                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                                                  In the                                  March 28, 2007
                       United States Court of Appeals                                Charles R. Fulbruge III
                                      for the Fifth Circuit                                  Clerk
                                            _______________

                                              m 06-50287
                                            _______________



                                   UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                                 VERSUS

                                               ELIEL PENA,

                                                              Defendant-Appellant.


                                     _________________________

                             Appeal from the United States District Court
                                  for the Western District of Texas
                                           m 05-CR-417
                               ______________________________




Before HIGGINBOTHAM, SMITH, and                        patrolman during a traffic stop and search of
  DEMOSS, Circuit Judges.                              his truck. We affirm.

PER CURIAM:*                                                                   I.
                                                           Texas Department of Public Safety officer
   Eliel Pena appeals the denial of his motion         Patrick Davis conducted a traffic stop of Pe-
to suppress evidence found by a highway                na’s truck for failing to maintain a single lane
                                                       of traffic. During the stop, Davis obtained Pe-
                                                       na’s consent to search the truck and discov-
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-    ered twenty-one bundles of marihuana hidden
termined that this opinion should not be published     inside a converted L-shaped fuel tank. Pena
and is not precedent except under the limited cir-     was arrested and charged with possession of,
cumstances set forth in 5TH CIR. R. 47.5.4.
with intent to distribute, more than 100 kilo-            (2) whether the officer’s actions were reason-
grams and less than 1000 kilograms of mari-               ably related in scope to the circumstances that
huana in violation of 21 U.S.C. § 841.                    justified the interference. United States v.
                                                          Sanchez-Pena, 336 F.3d 431, 437 (5th Cir.
   Pena filed a motion to suppress and argued             2003). Pena concedes that Davis’s actions
that the initial stop was unconstitutional. At            were reasonably related to his stated reason
the suppression hearing, the government                   for initiating the stop, so the second prong is
played a video of the stop showing Pena’s ve-             satisfied as long as the first is as well.
hicle crossing the shoulder line several times.
Davis testified that he saw Pena cross the                    Davis testified that he stopped Pena for fail-
shoulder line several times before he activated           ing to maintain a single lane of traffic in vio-
the camera. Davis said this manner of driving             lation of TEX. TRANSP. CODE § 545.060(a).1
posed a danger to the driver and other vehicles           The elements of this traffic violation are (1) a
and could be caused by many things, such as               person (2) drives or operates (3) a motor ve-
sleepiness, intoxication, medication, or me-              hicle (4) within a single marked lane, and
chanical difficulties. He perceived Pena’s driv-          (5) moves from that lane without ascertaining
ing to be a traffic violation, and that was the           that such movement can be made with safety.
sole reason for initiating the stop. The district         Aviles v. State, 23 S.W.3d 74, 77 (Tex. App.
court denied the motion to suppress, and Pena             SSHouston [14th Dist.] 2000, pet. ref’d). Al-
subsequently entered a plea of guilty condi-              though Pena concedes that his truck swerved
tioned on his right to appeal the denial of the           across the shoulder line several times, he
motion.                                                   claims that Davis’s suspicion was unreason-
                                                          able, because Pena did not drive in an unsafe
                        II.                               manner.
    Pena argues that the initial stop was uncon-
stitutional; he concedes that, if the stop was               Although Pena cites a number of Texas
justified, the search was proper. We review               cases failing to find a violation of § 545.060(a)
the district court’s factual findings for clear er-       where a driver’s behavior did not endanger the
ror and its legal conclusions, including the ul-          safety of others, we need not address that
timate conclusion as to the constitutionality of          caselaw, because regardless of whether Pena
the law enforcement action, de novo. See                  violated the statute, Davis was reasonable in
United States v. Jones, 185 F.3d 459, 462 (5th            his belief that a violation had occurred. “The
Cir. 1999). The stop was constitutional.                  issue . . . is not whether Defendant actually
                                                          violated the statute, but whether it was reason-
   We analyze traffic stops under Terry v.                able for the [the officer] to believe that he had
Ohio, 392 U.S. 1 (1968). See United States v.             violated it.” United States v. Ramirez, 213 F.
Santiago, 310 F.3d 336, 340 (5th Cir. 2002).              Supp. 2d 722, 724 (S.D. Tex. 2002). In
“[L]imited searches and seizures are not un-
reasonable when there is a reasonable and ar-
ticulable suspicion that a person has committed              1
                                                               “An operator on a roadway divided into two or
a crime.” Id. (citing Terry, 392 U.S. at 21).
                                                          more clearly marked lanes for traffic: (1) shall
We consider two factors when evaluating the
                                                          drive as nearly as practical entirely within a single
reasonableness of a traffic stop: (1) whether             lane; and (2) may not move from the lane unless
the stop was justified at its inception; and              that movement can be made safely.”

                                                      2
United States v. Zucco, 71 F.3d 188 (5th Cir.
1995), we upheld a traffic stop where officers
saw a vehicle veer onto the shoulder at least
three times.2 Accordingly, Davis had reason-
able suspicion that a provision of the Texas
Transportation Code had been violated and
was justified in stopping Pena’s vehicle. Be-
cause Pena concedes that the search was con-
stitutional if the stop was justified, the district
court correctly denied the motion to suppress.

   AFFIRMED.




   2
     Zucco, 71 F.3d at 190 (“This driving arguably
was a violation of [TEX. TRANSP. CODE § 545.-
060]. The stop was justified and the first prong of
the Terry analysis is satisfied.”). See also United
States v. Cosby, 32 Fed. Appx. 129 (5th Cir. 2002)
(“From the automobile’s weaving it could be in-
ferred that the driver failed to safely maintain a sin-
gle traffic lane in violation of 545.060(a) of the
Texas Transportation Code.”).

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