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People v. Johnston

Court of Appeals of Colorado, Fifth Division

November 29, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Santos Sanchez Johnston, Defendant-Appellant.

          Arapahoe County District Court No. 15CR581 Honorable Ruthanne Polidori, Judge.

          Cynthia H. Coffman, Attorney General, John T. Lee, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          ROMÁN JUDGE.

         ¶ 1 Defendant, Santos Sanchez Johnston, appeals his judgment of conviction for aggravated driving after revocation prohibited. In so doing, he raises an issue of first impression in Colorado: whether weaving within a single lane of traffic can create reasonable suspicion of criminal activity to justify an investigatory stop.

         ¶ 2 We recognize that slight degrees of incidental weaving within a traffic lane do not alone give rise to the reasonable suspicion necessary to justify a stop of a vehicle. But we conclude that, under the totality of the circumstances, the police officer's observation of defendant's vehicle weaving continuously within its own lane for over five miles was sufficient to create a reasonable suspicion justifying the traffic stop. Accordingly, we affirm.

         I. Background

         ¶ 3 An Arapahoe County sheriff's deputy noticed defendant's car weaving back and forth within the right-hand lane while traveling eastbound on Interstate 70. The deputy followed defendant for five to six miles before stopping him. During that time, defendant continuously weaved within his lane. The deputy stopped defendant on suspicion that he was driving under the influence of alcohol.

         ¶ 4 During the stop, the deputy noticed defendant had slightly slurred speech and bloodshot eyes. The deputy also smelled a strong odor of alcohol. A second officer on the scene noticed alcoholic beverage containers in the front passenger seat and informed the deputy.

         ¶ 5 When asked for his license and insurance, defendant produced his registration information but stated his license was suspended and he did not have insurance. A check of his name and date of birth revealed an Oklahoma license and a showing of being a habitual traffic offender in Oklahoma.[1]

         ¶ 6 The deputy administered a horizontal gaze nystagmus test on defendant. Defendant exhibited clues of intoxication, and the deputy placed him under arrest. Defendant informed the deputy that he had been a habitual traffic offender for fourteen years and that his license was suspended.

          ¶ 7 The prosecution charged defendant with aggravated driving after revocation prohibited, driving under the influence, and lack of compulsory insurance. The prosecution dismissed the compulsory insurance charge at trial.

         ¶ 8 Defendant filed a pretrial motion to suppress evidence and statements as the product of an illegal stop under the Fourth Amendment. The trial court held a hearing to consider the motion. At the hearing, the prosecution called the deputy who had stopped defendant.

         ¶ 9 The deputy testified that, over the course of five to six miles,

[defendant] was going back and forth in his lane, so he was getting to the left side where the dotted line was, and then he'd go back over to the right side where the solid line was. He would just keep going back and forth in his lane; wouldn't quite cross ...

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