                   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.



                               - 3 -
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).




                               - 4 -
 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.



                                     - 8 -
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




                               - 9 -
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.




                              - 10 -
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 . . . .




                                 - 11 -
(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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