UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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No.01-20407 SUMMARY CALENDAR __________________________

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UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FREDDIE ANTHONY COSBY,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Texas (00-CR-558) ______________________________________________________________________________ February 21, 2002

Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges

REYNALDO G. GARZA, Circuit Judge:1

I.

Defendant-Appellant Freddie Anthony Cosby was driving in the middle of three traffic

lanes on a divided Houston street. Two police officers in a marked car behind him observed the

1 Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. vehicle’s left wheels travel across the lane markings on the left. Some ten to fifteen seconds later,

the car swerved back to the right and the right wheels passed over the right lane markings. The

officers then stopped Cosby for failing to maintain a single lane of traffic. Because he could not

produce either a driver’s license or proof of insurance, Cosby was arrested. During the inventory

search of the vehicle incident to arrest, the officers discovered a loaded Beholla .32 caliber pistol

underneath the driver’s seat. It was later determined that Cosby was a convicted felon.

Cosby was indicted on one count of being a felon in possession of a firearm. He moved to

suppress the seized handgun, arguing in part that police lacked reasonable suspicion to justify his

initial traffic stop. Following an evidentiary hearing, the district court denied Cosby’s motion to

suppress. The court then held a bench trial on stipulated facts. Cosby was found guilty and

sentenced to 18 months imprisonment.

II.

In reviewing a district court’s denial of a motion to suppress following an evidentiary

hearing, this court utilizes a “two-tier standard of review.” United States v. Orozco,

(5th Cir. 1999), cert. denied,

(2000). This court accepts the district

court’s findings of fact unless clearly erroneous, but ultimate conclusions as to the

constitutionality of law enforcement actions are reviewed de novo. See id. The evidence

introduced at the suppression hearing is viewed in the light most favorable to the prevailing party,

id., while the burden to prove the stop was constitutional remains on the government. See United

States v. Guerrero-Barajas,

(5th Cir. 2001), cert. denied, __U.S.__ (2002).

2 III.

Traffic stops are analyzed under the investigative detention standard set forth in Terry v.

Ohio,

(1968). Under Terry, for a traffic stop to comply with the law, (1) the stop

must have been justified at its inception, and (2) the officer’s actions during the stop must have

been reasonably related in scope to the circumstances justifying the stop in the first place. See

; United States v. Crain,

(5th Cir. 1994). To stop an automobile, a

police officer must point to specific, articulable facts that, together with rational inferences from

those facts, reasonably warrant the intrusion. See Terry,

. This reasonableness is

determined “by considering the totality of the circumstances, including the collective knowledge

of all officers assessing the facts.” United States v. Coleman,

(5th Cir. 1992).

Cosby focuses on Terry’s first prong, arguing that the traffic stop was not justified at its

inception. Section 545.060(a) of the Texas Transportation Code states that an “operator on a

roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as

practical entirely within a single lane; and (2) may not move from the lane unless that movement

can be made safely.”

(Vernon 1999).

Citing Texas case law and the language of the statute, Cosby asserts that only if the failure

to maintain a single lane of traffic is unsafe is there a violation of the statute. See Brief for

Appellant, 24-26 (citing Corbin v. State,

(Tex. App. 2000), pet. for

discretionary review granted, (Tex. Crim. App. May 30, 2001); State v. Cerny,

(Tex. App. 2000); State v. Arriaga,

(Tex. App. 1999); Hernandez v.

State,

(Tex. App. 1998); State v. Tarvin,

(Tex. App.

1998)).

3 Cosby maintains that the officers presented no facts to show that his driving was unsafe,

particularly as there were no cars on either side of him when he swerved out of his lane. While

one officer did testify that there no other cars beside either the officers’ car or Cosby’s, both

officers testified that there was a moderate amount of traffic on the road at the time. Both

officers testified that they observed Cosby’s left tires cross over the left lane markers and then

weave back across until the right tires had crossed the right lane markers. From the automobile’s

weaving it could be inferred that the driver failed to safely maintain a single traffic lane in violation

of 545.060(a) of the Texas Transportation Code. Because one of the officers specifically stated

that he felt Cosby’s driving was unsafe, the facts are distinguishable from cases upon which Cosby

relies. See e.g. Hernandez, 983 S.W.3d at 868 (officer testified that nothing about the driver’s

actions was inherently unsafe); Tarvin,

(nothing in record to indicate that the

officer believed weaving in the lane was erratic, unsafe, or indicated intoxication); Arriaga,

(nothing in the record to indicate officer believed weaving was unsafe). It is quite

reasonable for an officer to find that weaving on a major street of a large city during a period of

modest traffic is unsafe. Thus, we find that the initial stop of Cosby’s vehicle was warranted.

IV.

Cosby argues that the stipulated evidence is insufficient to sustain a conviction because the

movement of a firearm from one state to another at an undetermined time in the past does not

constitute a “substantial” effect upon the interstate commerce element of

(g). See

Brief for Appellant, 22-28. While Cosby cites two recent Supreme Court decisions, United States

v. Morrison,

(2000) and Jones v. United States,

(2000), as support,

4 he recognizes that this court has recently found Morrison and Jones distinguishable from §922(g)

cases. See United States v. Daugherty,

(5th Cir. 2001) (holding that Morrison and

Jones are distinguishable from Section 922(g) cases “because a plain jurisdictional element exists

in § 922(g), and [as here] there is stipulated evidence to show that the gun traveled in interstate

commerce).” Cosby concedes that Daugherty forecloses this issue on appeal; he raises it only to

preserve the issue for Supreme Court review. As this court is bound by its prior decision in

Daugherty, this appeal is without merit.

AFFIRMED.

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