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Click here for the full text of this decision FACTS:Austin Police Officer Nathan Scherbek was on patrol during the evening of Friday, July 1, 2005. At approximately 11:50 p.m., he stopped at a stoplight at the intersection of East Cesar Chavez and the frontage road of Interstate 35. Scherbek’s car was the third car in line at the stoplight. A red pickup driven by Roy Guzman was the second vehicle in line at the stoplight and was stopped directly in front of Scherbek’s car. Scherbek noticed that as the stoplight turned green, Guzman’s right rear tire started to spin for approximately three to six seconds. Scherbek noticed that the spinning motion of the tire caused the tire to smoke and it caused the right rear tire to appear shiny. Scherbek immediately activated his overhead light and made a traffic stop of Guzman’s truck. Scherbek’s in-car video camera videotaped Guzman’s car. The videotape of Guzman’s car did not show the spinning tire, but in the videotape it appeared that the back rear tire was shiny. Scherbek based his stop on his opinion that Guzman had accelerated at an unreasonable speed. Scherbek wrote in his probable cause affidavit that the defendant had committed the offense of “exhibition of acceleration.” Authorities filed an information accusing Guzman of driving while intoxicated. He filed a motion to suppress evidence urging that the traffic stop that resulted in his arrest for this offense was unlawful. The trial court granted the motion to suppress following a hearing. The state appealed. HOLDING:Affirmed. First, the state urged that these findings of fact were inadequate, because the court did not make an express finding regarding Scherbek’s credibility. It is obvious, the court stated, that the trial court believed Scherbek’s testimony insofar as the court reflected that testimony in its findings. Next, the court examined whether Scherbek had probable cause. Under the Fourth Amendment, the court stated, a warrantless traffic stop must be justified by reasonable suspicion. Prior to Sept. 1, 2003, the court stated, Texas Transportation Code �545.420 provided that “[a] person may not participate in any manner in: . . . (5) an exhibition of vehicle speed or acceleration or to make a vehicle speed record.” But as amended in 2003, �545.420 now provides that “[a] person may not participate in any manner . . . (5) in connection with a drag race, an exhibition of vehicle speed or acceleration or to make a vehicle speed record.” The state argued that the Legislature did not intend this amendment to decriminalize exhibitions of acceleration that are not connected to speed competitions. The court found no evidence that Guzman was participating in a drag race. Thus, the court found that the trial court correctly concluded that the spinning motion of Guzman’s tire after the traffic light turned green did not alone warrant Scherbek’s suspicion that Guzman was unlawfully exhibiting acceleration in violation of �545.420. In addition, the court agreed with the trial court that the spinning of one tire as Guzman’s truck began to move from a stop, without more, did not reasonably support a suspicion that Guzman was at that moment driving at an unreasonable or imprudent speed. There are innocent reasons why a tire may lose traction and spin upon acceleration from a stop, the court stated. OPINION:Patterson, J.; Law, C.J., and Patterson, J. DISSENT:Pemberton, J. “I respectfully dissent. I agree with the State that, at the very least, Officer Scherbek had reasonable suspicion that Guzman had violated section 545.351 of the transportation code. . . . I would hold that Officer Scherbek could have reasonably suspected that Guzman was driving at an unreasonable, imprudent, and inappropriate speed amid a crowd of other motorists at a busy intersection.”

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