#27450-r-SLZ

2016 S.D. 58

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                   ****
STATE OF SOUTH DAKOTA,                    Plaintiff and Appellant,

      v.

APOLINAR LERMA,                           Defendant and Appellee.


                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                   ****

                     THE HONORABLE JOSEPH NEILES
                                Judge

                                   ****

MARTY J. JACKLEY
Attorney General

JARED TIDEMANN
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellant.


JASON R. ADAMS of
Tschetter & Adams Law Office, PC
Sioux Falls, South Dakota                 Attorneys for defendant
                                          and appellee.

                                   ****
                                          CONSIDERED ON BRIEFS
                                          ON FEBRUARY 16, 2016
                                          REASSIGNED
                                          ON JULY 6, 2016
                                          OPINION FILED 08/17/16
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ZINTER, Justice (on reassignment).

[¶1.]        A police officer initiated an investigatory stop of a vehicle because the

vehicle’s left brake light was not working. The stop led to the arrest of the driver

for driving under the influence of alcohol. The driver moved to suppress evidence

obtained during the stop. He argued that the officer did not have reasonable

suspicion to initiate the stop because the broken brake light did not constitute a

violation of law. In the driver’s view, there was no violation of law because the

relevant statute only required two working brake lights and his vehicle’s right and

top-center brake lights were working. The circuit court agreed. The court also

ruled that the officer’s belief—that South Dakota law required a working left and

right brake light—was objectively unreasonable. The court granted the driver’s

motion to suppress. We reverse and remand.

                            Facts and Procedural History

[¶2.]        On April 29, 2014, Sioux Falls Police Officer Brian Wassenaar initiated

a traffic stop of Apolinar Lerma’s vehicle because the left brake light did not

illuminate when Lerma stopped at a stop sign. Lerma’s 2004 Hyundai Sonata was

equipped with three rear brake lights—one light on each side and one center light

mounted above the vehicle’s trunk behind the back windshield. Although the left

brake light did not illuminate, the right and center brake lights were operating

properly.

[¶3.]        After stopping the vehicle, Officer Wassenaar observed indicia of

alcohol consumption, and he suspected that Lerma was driving under the influence.

Lerma performed field sobriety tests, including a preliminary breath test that


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indicated his blood alcohol content was 0.182 percent. He was arrested for driving

under the influence.

[¶4.]        Lerma moved to suppress the evidence obtained during the stop. He

argued that the stop violated his Fourth Amendment right to be free from

unreasonable seizures because the officer did not have probable cause or reasonable

suspicion that Lerma violated the law. More specifically, Lerma contended that

SDCL 32-17-8.1 requires only two working brake lights and that his right and

center brake lights were working properly. Officer Wassenaar testified at the

suppression hearing that he believed South Dakota law required all brake lights

equipped on a vehicle to be operational, and additionally, that the inoperative left

brake light posed a safety hazard to other vehicles. Lerma, however, argued that

the officer’s belief regarding the brake light law was mistaken.

[¶5.]        The circuit court interpreted SDCL 32-17-8.1 to require only a total of

two working brake lights. Because Lerma’s vehicle had two working brake lights,

the court suppressed the evidence gathered during the stop, concluding that the

officer did not have probable cause or reasonable suspicion for the stop. The day

after the circuit court issued its decision, the United States Supreme Court decided

Heien v. North Carolina, ___ U.S. ___, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014). In

Heien, a police officer initiated a traffic stop on the mistaken belief that a similar

North Carolina law required working left and right brake lights. The Supreme

Court upheld the seizure, concluding that the officer’s mistaken belief was

objectively reasonable. Id. at ___, 135 S. Ct. at 540. The State moved the circuit

court to reconsider in light of Heien. The circuit court denied the State’s motion,


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ruling that it was objectively unreasonable for the officer to believe that Lerma’s

nonworking brake light constituted a violation of law.

[¶6.]        We granted the State’s petition for intermediate appeal. On appeal,

the State argues that the nonworking brake light constituted a violation of SDCL

32-17-8.1. Alternatively, the State argues that if there was no brake-light violation,

the officer had reasonable suspicion for the stop because he reasonably believed that

operating a vehicle with a nonworking brake light was a violation of SDCL 32-17-

8.1. Whether the officer had reasonable suspicion to initiate the traffic stop is a

question of law we review de novo. Webb v. S.D. Dep’t of Commerce & Regulation,

2004 S.D. 63, ¶ 6, 680 N.W.2d 661, 663.

                                       Decision

[¶7.]        We agree with the circuit court that SDCL 32-17-8.1 only requires two

working brake lights. SDCL 32-17-8.1 provides in relevant part:

             [E]very motor vehicle, trailer, semitrailer, and pole trailer shall
             be equipped with two or more stop lamps . . . . The stop lamp
             shall be mounted on the rear of the vehicle at a height of no
             more than seventy inches nor less than fifteen inches. The stop
             lamp shall display a red light visible from a distance of not less
             than three hundred feet to the rear in normal sunlight, except
             for a moped, which distance shall be not less than one hundred
             fifty feet. The stop lamp shall be actuated upon application of
             the service (foot) brake which may be incorporated with one or
             more rear lamps. A violation of this section is a petty offense.

(Emphasis added.) Although there are four brake-light requirements in this

statute, it only requires a vehicle to be equipped with two brake lights. Therefore,

the most reasonable interpretation is that the Legislature intended the display and

actuation requirements to apply only to the two required brake lights.



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[¶8.]         Until today, however, an officer in Officer Wassenaar’s position could

have reasonably read this statute as requiring all originally equipped brake lights

to be operational. After all, the Legislature required two brake lights, but it

authorized “more.” See id. Additionally, the statute is confusing in that it

enumerates four brake-light requirements in a single provision, but it references

some of the requirements in the plural and some in the singular. Therefore, it is not

clear whether the Legislature intended the display and actuation requirements to

apply only to the statutory minimum (“two”) or to all it authorized (“two or more”).

See id. (emphasis added). Because the Legislature authorized “more” than two

brake lights in the same section that it set out the display and actuation

requirements, one could reasonably conclude that if a vehicle is equipped with

brake lights, however many, the equipped brake lights “shall display a red light”

and “shall be actuated upon application of the service brake.” See id. Indeed, the

Eighth Circuit Court of Appeals interpreted SDCL 32-17-8.1 this way. United

States v. Martin, 411 F.3d 998, 1001 (8th Cir. 2005) (citing SDCL 32-17-8.1 as

authority for the view that in South Dakota, “all brake lights on a vehicle . . . must

be in good working order”) (emphasis added). 1

[¶9.]         Martin is not the only authority supporting the interpretation that a

nonworking side brake light constitutes a traffic violation. In State v. Anderson, we

specifically held that an inoperative side brake light was an equipment violation



1.      Although Martin involved a vehicle with only two originally equipped brake
        lights, the Eighth Circuit did not state that SDCL 32-17-8.1 only required
        “two” working brake lights. It stated that the statute required “all” brake
        lights to be in good working order. Martin, 411 F.3d at 1001.

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sufficient to justify an investigatory stop. 359 N.W.2d 887, 889-90 (S.D. 1984). In

addition to the statements of law in Anderson and Martin, SDCL 32-21-27 makes it

a misdemeanor to drive a vehicle on a highway “unless the equipment upon the

vehicle is in good working order[.]” A reasonably objective officer is bound by such

unqualified statements of law. Therefore, the unequivocal statements in Martin,

Anderson, and SDCL 32-21-27 must be considered in support of finding it

objectively reasonable for an officer to conclude that a nonworking side brake light

constitutes a traffic violation sufficient to justify an investigatory stop. See State v.

Wright, 2010 S.D. 91, ¶ 16, 791 N.W.2d 791, 797 (noting that “previous judicial

interpretations” are a relevant factor in determining the reasonableness of an

officer’s mistake of law).

[¶10.]       Today, in a case of first impression, we construe a confusing statute.

And our decision—that all originally equipped brake lights need not display red

light and need not be actuated by the brake pedal—is counterintuitive: it will

certainly surprise many people. These factors also weigh in favor of finding that the

officer made a reasonable mistake of law. As the Eighth Circuit held, even if a

judge determines that the “plain language” of a statute technically requires a

particular number of brake lights, a counterintuitive and confusing law may render

an officer’s contrary interpretation reasonable. Martin, 411 F.3d at 1001; see also

Heien, ___ U.S. at ___, 135 S. Ct. at 540 (indicating that a statute that has never

been construed by an appellate court can contribute to finding a mistaken

interpretation reasonable); State v. Houghton, 868 N.W.2d 143, 158 (Wis. 2015)




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(noting that the fact “the statute has never been interpreted before weighs in favor

of” finding a mistake of law reasonable).

[¶11.]         We conclude that it was objectively reasonable for an officer in the

position of Officer Wassenaar to believe that Lerma’s inoperative left brake light

constituted a violation of law. 2 As the Eighth Circuit concluded in applying the

reasonably-objective-officer test to another ambiguous law that spoke to brake-light

requirements in both the singular and plural: “[A] close textual analysis might

explain the use of the plural in the heading and second sentence, while still making

sense of a singular requirement in the first sentence, but we think the level of



2.       The dissent relies on Officer Wassenaar’s understanding and belief regarding
         a specific brake-light statute to support its view that his mistake of law was
         unreasonable. See infra ¶ 15 (citing Wright, 2010 S.D. 91, ¶¶ 13-14, 791
         N.W.2d at 791, for the proposition that the reasonableness of the stop may be
         determined “only upon the law that the officer believed justified the stop”);
         see infra ¶ 19 (citing Wright, 2010 S.D. 91, ¶ 20, 791 N.W.2d at 799, for the
         proposition that the officer’s belief was relevant to establish that he did not
         rely on custom to make the stop). But here, there has never been any claim
         that the mistake was based on custom; and after our decision in Wright, the
         Supreme Court made it clear that Officer Wassenaar’s subjective
         understanding is irrelevant. The question is whether it was objectively
         reasonable for an officer in his position to believe that a nonworking side
         brake light was a violation of law. See Heien, ___ U.S. at ___, 135 S. Ct.
         at 539 (“We do not examine the subjective understanding of the particular
         officer involved.”). The dissent also fails to address the ambiguity created by
         the fact that although SDCL 32-21-8.1 contains four brake-light
         requirements, some are imposed in the singular and some in the plural.
         Finally, the dissent misunderstands the import of Martin, Anderson, and
         SDCL 32-21-27. The point of those authorities is that in addition to the
         ambiguity of SDCL 32-17-8.1, each authority provided “a basis in state law”
         for the officer’s action. See Wright, 2010 S.D. 91, ¶ 20, 791 N.W.2d at 799. It
         matters not that there might be some technical argument to distinguish them
         today. The point is that statements of law contained therein are unequivocal
         and they stood unquestioned at the time of the stop. Therefore, each of those
         authorities provided independent bases in state law for an “objective” officer’s
         stop at the time it occurred.

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clarity falls short of that required to declare [the officer’s] belief and actions

objectively unreasonable . . . .” Martin, 411 F.3d at 1001-02. Additionally, both

Anderson and SDCL 32-21-27 provided independent bases for the stop. Because

Officer Wassenaar’s mistake of law was objectively reasonable, he had the suspicion

necessary to render the traffic stop reasonable under the Fourth Amendment. See

Heien, ___ U.S. at ___, 135 S. Ct. at 540.

[¶12.]        Reversed and remanded.

[¶13.]        GILBERTSON, Chief Justice, and KERN, Justice, concur.

[¶14.]        WILBUR and SEVERSON, Justices, concur in part and dissent in

part.



WILBUR, Justice (concurring in part and dissenting in part).

[¶15.]        I agree that SDCL 32-17-8.1 requires only two working stop lamps. I

disagree that the fact the Legislature authorized vehicles to have more than two

stop lamps means it was objectively reasonable for Officer Wassenaar to mistakenly

conclude that “all originally equipped brake lights [need] to be operational.” See

supra Majority Opinion ¶ 8. Officer Wassenaar did not stop Lerma’s vehicle

because he believed Lerma violated SDCL 32-21-27 by failing to have all equipment

on the vehicle in good working order—he stopped Lerma for a violation of SDCL 32-

17-8.1. Under State v. Wright, the interplay between SDCL 32-21-27 and SDCL 32-

17-8.1 would have no bearing on this Court’s examination of Officer Wassenaar’s

objectively reasonable mistake of law. See 2010 S.D. 91, ¶¶ 13-14, 791 N.W.2d 791,

795-96 (examining the basis for the stop only upon the law that the officer believed


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justified the stop and rejecting the circuit court’s analysis beyond that); United

States v. Martin, 411 F.3d 998, 1001 (8th Cir. 2005) (the question is not whether

defendant actually violated the law). So, even if the majority opinion is correct that

State v. Anderson stands for the proposition that a nonfunctioning side brake light

is a violation of SDCL 32-21-27, the determinative question in this case is whether

it was objectively reasonable for Officer Wassenaar to believe Lerma violated SDCL

32-17-8.1. 3 See Anderson, 359 N.W.2d 887 (S.D. 1984).

[¶16.]         According to the Supreme Court, “[t]he Fourth Amendment tolerates

only reasonable mistakes, and those mistakes—whether of fact or of law—must be

objectively reasonable.” Heien v. North Carolina, ___ U.S. ___, ___, 135 S. Ct. 530,

539, 190 L. Ed. 2d 475 (2014). In Heien, the Court also acknowledged the well-

known maxim, “Ignorance of the law is no excuse,” and that it could be “unfair to let

police officers get away with mistakes of law when the citizenry is accorded no such

leeway.” Id. at ____, 135 S. Ct. at 540. “But just because mistakes of law cannot

justify either the imposition or the avoidance of criminal liability, it does not follow

that they cannot justify an investigatory stop.” Id. Therefore, to justify an

investigatory stop, Officer Wassenaar’s mistake of law must be objectively

reasonable.




3.       Anderson is further unsupportive because the issue in Anderson was not
         whether a side brake light is equipment. 359 N.W.2d at 889-90. The issue
         concerned the officer’s reasonable suspicion that Anderson was under the
         influence and the officer’s probable cause to arrest Anderson. In answering
         the question, this Court did not analyze whether a side brake light is
         equipment or whether a nonworking brake light is a violation of SDCL 32-21-
         27. The Court just noted the reasons the officer stopped Anderson.

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[¶17.]         In Wright, we quoted the Eighth Circuit Court of Appeals:

               The concept of an objectively reasonable mistake of law cannot
               be . . . unmoored from actual legal authority. Where there is a
               basis in state law for an officer’s action and some ambiguity or
               state custom that caused the officer to make the mistake, it may
               be objectively reasonable. However, in the absence of such
               evidence, officers cannot act upon misunderstandings of clear
               statutes or, worse yet, their own notions of what the law ought
               to be. Officers have broad authority to stop vehicles for any
               traffic violation, regardless of how minor, but they must have a
               legal justification for the stop that is grounded in the state’s law.

2010 S.D. 91, ¶ 17, 791 N.W.2d at 798 (quoting United States v. Washington,

455 F.3d 824, 828 (8th Cir. 2006)). We also found instructive Martin, 411 F.3d at

1001, for the notion that a “counterintuitive and confusing” code provision can

support a finding that the officer’s mistake of law was objectively reasonable. 4

Wright, 2010 S.D. 91, ¶ 16, 791 N.W.2d at 797.

[¶18.]         Here, there is nothing confusing about SDCL 32-17-8.1. In fact,

neither the majority nor the circuit court engaged in a close textual analysis to

explain the meaning of the statute. See, e.g., Martin, 411 F.3d at 1001. And the

statute does not become counterintuitive simply because “it will certainly surprise

many people.” See supra Majority Opinion ¶ 10. Wright, 2010 S.D. 91, ¶ 20, 791




4.       The Eighth Circuit Court of Appeals referred to SDCL 32-17-8.1 as a
         requirement that “all brake lights on a vehicle . . . must be in good working
         order.” Martin, 411 F.3d at 1001. The court made this statement in regard
         to “brake lights on a vehicle like Martin’s[.]” Id. Martin’s vehicle was
         equipped with two brake lights, not three like Lerma’s. So, contrary to the
         majority opinion’s view of Martin, the Eighth Circuit Court of Appeals did not
         “express[] its statement of law” on whether SDCL 32-17-8.1 requires more
         than two properly functioning brake lights. See supra Majority Opinion ¶ 8
         n.1. In fact, the court did not quote the language of our statute or specifically
         interpret its text.

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N.W.2d at 799 (although the language of a statute may surprise people, a clear and

unambiguous statute is not counterintuitive). A statute is counterintuitive when

the words in the statute do not make sense absent a close textual analysis. See, e.g.,

Martin, 411 F.3d at 1001 (code provision contained “odd reference[s]”); Heien, ___

U.S. at ___, 135 S. Ct. at 540.

[¶19.]       In this case, Officer Wassenaar acted upon a misunderstanding of a

clear statute and, arguably, on his own idea of what the law ought to be. This is not

to say that Officer Wassenaar’s subjective understanding of the law is material.

Rather, Officer Wassenaar’s testimony is relevant in establishing that he relied on

no “state custom that caused [him] to make the mistake[.]” See Wright, 2010 S.D.

91, ¶ 17, 791 N.W.2d at 798 (quoting Washington, 455 F.3d at 828). At the

suppression hearing, Officer Wassenaar admitted that SDCL 32-17-8.1 does not

mandate where the stop lamps be placed on the rear of the vehicle. He testified,

however, that he looks for illuminated brake lights on the left and right rear. He

“know[s] some consider [the center lamp] a stop lamp and others consider it an

auxiliary lamp[.]” He explained that “our department’s head talks about it and

there’s different views on that,” but to Officer Wassenaar, the right and left rear

stop lamps must function properly.

[¶20.]       As the court stated in Martin, “[O]fficers have an obligation to

understand the laws that they are entrusted with enforcing, at least to a level that

is objectively reasonable.” 411 F.3d at 1001. Because Officer Wassenaar acted upon

a mistake concerning a clear and unambiguous statute, Officer Wassenaar’s

mistake of law was not objectively reasonable, and I respectfully dissent.


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[¶21.]   SEVERSON, Justice, joins this special writing.




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