                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Frank and Kelsey
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                                 MEMORANDUM OPINION* BY
v.      Record No. 0234-07-2                                      JUDGE ROBERT P. FRANK
                                                                     AUGUST 14, 2007
RONALD LEWIS SCOTT SNYDER


                    FROM THE CIRCUIT COURT OF KING GEORGE COUNTY
                               Horace A. Revercomb, III, Judge

                  Benjamin H. Katz, Assistant Attorney General (Robert F.
                  McDonnell, Attorney General, on brief), for appellant.

                  Benjamin H. Woodbridge, Jr. (Woodbridge, Ventura & Kelly, P.C.,
                  on brief), for appellee.


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

decision to grant Ronald Lewis Scott Snyder’s 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 agree and affirm the trial court’s order

granting the motion to suppress.

                                           BACKGROUND

        On April 29, 2006, at approximately 4:20 p.m., Deputy Doug Green of the King George

County Sheriff’s Office received information from a police dispatcher that an anonymous caller had

observed a white male consuming alcohol while driving. The caller relayed the location, direction,

and license plate number of the vehicle the subject was driving. The dispatcher checked the license




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
plate number, which indicated that the vehicle, a Ford sedan, was registered to Ronald Snyder,

appellee.

          About 5 to 10 minutes after receiving the report, Deputy Green observed a vehicle matching

the description of the vehicle in the report traveling south on Route 301. Deputy Green saw a white

male driving the vehicle, and the license plate also matched that given in the report. Deputy Green

followed the vehicle for approximately a mile, “observ[ing] the vehicle’s driving conduct,” but he

“didn’t notice anything out of the ordinary that would indicate any type of problem.”

          Deputy Green noted that the right passenger’s side mirror “was completely busted out of the

housing.” The mirror, which was factory-installed, had “no glass at all.” Deputy Green testified

that the vehicle had a functional driver’s side mirror and a functional rearview mirror.

          Deputy Green stopped the vehicle for the broken passenger mirror, believing it to be a

“defective equipment violation” pursuant to Code § 46.2-1003. Deputy Green testified that this was

his “primary” reason for the stop, but that he also stopped the vehicle “loosely based on the

information given” to him by dispatch. After the vehicle stopped, Deputy Green’s investigation led

him to charge appellee with drinking while driving, driving under the influence of alcohol, and

felony child neglect.1

          Appellee filed a motion to suppress, arguing that Deputy Green did not have a reasonable,

articulable suspicion for stopping his vehicle. Appellee contended that, as he had a working driver’s

side mirror and a working rearview mirror, he was not required to have a passenger side mirror.

Thus, the broken glass in this mirror could not sustain a charge of defective equipment. Appellee

also argued that, as the information about his consumption of an alcoholic beverage while driving




          1
              Deputy Green also charged appellee with defective equipment for the broken passenger
mirror.
                                                  -2-
came from an anonymous caller, Deputy Green needed some sort of corroboration of that offense

before using that information as the basis for the traffic stop.

        The trial court granted appellee’s motion to suppress, finding no corroboration that would

allow Deputy Green to use the anonymous tip as the basis for stopping appellee. Further, the trial

court held that, as appellee had a working driver’s side and a working rearview mirror, he was not

required to have a working passenger side mirror. Thus, any defect in that mirror could not sustain

a charge of defective equipment, and, consequently, the trial court found that this defect could not

be the basis of Deputy Green’s reasonable suspicion to conduct the traffic stop.

        This appeal follows.

                                              ANALYSIS

        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 passenger mirror could serve as the basis for the stop, improperly

considered whether a violation of Code § 46.2-1003 had actually occurred.2 The Commonwealth

maintains that, while it may not be a violation of that code section, it was reasonable for Deputy

Green to believe that appellee had a duty to maintain the mirror, as it is an item of equipment

subject to yearly motor vehicle inspection.

        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 [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)).



        2
        The Commonwealth, on appeal, does not contend that the anonymous tip provided a
reasonable, articulable suspicion for the traffic stop; thus, that issue is not before us on appeal.
                                                 -3-
       First, we must consider whether a broken passenger side mirror constitutes defective

equipment in violation of Code § 46.2-1003. “[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 Va. 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)).

       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.”3 Mirrors are

not listed separately in Code § 46.2-1002. Thus, we must determine whether mirrors are “other

equipment for which approval is required” by any provision in Chapter 10 of the Virginia Code.

       The Commonwealth argues that because mirrors are “an item of equipment subject to

yearly motor vehicle inspection under the auspices of the [S]uperintendent of the Virginia State

Police,” this inspection requirement makes mirrors an item of equipment for which approval is

required for the purposes of Code § 46.2-1002. The Commonwealth cites to no authority for this

proposition, nor could we find any authority to support its argument.




       3
       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.
                                             -4-
       We find there is a marked difference between the “approval” requirement and

“inspection” of vehicles pursuant to Code § 46.2-1157. As part of its highway safety program,

Virginia requires motor vehicles registered in the Commonwealth to be inspected annually for

mechanical and equipment defects at an official inspection station. See Code §§ 46.2-1157 and

46.2-1158; Moore v. Commonwealth, 49 Va. App. 294, 302, 640 S.E.2d 531, 535 (2007). This

“Virginia Annual Motor Vehicle Inspection Program was developed and adopted to promote

highway safety. Its aim is to assure that all Virginia registered vehicles are mechanically safe to

operate over the highways of the Commonwealth.” 19 VAC 30-70-1. Thus, each vehicle in the

Commonwealth is subject to annual inspection.

       However, unlike the yearly inspection requirement, the “approval” procedure does not

establish whether a piece of equipment on a particular vehicle, on a specific date, meets the

appropriate inspection standards. Instead, the approval procedure requires the “submission of a

sample of the device for test and record purposes, submission of evidence that the device

complies with this title and with recognized testing standards which the Superintendent is hereby

authorized to adopt, and payment of the fee as provided by § 46.2-1008.” Code § 46.2-1005.

Additionally,

                [t]he Superintendent may waive such approval and the issuance of
                a certificate of approval when the device or equipment required to
                be approved by this title is identified as complying with the
                standards and specifications of the Society of Automotive
                Engineers, the American National Standards Institute,
                Incorporated, or the regulations of the federal Department of
                Transportation.

Id. Clearly, the certificate that is issued for the particular “approved device or equipment”

contemplates a prototypical safety concept and is not part of the annual inspection process,

which is unique to every vehicle in the Commonwealth.




                                                -5-
       Thus, our review of Title 46.2 leads us to conclude that “inspection” does not equate with

“approval.”

       Code § 46.2-1082 sets out the requirements for mirrors on a vehicle. That code section

provides:

                  No person shall drive a motor vehicle on a highway in the
               Commonwealth if the vehicle is not equipped with a mirror which
               reflects to the driver a view of the highway for a distance of not
               less than 200 feet to the rear of such vehicle.

               No motor vehicle registered in the Commonwealth, designed and
               licensed primarily for passenger vehicular transportation on the
               public highways and manufactured after 1968 shall be driven on
               the highways in the Commonwealth unless equipped with at least
               one outside and at least one inside rear view mirror meeting the
               requirements of this section.

               Notwithstanding the other provisions of this section, no motor
               vehicle which either has no rear window, or which has a rear
               window so obstructed as to prevent rearward vision by means of an
               inside rear view mirror, shall be required to be equipped with an
               inside rear view mirror if such motor vehicle has horizontally and
               vertically adjustable outside rear view mirrors installed on both
               sides of such motor vehicle in such a manner as to provide the
               driver of such motor vehicle a rearward view along both sides of
               such motor vehicle for at least 200 feet.

Code § 46.2-1082. Nothing in this code section, nor in any other provision in this chapter,

requires mirrors to be “approved.”4 Thus, a defect in any mirror on a vehicle does not fall under

the ambit of Code §§ 46.2-1002 or 46.2-1003.

       Instead, a defect in a mirror must be evaluated under Code § 46.2-1082, which

establishes the minimum requirements for mirrors. Code § 46.2-1082 clearly requires only one

outside mirror, as long as that vehicle is equipped with a rearview mirror. Here, Deputy Green

testified that appellee’s vehicle was equipped with a working driver’s side mirror and a working


       4
        For example, Code § 46.2-1011 requires vehicles to be equipped with two headlights
“approved by the Superintendent,” and Code § 46.2-1019 requires approval by the
Superintendent of optional spotlights.
                                            -6-
rearview mirror. Thus, under Code § 46.2-1082, appellee did not need a passenger’s side mirror

on his vehicle, and any defect in this mirror could not be a violation of the minimum

requirements set out in that statute.

       The Commonwealth maintains that, even if Deputy Green made a mistake of law in

believing that a broken passenger side mirror constituted a defective equipment violation under

Code § 46.2-1003, this mistake of law was objectively reasonable. The Commonwealth

contends that a reasonable officer, knowing that all mirrors must be in working condition in

order to pass a yearly motor vehicle inspection, would believe that appellee had a duty to

maintain his passenger mirror in proper condition.

       The Commonwealth essentially argues that a mistake of law, if objectively reasonable

can form the basis of reasonable suspicion. We disagree.

       “[S]topping an automobile and detaining its occupants constitute a ‘seizure’ within the

meaning of [the Fourth] Amendment[].” Delaware v. Prouse, 440 U.S. 648, 653 (1979). “If a

police officer has reasonable, articulable suspicion that a person is engaging in, or is about to

engage in, criminal activity, the officer may detain the suspect to conduct a brief investigation

without violating the person’s Fourth Amendment protection against unreasonable searches and

seizures.” McGee, 25 Va. App. at 202, 487 S.E.2d at 263.

       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

                                                -7-
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. Prouse, 440 U.S. at 661.

       We are persuaded by the reasoning of Bass v. Commonwealth, 259 Va. 470, 525 S.E.2d

921 (2000). In Bass, a police officer assigned to a traffic checkpoint observed the defendant’s

vehicle approaching the checkpoint. Id. at 473, 525 S.E.2d at 922. When the vehicle was

approximately 500 feet away, the defendant turned into a gas station, made a legal u-turn, and

began traveling in the opposite direction. Id. at 473, 525 S.E.2d at 922-23. The officer pursued

and stopped the defendant for “evad[ing] a traffic checkpoint.” Id. at 473, 525 S.E.2d at 923.

       The Supreme Court determined that no law prohibited the evasion of a traffic checkpoint

and that the defendant had not committed any traffic offense through his actions. Id. at 476-77,

525 S.E.2d at 924-25. The Court rejected the Commonwealth’s argument that, even if the

defendant’s driving actions did not constitute a traffic violation, his actions were sufficient to

provide the officer with reasonable suspicion to believe that the defendant was in violation of the

law. Id. at 477, 525 S.E.2d at 925. Because the officer’s suspicion of a violation was not

grounded in law, he did not have the requisite reasonable suspicion to conduct a traffic stop of

the defendant’s vehicle. Id. at 477-78, 525 S.E.2d at 925.

       Here, as in Bass, Deputy Green did not make a mistake of fact about the scope of

activities proscribed by a particular law. See United States v. Delfin-Colina, 464 F.3d 392, 399

(3d Cir. 2006) (holding that the officer’s mistake was reasonable where he believed that a

necklace hanging from a rearview mirror violated a statute prohibiting items that obstructed the

driver’s vision out of the front windshield, where the court determined that the necklace did not

actually obstruct the vision of the driver). Such a mistake of fact, if determined to be made in

                                                 -8-
good faith and objectively reasonable, can form the basis of reasonable suspicion. Barnette v.

Commonwealth, 23 Va. App. 581, 584, 478 S.E.2d 707, 708 (1996) (holding that an arrest made

pursuant to a mistake in fact is valid if “(1) the arresting officer believed, in good faith, that his

or her conduct was lawful, and (2) the arresting officer’s good faith belief in the validity of the

arrest was objectively reasonable”).

        However, “a belief based on a mistaken understanding of the law cannot constitute the

reasonable suspicion required for a constitutional traffic stop.” United States v. Twilley, 222

F.3d 1092, 1096 (9th Cir. 2000); see also United States v. Tibbetts, 396 F.3d 1132, 1138 (10th

Cir. 2005) (“[F]ailure to understand the law by the very person charged with enforcing it is not

objectively reasonable.”); United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir. 2003)

(holding that a mistake of law cannot provide the “objectively reasonable grounds for reasonable

suspicion or probable cause”). “[I]f officers are allowed to stop vehicles based upon their

subjective belief that traffic laws have been violated even where no such violation has, in fact,

occurred, the potential for abuse of traffic infractions as pretext for effecting stops seems

boundless and the costs to privacy rights excessive.” United States v. Lopez-Valdez, 178 F.3d

282, 289 (5th Cir. 1999).

        Appellee’s broken passenger side mirror did not violate any applicable statute or

ordinance. In the absence of such a violation, Deputy Green did not have reasonable suspicion to

effect the traffic stop of appellee’s vehicle. Bass, 259 Va. at 477-78, 525 S.E.2d at 925.

        We conclude the trial court did not err in granting the motion to suppress. We therefore

affirm the decision of the trial court and remand further proceedings if the Commonwealth be so

advised.

                                                                              Affirmed and remanded.




                                                  -9-
