                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 08-4792



UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

           v.

SHON MCHUGH,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Chief
District Judge. (3:08-cr-00078-JRS-1)


Argued:   September 23, 2009                 Decided:   November 4, 2009


Before MOTZ, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Irene M. KEELEY, United States District Judge for the Northern
District of West Virginia, sitting by designation.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Richard Daniel Cooke, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellant.       Paul Geoffrey
Gill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia,
for Appellee.   ON BRIEF: Dana J. Boente, Acting United States
Attorney, Alexandria, Virginia, Olivia N. Hawkins, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellant.       Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

       On January 30, 2008, Virginia State Police Trooper Michael

Miller (Trooper Miller) stopped a vehicle driven by Shon McHugh

(McHugh)      on    Interstate       95    in       Greensville     County,    Virginia.

During the stop, Trooper Miller asked for and received consent

to   search    the    vehicle.            During      the   search,     Trooper      Miller

discovered and seized crack cocaine, marijuana, and oxycodone.

Following his indictment on charges of conspiracy to distribute

five   kilograms      or     more    of    crack      cocaine     and   oxycodone,      and

possession with intent to distribute five kilograms or more of

crack cocaine and oxycodone, McHugh moved to suppress the drugs

seized during the stop, contending that Trooper Miller lacked

reasonable suspicion to stop his vehicle.                         The district court

initially      denied        McHugh’s       motion,         but     granted     it     upon

reconsideration.           The    government          appeals,    and   we    vacate    and

remand for further proceedings.



                                                I

       The circumstances surrounding the stop are not in dispute.

McHugh   was       driving    a     Ford   Expedition        (the    Expedition)       with

Massachusetts license plates northbound on Interstate 95 when

Trooper Miller, who was parked on the side of the interstate,

observed that the Expedition’s taillights had clear lenses on

them, equipment he believed was unlawful under Virginia law.

                                           - 3 -
       Virginia Code § 46.2-1013 provides in relevant part:

       Every motor vehicle . . . shall carry at the rear two
       red lights plainly visible in clear weather from a
       distance of 500 feet to the rear of such vehicle.
       . . .   Any such tail lights . . . shall be of a type
       approved by the Superintendent [of the Department of
       State Police of the Commonwealth of Virginia].

Va.    Code       Ann.   §   46.2-1013. 1       Trooper   Miller     testified   that,

through his training, he knows that anything that comes stock on

vehicles          fits   within   the   parameters     of   the     State   Inspection

Manual and the Virginia Code.                   According to Trooper Miller, the

purpose of his stop of the Expedition was “[t]o investigate the

fact       that    the   taillights     .   .   .   appeared   to    be   unauthorized

equipment by Commonwealth of Virginia law and I needed to check

and make sure that they were in fact approved equipment.”                        (J.A.

14).       Trooper Miller suspected the taillights on the Expedition

were unlawful because: (1) he knew 1997 Ford Expeditions came


       1
        In 19 Virginia Administrative Code § 30-70-150, the
Superintendent set forth, in regulatory form, the standards
governing the inspection of vehicles in Virginia with respect to
“Rear lamps:tail lamp; license plate lamps and rear lamp
combinations.” Id. Such regulation directs that the inspector:

       Inspect for and reject if:

     1. Vehicle is not equipped with a rear (tail lamp) or rear
lamp combination of an approved type or light assembly does not
work as designed by the manufacturer. The approval designation
letters that must appear are DOT or SAE-A-I-S-T-P for single
lamps, DOT or SAE-A-I-S-T-P-R with a backup light, DOT or SAE-A-
I-S-T-P-P2-R with a wrap around side-marker lamp and backup
light.

Id. at § 30-70-150(1).


                                            - 4 -
stock with red-lensed taillights; (2) he clearly observed that

the Expedition had after-market, clear-lensed taillights; (3) in

his    experience,      he    had    encountered           non-approved,            after-market

taillights “[m]any, many, times”; and (4) he had written “many,

many tickets for unapproved taillight covers that weren’t . . .

approved.”       (J.A. 35).

       Before initiating the stop, Trooper Miller confirmed with

another    Virginia       State      Trooper      that      the    clear       lenses    on    the

Expedition’s taillights probably did not comply with Virginia

law.    After receiving this confirmation, Trooper Miller stopped

the    Expedition.           As     Trooper       Miller        executed       the     stop,    he

observed that the Expedition’s taillights emitted red light.

       After the stop, Trooper Miller inspected the Expedition’s

taillights.          He      noticed        the    lenses         on    the         Expedition’s

taillights       were     clear,      but      that       the   taillights’          bulbs     and

reflectors were red.               He also noticed that the taillights were

stamped with markings indicating they may have been of a type

approved by the Superintendent.

       Upon noticing only one key on McHugh’s key chain and the

presence    of    air     fresheners        and       a   CB    radio     in    the     vehicle,

circumstances he believed were indicative of drug trafficking,

Trooper    Miller       asked      for   and    received         consent       to    search    the

vehicle.      During         the    search,       Trooper        Miller    discovered          and



                                            - 5 -
seized approximately six kilograms of crack cocaine, one-half

pound of marijuana, and approximately 100 oxycodone pills.

       On February 20, 2008, a federal grand jury sitting in the

Eastern      District        of    Virginia         returned     a   two-count        indictment

against       McHugh.             In       Count     One,     McHugh     was    charged       with

conspiracy to distribute five kilograms or more of crack cocaine

and oxycodone, 21 U.S.C. § 846.                        Count Two charged McHugh with

possession with intent to distribute five kilograms or more of

crack cocaine and oxycodone, 21 U.S.C. § 841.

       McHugh    moved        to       suppress       the     evidence       seized    from    the

Expedition, contending that there was no reasonable suspicion to

support the stop.             In response, the government posited that the

stop    was     justified,             principally         because     Trooper       Miller   had

reasonable suspicion to believe that the clear lenses on the

taillights violated § 46.2-1013, because they were: (1) clear

and    (2)     not     of     a        type        approved    by      the     Superintendent.

Initially, the district court denied the motion.                                However, upon

McHugh’s motion for reconsideration, the district court granted

the motion.

       The    district       court          began    its    analysis     by    noting    that   a

suspicion       “based       on        a    mistaken        belief     does    not     make    the

suspicion (or the stop that it motivated) unreasonable, provided

that the error was a reasonable mistake of fact.”                                     (J.A. 83).

In    contrast    to     a    mistake          of    fact,     the     district      court    next

                                                   - 6 -
observed that “a mistake of law cannot justify a stop, even if

the mistake was reasonable.”               (J.A. 83).         Turning to the issue

of whether the case involved a mistake of fact or a mistake of

law,    the    district       court    concluded      that    it    was    one    of    law

because,      while     Trooper       Miller    correctly     perceived       that      the

taillights on the Expedition had clear lenses, he incorrectly

believed      that     such    clear     lenses      violated      Virginia      law,    as

“section 46.2-1013 does not prohibit motor vehicles from being

equipped with taillights whose lenses are clear.”                           (J.A. 94).

In view of this perceived mistake of law, the district court

concluded      that    Trooper       Miller    did    not    have    an    articulable,

reasonable      suspicion        that     the      Expedition,        as    configured,

violated Virginia law.



                                           II

       This court reviews the district court’s factual findings

underlying      a     motion    to     suppress      for    clear    error,      and    the

district court’s legal determinations de novo.                       United States v.

Grossman, 400 F.3d 212, 216 (4th Cir. 2005).                       The decisive issue

in this case is whether the stop of the Expedition was supported

by     reasonable      suspicion       under    the    Fourth       Amendment.          The

validity of McHugh’s consent is not at issue.

       The    Fourth    Amendment       protects      citizens      from   unreasonable

searches and seizures by the government, and its protections

                                          - 7 -
extend    to    brief           investigatory       stops     that        fall     short    of

traditional arrest.              United States v. Arvizu, 534 U.S. 266, 273

(2002).     In the context of investigatory detentions, the Supreme

Court has held that, consistent with the Fourth Amendment, a

police officer may conduct an investigatory stop if the officer

has a reasonable suspicion that criminal activity may be afoot.

Terry v. Ohio, 392 U.S. 1, 31 (1968).                         Such an investigatory

stop must be based on “at least a minimal level of objective

justification” but the standard for reasonable suspicion is less

demanding than for probable cause.                      Illinois v. Wardlow, 528

U.S. 119, 123 (2000).

     In assessing whether an officer had a reasonable suspicion

of criminal activity, this court must consider the totality of

the circumstances surrounding the seizure.                           United States v.

Sprinkle,      106       F.3d    613,     618   (4th   Cir.    1997).            “Reasonable

suspicion      is    a    commonsensical          proposition.            Courts    are    not

remiss in crediting the practical experience of officers who

observe   on    a    daily        basis    what     transpires       on    the     streets.”

United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993).

     To establish reasonable articulable suspicion, an officer

must be able to articulate something more than an inchoate and

unparticularized suspicion or hunch.                   United States v. Sokolow,

490 U.S. 1, 7 (1989).              However, reasonable articulable suspicion

may be established by a series of acts, each of them perhaps

                                            - 8 -
innocent       when    viewed      separately,      but   when    viewed    in    the

aggregate       by     a    trained      police     officer      warrant    further

investigation.         Id. at 9-10.         In assessing whether reasonable

suspicion      existed,     the    facts,    whether      seemingly    innocent     or

obviously incriminating, are to “be assessed in light of their

effect on the respective officer’s perception of the situation

at hand.”       United States v. McCoy, 513 F.3d 405, 414 (4th Cir.

2008).      Even when each fact alone may be susceptible of an

innocent explanation, “the question is whether taken together,

they are sufficient to form a particularized and objective basis

for an officer’s suspicions.”               United States v. Black, 525 F.3d

359,    365-66       (4th   Cir.    2008)   (internal      quotation     marks    and

alteration omitted).

       Under    the    totality     of   the     circumstances    in     this    case,

Trooper Miller had an articulable, reasonable suspicion that the

Expedition,      as     configured,      violated    Virginia     law.      Trooper

Miller stopped the Expedition because he reasonably believed the

after-market, clear-lensed taillights may not have been of a

type approved by the Superintendent.                This reasonable belief was

based on the following objective facts: (1) the lenses on the

taillights were clear; (2) Trooper Miller knew 1997 Expeditions

came stock with red-lensed taillights; (3) Trooper Miller had

encountered non-approved, after-market taillights “[m]any, many,

times”; and (4) Trooper Miller had written “many, many tickets

                                         - 9 -
for unapproved taillight covers that weren’t . . . approved.”

(J.A.      35).    Because   Trooper   Miller   pointed     to    specific   and

articulable facts which, taken together with rational inferences

from       those   facts,    evince    more     than   an        inchoate    and

unparticularized suspicion or hunch of criminal activity (i.e.,

a violation of § 46.2-1013), the Fourth Amendment’s reasonable

suspicion requirement for a brief investigatory stop under Terry

was satisfied in this case. 2

       The flaw in the district court’s analysis is evident.                  It

concluded that a mistake of law was present because § 46.2-1013

does not prohibit clear lenses on taillights. 3             While it is true

       2
       Although McHugh acknowledges that the Expedition, despite
being registered out of state, was subject to § 46.2-1013, he
argues that the statute is not enforceable against him because
it does not have a corresponding implementing regulation.
According to McHugh, 19 Virginia Administrative Code § 30-70-
150, which specifies the Superintendent’s taillight requirements
(including that approved taillights must have certain approval
markings), does not operate as the standard by which taillights
on every vehicle in Virginia are to be measured for compliance
with § 46.2-1013. We reject this argument for the simple reason
that § 46.2-1013 specifies that every motor vehicle must have
taillights of a type approved by the Superintendent. Moreover,
the fact that the standards set forth by the Superintendent in
§ 30-70-150 supply the standards to be applied by designated
state vehicle inspectors does not prevent them from serving as
the standards for the types of taillights approved by the
Superintendent.    Indeed, § 30-70-150 clearly sets forth the
types of taillights approved by the Superintendent.
       3
        For purposes of our discussion, we assume, without
deciding, that an officer’s reasonable mistake of law may not
provide the objective grounds for reasonable suspicion to
justify a traffic stop.


                                   - 10 -
that       §   46.2-1013    does    not      in   explicit   terms    prohibit       clear

lenses on taillights, the district court’s analysis overlooks a

critical component of § 46.2-1013--that the taillights “shall be

of a type approved by the Superintendent.”                      Here, Trooper Miller

had an articulable, reasonable suspicion to believe that the

clear lenses on the Expedition’s taillights were not of a type

approved by the Superintendent.                   While he may have been mistaken

in believing that the clear lenses on the taillights were not of

a   type       approved    by   the    Superintendent,          he   clearly    was    not

mistaken        in   his   belief     that    Virginia    law    required      the   clear

lenses to be of a type so approved.                      Thus, any mistake on the

part of Trooper Miller involved one of fact, not law.                                 Put

another way, under the facts before him, it was reasonable for

Trooper Miller to believe that a § 46.2-1013 traffic violation

may have been committed and, therefore, the stop was objectively

reasonable. 4


       4
       At oral argument, McHugh heavily relied on our en banc
decision in United States v. Wilson, 205 F.3d 720 (4th Cir.
2000) (en banc).    In Wilson, the defendant was pulled over
solely because the officer could not read the handwritten
expiration date on the vehicle’s temporary license tag. Id. at
723-24. We concluded that an “objective assessment of the facts
and circumstances of this stop compels the conclusion that the
officer lacked any articulable, reasonable suspicion that a
violation had occurred.”   Id. at 724.    In so concluding, we
noted that the officer “saw nothing wrong, and he suspected
nothing.”   Id.   In contrast to Wilson, objective facts were
before Trooper Miller in this case that gave rise to a
reasonable suspicion that a violation of § 46.2-1013 had
(Continued)
                                          - 11 -
                                     III

     For the reasons stated herein, the judgment of the district

court    is   vacated   and   the     case   is   remanded    for   further

proceedings. 5

                                                     VACATED AND REMANDED




occurred.     For   this   reason,    McHugh’s    reliance   on   Wilson   is
misplaced.
     5
        In view of our conclusion that reasonable suspicion
justified Trooper Miller’s stop of the Expedition, we need not
consider the government’s alternative argument that the stop was
justified under the good faith exception to the exclusionary
rule.   In addition, on August 20, 2009, the government filed a
motion to expedite oral argument.     We dismiss this motion as
moot.



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