Fog line crossing justified traffic stop, Supreme Court rules

A motorist’s brief crossing of a fog line on Interstate 70 was enough to justify a traffic stop that led to his conviction for possession of a controlled substance, the Missouri Supreme Court has ruled.

In a 5-2 ruling on Jan. 14, the court affirmed a lower-court decision overruling Anthony James Smith’s motion to suppress evidence and incriminating statements he made during a 2017 traffic stop on I-70 in Montgomery County.

According to the majority opinion, written by Judge W. Brent Powell, Smith was stopped by Sgt. S.B. Johnson of the Missouri State Highway Patrol. Johnson testified that Smith’s vehicle caught his attention because Smith turned his turn signal on and then off before completing lane changes on several occasions.

Johnson also testified that he observed Smith’s passenger-side tires appear to completely cross the fog line — identified in the opinion as the marked delineation separating the shoulder from the highway traveling lane — and initiated the stop.

Johnson testified he smelled marijuana during the stop, and Smith admitted there was marijuana in the vehicle, Powell wrote. During a search, Johnson found marijuana cigarettes and approximately 4 pounds of marijuana.

Smith was charged with felony possession of a controlled substance. He later moved to suppress physical evidence and incriminating statements he’d made to the officer.

Smith argued in part that merely crossing the fog line was insufficient probable cause to initiate a traffic stop.

Judge Wesley C. Dalton overruled the motion, and Smith was found guilty of felony possession of a controlled substance. Dalton suspended Smith’s seven-year sentence and placed him on probation for five years.

Smith appealed, and the Missouri Court of Appeals Eastern District affirmed Dalton’s ruling. The Missouri Supreme Court granted transfer.

Smith’s sole argument on appeal was that merely touching or crossing the fog line does not give reasonable suspicion that a crime or traffic offense has occurred. The state argued that crossing the fog line and driving on the shoulder is a violation of Section 304.015.

The majority held that crossing the fog line — even briefly — and driving on the shoulder is a traffic violation that creates a lawful justification of a traffic stop. Powell was joined by Judges Paul C. Wilson, Mary R. Russell, Patricia Breckenridge and Zel M. Fischer.

At the suppression hearing, Johnson testified that he saw Smith cross the fog line and drive on the shoulder, Powell said.

“Considering this evidence in the light most favorable to the trial court’s ruling, Sgt. Johnson had probable cause to stop Smith’s vehicle for a violation of section 304.015, and the stop did not constitute an unreasonable seizure under the Fourth Amendment,” he said.

Judge Laura Denvir Stith wrote the dissent. She was joined by Chief Justice George W. Draper III.

In the opinion, Stith said the statute does not state that tires crossing the fog line constitutes a traffic violation.

“It simply requires a car to be ‘driven upon the right half of the roadway,’” she said. “No authority is cited that one momentary crossing of the fog line by a vehicle’s tires (if such a crossing even occurred here) constitutes failing to ‘drive’ on the right half of the roadway.”

Stith said prior cases from the Missouri Supreme Court and Court of Appeals have held that minor deviations of a tire onto the shoulder don’t constitute a traffic offense.

Smith’s case is the first from Missouri, and from the Supreme Court, “to hold that a single, momentary overcorrection constitutes ‘driving’ on the shoulder” in violation of the statute, she said.

Stith said persons of ordinary intelligence could not have known from the words of the statute or prior appellate rulings that one momentary, inadvertent crossing of the fog line amounts to illegally driving on the shoulder.

“Neither logic nor the fundamental fairness that underlies the criminal law supports the reading of section 304.015.2 the principal opinion adopts today,” she said. “Smith was not ‘driving’ on the shoulder, and his momentary crossing over the fog line did not violate section 304.015.2.”

John D. James of the James Law Group in St. Peters represented Smith. He said the majority opinion “barely mentioned 20 years of Missouri appellate law” that crossing the line briefly is not a violation.

“It’s just a strange reading, particularly on a penal statute,” he said.

The Missouri Attorney General’s Office represented the state. A spokesman for the office declined to comment on the ruling.

The case is State v. Smith, SC97811.