                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Haley
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                                MEMORANDUM OPINION * BY
v.      Record No. 0101-11-4                                     JUDGE ROBERT P. FRANK
                                                                      MAY 24, 2011
MAURICE D. GASKINS


                       FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                  Michael F. Devine, Judge

                  Jennifer C. Williamson, Assistant Attorney General (Kenneth T.
                  Cuccinelli, II, Attorney General, on brief), for appellant.

                  Mark S. Loria for appellee.


        The Commonwealth, appellant, appeals, pursuant to Code § 19.2-398, the trial court’s

decision to grant Maurice Gaskins’ motion to suppress the evidence gathered pursuant to a traffic

stop of his vehicle. The trial court ruled that the officer did not have reasonable, articulable

suspicion to effect the traffic stop. For the reasons stated, we reverse the trial court’s order granting

the motion to suppress.

        On the appeal by the Commonwealth of a trial court’s pretrial order granting a motion to

suppress evidence, we view the evidence in the record in the light most favorable to the accused,

the prevailing party below, granting to the evidence all reasonable inferences fairly deducible

therefrom. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

When this Court reviews a trial court’s ruling on a motion to suppress, “‘the burden is upon [the

losing party] to show that the ruling, when the evidence is considered most favorably to the


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
[prevailing party], constituted reversible error.’” McGee v. Commonwealth, 25 Va. App. 193,

197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 220 Va. 1007,

1010, 265 S.E.2d 729, 731 (1980)).

                       An appellant’s claim that evidence was seized in violation
               of the Fourth Amendment “presents a mixed question of law and
               fact that we review de novo on appeal. In making such a
               determination, we give deference to the factual findings of the trial
               court and independently determine whether the manner in which
               the evidence was obtained [violated] the Fourth Amendment.”

Wilson v. Commonwealth, 45 Va. App. 193, 202-03, 609 S.E.2d 612, 616 (2005) (alteration in

original) (quoting Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002)).

On appeal, “we defer to the trial court’s findings of ‘historical fact’ and give ‘due weight to the

inferences drawn from those facts by resident judges and local law enforcement officers.’”

Barkley v. Commonwealth, 39 Va. App. 682, 690, 576 S.E.2d 234, 238 (2003) (quoting Davis v.

Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374, 378 (2002)).

       Reasonable suspicion is “‘a particularized and objective basis’ for suspecting the person

stopped of criminal activity.” Ornelas v. United States, 517 U.S. 690, 696 (1996) (quoting

United States v. Cortez, 449 U.S. 411, 417-18 (1981)). “There is no ‘litmus test’ for reasonable

suspicion. Each instance of police conduct must be judged for reasonableness in light of the

particular circumstances.” Castaneda v. Commonwealth, 7 Va. App. 574, 580, 376 S.E.2d 82, 85

(1989) (en banc) (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)). “In order to determine what

cause is sufficient to authorize police to stop a person, cognizance must be taken of the ‘totality

of the circumstances -- the whole picture.’” Leeth v. Commonwealth, 223 Va. 335, 340, 288

S.E.2d 475, 478 (1982) (citing Cortez, 449 U.S. at 417). As long as an officer reasonably

suspects that the “driver is violating any one of the multitude of applicable traffic and equipment

regulations,” the police officer may legally stop the vehicle. Delaware v. Prouse, 440 U.S. 648,



                                                -2-
661 (1979). In sum, an officer may stop a vehicle when he observes an equipment violation.

McCain v. Commonwealth, 275 Va. 546, 553, 659 S.E.2d 512, 516 (2008).

       The facts here are not in dispute. Fairfax County Police Officer David Montgomery

observed that when appellee applied his brakes, half of the high mount brake light on the rear

window of his vehicle was not functioning due to a burned out bulb. Because of this, Officer

Montgomery initiated a traffic stop of appellee’s vehicle for defective equipment.

       On appeal, the Commonwealth contends the trial court erred in finding that the stop was

without reasonable, articulable suspicion. The Commonwealth argues that the trial court, in

evaluating whether the broken high mount brake light could serve as the basis for the stop, failed to

consider the requirements of Code § 46.2-1014.1. Had it done so, reasons the Commonwealth, the

trial court should have found that Officer Montgomery had reasonable suspicion to stop the vehicle

for investigation of a violation of Code § 46.2-1003.

       Code § 46.2-1003 provides:

                      It shall be 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
               unsafe condition.

Code § 46.2-1002 applies to “any lighting device, warning device, signal device, safety glass, or

other equipment for which approval is required by any provision of this chapter.” 1 Additionally,

Code § 46.2-1014.1 requires that the vehicle appellee was driving “shall be equipped with a

supplemental center high mount stop light of a type approved by the Superintendent or which

meets the standards adopted by the United States Department of Transportation.”




       1
       The “approval” to which this statute refers is that of the Superintendent of the
Department of State Police of the Commonwealth. Code §§ 46.2-100 and 46.2-1002.

                                                -3-
        First, we must consider whether a broken high mount brake light constitutes defective

equipment in violation of Code § 46.2-1003. 2 “[W]hen analyzing a statute, we must assume that

‘the legislature chose, with care, the words it used . . . and we are bound by those words as we

interpret the statute.’” City of Virginia Beach v. ESG Enters., 243 Va. 149, 153, 413 S.E.2d 642,

644 (1992) (quoting Barr v. Town & Country Props., 240 Va. 292, 295, 396 S.E.2d 672, 674

(1990)). “‘Where the legislature has used words of a plain and definite import the courts cannot

put upon them a construction which amounts to holding the legislature did not mean what it has

actually expressed.’” Barr, 240 Va. at 295, 396 S.E.2d at 674 (quoting Watkins v. Hall, 161 Va.

924, 930, 172 S.E. 445, 447 (1933)). As an appellate court, we review issues of statutory

interpretation de novo. Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008).

        We are persuaded by the reasoning of Ragland v. Commonwealth, No. 1036-96-2, 1997

Va. App. LEXIS 109 (Va. Ct. App. Feb. 18, 1997). 3 In Ragland, a police officer stopped

appellant’s vehicle because of a reasonable, articulable suspicion that appellant was driving with

a defective taillight. The officer “observed that the red plastic covering of appellant’s tail light

was out of place so that it emanated both a red light and a white light.” 4 Id. at *5. Ragland

argued that Code § 46.2-1013 must be read together with Code § 46.2-1003 and that a driver




        2
         Defective is defined as “lacking perfection; having a defect; faulty.” The American
Heritage Dictionary of the English Language 345 (1982).
        3
          “Although an unpublished opinion of the Court has no precedential value, a court . . .
does not err by considering the rationale and adopting it to the extent it is persuasive.” Fairfax
Cnty. Sch. Bd. v. Rose, 29 Va. App. 32, 39 n.3, 509 S.E.2d 525, 528 n.3 (1999) (en banc)
(citation omitted); see also Rule 5A:1(f) (“The citation of judicial opinions, orders, judgments, or
other written dispositions that are not officially reported . . . is permitted as informative, but shall
not be received as binding authority.”).
        4
          At the time of the stop, Code § 46.2-1013 requires taillights to be a “red light plainly
visible in clear weather from a distance of 500 feet to the rear of such vehicle.”

                                                 -4-
does not violate Code § 46.2-1003 if his car has at least one taillight that functions in accordance

with Code § 46.2-1013. We rejected that argument and explained:

                 Code § 46.2-1003 . . . is codified among the provisions regarding
                 “vehicle and equipment safety.” It does more than set a minimum
                 standard; it regulates the maintenance of devices or equipment
                 used on a vehicle. In particular, Code § 46.2-1003 prohibits the
                 use on a vehicle of any equipment mentioned in Code § 46.2-1002
                 that is either unsafe or defective, whether or not this equipment
                 exceeds the minimum requirements set forth elsewhere in the
                 Code. Thus, the apparent intent of Code § 46.2-1003 is to compel
                 automobile owners to repair or replace any of their vehicle’s
                 equipment that falls into a defective or unsafe condition.

Id. at *6-7.

        As in Ragland, appellee’s argument here ignores that drivers have a duty to keep their

vehicles from falling into an unsafe or defective condition. Applying this standard, we conclude

that the broken brake light provided Officer Montgomery with reasonable suspicion to conduct a

traffic stop. Because Code § 46.2-1014.1 requires appellee’s vehicle to be equipped with a

supplemental center high mount stop light, and Officer Montgomery observed that the light was

defective, he had reasonable suspicion to believe appellee was in violation of Code § 46.2-1003.

        We do not determine whether appellee is guilty of driving a vehicle with defective

equipment, but only whether reasonable suspicion existed to stop his vehicle for further

investigation.

        We conclude that the trial court erred in granting the motion to suppress. We reverse the

judgment and remand for trial on the merits if the Commonwealth be so advised.

                                                                           Reversed and remanded.




                                                -5-
Humphreys, J., dissenting.

       I must respectfully dissent. I cannot join the majority’s reliance on Ragland v.

Commonwealth, No. 1036-96-2, 1997 Va. App. LEXIS 109 (Va. Ct. App. Feb. 18, 1997),

because I believe that case to have been wrongly decided. Moreover, I note that Ragland, as an

unpublished decision of this Court, is neither binding nor controlling legal precedent.

       “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the

Government, and its protections extend to brief investigatory stops of persons or vehicles that

fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (citing Terry

v. Ohio, 392 U.S. 1, 9 (1968)). “A police officer may conduct an investigatory stop of a motor

vehicle if he has at least 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.” Reel v. Commonwealth, 31 Va. App. 262, 265-66, 522 S.E.2d 881, 883 (2000)

(citations omitted). “Reasonable suspicion, like probable cause, is dependent upon both the

content of information possessed by police and its degree of reliability.” Alabama v. White, 496

U.S. 325, 330 (1990). Moreover,

               [t]he reasonableness of seizures that are less intrusive than a
               traditional arrest depends on a balance between the public interest
               and the individual’s right to personal security free from arbitrary
               interference by law officers. Consideration of the constitutionality
               of such seizures involves a weighing of the gravity of the public
               concerns served by the seizure, the degree to which the seizure
               advances the public interest, and the severity of the interference
               with individual liberty.

               A central concern in balancing these competing considerations in a
               variety of settings has been to assure that an individual’s
               reasonable expectation of privacy is not subject to arbitrary
               invasions solely at the unfettered discretion of officers in the field.
               To this end, the Fourth Amendment requires that a seizure must be
               based on specific, objective facts indicating that society’s
               legitimate interests require the seizure of the particular individual,
               or that the seizure must be carried out pursuant to a plan

                                                -6-
               embodying explicit, neutral limitations on the conduct of
               individual officers.

Brown v. Texas, 443 U.S. 47, 50-51 (1979) (citations omitted).

       In this case, Officer Montgomery stopped the vehicle Gaskins was driving because one of

the light bulbs on the supplemental high mount stop light was burned out. Clearly, “[m]otor

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) (emphasis added). Code § 46.2-1014.1, which governs the

requirements for high mount stop lighting, provides,

               Whenever operated on the highways, every Virginia-registered
               passenger car manufactured for the 1986 or subsequent model year
               shall be equipped with a supplemental center high mount stop light
               of a type approved by the Superintendent or which meets the
               standards adopted by the United States Department of
               Transportation. The light shall be mounted as near the vertical
               center line of the vehicle as possible. The light shall be actuated
               only in conjunction with the vehicle’s brake lights and hazard
               lights. Any supplemental high mount stop light installed on any
               other vehicle shall comply with those requirements.

According to Code § 46.2-1002,

               [i]t shall be unlawful for any person . . . to use or have as
               equipment on a motor vehicle operated on a highway any lighting
               device, warning device, signal device, safety glass, or other
               equipment for which approval is required by any provision of this
               chapter . . . unless of a type that has been submitted to and
               approved by the Superintendent or meets or exceeds the standards
               and specifications of the Society of Automotive Engineers, the
               American National Standards Institute, Incorporated or the federal
               Department of Transportation.

As the Commonwealth correctly notes, Code § 46.2-1003 provides, “[i]t shall be 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 unsafe condition.” Read together,

these code sections clearly mandate that all vehicles operating on the highways that are


                                               -7-
manufactured after 1986 must (1) include a supplemental high mount stop light that is;

(2) approved by the Superintendent or exceeds the standards and specifications of the Society of

Automotive Engineers, the American National Standards Institute, Incorporated or the federal

Department of Transportation; (3) that the light must be “mounted as near the vertical center line

of the vehicle as possible” and “actuated only in conjunction with the vehicle’s brake lights and

hazard lights”; and (4) the light cannot be “defective” or “unsafe.” Code § 46.2-1014.1.

       Here, as Officer Montgomery clearly observed, Gaskins’s high mount stop light

illuminated in conjunction with his brake lights. The crux of the issue before us is that the

parties disagree as to whether the high mount stop light on Gaskins’s vehicle was rendered

“defective” or otherwise inoperative when one of the bulbs in the two-bulb unit burned out. Put

more succinctly, the issue before us is whether a police officer has the requisite reasonable

suspicion that “criminal activity may be afoot,” or, at least, that a violation of a traffic regulation

exists, when the equipment on a motor vehicle clearly meets the minimum requirements of the

Code, even though it is in some way deficient with respect to the manufacturer’s original design

specifications.

       The word “defective,” is not defined by statute, but its ordinary and accepted meaning is

“wanting in something essential: falling below an accepted standard in regularity and soundness

of form or structure or in adequacy of function: faulty, deficient, insufficient.” Webster’s Third

New International Dictionary 591 (1993). In this case, there is no dispute that the high mount

stop light on Gaskins’s vehicle met the essential legal requirements mandated by the statute. The

single unit stop light was of a type approved by the Superintendent, it was mounted at the

vertical center line of Gaskins’s vehicle, and it illuminated in conjunction with the vehicle’s

brake lights and hazard lights. The mere fact that one of the bulbs in the dual bulb fixture was




                                                 -8-
burned out is simply of no legal moment. Code § 46.2-1014.1 does not require that every bulb

be working; it merely requires that a light go on when the brakes are applied.

       Thus, at the time of the stop, Officer Montgomery had no reason to believe that Gaskins’s

high mount stop light deviated in any way from the standards for high mount stop lights set forth

in Code § 46.2-1014.1. By extension, it was not reasonable for Officer Montgomery to believe

that the equipment on Gaskins’s vehicle was “wanting in something essential,” or that it fell

“below an accepted standard in regularity and soundness of form or structure or in adequacy of

function.” Id. In other words, Officer Montgomery had no objective reason to believe “criminal

activity may be afoot.” Moore v. Commonwealth, 276 Va. App. 747, 757, 668 S.E.2d 150, 155

(2008) (citation omitted). Because Gaskins’s high mount stop light was, in fact, in compliance

with the statute requiring it, I believe the stop of Gaskins’s vehicle, merely because one of the

light bulbs not required by the statute was inoperative, is not one that society is prepared to

recognize as reasonable.

       It follows that because Officer Montgomery failed to articulate sufficient objective facts

reasonably justifying the seizure of Gaskins’s vehicle, the stop violated the Fourth Amendment.

The trial court did not, in my view, abuse its discretion in suppressing the evidence obtained

against Gaskins during the stop. I would, therefore, affirm the order suppressing the evidence.




                                                -9-
