A “fog line” is a white (usually bright) line painted on the right side of a roadway separating the roadway from what is known as an “improved shoulder.”


Under Texas law, Transportation Code § 545.058(a), an operator of a vehicle “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.” This law enumerates seven permissible reasons for crossing the fog line and driving on the improved shoulder:


  1. To stop, stand, or park;
  2. To accelerate before entering the main traveled lane of traffic;
  3. To decelerate before making a right turn;
  4. 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;
  5. To allow another vehicle traveling faster to pass;
  6. As permitted or required by an official traffic-control device; or
  7. To avoid a collision.


Drifting Across the Fog Line


All Texas drivers have, on one time or another, drifted across the fog line only to be alerted by the edge line rumble strip, or the sound of gravel hitting the underside of the vehicle, that they have left the main roadway. The driver then makes a normal correction to move back onto the main roadway. And all Texas drivers have used, at one time or another, the improved roadway to navigate through a deep right curve in the main roadway. Both these instances are certainly within the bounds of safe driving.


Driving While Vehicle Clean Stated as Suspicious?


More to the point of this article, every Texas driver has also driven a freshly-washed or otherwise “clean” vehicle on a highway or interstate. There is no law in Texas that prohibits driving a clean vehicle, and, therefore, there is no normal, rational reason to assume that anyone driving a clean vehicle with a passenger inside is involved in criminal activity.


In 2014, Jose Luis Cortez was driving his clean minivan down Interstate 40 near Amarillo with a passenger in his vehicle. A Texas State Trooper would later tell a state district court judge that a “clean vehicle” with two people in it is “indicators of potential criminal activity.”


It was enough for the Trooper to follow the minivan to observe for any traffic violation that would justify a vehicle stop. It didn’t take long for him to observe the minivan either drift across or touch the white fog line sufficient for the Trooper to believe he had legal cause to stop the vehicle under § 545.058(a).



Consent to Search


After stopping the vehicle and questioning Cortez, the Trooper secured consent from Cortez to search the trunk of the minivan where he found more than 400 grams of methamphetamine. The Trooper arrested Cortez who was subsequently indicted for possession with the intent to deliver the drugs.


Motion to Suppress


Cortez’s attorney filed a motion to suppress, challenging the Trooper’s basis for conducting the vehicle stop. The trial court conducted an exhaustive evidentiary hearing on the suppression motion. The judge hearing the motion expressed incredulity at the Trooper’s belief that a “clean” vehicle with two people in it could be an indication of criminal activity. After hearing the officer’s testimony, which was subjected to intense cross examination, viewing video from the Trooper’s dash cam, and listening to the arguments of both the defense and the prosecution, the trial court reached these factual conclusions:


  • That it was not clear from the Trooper’s dash cam video that Cortez’s vehicle even touched the fog line;
  • That even if Cortez’s vehicle touched the fog line, there was no evidence that it crossed over the fog line and drove on the improved shoulder; and
  • That even if Cortez’s vehicle drove on the improved shoulder, he was statutorily entitled to do so.


Court Finds No Reasonable Basis to Stop Vehicle


The State appealed the trial court’s ruling granting the motion to suppress and throwing the case out of court to the Seventh Court of Appeals. That court in October 2016 upheld the trial court’s ruling.


The State sought, and secured, discretionary review by the Texas Court of Criminal Appeals. In a mixed 6-3 ruling on January 24, 2018, the court expressed its frustration and dissatisfaction at the State’s handling of the case from arrest, indictment and appellate review:


“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. 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 in holding 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. There is no need to send this case back to the court of appeals to look at it a third time. 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. 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 the circumstances, the Trooper had an objectively reasonable basis to stop Cortez 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.”


We applaud the state’s highest court of criminal appeals putting an end to this case which, we believe, involves no more than a mere touching of the fog line. That DPS Trooper saw one, perhaps two, Hispanic-looking people in the “clean” minivan and immediately concluded—without any reasonable suspicion, much less a factual basis—that they were involved in criminal activity. He used the vehicle’s alleged touching of the fog line—which, as the trial court pointed out, was not evident from the Trooper’s own dash cam—as a pretext to stop, detain and search Cortez’s vehicle.


While individual freedoms in this country are under assault each day by aggressive law enforcement tactics, the right to travel the nation’s roadways in the State of Texas in a clean vehicle is at least for the moment protected from unreasonable, unnecessary law enforcement aggression.