OPINIONAppellee, Jose Luis Cortez, was stopped by a State Trooper for unlawfully driving on the improved shoulder of the highway[1] because the tires on Cortez’s minivan purportedly touched the white painted “fog line” separating the roadway from the shoulder. Upon searching Cortez’s vehicle, the Trooper found drugs and arrested Cortez.[2] Finding that the Trooper did not have a lawful basis for the traffic stop, the trial court granted Cortez’s motion to suppress. The court of appeals upheld the trial court’s suppression order. We agree that the Trooper did not have a reasonable basis to stop Cortez’s vehicle. We affirm the judgment of the court of appeals.OVERVIEWAfter a hearing on the motion to suppress, the trial court issued detailed findings, concluding that, (1) it was not clear from the Trooper’s dashcam video whether Cortez’s vehicle even touched the fog line; (2) even if Cortez’s vehicle touched the fog line, there was no proof that he crossed over the fog line and drove on the improved shoulder; and (3) even if Cortez drove on the improved shoulder, he was statutorily entitled to do so.The court of appeals upheld the trial court’s suppression order, concluding that driving on an improved shoulder requires more than the mere touching of the fog line.[3] The State urged in its petition for discretionary review that touching the fog line does equate to driving on the improved shoulder and argued that the court of appeals erred to hold otherwise.Although we generally limit our review to “‘decisions’ of the court of appeals,” this is one of the “exceptional case[s]” where, in the name of judicial economy, we are able to, and will, dispose of the case.[4] There is no need to send this case back to the court of appeals to look at it a third time.[5] The trial court thoroughly covered in its written Findings of Fact and Conclusions of Law the factual and legal issues related to the stop. The State challenged the trial court’s entire decision on appeal, briefed all of the issues before the court of appeals, and the court of appeals has twice upheld the trial court’s suppression order.[6] We have kicked the can down the road long enough. It is time that we dispose of the core issue here, which is whether, under the totality of these circumstances, the Trooper had an objectively reasonable basis to stop Cortez’s vehicle. We hold that he did not. The record supports the conclusions reached by the trial court. We affirm the judgment of the court of appeals.THE MOTION TO SUPPRESSAt the motion to suppress hearing, the Trooper who pulled Cortez over testified that he began following Cortez’s minivan down Interstate 40 because it had “a newer registration” on it, and because it was “[a] minivan, clean, with the two occupants in it:”Q. So you’re telling the Court that because you see a van, it’s clean and it’s got two people in it, that was [sic] indicators of potential criminal activity for you?A. Yes, sir, they are. . . .The Trooper testified that he ultimately stopped the minivan because it had twice driven on an improved shoulder in violation of Texas Transportation Code, section 545.058(a). According to the Trooper, “on two different occasions” he observed Cortez’s vehicle drive on the improved shoulder—when Cortez “drifted across” the line when the Trooper was driving next to Cortez in the left lane, and when Cortez “came across the white stripe” when exiting the highway.At the suppression hearing, the State produced a video of the stop. It was played for the trial court, and in response to several questions on cross examination, the Trooper pointed out on the video that Cortez crossed the white line: “[Y]ou see him fade to the right-hand side, crossing the white line;” “Casting a shadow, it completely crossed the white line here;” “The tire crossed the line;” “It is my testimony that he crossed the white line on two different occasions;” “The white line (indicating) the break in the white line—this is the fog line. The vehicle crosses on two different occasions. Once, being here; the second, being at the exit.”On cross-examination, however, it became evident that the Trooper believed that merely touching the fog line constituted driving on the shoulder:Q. Can you walk up to the board and show the court what you claim to be a violation.A. With my—with the naked eye, the camera doesn’t show it as greatly, but right here, he’s on the—he’s on the white fog line right there.* * *Q. So you’re saying that he’s on the shoulder—driving on the improved shoulder right now?A. He’s on the fog line right now, yes, sir.* * *A. The lane ends at the inside of that fog line. Q. I’m sorry?A. The lane—excuse me—the driving lane ends at that fog line.Q. Where do you find that definition? If you’re telling the court that is the law, where do you find that definition that the driving lane ends at the inside edge of a fog line?A. It ends at the fog line.Q. Where does the shoulder begin?A. At the fog line.Q. Which side of the fog line?A. I say inside; you say outside.Q. Do you have any law to support your stop, Officer?A. Yes, sir, I do.Q. Okay. What is that law that you’re referring to? . . . What law says where the shoulder begins?A. There’s not a law—I don’t know, to my knowledge, if there’s a law that states where the exact lane ends.Q. Okay. So you’re not aware of a definition that says this is what an improved shoulder is. Correct?A. The improved shoulder is the edge of the roadway.Q. The part that’s on the other side of the line. Right?A. Not in my interpretation.In granting Cortez’s motion to suppress, the trial court made the following findings and concluded that driving on the fog line does not constitute crossing over the fog line and into the shoulder: As [the Trooper's] vehicle approached and pulled into the left hand lane, defendant’s vehicle moved toward the improved shoulder. A short time later, Defendant’s vehicle moved toward the improved shoulder a second time as the Defendant’s vehicle exited the Interstate to the right at a marked exit ramp. The State produced no evidence that [the Trooper] observed, or believed he had observed, any portion of the Defendant’s vehicle pass outside the outermost edge of the fog line. The improved shoulder of a state roadway begins at the point of the fog line which is furthest from the center of the roadway. The defendant’s vehicle did not cross outside the outermost edge of the fog line onto the improved shoulder of the roadway. Crossing over the portion of the fog line nearest the center of the roadway or upon the fog line is not a violation of Texas traffic law; therefore the vehicle was not operated on the improved shoulder of the roadway on either occasion made the basis for [the Trooper's] traffic stop. In affirming the trial court’s suppression order, the court of appeals agreed that simplytouching the fog line does not constitute driving on the shoulder.[7]ANALYSISAt the heart of Cortez’s motion to suppress is the Fourth Amendment. The “touchstone of the Fourth Amendment is reasonableness.”[8] The issue resolved by the trial court and presented by the State on direct appeal is the issue that we are addressing today—whether the Trooper’s stop was objectively reasonable.[9] “A trial court’s ruling on a motion to suppress is reviewed on appeal for abuse of discretion.”[10] We can sustain the trial court’s decision if we conclude that the decision is correct under any applicable theory of law.[11] A trial court’s ruling should be reversed only if it is arbitrary, unreasonable, or “outside the zone of reasonable disagreement.”[12] We use a bifurcated standard of review to evaluate whether the totality of circumstances is sufficient to support an officer’s reasonable suspicion of criminal activity. First, we “give ‘almost total deference to the trial court’s determination of the historical facts that the record supports,’ and second, we review de novo the trial court’s application of the law to facts, which do not turn on credibility and demeanor.”[13] Moreover, “we review de novo whether the totality of circumstances is sufficient to support an officer’s reasonable suspicion of criminal activity.”[14]Each case involving an officer’s stop must be evaluated objectively, under the totality of the circumstances, to determine whether the officer acted reasonably. “An officer may make a warrantless traffic stop if the ‘reasonable suspicion’ standard is satisfied.”[15]“Reasonable suspicion exists if the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaged in criminal activity.”[16] We review a reasonable suspicion determination by considering the totality of the circumstances.[17] When a police officer stops a defendant without a warrant, the State has the burden of proving the reasonableness of the stop at a suppression hearing.[18] Because Cortez was arrested without a warrant, the State had the burden to prove that the initial detention was legal.[19]A. It is not clear that Cortez’s vehicle even touched the fog line.Texas Transportation Code, section 545.058(a) provides that,(a) An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only: to stop, stand, or park; to accelerate before entering the main traveled lane of traffic; to decelerate before making a right turn; to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn; to allow another vehicle traveling faster to pass; as permitted or required by an official traffic-control device; or to avoid a collision.[20] “Improved shoulder” is defined as “a paved shoulder.”[21] “Shoulder” is defined as “the portion of a highway that is: adjacent to the roadway; designed or ordinarily used for parking; distinguished from the roadway by different design, construction, or marking; and not intended for normal vehicular travel.”[22] It is a violation to “drive on an improved shoulder”—thus an officer would have reasonable suspicion to stop a vehicle that was driving on an improved shoulder—if it appears that driving on the improved shoulder was not necessary to achieving one of the seven approved purposes or it appears that driving on the improved shoulder could not be done safely.[23]The record, which includes the dashcam video, supports the trial court’s finding that, as Cortez was driving in the right lane of the highway, it is not clear that Cortez’s tires even touched the white fog line. Thus, regarding the first “offense” observed by the Trooper, it cannot be determined how close Cortez’s right tires came to the white fog line. The video and the testimony of the Trooper reflect that the Trooper had begun following Cortez’s vehicle—a validly registered clean minivan with two people in it—from behind because he suspected criminal activity. The officer then pulled into the left lane, accelerating to seemingly pass Cortez’s vehicle, and that seems to be where he was when he observed Cortez “crossing” the fog line:Q. So, Trooper, tell the Court exactly where my client was at the time you say you witnessed the first violation.A. The first violation was just – just as I’m paralleling him, I’m off his left quarter. Actually, I usually run the license plate at that point. I’m sitting there and you see him fade to the right-hand side, crossing the white line.But, we conclude that, from the vantage point of driving in the left lane, next to a vehicle in the right lane, it cannot be seen, and there is no way to know, that the vehicle in the right lane is touching the fog line on that vehicle’s right.[24] Thus, the dashcam video dispel’s the Trooper’s testimony that Cortez crossed the fog line.B. Even if Cortez’s vehicle did touch the fog line, in this case he was still not driving on the improved shoulder in violation of the statute.The trial court found that Cortez’s vehicle did not “drive on an improved shoulder” because it did not cross over the fog line onto the shoulder. The court of appeals agreed, holding that momentarily touching the fog line does not constitute driving on the improved shoulder.[25] Although “shoulder” is defined by statute, the statutory definition does not include the term “fog line” or mention in any way the line separating the shoulder from the roadway.[26]The State argues that, because the fog line is part of the shoulder itself, then touching the fog line is “driv[ing] on the improved shoulder.” However, we decline to give such a broad interpretation to section 545.058(a). “Criminal statutes outside the penal code must be construed strictly, with any doubt resolved in favor of the accused.”[27] We have a duty to narrowly construe statutes to avoid a constitutional violation.[28]But, it is not necessary that we establish a definitive rule regarding whether every fog line painted on a roadway is part of the roadway or part of the shoulder in order to assess the objective reasonableness of the Trooper’s traffic stop in this case. As the court of appeals pointed out, “[d]riving is an exercise in controlled weaving. It is difficult enough to keep a straight path on the many dips, rises, and other undulations built into our roadways.”[29] Even a driver who is sober, alert, and careful may occasionally drift within their lane only because the roadway surface is not perfectly smooth. Moreover, drivers are not able to see if their tires are touching the fog line. They are likely to veer over at some point and touch the fog line alongside the roadway without being aware they have done so. Some lane boundaries have raised reflective pavement markers or road grooves in the asphalt, rather than painted lines, to alert drivers when they are veering too close to another lane or are about to cross over into the shoulder. Sometimes these road grooves are on the fog line, sometimes they are alongside the outer edge of the painted fog line. Thus, we choose to evaluate the totality of the circumstances in this case to determine the reasonableness of the Trooper’s stop.Based on the totality of the circumstances in this case, we conclude that the court of appeals did not err in holding that, if Cortez’s tires touched the fog line at all, which is debatable, his momentary touch of the fog line, without any other indicator of criminal activity, was not enough to justify the stop of Cortez’s minivan for driving on an improved shoulder. This decision is consistent with the interpretation given to section 545.058(a) by Texas appellate courts and courts outside this jurisdiction that have addressed this issue and have held that a person drives on the improved shoulder when they cross over the fog line.[30]C. Even if Cortez’s vehicle crossed over the fog line, he was statutorily permitted to do so.Finally, the statute provides for permissible reasons for a person to drive on the improved shoulder. Section 545.058(a) allows a driver to drive on an improved shoulder under seven listed circumstances: to stop, stand, or park; to accelerate before entering the main traveled lane of traffic; to decelerate before making a right turn; to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn; to allow another vehicle traveling faster to pass; as permitted or required by an official traffic-control device; or to avoid a collision.[31] The trial court, having viewed the video, found that even if Cortez had crossed into and driven on the improved shoulder, he was statutorily entitled to do so: Texas Transportation Code section 545.058(5) [sic] provides that driving on the improved shoulder of a roadway is permissible under the circumstances when and to the extent necessary a driver is being passed by another vehicle. The first occasion in which the officer testified that the Defendant drove onto the improved shoulder occurred after the officer’s vehicle entered the passing lane and accelerated toward the Defendant’s vehicle; therefore, the Defendant was authorized by statute to drive on the improved shoulder at such time. Texas Transportation Code section 545.058(3) [sic] provides that driving on the improved shoulder of a roadway is permissible when and to the extent necessary a driver is decelerating or slowing to make a right turn from the roadway. The Defendant was in the process of decelerating and slowing to make a right turn from the roadway onto the exit ramp when the second occasion took place; therefore, the Defendant was authorized by statute to drive on the improved shoulder at such time. Regarding the first “offense” observed by the Trooper, as the trial court found, because section 545.058(a)(5) allows a driver to drive on an improved shoulder to “allow another vehicle traveling faster to pass,” and since it appeared that the Trooper was intending to pass Cortez’s vehicle on the left, Cortez was statutorily permitted to drive on the improved shoulder during that very brief period of time. Regarding the second “offense” observed by the Trooper, the dash cam video shows Cortez driving steadily in the right hand lane on the highway, turning on his right turn signal to exit the highway. By the time that there was any type of contact between Cortez’s right tires and the white fog line, Cortez was at the end of the exit ramp, almost to the access road, and he was still signaling a right turn. Because section 545.058(a)(3) allows a driver to drive on an improved shoulder “to decelerate before making a right turn,” and since it was clear that Cortez was intending to exit the highway and turn right, Cortez was statutorily permitted to drive on the improved shoulder for that brief period of time.[32] The trial court’s findings—that Cortez’s driving on the improved shoulder was authorized by Transportation Code sections 545.058(a)(3) and (a)(5)—are supported by the record.CONCLUSIONWe hold that the record supports the trial court’s finding that, under the totality of the circumstances, the Trooper did not have an objectively reasonable basis to stop Cortez’s vehicle. Because the trial court initially suppressed the search, and the court of appeals twice unanimously upheld that decision, we conclude that, under these facts, the officer was not objectively reasonable in his belief that a violation of the law had been committed by Cortez. We affirm the judgment of the court of appeals. DELIVERED: January 24, 2018 PUBLISH
