IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-60684

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SANTIAGO J. ESCALANTE,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Mississippi

January 17, 2001

Before GARWOOD, HIGGINBOTHAM, and STEWART, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Santiago Escalan te appeals the denial of his motion to

suppress evidence found during a traffic stop. A sheriff’s deputy

stopped Escalante, ostensibly for careless driving, and discovered

twenty kilos of cocaine in his car . Escalante challenges the

constitutionality of the Mississippi careless driving statute and

argues that the sheriff’s deputy lacked probable cause to conduct

the traffic stop. We affirm.

I

On the afternoon of July 11, 1998, Deputy Robert Sanders was

parked on the northbound side of I-55 in Madison County,1 See 21 U.S.C.A. § 841(a)(1) (1999).

2 Mississippi, near the 107 mile marker. When he noticed the brake

lights of Escalante’s car come on as it passed him, his suspicion

was aroused. He also surmised that the vehicle may have been

speeding, although he did not have a radar gun. He pulled onto the

interstate and began to follow Escalante.

After catching up with Escalante, Sanders notice d Escalante

watching him through his rear-view mirror, which caused Escalante

to weave across the lane divider lines two or three times. Sanders

pulled him over after following for about three miles. He testified

that because Escal ante was watching him and weaving, he thought

that “something was wrong” and that Escalante was en gaging in

“careless driving.”

During the stop, Escalante consented to a search of his car.

Deputy Sanders, who had a drug-sniffing dog with him, found twenty

kilograms of cocaine in a secret compartment in the trunk.

Escalante was charged with possession of cocaine with intent

to distribute. 1 He moved to suppress the drugs found by the search,

arguing t hat the deputy did not have probable cause to stop him.

Deputy Sanders ar gued that his stop was justified under

Mississippi’s careless driving statute. The motion to suppress was

denied. Escalante pleaded guilty, conditional on the appeal of the

suppression ruling. He appeals.2 Miss. Code Ann. § 63-3-1213 (1996).

3 527 U.S. 41, 56 (1999) (plurality). Morales is the Court’s

most thorough discussion of void-for-vagueness in the criminal

context in recent years. Although the Morales test appears in a

plurality opinion, it encapsulates a longstanding test employed by

the Court. S ee Hill v. Colorado

, 120 S. Ct. 2480, 2498 (2000);

Kolender v. Lawson , 461 U.S. 352, 357 (1983).

4 Morales , 527 U.S. at 56.

5 744 So. 2d 266 (Miss. 1999).

3 II

Escalante argues that the Mississippi careless driving statute

is unconstitutionally vague. It reads: “Any person who drives any

vehicle in a careless or imprudent manner, without due regard for

the width, grade, curves, corner, traffic and use of the streets

and highways and all other attendan t circumstances is guilty of

careless driving.” 2

We employ the two-part v oid-for-vagueness test described in

City of Chicago v. Morales

. 3 It states:

Vagueness may invalidate a criminal law for either of two

independent reasons. First, it may fail to provide the

kind of notice that will enable ordinary people to

understand what conduct it prohibits ; second, it may

authorize and even encourage arbitrary and discriminatory

enforcement. 4

Although the language of the statute is broad, ordinary people

can understand its meaning. The Mississippi Supreme Court, in Leuer

v. City of Flowood

, 5 has held that the terms “careless or

imprudent” describe the “familiar tort law standard, requiring

. .6 Id

. at 270. As state courts are the ultimate authority on

iss ues of state law, federal courts are bound by their

interpretations of stat e law. S ee Morales

, 527 U.S. at 61 (“We

have no authority to construe the language of state statute more

narrowly than the construct ion given by that State’s highest

court.”).

7 Cf. Morales, 527 U.S. at 60-64 (opinion of the court).

4 . the same standard of care as a prudent person would [exercise].” 6

This ubiquitous standard does not defy common unders tanding but

relies on it. In the context of rules of the road, few people

misapprehend what constitutes careful driving and what does not.

Nor does the law lack “minimal guidelines” to prevent

arbitrary enforcement. Because it applies only to conduct that is

negligent, such that the conduct endangers the motorist or others,

the Mississippi law does not empower the police to punish whatever

conduct they choose. 7

The Mississippi careless driving statute is constitutional.

III

Escalante argues that the stop was illegal because Deputy

Sanders did not have probable cause to stop him for careless

driving. He contends th at he did not violate the Mississippi

careless driving statute, and that his weaving across the line is

excusable because it was caused by Deputy Sanders following him.8 Officer Sanders’s own testimony does not conceal the fact

that at t he time he suspected smuggling. Although he was not

carrying a radar gun, he did have a drug-sniffing dog with him.

9 517 U.S. 806 (1996).

10 Id. at 810.

11 United States v. Miller

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

.

See also United States v. Lopez-Valdez

, 178 F.3d 282, 288 (5th Cir.

1999).

12 “[W]e interpret the state statute the way we believe the

state Supreme Court would . . . . If a state’s highest court has

not spoken on the issue, we look to the intermediate appellate

courts for guidance.” Vielma v. Eureka Co.

, 218 F.3d 458, 462 (5th

Cir. 2000)(internal quotation marks omitted).

5 The traffic stop may have been pretextual. 8 But under Whren v.

United States

, 9 a traffic stop, even if pretextual, does not

violate the Fourth Amendment if the officer making the stop has

“probable cause to believe that a traffic violation has occurred.” 10

This is an objective test based on the facts known to the officer

at the time of the stop, not on the motivations of the officer in

making the stop. On the other hand, if it is clear that what the

police observed did not constitute a violation of the cited traffic

law, there is no “objective basis” for the stop, and the stop is

illegal. 11

As Deputy Sanders followed Escalante, Escalante weaved across

the divider lines a t least twice. Under Mississippi precedent,

Deputy Sanders correctly believed that Escalante’s driving violated

the careless driving statute. 12 The Court of Appeals of Mississippi,13 746 So. 2d 940 (Miss. App. 1999).

14 Id. at 943.

6 in Guerrero v. State

, 13 held that a driver whose vehicle crossed

over the yellow lines into the turning lane of a road “two or three

times” violated the Mississippi careless driving statute, thereby

justifying a traffic stop. 14 In Guerrero , as in the instant case,

the police were following the defendant when they observed his

vehicle cross over the lane markers; the court, however, did not

discuss this fact.

Escalante contends that his weaving did not create probable

cause to believe that he wa s driving carelessly. He argues that

Deputy Sanders was following him closely, and he was paying

attention to the sheriff’s vehicle following hi m, as any prudent

driver would. His weaving, he suggests, was merely the result of

his divided attention.

Although the record does not estab lish how closely Deputy

Sanders was following Escalante, Escalante’s arguments have

persuasive force, and we acknowledge that this is a close case. But

we recognize that Deputy Sanders could have reasonably concluded

that a careful and prudent driver would not swerve out of his lane

even if his attention was drawn by a law enforcement vehicle

approaching from behind. Indeed, perhaps the prudent driver should

be more careful to maintain his lane in such a situation. In any7

case, we cannot conclude that Deputy Sanders lacked probable cause

to stop Escalante for careless driving.

IV

The Mississippi careless driving statute is constitutional,

and Deputy Sander s had probable cause at the time of the stop to

believe Escalante had violated the statute. Therefore, we hold that

the stop and consequent consent search were constitutionally valid

and AFFIRM the district court’s denial of Escalante’s motion to

suppress.

ENDRECORDCARL E. STEWART, Circuit Judge, dissenting:

I agree with the majority that Mississippi’s careless driving

statute is constitutional. However, on the issue of probable

cause, I respectfully dissent.

When reviewing a suppression ruling, we view the evidence in

the light most favorable to the prevailing party, and we accept the

factual findings of the district court unless they are clearly

erroneous or were influenced by an incorrect interpretation of the

law. U nited States v. Rodea

, 102 F.3d 1401, 1404 (5th Cir. 1996).

Under the recitation of the facts by the majority, with which I do

not disagree, I do not conclude that Deputy Sanders had probable

cause to stop Escalante for careless driving.

Deputy Sanders testified that his suspicions were aroused when

he noticed the brake lights of Escalante’s car illuminate as it

passed him. He also noted that the vehicle may have been speeding.

However, this obs e rvation is surely makeweight because Deputy

Sanders did not have a radar gun, and he did not articulate any

observations consistent with an assessment of speeding.

Additionally, Deputy Sanders made no claim that the mere brief

illumin ation of the brake light was necessarily probative of any

moving violation for which a ticket might have be en written. As

the majority opinion notes, Sanders candidly acknowledged at the

suppression hearing that he suspected drug smuggling when Escalante

passed him. Even allowing for our deferential standard for9

reviewing the facts, it is fair to conclude that after following

Escalante for three miles, Deputy Sanders had pulled very closely

behind his vehicle. This conclusion is supported by Deputy

Sanders’ heavy reliance in his testimony on his observation of

Escalante checking his rea r -view mirror, an observation which

indicates close p roximity to the vehicle. As a result of Deputy

Sanders’ tailga ting pursuit of the vehicle, Escalante weaved at

least twice, crossing the white lane divider. The majority finds

that, while Escalante’s arguments that Deputy Sanders’ conduct

distracted him and caused him to weave across the divider lines are

persuasive, Deputy Sanders could have reasonably concluded that a

careful driver would not have reacted as Escalante did.

The candid testimony of Deputy Sanders reveals that he had no

basis upon which to stop Escalante for a traffic violation but that

he simply had a hunch. His main goal that day was obviously not to

catch speeders but instead to employ his drug- sniffing dog.

Notw ithstanding the difficult job that law enforcement officers

have and the preeminent societal need to vigila ntly thwart drug

trafficking, I cannot agree that though armed with a salutary

purpose, an officer can manufacture probable cause by tailgating a

motorist.

While it is true that under Whren v. United States , 517 U.S.

806, 116 S. Ct. 1769, 135 L . Ed. 2d 89 (1996), a pretextual stop

does not violate the Fourth Amendment if there is probable cause,

a police officer cannot constitutionally create the very probable10

cause upon which he relies to make a stop. W hren rejected the

n otion that the subjective intent of an officer can be used in

assessing the constitutional reasonableness of a stop. S ee Whren

,

517 U.S. at 8 13-14. However, the Court did not give police

officers carte blanche to create probable cause.

There is an important distinction between pretext, addressed

in Whren

, and the creation of probable cause, which is the scenario

in this case. Where an officer conducts a pretextual stop, he does

“under the guise of enforcing the traffic code what [he] would like

to do for different reasons.” W hren

, 517 U.S. at 814. However, in

this case, Deputy Sanders proceeded after Escalante on a hunch,

distracted him, and essentially created the probable cause that he

needed to stop him. In other words, Deputy Sanders elicited a

response from Escalante, whose conduct to that point had not given

rise to probable cause, and then used that response against him.

In the context of the exigent circumstances exception, we have

found that police officers cannot create urgent circumstances and

then rely on them to make a warrantless search. See United States

v. Blount

, 123 F.3d 831, 838 (5th Cir. 1997) (en banc) (“It is true

that the prosecution may not rely upon an exigency that the police

themselves created through unreasonable investigatory tactics.”);

Rodea

, 10 2 F.3d at 1409 (“Needless to say, the exigent

circumstances exception does not apply if the Government created or

‘manufactured’ the exigency.”). Similarly, here, Deputy Sanders’11

reliance on the probable cause that he created is impermissible in

my view.

Even assuming that Escalante’s conduct fits within

Mississippi’s careless driving statute, and even given the

elasticity of Whren

, I cannot hold that an officer can simply have

a hunch and then create probable cause to stop a motorist.

Therefore, I respectfully dissent.