Commonwealth of Virginia v. Charlie William Gilbert ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Elder
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0963-98-3 JUDGE LARRY G. ELDER
SEPTEMBER 8, 1998
CHARLIE WILLIAM GILBERT
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
Glenn L. Berger (Berger & Thornhill, on
brief), for appellee.
Charlie William Gilbert (defendant) was indicted for driving
"so as to endanger the life, limb, or property of another, while
an order declaring him to be an habitual offender and prohibiting
such operation was in effect, a second or subsequent offense," in
violation of Code § 46.2-357. He moved to suppress on the ground
that the police officer lacked legal justification for the stop,
which led to the officer's discovery of his habitual offender
status. The trial court granted the suppression motion, and the
Commonwealth appeals that ruling pursuant to Code § 19.2-398. On
appeal, the Commonwealth argues that the officer had at least
reasonable and articulable suspicion to stop the automobile. We
disagree with the Commonwealth and affirm the trial court's
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
ruling.
I.
FACTS
After dark on October 10, 1997, Officer David Cash observed
that the right front marker light on defendant's automobile was
not burning. All other lights appeared to be illuminated. Cash
described the non-functioning light as "an amber light that works
as [both] a marker light and a signal light." He had no
opportunity to observe whether the right front turn signal was
operational. Cash previously had received a "report that the
person driving a vehicle similar to [defendant's] was . . . an
habitual offender."
Cash testified that he believed "the Code [requires] . . .
all factory lighting equipment [to be operational]" and that he
intended to stop defendant "because [of the] . . . [marker] light
out on the vehicle." After turning his car around, Cash followed
defendant for about a quarter of a mile, and during that time,
defendant accelerated to "the range of 40 miles per hour" in a
thirty-five mile-per-hour zone. Officer Cash then activated his
lights and pulled defendant over. Although the marker light on
defendant's car was not burning, the lens covering the light did
not appear to be broken, and Cash did not test the light to see
if the turn signal portion was operational.
As a result of the stop, defendant was indicted for driving
after having been declared an habitual offender, second or
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subsequent offense, and he moved to suppress all evidence on the
ground that the stop was unreasonable under the Fourth Amendment.
He stipulated that, if the trial court held the stop legal, he
was guilty of the charged offense.
After hearing argument and receiving legal memoranda from
counsel, the trial court ruled that Officer Cash lacked legal
authority for the stop. In granting defendant's motion to
suppress, it observed:
[W]hen you go back and read the Code
Section[,] it's almost impossible to
determine whether that marker light is
required. It looks like to me, that being
the case, it's not required, but I don't say
that with a whole lot of assurance except I
can find nothing there that requires . . .
this vehicle to have a marker light, and that
being the case I don't think the officer had
a right to stop this vehicle. It's clear he
would have had a right to stop the vehicle if
the turn signal was out, but the officer did
not . . . test the turn signal to see if the
turn signal worked. There was no evidence
that the turn signal did not work. The only
evidence in this case . . . was that the
marker light on the side of the vehicle was
out, and . . . the Court finding that is not
required equipment, I don't think he had a
right to stop the vehicle . . . .
II.
ANALYSIS
At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
or seizure did not violate the defendant's Fourth Amendment
rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380
S.E.2d 656, 659 (1989); Alexander v. Commonwealth, 19 Va. App.
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671, 674, 454 S.E.2d 39, 41 (1995). On appeal, we view the
evidence in the light most favorable to the prevailing party,
granting to it all reasonable inferences fairly deducible
therefrom. See Commonwealth v. Grimstead, 12 Va. App. 1066,
1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by the trial
court's findings of historical fact unless 'plainly wrong' or
without evidence to support them[,] and we give due weight to the
inferences drawn from those facts by resident judges and local
law enforcement officers." McGee v. Commonwealth, 25 Va. App.
193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v.
United States, 517 U.S. 690, 699 (1996)). However, we review de
novo the trial court's application of defined legal standards to
the particular facts of the case. See Shears v. Commonwealth, 23
Va. App. 394, 398, 477 S.E.2d 309, 311 (1996); see also Ornelas,
517 U.S. at 699.
A police officer may conduct an investigatory stop of a
motor vehicle if he has "articulable and reasonable suspicion"
that the operator is unlicensed, the vehicle is unregistered, or
the vehicle or an occupant is otherwise subject to seizure for
violating the law. See Murphy v. Commonwealth, 9 Va. App. 139,
143, 384 S.E.2d 125, 127 (1989) (citing Delaware v. Prouse, 440
U.S. 648, 663 (1979)). "Motor vehicles operating on the highways
of this State are required to comply with the statutes relating
to lighting equipment in effect at the time of their operation."
Hall v. Hockaday, 206 Va. 792, 798, 146 S.E.2d 215, 219 (1966).
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Therefore, a police officer who has "articulable and reasonable
suspicion" that the lighting equipment on a particular vehicle
does not comply with relevant statutes may conduct an
investigatory stop of that motor vehicle and its driver in order
to confirm or dispel his suspicion.
The Fourth Amendment requires only that an objectively
reasonable basis exist for an investigatory stop. See, e.g.,
Whren v. United States, 517 U.S. 806, 812-13 (1996). "'[T]hat
the officer does not have the state of mind which is hypothecated
by the reasons which provide the legal justification for the
officer's action does not invalidate the action taken as long as
the circumstances, viewed objectively, justify that action.'"
Id. at 813 (quoting Scott v. United States, 436 U.S. 128, 138
(1978)) (emphasis added); see also Ohio v. Robinette, 519 U.S.
33, 38-39 (1996); Limonja v. Commonwealth, 8 Va. App. 532,
537-38, 383 S.E.2d 476, 479-80 (1989) (en banc). The trial court
made clear that it understood this standard, observing that "you
don't go into the officer's head . . . . [I]f he's got
articulable suspicion . . . , the fact that he has . . . another
motive to stop the vehicle . . . doesn't invalidate the stop."
The Commonwealth advances three theories in support of its
contention that Officer Cash's stop of defendant was objectively
reasonable. It contends that Cash had at least reasonable
suspicion to believe that (1) the non-functioning marker light
violated the Code; (2) defendant was speeding in violation of the
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Code; and (3) defendant's right front turn signal light was
defective in violation of the Code.
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A. FRONT MARKER LIGHT
The trial court held that, because "the marker light [was]
. . . not required equipment," its failure to operate did not
provide a basis for the stop. We agree.
Code § 46.2-1003 makes it "unlawful for any person to use or
have as equipment on a motor vehicle operated on a highway any
device or equipment mentioned in § 46.2-1002 which is defective
or in an unsafe condition." (Emphasis added). Included in the
equipment mentioned in Code § 46.2-1002 is "any [motor vehicle]
lighting device . . . for which approval is required by any
provision of this chapter." (Emphasis added).
Nothing in the Code requires that an ordinary automobile be
equipped with marker lights. Although Code § 46.2-1017 requires
"approved" marker lights on "the right and left front corners" of
vehicles "exceeding seven feet in width," no evidence in this
record suggests that Officer Cash could reasonably have believed
that defendant's automobile exceeded such a width. Code
§ 46.2-1020, titled "Other permissible lights," may permit the
use of some marker lights as "daytime running lights" or "side
lights," but Code § 46.2-1020 contains no requirement that these
"permissible" lights be approved. Therefore, defendant's marker
lights were not lights "for which approval is required" under
Code § 46.2-1002 and were not "unlawful" under Code § 46.2-1003
if "defective" or "unsafe."
Accordingly, the trial court properly ruled that the
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non-functioning marker light, standing alone, did not give
Officer Cash a basis for stopping defendant's automobile because
the marker light was not required equipment.
B. SPEED
Implicit in the trial court's suppression of the evidence is
that it rejected the Commonwealth's argument that defendant's
speed provided a basis for the stop. We cannot say it erred in
doing so. Officer Cash's testimony regarding speed was
equivocal, and the trial court, as the finder of fact, was
entitled to conclude that his testimony did not provide
reasonable suspicion or probable cause for the stop.
C. TURN SIGNAL INDICATOR
The trial court also ruled the record contained "no evidence
that the turn signal [required by the Code] did not work."
Again, we cannot say the trial court erred in so ruling.
Turn signals which are located "on both front and rear" and
"are of a type that has been approved by the Superintendent"
are required equipment on all vehicles meeting the requirements
of Code § 46.2-1038(B). 1 Although subsection (C) provides that
1
Code § 46.2-1038(B) makes it
unlawful . . . to drive on any highway a
motor vehicle registered in the Commonwealth
and manufactured or assembled after January
1, 1955, unless such vehicle is equipped with
[electrical] turn signals [which meet the
requirements of this title and are of a type
that has been approved by the Superintendent]
on both front and rear.
The trial court implicitly found these conditions had been met.
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the use of required turn signals is optional for most
drivers--permitting the driver of an equipped car to use hand and
arm signals pursuant to Code § 46.2-849 instead--Code § 46.2-1010
requires that "[e]very vehicle driven or moved on a highway
within the Commonwealth shall at all times be equipped with such
lights as are required in this chapter" and that "[t]he lights
shall at all times be capable of being lighted, except as
otherwise provided." Therefore, even if a driver chooses to use
hand signals in lieu of electrical turn signals, all cars meeting
the criteria of Code § 46.2-1038(B) must have operational turn
indicators on the front and rear. In addition, because Code
§ 46.2-1038(B) requires that such turn signals be of an approved
type, they fall under the provisions of Code §§ 46.2-1002 and
46.2-1003, which make it "unlawful for any person to use or have
[them] as equipment on a motor vehicle operated on a highway" if
they are "defective" or "unsafe." Accordingly, the existence of
facts providing reasonable suspicion of a violation of either
Code § 46.2-1010 or 46.2-1003 would validate Officer Cash's stop
of appellant.
In this case, however, the trial court found "no evidence
that the [front] turn signal [required by the statute] did not
work." Officer Cash testified that the right front marker light
and turn signal were the same light, which permitted the
inference that the turn signal portion of the light also might
not be working. However, the trial court was not required to
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accept this testimony; and even if it did, no evidence in the
record provided reasonable suspicion that this light also
functioned as the front turn signal light required by the Code to
be on defendant's vehicle. Therefore, no reasonable inference
could be drawn that defendant's required right front signal light
was not functioning. That the non-functioning marker light may
have been designed to flash in unison with the required right
turn signal light on the front of the vehicle did not transform
the marker light into "required" equipment.
For these reasons, we hold the trial court did not err in
granting defendant's motion to suppress. Therefore, we affirm
the trial court's ruling.
Affirmed.
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Fitzpatrick, C.J., dissenting.
Assuming the trial court correctly ruled the malfunctioning
marker light did not justify the stop, the evidence provided
reasonable suspicion that defendant drove in the range of forty
miles per hour in a thirty-five mile-per-hour zone, permitting
Officer Cash to stop defendant for speeding. 2 That defendant's
speeding was not Cash's subjective reason for stopping the car is
not dispositive of the analysis of this issue, for the Fourth
Amendment requires only that an objectively reasonable basis
exist for an investigatory stop. See, e.g., Whren v. United
States, 517 U.S. 806, 812-13 (1996). "'[T]hat the officer does
not have the state of mind which is hypothecated by the reasons
which provide the legal justification for the officer's action
does not invalidate the action taken as long as the
circumstances, viewed objectively, justify that action.'" Id. at
813 (quoting Scott v. United States, 436 U.S. 128, 138 (1978))
(emphasis added); see also Ohio v. Robinette, 519 U.S. 33, 38-39
2
Cash testified as follows:
Q. When you say he accelerated, how many miles per
hour would you estimate that he accelerated his speed?
A. I would estimate that it was in the range of 40
miles per hour.
Q. That's how much he accelerated, 40 miles per hour,
or he accelerated to . . . ?
A. To 40 miles per hour.
* * * * * * *
Q. What was the speed limit through there?
A. It's 35 miles per hour . . . .
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(1996); Limonja v. Commonwealth, 8 Va. App. 532, 537-38, 383
S.E.2d 476, 479-80 (1989) (en banc).
For these reasons, I respectfully dissent and would hold
that the trial court erred in granting defendant's motion to
suppress and would reverse that ruling.
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