

indicates that Highway 59 North intersects several country roads and 

turnarounds as well as two entrance ramps in the stretch between the sign and 

Collins’s post at the gas station.

Collins pulled out of the gas station to follow the car. He entered the 

highway and passed a handful of vehicles, and after about a minute and a 

half—approximately eight miles from the sign—he caught up with the 

Explorer, which was still driving in the left lane. Collins followed the vehicle 

for an additional three miles. Twice Collins pulled up beside the Explorer in 

the right-hand lane and then fell back again, to give it an opportunity to change 

lanes. The Explorer remained in the left lane. When Collins pulled alongside 

the Explorer, he noticed a young woman in the passenger seat with a “deercaught-in-the-headlights kind of look”. He thought he “possibly had a human 

trafficking case.”1 Collins turned on his lights to pull over the Explorer. When 

the passenger rolled down the window, Collins saw three people huddled 

between the back seat and the front seat on the floorboard. He identified the 

driver as Defendant–Appellant Castillo and the passenger as Giselle Lysette 

Gonzalez.

 

1 The Government does not advance this argument on appeal, stating: “Given the 

insufficiently developed record on this issue in the district court, the United States does not 

rely on this alternative ground in seeking affirmance.” (citing United States v. Aguirre, 664 

F.3d 606, 610 (5th Cir. 2011)).

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A federal grand jury indicted Castillo on one count of conspiring to 

transport aliens within the United States and three counts of transporting 

certain aliens within the United States, in violation of 8 U.S.C. § 1324. Castillo 

moved to suppress the evidence from the traffic stop, including the discovery 

of the undocumented passengers, as obtained in violation of the Fourth 

Amendment. The district court held an evidentiary hearing and denied the 

motion in a written opinion. Castillo pleaded guilty to the conspiracy count via 

a conditional plea agreement in which he reserved his right to appeal the 

district court’s ruling on the suppression motion. He was sentenced to eighteen 

months in prison, three years of supervised release, and a $100 special 

assessment. Castillo timely appealed.

II. DISCUSSION

The district court had jurisdiction over this federal criminal prosecution 

under 18 U.S.C. § 3231. We have jurisdiction to review the district court’s final 

judgment of conviction pursuant to 28 U.S.C. § 1291.

In evaluating a ruling on a motion to suppress, this Court reviews 

questions of law de novo and factual findings for clear error. United States v. 

Wright, 777 F.3d 769, 773 (5th Cir.), cert. denied, 135 S. Ct. 2821 (2015).

Whether an officer had reasonable suspicion to support a stop is treated as a 

question of law. See Ornelas v. United States, 517 U.S. 690, 699 (1996). The 

evidence is viewed in the light most favorable to the prevailing party in the 

district court—in this case, the Government. See United States v. McKinnon, 

681 F.3d 203, 207 (5th Cir. 2012) (per curiam). “[A] reviewing court should take 

care both to review findings of historical fact only for clear error and to give 

due weight to inferences drawn from those facts by resident judges and local 

law enforcement officers.” Ornelas, 517 U.S. at 699. 

The Government bears the burden of proving that Collins’s stop was 

supported by “a reasonable, articulable suspicion that criminal activity is 

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afoot.” United States v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000); see also Terry 

v. Ohio, 392 U.S. 1, 30 (1968) (“[I]n justifying the particular intrusion the police 

officer must be able to point to specific and articulable facts which, taken 

together with rational inferences from those facts, reasonably warrant that 

intrusion.”). “Although a mere hunch does not create reasonable suspicion, the 

level of suspicion the standard requires is considerably less than proof of 

wrongdoing by a preponderance of the evidence, and obviously less than is 

necessary for probable cause.” Navarette v. California, 134 S. Ct. 1683, 1687 

(2014) (citations and internal quotation marks omitted). “In determining 

whether the officer’s suspicion, as based on specific and articulable facts, was 

reasonable, the totality of the circumstances must be considered.” United 

States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014) (citing United States v. 

Arvizu, 534 U.S. 266, 273–74 (2002)). A traffic violation provides officers with 

authority for an investigative stop. United States v. Sanchez–Pena, 336 F.3d 

431, 437 (5th Cir. 2003).

Here, Collins asserts that he stopped Castillo on reasonable suspicion 

that he was driving in the left lane without passing, in violation of Texas law.

Left-lane driving is regulated via the sign-compliance provision of the Texas 

Transportation Code:

(a) The operator of a vehicle . . . shall comply with an applicable 

official traffic-control device placed as provided by this subtitle 

. . . .

(b) A provision of this subtitle requiring an official traffic-control 

device may not be enforced against an alleged violator if at the 

time and place of the alleged violation the device is not in proper 

position and sufficiently legible to an ordinarily observant 

person.

Tex. Transp. Code § 544.004.

The Texas Court of Criminal Appeals has authoritatively interpreted 

this provision of the transportation code as applied to a “left lane for passing 

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only” sign. Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App. 2013).For a 

driver in the left lane to violate the sign-compliance provision, he must have 

notice, i.e., there must be a sign “within a reasonable distance of the traffic 

stop.”2 Id. The Abney court reasoned that because signs are intended to provide 

drivers “with notice of traffic laws or regulations,” they are required to be “at 

or near where the regulations apply.” Id. at 549. However, because “there are 

no specific guidelines for the spacing of the ‘left lane for passing only’ signs,” 

courts must determine “whether such a sign is applicable on the facts of each 

case.” Id. at 549–50 (emphasis added).

Applying this principle, the Abney court reversed the trial court’s denial 

of a motion to suppress evidence obtained as a result of a left-lane-violation 

traffic stop. Id. at 550. A “left lane for passing only” sign was located “about 

fifteen to twenty miles” from where the officer first observed the defendant. Id.

at 545. The officer followed the defendant for approximately one mile before 

making the stop. Id. at 544. Defense counsel made a credible argument that 

the defendant had been driving in the left lane in order to make a U-turn using 

the available crossover and had not seen the sign. Id. at 545. The Court of 

Criminal Appeals concluded that the facts did not support a finding of 

reasonable suspicion under Texas law. Id. at 549–50.

In contrast, Texas courts have found valid stops that occurred between 

three and six miles from a sign. The Texarkana Court of Appeals found a stop 

 

2 We note that our decision is in tension with a prior panel’s unpublished decision in 

United States v. Castro, 480 F. App’x 782, 784 (5th Cir. 2012) (per curiam). We are not bound 

to apply Castro because Castro was an unpublished case decided on plain error. We are, 

however, bound by the decisions of the Texas court of last resort on criminal matters, and we 

are therefore obligated to follow its interpretation of the Texas Transportation Code. Because 

Castro was decided on plain error and the Texas Court of Criminal Appeal subsequently 

authoritatively interpreted section 544.004 of the Texas Transportation Code as applied to 

“left lane for passing only” signs in Abney, we construe section 544.004 in accordance with 

Abney, not Castro.

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was supported by reasonable suspicion in Mouton v. State, 101 S.W.3d 686, 690

(Tex. App.—Texarkana 2003, no pet.). The officer pulled over the defendant 

after following him for “at least a mile.” Id. There was evidence that “left lane 

for passing only signs” appeared three or four miles from the stop. Id.

Similarly, in Baker v. State, 50 S.W.3d 143 (Tex. App.—Eastland 2001, pet. 

ref’d), the Eastland Court of Appeals approved a stop that took place 

approximately six miles past a “left lane for passing only sign.” 50 S.W.3d at 

145–46.3 The officer testified that the car did not timely move to the right-hand 

lane after passing the officer, but rather continued to travel in the left lane for 

a distance between one quarter and three quarters of a mile. Id. at 145. 

Castillo relies principally on a federal district court opinion that placed 

heavy emphasis on the presence of entrance ramps between the sign and the 

site of the stop. United States v. Garcia, 976 F. Supp. 2d 856 (N.D. Tex. 2013).

In Garcia, the defendant challenged a traffic stop that took place north of 

Waco, Texas. Id. at 859. The officer did not see the defendant enter the highway 

or drive past the “left lane for passing only” sign. Id. at 864. The nearest sign

was five miles behind the site of the stop, and there were three on-ramps along 

that five-mile stretch. Id. The court concluded that “the existence of entrances 

onto the highway between a traffic sign and the location of the stop undermines 

any inference that the motorist passed the sign, unless of course the officer 

knew that all three on-ramps were closed or temporarily blocked.” Id.

(emphasis added).4 Reasoning from Garcia, Castillo contends that Collins 

 

3 The Court of Appeals did no reasonable-suspicion analysis in this pre-Abney decision, 

focusing instead on upholding this provision of the traffic code against a vagueness challenge. 

See Baker, 50 S.W.3d at 145–46. Nevertheless, this decision was cited approvingly by the 

Texas Court of Criminal Appeals in Abney, 394 S.W.3d at 549 (“These facts were specific and 

provided . . . reasonable suspicion . . . .”).

4 The court also noted that the officer did not allow enough time to elapse between 

observing the defendant’s driving and pulling him over: the officer decided to make a stop 

within twenty-five seconds of seeing the defendant’s truck and running its plates. Garcia, 

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could not have had reasonable suspicion to stop his vehicle because there were 

several on- and off-ramps between the sign and the site of the stop.

We are not persuaded by Garcia’s suggestion that an officer must have 

specific knowledge that the suspect passed the sign. See 976 F. Supp. 2d at 864

(concluding the officer lacked reasonable suspicion because he “had absolutely 

no way of knowing when [the defendant] entered the highway”). To conclude 

that an officer does not have reasonable suspicion unless he knows the 

defendant passed the sign is essentially to require certainty that a violation 

occurred. This would raise the standard for reasonable suspicion far above 

probable cause or even a preponderance of the evidence, in contravention of 

the Supreme Court’s instructions. See Naverette, 134 S. Ct. at 1687 (“[T]he 

level of suspicion the standard requires is considerably less than proof of 

wrongdoing by a preponderance of the evidence, and obviously less than is 

necessary for probable cause.” (internal quotation marks omitted)).

Rather, we follow Abney, Mouton, and Baker and conclude that a court 

must “determine, based on the statute, whether [a] sign is applicable on the 

facts of each case,” Abney, 394 S.W.3d at 549–50 (emphasis added). Here, 

Collins first observed Castillo 5.3 miles from the closest sign—far short of 

Abney’s fifteen-to-twenty miles and between Baker’s six and Mouton’s four. 

Collins observed Castillo for several minutes, like in Baker, and allowed an 

opportunity for Castillo to change lanes, like in Mouton and unlike in Garcia. 

Finally, unlike in Abney, Castillo advanced no credible alternative reason for 

driving in the left lane. All three cases support the conclusion that Collins had 

reason to suspect Castillo was committing a traffic infraction.

 

976 F. Supp. 2d at 865. The officer observed the defendant for one mile, and the defendant 

was in the process of passing a large truck when the officer pulled him over. Id. at 860.

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Castillo argues that, except for Collins’s testimony and the dashboardcamera video, the Government introduced no evidence about “(1) the traffic 

patterns on U.S. Highway 59 in general, on the stretch of highway at issue 

here, or on the several country roads that access the stretch of highway 

between the posted sign and where the trooper observed the vehicle” or “(2) 

how many vehicles used the several turnarounds and at least one true exit 

ramp on that stretch of highway.” As Castillo points out, the Government “did 

not elicit testimony or present other evidence about the population of the area, 

or how many ranches, homes, or businesses, for example, are located in the 

area.” Finally, even at 12:30 a.m., Castillo notes, Collins had to weave in and 

out of traffic to get to the Explorer.

However, courts are instructed to defer to “resident judges and local law 

enforcement” in their assessment of the relevant facts. Ornelas, 517 U.S. at 

699. Here, the relevant facts include the typical traffic flow on Highway 59 and 

the likelihood that a car on that stretch of road would have been traveling a 

long distance rather than a short one. Castillo has not shown clear error in the

district court’s factual conclusion that the percentage of “vehicles driving on 

US 59 at the exact point where Collins first observed the Explorer [that] had 

passed the sign located 5.3 miles behind them” is “over 50% and likely much 

higher.” The court based this determination on the dashboard-camera video of 

the night in question, which shows only a handful of trucks and cars on the 

road prior to the stop. It also relied on Collins’s testimony that he observed the 

Explorer for several minutes and offered the Explorer the opportunity to 

change lanes. Finally, the court rested on its own observation that, although 

“Highway 59 is a major highway linking the border town of Laredo to Houston,” 

“[t]his 5.3 mile stretch of US 59 does not pass through heavily populated areas, 

unlike the parts of US 59 that are in Houston.” The dashboard video, 

“combined with [Collins’s] testimony at the suppression hearing, show[s] that 

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there are few heavily travelled routes that enter US 59 after the ‘Passing Only’ 

sign and before Collins first observed the Explorer.”

Reasonable suspicion is a low threshold, requiring that an official have

“‘some minimal level of objective justification’ for making the stop.” United 

States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting INS v. Delgado, 446 U.S. 210, 

217 (1984)). The court’s conclusion that it was more likely than not that 

Castillo’s car passed the sign takes into account the totality of the 

circumstances and evaluates the Government’s justification for specific, 

articulable facts. See Hill, 752 F.3d at 1033. The court’s “finding of historical 

fact” is not clearly erroneous, see Ornelas, 517 U.S. at 699, and therefore we 

grant it deference. On these facts, we conclude that Collins had reasonable 

suspicion to stop Castillo.

III.CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of 

Castillo’s motion to suppress.

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JENNIFER WALKER ELROD, Circuit Judge, dissenting:

I respectfully dissent. Both the majority opinion and the district court 

permit a finding of reasonable suspicion for the traffic stop at issue where the 

officer had no particularized evidence that a traffic violation had occurred. 

Indeed, both opinions rely on the district court’s sua sponte probability 

calculation and independent speculation about the road in question. Because 

this is not a proper basis for the decision and the record reflects no other proper 

basis, I would reverse the district court’s denial of Castillo’s motion to 

suppress.

I.

At around 12:30 a.m. on November 11, 2013, Officer Collins stopped 

Castillo for driving in the left lane on Highway 59. It is undisputed that 

Castillo was driving in the left lane of Highway 59. Under Texas law, it is 

illegal to drive in the left lane if a traffic sign so indicates. See Tex. Transp. 

Code § 544.004. Therefore, the sole issue here is whether Collins had a 

reasonable suspicion that Castillo drove past a “left lane for passing only” sign 

before Collins stopped Castillo.

Collins spotted Castillo’s vehicle as it was driving northbound along 

Highway 59. When Collins first saw the vehicle, Collins was parked at a gas 

station about 5.3 miles north of the nearest “left lane for passing only” sign. 

The record reflects that in that 5.3-mile stretch between the sign and the gas 

station, two on-ramps from major highways, as well as several county roads, 

intersected Highway 59. When Collins spotted Castillo, he had not seen where 

Castillo first entered Highway 59, or seen Castillo pass a “left lane for passing 

only” sign. Collins decided to follow Castillo. After following Castillo for about 

six miles and continuing to observe Castillo drive in the left lane, Collins 

stopped Castillo for the suspected traffic violation of driving in the left lane 

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without passing. It is undisputed that during the time that Collins followed 

Castillo, they did not pass a “left lane for passing only” sign.

During the stop, Collins saw three people huddled on the floorboard 

between the back seat and the front seat. These individuals did not have 

documentation establishing the lawfulness of their presence in the United 

States, and United States Border Patrol agents determined that they were 

illegal aliens. All of the vehicle’s occupants, including Castillo, were placed 

under arrest. During the stop and following his arrest, Castillo gave 

statements to law enforcement regarding the incident. 

After his indictment, Castillo moved to suppress all of the evidence 

obtained during the traffic stop, including his statements to law enforcement 

and Collins’s discovery of the illegal alien passengers. The district court held 

a hearing on the motion, at which Collins served as the sole witness. Collins 

testified regarding the basic details of the stop, including the distance from the 

“left lane for passing only” sign and the location at which he first observed 

Castillo, and the distance over which he followed Castillo before pulling him 

over. Collins testified that he stopped Castillo on suspicion that Castillo was 

violating a “left lane for passing only” sign. However, on cross-examination, 

Collins admitted that various tributary roads and an on-ramp intersect the 

relevant portion of Highway 59, and he offered no particular reason why he 

suspected that Castillo had passed the sign rather than entering the highway 

via one of the intersecting tributary roads. Collins specifically conceded that 

“[i]t could be just as likely that [Castillo] could have pulled out from one of 

these roads that feeds into 59 anywhere after that sign on mile zero.”

The government played a video recording of the stop, which began well 

after Collins began following Castillo and did not depict any of the 5.3-mile 

stretch of the highway between the sign and the location where Collins first 

saw Castillo, or even much of the six-mile stretch over which Collins followed 

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Castillo. The government also played a second video that Collins recorded a 

couple of days later around 7:30 a.m., when he “went back and remeasured the 

distances.” The second video revealed that two on-ramps and several county 

roads intersect Highway 59 in the 5.3-mile stretch between the “left lane for 

passing only” sign and the location at which Collins first observed Castillo.

Following the hearing, the district court denied Castillo’s motion to 

suppress, determining that because there was “over [a] 50%” chance that 

Castillo had passed the “left lane for passing only” traffic sign, Collins had a 

reasonable suspicion that Castillo had violated Texas traffic laws. United 

States v. Castillo, 28 F. Supp. 3d 673, 676 (S.D. Tex. 2014). However, at the 

hearing, there was no testimony regarding this 50% figure or any other 

probability figure, and Collins had not articulated any specific reason why he 

thought Castillo had driven past the “left lane for passing only” sign instead of 

entering the highway through one of the on-ramps north of the sign. Also, 

there was no evidence in the record regarding traffic patterns in the area. In 

order to make its “probabilistic estimation” that Castillo was already traveling 

along Highway 59 south of the sign, id. at 677, the district court relied entirely 

on its own views of the local traffic patterns. See id. at 675–77.

II.

“For a traffic stop to be justified at its inception, an officer must have an 

objectively reasonable suspicion that some sort of illegal activity, such as a 

traffic violation, occurred, or is about to occur, before stopping the vehicle.” 

United States v. Lopez–Moreno, 420 F.3d 420, 430 (5th Cir. 2005). To have 

reasonable suspicion, an officer must have “a particularized and objective basis 

for suspecting [that] the particular person stopped” was engaging in unlawful 

activity. Navarette v. California, 134 S. Ct. 1683, 1687 (2014) (emphasis 

added) (internal quotation marks omitted); see also United States v. Arvizu, 

534 U.S. 266, 273 (2002). An officer’s mere hunch is not enough. Navarette, 

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134 S. Ct. at 1687 (citing Terry v. Ohio, 392 U.S. 1, 27 (1968)). Courts must 

look at the totality of the circumstances when determining whether there was 

reasonable suspicion. Navarette, 134 S. Ct. 1687.

As we have emphasized, an officer must have “an individualized

suspicion” that “relate[s] to the individual arrestee, not a category of 

offenders.” Kelly v. Foti, 77 F.3d 819, 822 (5th Cir. 1996) (internal quotation 

marks omitted); see also id. (holding that a strip search was not justified by “a 

generalized fear” that arrestees who do not carry photo identification and who 

do not quickly post bond are carrying contraband into the jail); United States 

v. Bonds, 268 F.3d 306, 306–07 (5th Cir. 2001) (holding that the government 

failed to establish reasonable suspicion when it relied on past “complaints 

about people congregating in the area around a building . . . and drinking or 

perhaps dealing in drugs”); United States v. Hill, 752 F.3d 1029, 1035 (5th Cir. 

2014) (explaining that “some evidence of a rise in crime” at a particular 

apartment complex, while relevant, is too “vague and generalized” to “support 

a reasonable suspicion that anybody found there is involved with drugs”). Yet, 

as Collins himself admitted at the hearing, Collins had no particularized 

reason to suspect that Castillo had violated the law. The only information that 

Collins might have relied upon to suspect that Castillo was already traveling 

on Highway 59 south of the sign was generalized traffic patterns—

nonparticularized information that would equally apply to anyone driving in 

the left lane along the same stretch of road—and in any event, at the hearing, 

Collins did not testify at all about traffic patterns.

Under the majority opinion’s analysis, an officer need not articulate any 

particularized facts regarding where a driver entered the highway or how long 

he had been on the highway; he need only point to general patterns in the 

behavior of other drivers (and perhaps he need not even do that—Collins never 

actually testified about any such patterns). In other words, the majority 

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opinion allows officers to ground their suspicion on general information about 

a location or class of people and make probabilistic inferences about an 

individual based on that general information. This is akin to holding that an 

officer has reasonable suspicion to stop a person just for walking through a 

high-crime area where drug deals are known to frequently occur. However, as 

we have recognized, the Supreme Court has held that such a scenario provides 

no reasonable suspicion. See United States v. Tuggle, 284 F. App’x 218, 224 

(5th Cir. 2008) (“[M]ere presence in a high crime area, without more, will not 

create reasonable suspicion for a Terry stop and frisk.” (citing Brown v. Texas, 

443 U.S. 47, 52 (1979)). Moreover, it is no response to say that Collins saw 

Castillo driving in the left lane without passing. In Texas, such behavior is not 

a traffic violation if the driver has no notice from a “left lane for passing only” 

sign. Collins articulated no particularized reason to suspect that Castillo had 

passed such a sign. In fact, Collins recognized that several tributary roads 

intersected Highway 59 in the 5.3 miles between the sign and the location 

where Collins first saw Castillo. 

The Texas cases cited in the majority opinion do not support its decision. 

Under Texas law, driving in the left lane is a violation only when a “left lane 

for passing only” traffic sign is within a “reasonable distance” of where an 

officer first sees the driver. Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. 

App. 2013). In Abney, the Texas Court of Criminal Appeals addressed a 

scenario nearly identical to the one here, except that the traffic sign was 

located between 15 and 20 miles from the location where the officer first 

observed the defendant. The court held that this distance was too far to satisfy 

the requirement in Tex. Transp. Code § 544.004 that the traffic sign be “at or 

near” the location of the alleged violation. Id. at 549. Critically, in reversing 

the denial of a motion to suppress, the court noted that the record indicated 

that the officer “did not know at what point Appellant entered the highway.” 

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Id. It explained that to affirm the denial of the defendant’s motion to suppress 

would allow officers to stop “anyone driving in the left lane without passing 

other vehicles . . . if there is a ‘left lane for passing only’ sign located anywhere 

on the highway, even if there is no evidence that the driver has passed such a 

sign.” Id. In concluding its opinion, the Court of Criminal Appeals further 

noted that whether an officer observes a driver pass the sign and whether there 

are entrances onto the highway between the sign and the stop are “factors to 

consider when evaluating the totality of the circumstances.” Id. at 550.

In Mouton, a driver was stopped about three to four miles past the closest 

“left lane for passing only” sign. Mouton v. State, 101 S.W.3d 686, 690 (Tex. 

App.—Texarkana 2003, no pet.). The officer had testified that he followed 

Mouton for one mile before stopping him, which, in effect, meant that Mouton 

was between two and three miles from the sign when the officer first spotted

him. Id. Although the appellate court held that the stop occurred close enough 

to the sign to support a reasonable suspicion that the driver had passed the 

sign, the court did not address whether any on-ramps or other entrances 

intersected the road between the location of the sign and the location where 

the officer first saw Mouton.

In Baker, the Court of Appeals of Texas addressed whether the phrase 

“left lane for passing only” was unconstitutionally vague, not how close a sign 

containing this language must be to the location of the alleged violation. Baker 

v. State, 50 S.W.3d 143, 145–46 (Tex. App.—Eastland 2001, pet. ref’d). 

Although the court held that an officer had made a valid traffic stop when he 

stopped a driver six miles from the nearest sign, it did not address the 

underlying reasons that the officer suspected that the driver saw the sign.

Finally, unlike the majority opinion, I am persuaded by the analysis in 

United States v. Garcia, 976 F. Supp. 2d 856 (N.D. Tex. 2013). In Garcia, a 

federal district court granted a defendant’s motion to suppress evidence found 

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during a traffic stop in circumstances nearly identical to the case at hand. The 

officer in Garcia first spotted the defendant five miles from the nearest “left 

lane for passing only” sign, and the officer did not see the defendant pass the 

sign or the point at which he entered the highway. Id. at 861, 864. There were 

three on-ramps to the highway between the sign and the point at which the 

officer first spotted the vehicle. Id. at 864. In light of these facts, the district 

court concluded that “it was unreasonable for [the officer] to suspect that [the 

defendant] had passed a sign” because he “had absolutely no way of knowing 

when [the defendant] entered the highway.” Id. So too here. In the 5.3 miles 

between the “left lane for passing only” sign and the location at which Collins 

observed Castillo, on-ramps and county roads intersected Highway 59, and 

Collins offered no particularized reason why he suspected that Castillo had 

entered Highway 59 south of the sign.

The majority opinion asserts that the approach in Garcia, in essence, 

turns the reasonable-suspicion standard into one of “certainty.” I disagree. 

The problem for the government in Garcia, as well as in this case, was that the 

officer offered no particularized reason why he suspected that the defendant 

had driven past the “left lane for passing only” sign, not that the officer was 

simply uncertain whether a violation had occurred. Where a stretch of 

highway is intersected by on-ramps and tributary roads, it may indeed be 

difficult for an officer to articulate particular facts supporting his suspicion of 

a violation, but this difficulty is no reason for us to jettison the well-established 

requirement that officers base their traffic stops on reasonable suspicion 

supported by particularized facts. The majority opinion, sensing the difficulty 

that officers will have in articulating such particularized facts in these 

circumstances, dispenses with the particularity requirement altogether. In my 

view, binding precedent precludes us from giving the government such a carveout.

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III.

Moreover, even if premising reasonable suspicion on generalized traffic 

patterns were appropriate, the record is devoid of any evidence substantiating 

the district court’s “probabilistic estimation.” There is no expert testimony or 

expert report detailing the traffic patterns along this particular stretch of 

Highway 59. There is no lay testimony from Collins or anyone else regarding 

his own observations of the traffic patterns in the area. On the record before 

it, all the district court knew was that Castillo was spotted 5.3 miles north of 

the sign, and that it was merely possible that Castillo was already driving 

along Highway 59 south of the sign. In fact, on cross-examination, Collins 

conceded that “[i]t could be just as likely that [Castillo] could have pulled out 

from one of these roads that feeds into 59 anywhere after that sign on mile 

zero.” Collins’ testimony did not support the district court’s conclusion.

Yet, the district court made its own determination that it was more likely 

than not that Castillo entered Highway 59 at some point south of the sign. 

Castillo, 28 F. Supp. 3d at 676. It based this determination on its review of 

Collins’s dashboard camera recordings, one of which does not depict the 

relevant 5.3-mile stretch of road, and the other of which was recorded at a date 

and time different from the date and time of the stop. According to the district 

court, these videos showed that the intersecting roads between the sign and 

where Castillo was first spotted “[were] not a heavy source of traffic.” Id. The 

district court continued, stating that this stretch of Highway 59 “does not pass 

through heavily populated areas” and that few of the intersecting routes were 

“heavily travelled.” Id.

There are several problems with these findings by the district court. The 

videos only briefly showed each intersecting road as Collins drove past. Just 

as the videos could have been an accurate representation of traffic patterns 

when Castillo was stopped, they could have also captured a momentary period 

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of light traffic along roads that were otherwise quite busy.1 For this reason, 

without any explanatory testimony, the videos have no probative value with 

respect to traffic patterns. Indeed, the record contains no testimony regarding 

the most likely sources of traffic along this stretch of Highway 59 or the 

population in nearby towns and neighborhoods connected to Highway 59 via 

the intersecting roads. Furthermore, the second video was recorded on a 

different date and time, and the record reveals no reason to believe that traffic 

patterns would be the same at that time as they were during the stop. 

Moreover, during the videos, traffic can be seen entering Highway 59.2

The district court did not explain the basis for its 50% probability 

finding, and no basis is apparent from this sparse record, which contains no 

testimony or evidence regarding traffic patterns or probabilities. Ultimately, 

the district court relied on its own judgment about what it thought the traffic 

patterns were like in southern Texas. See Fed. R. Evid. 201.3 Therefore, even 

assuming arguendo that generalized traffic patterns, standing alone, could 

 

1 The majority opinion’s characterization of the video footage in this record is not 

completely accurate. Rather than showing “few heavily travelled routes,” the video shows an 

on-ramp for State Highway 185, which runs between Victoria and Bloomington, and

surrounding the intersection between Highways 59 and 185 are several businesses, including 

restaurants and hotels. Even as the dashboard camera passed the intersection, a viewer can 

see vehicles entering Highway 59 via the ramp.

2 We are just as well-positioned as the district court to view the videos. See Scott v. 

Harris, 550 U.S. 372, 381 (2007) (directing a court of appeals, at the summary judgment 

stage, to “view[] the facts in the light depicted by the videotape,” rather than the light most 

favorable to the non-movant).

3 “The court may judicially notice a fact that is not subject to reasonable dispute 

because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be 

accurately and readily determined from sources whose accuracy cannot reasonably be 

questioned.” Fed. R. Evid. 201. Moreover, if a court takes judicial notice of an adjudicative 

fact, “a party is entitled to be heard on the propriety of taking judicial notice and the nature 

of the fact to be noticed.” It is unclear from this record whether any party had an opportunity 

to address whether it was appropriate to take judicial notice of the traffic patterns along 

Highway 59.

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properly form the basis for reasonable suspicion, I would reverse due to the 

lack of support in the record for the district court’s probability finding.

IV.

As the majority opinion observes, the Supreme Court has held that the 

standard for reasonable suspicion “is considerably less than proof of 

wrongdoing by a preponderance of the evidence.” Navarette, 134 S. Ct. at 1687 

(internal quotation marks omitted). Whatever this minimal probability is, 

however, it must be established through the officer’s articulation of facts 

particular to the individual defendant stopped. Because the majority opinion 

allows for reasonable suspicion in the absence of such particularized facts and 

relies on the district court’s sua sponte probability determination and 

independent speculation about the road in question, I respectfully dissent.

 Case: 14-41425 Document: 00513190855 Page: 19 Date Filed: 09/11/2015