                            IN THE
             ARIZONA COURT OF APPEALS
                         DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                               v.

                      KYLE ANDREW STOLL,
                           Appellant.

                     No. 2 CA-CR 2015-0280
                      Filed May 23, 2016

        Appeal from the Superior Court in Cochise County
                        No. CR201300537
           The Honorable James L. Conlogue, Judge

                 VACATED AND REMANDED


                           COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee

Thomas C. Holz, Bisbee
Counsel for Appellant
                          STATE v. STOLL
                         Opinion of the Court



                              OPINION

Judge Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Chief Judge Eckerstrom concurred.


M I L L E R, Judge:

¶1           Kyle Stoll was convicted of aggravated driving under
the influence with a blood alcohol concentration of .08 or more while
his license was suspended, canceled, or revoked, and sentenced to
four months’ imprisonment followed by five years of supervised
probation. He argues the trial court erred in denying his motion to
suppress evidence obtained during the traffic stop, which was
initiated because the light illuminating the license plate emitted
white light visible from the rear of the vehicle. We conclude the
officer misinterpreted the relevant statutes and the mistake of law
was not objectively reasonable; therefore, the stop was not based on
reasonable suspicion and the motion to suppress should have been
granted. We vacate the conviction and sentence, and we remand for
further proceedings.

                Factual and Procedural Background

¶2           In reviewing a trial court’s ruling on a motion to
suppress, we consider only the evidence presented at the
suppression hearing and view it in the light most favorable to
sustaining the trial court’s ruling. See State v. Moreno, 236 Ariz. 347,
¶ 2, 340 P.3d 426, 428 (App. 2014). One evening in January 2013, two
Cochise County sheriff’s deputies were in a convenience store when
they smelled the odor of burnt marijuana in the proximity of two
men, later identified as Stoll and his friend. When the two men left
the store and began to drive away in an SUV, the deputies followed
and stopped the SUV one or two blocks away. The deputies
observed white light from the lamp illuminating the license plate. It
was a standard lamp, properly functioning, and operated in the
usual manner. Nothing in the record indicates Stoll was issued a


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                        Opinion of the Court

traffic citation. At the suppression hearing, however, the deputies
testified they believed white light visible from a vehicle moving
forward violated A.R.S. § 28-931(C).1

¶3           During the stop, the deputies detected the odor of
alcohol, and observed that Stoll had bloodshot watery eyes and a
flushed face. A horizontal gaze nystagmus test suggested the
presence of alcohol in his system, and a breathalyzer test measured
his alcohol concentration at .165. The deputies arrested him.

¶4            Stoll moved to suppress the evidence seized during the
stop, arguing that the deputies’ belief about white light from a
license plate light was not supported by any statute. The state
contended the stop was supported by reasonable suspicion because
the SUV’s license plate lamp, though functioning properly and
apparently as designed, did not have an opaque casing entirely
shrouding its back, and thus emitted some white light to the rear of
the vehicle. After taking the matter under advisement, the trial
court granted Stoll’s motion to suppress. Its ruling that the license
plate light did not violate Title 28 was based on specific facts:

            There was no evidence that the [license
            plate] light created any public safety or

      1  The state advanced two other possible grounds for
reasonable suspicion at the suppression hearing, but they are not at
issue here. First, the state noted that at the convenience store, the
deputies had plainly smelled burnt marijuana in close proximity to
the SUV’s two occupants. However, the trial court rejected this as a
basis for reasonable suspicion, finding “the odor of burnt marijuana
emanating from the area where Defendant and another person were
standing, prior to driving, did not justify the later stop of
Defendant’s vehicle.” The state does not challenge this ruling on
appeal. Second, the SUV had slightly oversized after-market rear
tires, but no mud flaps; at the time of the stop the deputies believed
this was a violation of A.R.S. § 28-958.01. However, at the
suppression hearing, both deputies conceded there was in fact no
mud flap violation because the vehicle was an SUV and not a lifted
pickup truck. See § 28-958.01(C)(1).


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                        Opinion of the Court

            community welfare concern. There was no
            evidence that the lamp obstructed the
            vision of other drivers or that other drivers
            might confuse the license lamp with a head
            light or backup light. The white lamp was
            simply “visible” from the rear of
            Defendant’s vehicle.

¶5            In December 2014, shortly after the United States
Supreme Court issued its decision in Heien v. North Carolina, ___ U.S.
___, 135 S. Ct. 530 (2014), the state moved for reconsideration of the
suppression ruling, arguing the deputies made a reasonable mistake
of law in interpreting § 28-931(C) when they concluded Stoll’s
license plate lamp violated state law. Stoll contended the statute
clearly and unambiguously compels a conclusion that the lamp was
not in violation, and the deputies’ interpretation of the statute was
not objectively reasonable. At the hearing on the motion for
reconsideration, a patrol commander from the sheriff’s department
testified that the department had trained deputies for years that any
rear-facing white light on a vehicle other than a backup lamp
violated § 28-931(C). The trial court granted the state’s motion to
reconsider, vacating its earlier suppression order. The court found
“the Officer was objectively reasonable in applying the laws [as] he
believed [them] to be at the time, particularly given his training in
the Department.”

¶6            Stoll filed a motion to reconsider the new ruling, which
the trial court denied. A bench trial followed, and Stoll now appeals
the resulting conviction and sentence. Our jurisdiction is pursuant
to A.R.S. §§ 13-4031 and 13-4033(A).

      Whether the License Plate Light Violated Arizona Law

¶7           Although the trial court did not vary from its initial
ruling that Stoll’s license plate lamp did not violate Title 28, we
address that conclusion because if we determine an Arizona statute
prohibits a license plate lamp from emitting any white light to the
rear, then the officer had reasonable suspicion to investigate a
violation of such statute in this case. See, e.g., State v. Teagle, 217
Ariz. 17, ¶ 25, 170 P.3d 266, 272-73 (App. 2007) (defining reasonable


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                         Opinion of the Court

suspicion). We review issues of statutory interpretation de novo.
Dobson v. McClennen, 238 Ariz. 389, ¶ 7, 361 P.3d 374, 376 (2015).
When interpreting a statute, our chief duty is to determine and
effectuate the legislature’s intent. See Glazer v. State, 237 Ariz. 160,
¶ 12, 347 P.3d 1141, 1144 (2015). “If the statute is subject to only one
reasonable interpretation, we apply it without further analysis.” Id.
However, if it is ambiguous, we may consider other factors such as
“‘the context of the statute, the language used, the subject matter, its
historical background, its effects and consequences, and its spirit
and purpose.’” Id., quoting Wyatt v. Wehmueller, 167 Ariz. 281, 284,
806 P.2d 870, 873 (1991).

¶8            Arizona law requires that a lamp, either separate or
incorporated in the tail light, be placed on a vehicle “in a manner
that illuminates with a white light the rear license plate and renders
it clearly legible from a distance of fifty feet to the rear.” A.R.S.
§ 28-925(C). The Arizona Revised Statutes also provide:

             All lighting devices and reflectors mounted
             on the rear of any vehicle shall display or
             reflect a red color, except that:

             1. The stoplight or other signal device may
                be red, amber, or yellow. . . .

             2. The light illuminating the license plate
                or the light emitted by a backup lamp
                shall be white.

§ 28-931(C). Simply stated, § 28-931(C)(2) requires only that the
license plate lamp and backup lamp shall cast white light as
opposed to red.

¶9           Our reading of § 28-931(C) is in accord with State v.
Patterson, in which the Court of Appeals of Idaho examined a
materially identical statute to determine legislative intent. 97 P.3d
479, 482 (Idaho Ct. App. 2004). The Idaho statute provided:

             All lighting devices and reflectors mounted
             on the rear of any vehicle shall display or
             reflect a red color, except the stoplight or

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                         Opinion of the Court

             other signal device, which may be red,
             amber, or yellow, and except that the light
             illuminating the license plate shall be white
             and the light emitted by a back-up lamp
             may be white, amber, or red.

Id., quoting Idaho Code § 49-910. The Idaho court observed the
statutory language was “plain and unambiguous” that the purpose
of the section pertained to the color of rear-facing lamps. Id.; accord
Williams v. State, 853 P.2d 537, 538 (Alaska Ct. App. 1993) (similar
statute requires that taillights emit only red light). We recognize
that in Patterson and Williams the drivers were stopped because
broken taillights emitted white light as well as red, but the
respective discussions do not provide any support for the state’s
general contention that the purpose of such a statute is to regulate
the direction of light as opposed to the color of lamps.

¶10          There is no dispute that the license plate lamp on Stoll’s
SUV illuminated the license plate with a white light. Because this
lamp fell within an express exception in § 28-931(C)(2), there was no
legally correct basis for the deputy to investigate a violation of § 28-
931(C). The trial court correctly decided this issue in its original
suppression order.

¶11          Having concluded Stoll’s license plate lamp did not
violate § 28-931(C), we briefly consider whether it violated any
related statute. We first note the factual findings the trial court
made in its original suppression order—findings unaffected by the
court’s later decision to reconsider the suppression order on
unrelated legal grounds. The court found Stoll’s license plate lamp
was functioning properly, and that it rendered the license plate
visible from the rear of the vehicle as required by § 28-925(C). The
court further found “[t]here was no evidence that the light created
any public safety or community welfare concern,” “no evidence that
the lamp obstructed the vision of other drivers,” and no evidence
“that other drivers might confuse the license lamp with a head light
or backup light.” We defer to these factual findings because they are
supported by reasonable evidence and are not clearly erroneous. See
State v. Moore, 222 Ariz. 1, ¶ 17, 213 P.3d 150, 156 (2009).



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                         Opinion of the Court

¶12           We emphasize, therefore, that this is not a case in which
the license plate lamp was missing or was not operating. See, e.g.,
State v. Kjolsrud, Nos. 2 CA-CR 2015-0230, 2 CA-CR 2015-0231, ¶¶ 2,
11 (consolidated), 2016 WL 1085229 (Ariz. Ct. App. Mar. 18, 2016)
(unilluminated license plate is proper basis for traffic stop under
A.R.S. § 28-925(C)); see also State v. Womack, 174 Ariz. 108, 116, 847
P.2d 609, 617 (App. 1992) (Lankford, J., dissenting) (“Defendant does
not contest that the officer was entitled to stop defendant’s vehicle
because of the missing or inoperable tail light.”), citing § 28-925.
This is not a case in which the light emitted by the license plate lamp
caused a glare that made the license plate illegible. See § 28-925(C).
Nor is it a case in which the lamp was operating in such a way as to
“give[] rise to the risk of dangerous confusion with a back-up lamp.”
See Williams v. State, 28 N.E.3d 293, ¶ 8 (Ind. Ct. App. 2015)
(“obvious safety issues” arose where one tail lamp displayed red
light and other was broken and displayed mostly white light; it was
difficult to tell if car was in drive or reverse); see also A.R.S. § 28-
940(3) (allowing vehicle to have “[n]ot more than two backup
lamps,” which are “not [to] be lighted when the motor vehicle is in
forward motion”); § 28-931(C)(2) (light emitted by backup lamp
shall be white). And it is also not a case in which the defendant’s
vehicle was generally “in an unsafe condition that endangers a
person.” A.R.S. § 28-921(A)(1)(a); cf. United States v. Harris, No.
3:13CR17/MCR, 2013 WL 3339055, at *7 (N.D. Fla. July 2, 2013) (no
reasonable suspicion of violation of unsafe-condition statute where
no evidence suggested white light emitted from cracked taillight
actually impaired officer’s vision or created safety hazard). In short,
we agree with Stoll that his license plate lamp was in compliance
with all relevant Arizona law. No Arizona statute prohibits a license
plate lamp from emitting some white light to the rear of a vehicle,
without more. Therefore, the deputy did not articulate a legally
correct statutory basis to investigate Stoll’s vehicle.

     Whether the Deputies’ Mistake of Law Was Reasonable

¶13          The state maintains that even if Stoll’s license plate
lamp did not violate § 28-931, the traffic stop nevertheless was
constitutional because the deputies reasonably believed the lamp
violated the statute. We review the trial court’s ruling on a motion


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                         Opinion of the Court

to suppress, and on a motion for reconsideration, for an abuse of
discretion. State v. King, 180 Ariz. 268, 279, 883 P.2d 1024, 1035
(1994) (motion for reconsideration); State v. Sanchez, 200 Ariz. 163,
¶ 5, 24 P.3d 610, 612 (App. 2001) (motion to suppress). An error of
law is an abuse of discretion. See State v. Bernini, 222 Ariz. 607, ¶ 14,
218 P.3d 1064, 1069 (App. 2009).

¶14          The Fourth Amendment forbids “unreasonable searches
and seizures.” U.S. Const. amend. IV. The protection extends to a
brief investigatory stop of a person or vehicle, which is
constitutional at its inception only if supported by “an articulable,
reasonable suspicion . . . that the suspect is involved in criminal
activity.” Teagle, 217 Ariz. 17, ¶ 20, 170 P.3d at 271-72.

¶15           In Heien v. North Carolina, the United States Supreme
Court held reasonable suspicion supporting a traffic stop can rest
upon a reasonable mistake of law. ___ U.S. at ___, 135 S. Ct. at 536.
If a law enforcement officer makes a stop based on a reasonable
mistake of law, “there [is] no violation of the Fourth Amendment in
the first place.” Id. at ___, 135 S. Ct. at 539. The Court emphasized,
however, that “[t]he Fourth Amendment tolerates only reasonable
mistakes” of law, and “those mistakes . . . must be objectively
reasonable.” Id.; accord Moreno, 236 Ariz. 347, ¶ 10, 340 P.3d at
430-31. Our inquiry is exclusively objective—the court will not
examine “the subjective understanding of the particular officer
involved.” Heien, ___ U.S. at ___, 135 S. Ct. at 539. If the statute the
officer interpreted mistakenly “is genuinely ambiguous, such that
overturning the officer’s judgment requires hard interpretive work,
then the officer has made a reasonable mistake. But if not, not.” Id.
at ___, 135 S. Ct. at 541 (Kagan, J., concurring).

¶16           The state argues a reasonable officer could have
believed Stoll’s license plate lamp violated § 28-931(C) because its
chrome housing did not cover the whole rear side of the translucent
lens, thus allowing some direct white light to be visible at the rear of
the vehicle. The state’s argument focuses on the different words the
legislature used to describe the two white lights permitted on the
rear of a vehicle: “[t]he light illuminating the license plate” and “the




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                         Opinion of the Court

light emitted by a backup lamp.”2 § 28-931(C)(2) (emphasis added).
The state urges that a reasonable reader could conclude the phrase
“the light illuminating the license plate” refers to the visible light
shining on the license plate from the license plate lamp, rather than
the license plate lamp itself. Under this reading, any white light the
license plate lamp “emit[s],” or sends out, that does anything other
than “illuminat[e] the license plate,” is in violation of § 28-931(C)’s
general rule that rear-mounted lighting devices shall display or
reflect a red color. The implication is that white light shining from
the license plate lamp directly to the rear is in violation, whereas
white light reflected off of the license plate before shining to the rear
is not.

¶17           The state’s interpretation distinguishing direct light
from reflected light lacks a textual basis. In fact, by its terms, § 28-
931(C) regulates the color of rear lamps without regard to whether
their light is “display[ed] or reflect[ed].” The statute only regulates
the color of rear-facing lights and we decline the state’s implicit
request to add words to it. See Arpaio v. Steinle, 201 Ariz. 353, ¶ 1, 35
P.3d 114, 115 (App. 2001).

¶18          In addition, the state offers no basis to distinguish white
light illuminating the license plate from white light the lamp emits
toward the front of the vehicle that does not happen to fall on the
license plate itself. Under the state’s reading, unless a vehicle’s
license plate lamp is shielded with such precision as to emit white
light only onto the license plate itself and nowhere else—not even
elsewhere on the rear of the vehicle—the lamp does not comply with
§ 28-931(C). The state provides no authority for this reading other
than the deputies’ own interpretation.             Furthermore, “that
possibility proves too much.” United States v. Flores, 798 F.3d 645,

      2The  trial court never departed from its initial conclusion that
§ 28-931(C)(2) regulates lamp color rather than light direction. On
reconsideration, however, the court stated that “one could say that
the statute is ambiguous because there are two different terms used;
one is illuminating, one is emitting.” The court reasoned that the
ambiguity and the incorrect training meant that the deputies’
mistake of law had been objectively reasonable under Heien.


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                          STATE v. STOLL
                         Opinion of the Court

649-50 (7th Cir. 2015). It would follow that virtually every vehicle
on our streets is in violation of § 28-931(C) and could be stopped any
time it is dark outside. Cf. Flores, 798 F.3d at 649-50 (suspicion based
on interpretation of license plate frame statute that “would justify
stopping any of the vast number of cars driven lawfully but affixing
plates with the ubiquitous frames like the one in this case” held not
reasonable). We must avoid a construction of § 28-931(C) that leads
to an absurd result. See State v. Estrada, 201 Ariz. 247, ¶ 16, 34 P.3d
356, 360 (2001) (“[W]e interpret and apply statutory language in a
way that will avoid an untenable or irrational result.”).

¶19          The state further argues the deputies’ reading is
reasonable because other drivers could confuse a license plate lamp
emitting white light directly to the rear for an illuminated backup
lamp, creating a risk that they might incorrectly conclude the vehicle
is in reverse. See § 28-940(3) (“[A] backup lamp shall not be lighted
when the motor vehicle is in forward motion.”); see also § 28-
931(C)(2) (backup lamp and license plate light both white). This
construction effectively prohibits any white light shining directly to
rear while the vehicle is moving forward. However, § 28-931(C) is to
the contrary because it exempts the license plate lamp from the
general injunction that rear-mounted lighting devices shall be red.
No alternative reading is reasonable.3 Cf. Harris, 2013 WL 3339055,


      3 Even  assuming for the sake of argument that § 28-931 is
ambiguous, as the state contends, the section’s title assists us in
resolving the ambiguity. See Florez v. Sargeant, 185 Ariz. 521, 524,
917 P.2d 250, 253 (1996) (statutory section headings, though not law,
can help resolve ambiguities). Section 28-931 is entitled “Lamp
colors.” The statute regulates the color of lamps, not the trajectory
of light emitted by particular lamps. See id. To the extent the statute
is ambiguous, resolving the ambiguity does not require the sort of
“hard interpretive work” that would suggest the deputies’ mistake
was reasonable. Heien, ___ U.S. at ___, 135 S. Ct. at 541 (Kagan, J.,
concurring); cf. id. at ___, 135 S. Ct. at 540 (majority opinion) (noting
both majority and dissenting opinions of state supreme court in
Heien agreed statute at issue there could reasonably be read in two
ways).


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                          STATE v. STOLL
                         Opinion of the Court

at *2 (materially identical Florida statute “requires that all rear-
mounted lights display or reflect a red color . . . [not] that there be no
emission of white light”).

¶20           We agree with the Seventh Circuit’s reasoning that
“Heien does not support the proposition that a police officer acts in
an objectively reasonable manner by misinterpreting an unambiguous
statute.” United States v. Stanbridge, 813 F.3d 1032, 1037 (7th Cir.
2016); compare United States v. Alvarado-Zarza, 782 F.3d 246, 249-50
(5th Cir. 2015) (mistake of law not objectively reasonable where
statute is “unambiguous” and “facially gives no support” to officer’s
interpretation), with Heien, ___ U.S. at ___, 135 S. Ct. at 540 (mistake
of law objectively reasonable where ambiguous statutory language,
not yet interpreted by courts, fairly allowed two different readings).
Nor does the testimony of the patrol commander at the hearing on
the motion for reconsideration regarding officer training affect our
analysis. As Justice Kagan noted in Heien, “an officer’s reliance on
‘an incorrect memo or training program from the police department’
makes no difference” for purposes of our strictly objective inquiry.
___ U.S. at ___, 135 S. Ct. at 541 (Kagan, J., concurring), quoting State
v. Heien, 737 S.E.2d 351, 360 (N.C. 2012) (Hudson, J., dissenting);
accord id. at ___, 135 S. Ct. at 539-40 (majority opinion). Put another
way, the fact that the department had trained its officers in a way
that permitted a misreading of § 28-931 does not make that
misreading objectively reasonable. See Stanbridge, 813 F.3d at 1037;
see also Heien, ___ U.S. at ___, 135 S. Ct. at 539-40 (“[A]n officer can
gain no Fourth Amendment advantage through a sloppy study of
the laws he is duty-bound to enforce.”). Accordingly, we conclude
the trial court erred in finding the officer’s interpretation of the
statute objectively reasonable under Heien.4




      4 Because we agree with Stoll’s argument under the Fourth
Amendment of the United States Constitution, we need not address
his alternative argument invoking Article II, § 8 of the Arizona
Constitution.


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                      Opinion of the Court

                           Disposition

¶21         We vacate Stoll’s conviction and sentence, reverse the
grant of the state’s motion for reconsideration, and remand for
further proceedings consistent with this decision.




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