                                                                2014 WI 69

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2011AP2907-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       Antonio D. Brown,
                                 Defendant-Appellant.




                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                                 346 Wis. 2d 98, 827 N.W.2d 903
                                   (Ct. App. 2013 – Published)
                                      PDC No: 2013 WI App 17


OPINION FILED:         July 16, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         January 15, 2014

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Rebecca F. Dallet

JUSTICES:
   CONCURRED:
   DISSENTED:          PROSSER, J., dissents. (Opinion filed.)
                       ROGGENSACK, ZIEGLER, JJ., dissent. (Opinion
                       filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For      the    plaintiff-respondent-petitioner,   the   cause   was
argued by Aaron O’Neil, assistant attorney general, with whom on
the briefs was J.B. Van Hollen, attorney general.




       For the defendant-appellant, there were briefs by Hannah B.
Schieber, assistant state public defender, and oral argument by
Hannah B. Schieber.
      An amicus curiae brief was filed by Ellen Henak and Henak
Law   Office,   S.C.,   Milwaukee,       on   behalf   of   the   Wisconsin
Association of Criminal Defense Lawyers.




                                     2
                                                                     2014 WI 69
                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.       2011AP2907-CR
(L.C. No.   2010CF3318)

STATE OF WISCONSIN                         :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent-Petitioner,
                                                                  FILED
      v.
                                                             JUL 16, 2014
Antonio D. Brown,
                                                                Diane M. Fremgen
            Defendant-Appellant.                             Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.             Affirmed.



      ¶1    ANN WALSH BRADLEY, J. The State of Wisconsin seeks
review of a published decision of the court of appeals1 that

reversed the circuit court's denial of Antonio Brown's motion to

vacate his     conviction and plea   and    to suppress all evidence

seized during a stop of his vehicle.               The court of appeals

determined that the circuit court erred because there was no

probable cause or reasonable suspicion to stop Brown's vehicle.


      1
       State v. Brown, 2013 WI App 17, 346 Wis. 2d 98, 827 N.W.2d
903 (reversing order of the circuit court for Milwaukee County,
Rebecca F. Dallet, J.).
       No.   2011AP2907-CR



Accordingly, it concluded that the evidence resulting from the

search should have been suppressed.

       ¶2     The State contends that the officers' observation of

an   unlit    light   bulb    in    Brown's    tail   lamp    justified    a    stop

because the law requires all light bulbs in a tail lamp to be

lit.       It asserts that this requirement is found in Wis. Stat.

§ 347.13(1)      (2009-10),2       which   prohibits    the    operation       of    a

vehicle at night unless its tail lamps are in "good working

order."      Because the officers observed a violation of the law,

the State maintains that they had probable cause to stop the

vehicle.      Even if the unlit bulb was not part of the tail lamp,

the State contends that it still created reasonable suspicion to

stop the vehicle and the results of the search should not be

suppressed.

       ¶3     Contrary to the State, we do not interpret Wis. Stat.

§ 347.13(1) as requiring every single light bulb in a tail lamp

to be lit.       The plain language of the statute requires that a

tail lamp emit a red light visible from 500 feet behind the
vehicle      during   hours    of    darkness.        This    interpretation        is

further supported by related statutes requiring that the lamps

be in proper working condition.            Wis. Stat. § 347.06(3).

       ¶4     Because the only basis for the stop of Brown's vehicle

was the unlit bulb, we conclude that there was not probable

cause or reasonable suspicion to stop the vehicle.                    Where the

stop of the vehicle was unlawful, so too was its search, and the

       2
      All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
                                           2
    No.   2011AP2907-CR



results of that search must be suppressed.                          Accordingly, we

affirm the court of appeals.

                                         I

    ¶5     It is uncontested that Brown was a passenger in a

Buick Electra that was stopped by police officers.                         During the

stop, the officers searched the vehicle and discovered a gun.

Brown was charged with possession of a firearm by a felon, in

violation of Wis. Stat. § 941.29(2).                     He subsequently filed a

motion to suppress the gun, asserting that the officers lacked

reasonable suspicion or probable cause to stop the vehicle.

    ¶6     At     the   motion       hearing       the     State      presented     the

testimony of Officer Wawrzonek and Officer Feely.                      Although some

details varied, the officers' testimony regarding the stop of

Brown's vehicle was largely consistent.

    ¶7     According      to   the    officers,      they      were   on   a   routine

patrol when they spotted a 1977 Buick Electra with a "defective

tail light."      Officer Wawrzonek explained that there was a "wide

band" with three light panels on the back of the vehicle and one
of the panels was out.            Officer Feely stated that it was the

middle light on the driver's side that was out.                        Based on the

Buick's   "defective"      tail      lamp,    Officer       Feely     activated     the

flashing red and blue lights on their patrol car and conducted a

traffic   stop.     After      stopping      the   vehicle      and    removing     its

passengers, Officer Feely searched the vehicle and discovered a

firearm under the front passenger-side seat.

    ¶8     Brown    presented     the     testimony       of   Willie      Lipsey   who
stated that on the night of the stop he attended a barbeque with
                                         3
    No.    2011AP2907-CR



Brown.    When they left, Lipsey drove Brown's car because Brown

was intoxicated.        Lipsey testified that he stopped at a gas

station    and    observed   that    the      tail       lamps    were   functioning

properly when he pumped gas into the car.                   He was in a position

to see this as the gas tank of the Buick is behind the rear

license plate.        After leaving the gas station, Lipsey headed

home.    The stop occurred as he was parking.

    ¶9      Several   photographs       of    the    back    of     Brown's   vehicle

were admitted into evidence.            One photograph is a close-up view

of the rear-passenger side of the vehicle with the outside panel

encasing the tail lamp removed.              Four light bulbs are visible: a

cluster of three bulbs on the left-hand side and a fourth bulb

toward the center of the vehicle next to its license plate.                       In

explaining the photo, Lipsey testified that the first and third

lights were tail lights, the second light was a brake light, and

the separate light was a reverse light.                     According to Lipsey,

only the two tail lights are lit when the car is driving down

the street.
    ¶10     The circuit court denied the suppression motion.                      It

determined that Lipsey's testimony that the tail lights were

working was not credible.           In contrast, it found the officers'

testimony to be credible and therefore determined that there was

probable cause for the stop.             It further determined that the

search    was    justified   by   the    need       to    protect    the   officers'

safety.




                                        4
       No.      2011AP2907-CR



       ¶11      Following the ruling, Brown pled guilty to the charge.3

Subsequently,           the     court       sentenced      Brown           to     five     years

imprisonment with three years initial confinement and two years

extended supervision.

       ¶12      Brown     submitted     a    motion      for    postconviction           relief

seeking an order vacating his conviction and guilty plea and

suppressing all evidence seized during the stop of the Buick.

Citing Wis. Stat. § 347.13(1), he asserted that there was no

basis for the stop because under the law only two tail lamps

must       be   in   good     working   order,      not        all    of    four    of     them.

Accordingly,         he     contended       that   the    stop        of    the    Buick    was

unconstitutional and evidence found during its search must be

suppressed.4

       ¶13      The circuit court denied the postconviction motion.

It determined that the officers had a reasonable belief that one

of the vehicle's tail lamps was defective.                           Even if the officers

       3
       Although   a    guilty   plea    generally   waives    all
nonjurisdictional defects and defenses, there is an exception
which permits appellate review of orders denying motions to
suppress evidence. Wis. Stat. § 971.31(10); Cnty. of Racine v.
Smith, 122 Wis. 2d 431, 434-35, 362 N.W.2d 439 (Ct. App. 1984).
       4
       In the alternative, Brown argued to the circuit court that
he was denied effective assistance of counsel because his trial
attorney failed to bring Wis. Stat. § 347.13(1) to the court's
attention.     The court concluded that this argument was
unconvincing   because    it   did   not   agree   with   Brown's
interpretation of Wis. Stat. §347.13(1).     Brown's motion also
requested an order amending the judgment of conviction to
include 209 days of sentence credit for the time he spent in
jail between the date of his arrest and the date of his
sentencing. The court determined that Brown was entitled to 195
days, not 209 days of sentence credit.

                                               5
       No.   2011AP2907-CR



were    wrong,       the     court       stated,         that    did    not    affect       their

reasonable belief at the time of the stop.

       ¶14     On appeal, Brown again argued that the evidence from

the search of the vehicle should have been suppressed because

there was no probable cause or reasonable suspicion for the

stop.

       ¶15     Although a stop can be based on either probable cause

or reasonable suspicion, the court of appeals determined that

the    issue    in    this        case   was     whether        the    unlit    bulb    created

probable cause.             State v. Brown, 2013 WI App 17, ¶¶14-15, 346

Wis. 2d 98, 827 N.W.2d 903.                    It noted the officers' testimony

that they stopped the vehicle because of the unlit bulb, stating

"[t]hey did not act upon a suspicion that warranted further

investigation, but on [their] observation of a violation being

committed in [their] presence."                          Id. at ¶15 (quoting State v.

Longcore, 226 Wis. 2d 1, 8-9, 594 N.W.2d 412 (Ct. App. 1999)).

Because the officers were not acting on a suspicion, but on what

they believed was a violation of law being committed in their
presence,      the        court    concluded         that       probable      cause    was    the

appropriate focus.            Id.

       ¶16     The court of appeals agreed with Brown.                             Id. at ¶21.

It reasoned that under Wis. Stat. § 347.13(1) a vehicle's tail

lamps do not need to be fully lit or in perfect condition in

order to be in "good working order."                        Id.       Noting that a lawful

stop    cannot       be    predicated       on       a    mistake      of   law,      the    court

determined that the officers' mistaken belief that all the tail
lights on a vehicle need to be lit could not serve as probable
                                                 6
      No.   2011AP2907-CR



cause for a stop.           Id. (citing Longcore, 226 Wis. 2d at 9).

Accordingly, it reversed the circuit court.5

                                      II

      ¶17   In this case we are asked to consider whether Brown's

vehicle was lawfully stopped.6         "Whether there is probable cause

or   reasonable    suspicion    to   stop   a   vehicle   is   a   question   of

constitutional fact."        State v. Popke, 2009 WI 37, ¶10, 317 Wis.

2d 118, 765 N.W.2d 569.        As such, it is a mixed question of fact

and law, requiring a two-step standard of review.                     State v.

Post, 2007 WI 60, ¶8, 301 Wis. 2d 1, 733 N.W.2d 634.                This court

reviews the circuit court's findings of fact under the clearly

erroneous standard, and reviews independently the application of

those facts to constitutional principles.           Id.

      ¶18   Here, the relevant facts are undisputed.               The parties

agree that the officers stopped Brown's vehicle because one of

      5
       Because it reversed on the merits, the court of appeals
did not address Brown's alternative argument that his trial
counsel was ineffective.     Brown, 346 Wis. 2d 98, ¶21 n.6.
Brown also appealed the issue of his sentence credit. The court
also determined that it did not need to address Brown's
sentencing credit issue because it reversed his conviction. It
noted that the State had conceded that had Brown's conviction
stood, he would have been entitled to the sentence credit he
sought.    Id. at ¶22.    For the same reason as the court of
appeals, we also do not address the issues of ineffective
assistance of counsel or Brown's sentence credit.
      6
       When accepting the petition for review, we asked the
parties to address the propriety of the search in light of
Arizona   v.  Gant,   556  U.S.   332   (2009).    Both  parties
affirmatively stated that Gant does not apply and that the issue
in this case is whether the stop itself violated Brown's rights,
not the subsequent search.    Accordingly, we limit our analysis
to the reasonableness of the stop of Brown's vehicle.

                                       7
       No.      2011AP2907-CR



the three lights on the rear driver's side of the car was not

lit.       Thus, our inquiry focuses on whether under the facts there

were sufficient grounds for a traffic stop.                     This inquiry calls

upon       us   to   interpret     the   relevant     statute    establishing   the

requirements for vehicle tail lamps, Wis. Stat. § 347.13(1).

Statutory interpretation is a question of law that we review

independently of the decisions rendered by the circuit court and

the court of appeals.               State v. Ziegler, 2012 WI 73, ¶37, 342

Wis. 2d 256, 816 N.W.2d 238.

                                             III

       ¶19      We begin our analysis by examining the constitutional

principles underlying traffic stops.                      The Fourth Amendment of

the United States Constitution and Article I, Section 11 of the

Wisconsin         Constitution       protect       citizens     from   unreasonable

searches and seizures.7              Traffic stops are considered seizures

and    thus      must   be      reasonable    to   pass    constitutional   muster.

       7
       The Fourth Amendment of the United States Constitution
states "[t]he right of the people to be secure in their persons
. . . against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause
 . . . ."   Likewise, Article I, Section 11 of the Wisconsin
Constitution, provides: "The right of the people to be secure in
their persons, houses, papers, and effects against unreasonable
searches and seizures shall not be violated; and no warrant
shall issue but upon probable cause . . . ."

     This court generally interprets the protections against
unreasonable searches and seizures afforded by the state and
federal constitutions coextensively. State v. Post, 2007 WI 60,
¶10 n.2, 301 Wis. 2d 1, 733 N.W.2d 634.      "However, the state
provisions may provide greater protections."   Id. (citing State
v. Eason, 2001 WI 98, ¶63, n.31, 245 Wis. 2d 206, 629 N.W.2d
625).

                                              8
       No.    2011AP2907-CR



Popke, 317 Wis. 2d 118, ¶11; Whren v. United States, 517 U.S.

806,    809-10      (1996).           If    the   seizure    is    unreasonable     and

therefore unconstitutional, then evidence obtained as a result

is generally inadmissible.                  State v. Harris, 206 Wis. 2d 243,

263, 557 N.W.2d 245 (1996).                 A good faith exception to this rule

applies in limited circumstances such as where the police have

relied in good faith on either a warrant issued by a detached

and     neutral     magistrate         or    on    well-settled      law    that    was

subsequently overturned.               State v. Dearborn, 2010 WI 84, ¶44,

327 Wis. 2d 252, 786 N.W.2d 97; State v. Eason, 2001 WI 98, ¶3,

245 Wis. 2d 206, 629 N.W.2d 625.

       ¶20    The burden is on the State to prove that a stop meets

the constitutional reasonableness requirement.                       Post, 301 Wis.

2d 1, ¶12; Harris, 206 Wis. 2d at 263.                      A traffic stop can be

based    on    probable       cause    or    reasonable     suspicion.      State    v.

Gaulrapp, 207 Wis. 2d 600, 605, 558 N.W.2d 696 (Ct. App. 1996)

(citing Whren, 517 U.S. at 809-10; Berkemer v. McCarty, 468 U.S.

420, 439 (1984)).         "[P]robable cause exists when the officer has
'reasonable grounds to believe that the person is committing or

has committed a crime.'"               Popke, 317 Wis. 2d 118, ¶14 (quoting

Johnson v. State, 75 Wis. 2d 344, 348, 249 N.W.2d 593 (1977)).

There is reasonable suspicion justifying a stop if "the facts of

the case would warrant a reasonable police officer, in light of

his     or    her   training      and       experience,     to    suspect   that    the

individual has committed, was committing, or is about to commit

a crime."       Post, 301 Wis. 2d 1, ¶13.


                                              9
      No.   2011AP2907-CR



      ¶21     In    this    case,   the   officers      stopped    Brown's     vehicle

because one of the bulbs on the back of the vehicle was unlit.

The State asserts that the unlit bulb created probable cause to

stop the vehicle because it violated the requirement in Wis.

Stat. § 347.13(1) that tail lamps be in "good working order."

It further contends that even if the officers were wrong and the

unlit bulb was not part of the tail lamp, the unlit bulb still

created reasonable suspicion that Wis. Stat. § 347.13(1) was

being violated.            Brown disagrees with both contentions, arguing

that Wis. Stat. § 347.13(1) does not require all bulbs in a tail

lamp to be lit and thus the officers had neither probable cause

nor reasonable suspicion to stop his vehicle.

      ¶22     Both     parties        agree      that       if     the       officers'

interpretation of the law were incorrect that the stop would be

unconstitutional because a lawful stop cannot be predicated upon

a   mistake    of    law.      Longcore,       226   Wis.   2d    at   9.     At   oral

argument,      the     State     explicitly      stated     that       "we   are   not

challenging Longcore."8             In its supplemental briefing the State

      8
       At oral argument counsel for the State engaged in the
following exchange:

      Justice Ziegler: Why couldn't [the stop] be based upon
      the officer's reasonable belief that the tail light
      was out?

      Attorney for the State: It could be based on the- if
      the officer could reasonably believe that that bulb
      was part of the tail lamp, and the law requires that
      all the bulbs be lit in the tail lamp, if that's
      correct, then the stop would be valid on the basis of-

      Chief Justice Abrahamson:            Even if he's wrong.

                                          10
      No.   2011AP2907-CR



maintained that "the existence of probable cause or reasonable

suspicion    in   the   context   of   a    traffic   stop   depends   on   the
                                                                             9
correct interpretation of the statute prohibiting the conduct."

      ¶23   A substantial majority of the federal circuit courts

have also held that a lawful stop cannot be predicated upon a

mistake of law.10       United States v. Williams, 740 F.3d 308, 312

(4th Cir. 2014) ("Nor do we suggest that a police officer's

mistake of law can support probable cause to conduct a stop when

the   underlying    conduct   was   not,    in   fact,   illegal.");   United


      Attorney for the State: Even if he's wrong about the
      facts.   But if he's wrong about the law, then we are
      conceding that the stop was invalid.
      9
       After oral argument this court asked the parties                     for
supplemental briefing.    Specifically, the court asked                     the
parties to brief:

      1) whether the officer had reasonable suspicion to stop
         Brown's vehicle because the officer believed that Wis.
         Stat. § 347.13(1) was violated when not all the tail
         light bulbs on Brown's vehicle were working.

      2) whether an officer's good faith mistake of law on which
         the officer makes a traffic stop, requires reviewing
         courts to conclude that the stop was not lawful.

State v. Brown, No. 2011AP2907, unpublished order (Feb. 26,
2014).
     10
        Justice   Roggensack's  dissent  advocates  a  minority
position.    Only three circuit courts have adopted an approach
which would permit a stop based on an error of law: the D.C.
Circuit, the Third Circuit, and the Eighth Circuit. See United
States v. Southerland, 486 F.3d 1355, 1359 (D.C. Cir. 2007);
United States v. Delfin-Colina, 464 F.3d 392, 399 (3d Cir.
2006); United States v. Bueno, 443 F.3d 1017, 1024 (8th Cir.
2006).



                                       11
     No.    2011AP2907-CR



States     v.    McDonald,        453    F.3d      958,       962    (7th     Cir.     2006)

(determining stop was unreasonable where "even if [the driver]

acted exactly as [the officer] believed, his actions were not a

violation of any Illinois state traffic law."); United States v.

Coplin, 463 F.3d 96, 101 (1st Cir. 2006) ("Stops premised on a

mistake    of    law,    even      a    reasonable,          good-faith     mistake,     are

generally       held    to   be    unconstitutional.");              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)      ("[A]

mistake of law cannot provide reasonable suspicion or probable

cause to justify a traffic stop.");                      United States v. Twilley,

222 F.3d 1092, 1096 (9th Cir. 2000) ("[I]n this circuit, a belief

based on a misunderstanding of the law cannot constitute the

reasonable       suspicion        required      for      a    constitutional         traffic

stop."); United States v. Miller, 146 F.3d 274, 279 (5th Cir.

1998) ("[G]iven that having a turn signal on is not a violation
of Texas law, no objective basis for probable cause justified

the stop of Miller").

     ¶24    As the Seventh Circuit has explained, "[a]n officer

cannot have a reasonable belief that a violation of the law

occurred when the acts to which an officer points as supporting

probable cause are not prohibited by law."                           McDonald, 453 F.3d

at 961.         The grounds for a traffic stop must be objectively

reasonable and "[a] stop based on a subjective belief that a law
has been broken, when no violation actually occurred, is not
                                             12
         No.   2011AP2907-CR



objectively reasonable."                 Id. at 962.       Admitting evidence into

the record on such a basis "would defeat the purpose of the

exclusionary rule, for it would remove the incentive for police

to make certain that they properly understand the law that they

are entrusted to enforce and obey."                    Id. (quoting United States

v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 2000)); see also

Wayne A. Logan, Police Mistakes of Law, 61 Emory L.J. 69, 106

(2011) ("there has been no mistaking that the specter of [the

exclusionary rule's] application has prompted police departments

to   significantly         fortify       and    improve    their    training          efforts

relative to Fourth Amendment expectations.").

         ¶25    Further, the rule that an officer's mistake of law is

not sufficient grounds for a stop is consistent with holdings

from      a    substantial     majority        of    the   state    courts       that      have

addressed the issue.               State v. Babcock, 992 N.E.2d 1215, 1220

(Ohio Ct. App. 2013) ("[W]e hold that the exclusionary rule

operates to bar the admission of evidence obtained as a result

of   a     traffic     stop    based      on    conduct    that     a       police    officer
mistakenly believes is a violation of the law."); Martin v. Kan.

Dep't of Revenue, 176 P.3d 938, 948 (Kan. 2008) ("[A] police

officer        must   be   held    to    a    more   demanding     standard          of   legal

knowledge than any citizen who may be subject to the officer's

exercise of authority. . . .                   [C]onsequently [we] hold that an

officer's        mistake      of   law       alone   can   render       a    traffic       stop

violative of the Fourth Amendment. . . ."); State v. Tiffin, 121

P.3d 9, 12 (Or. Ct. App. 2005) ("[T]he facts, as the officer
perceives them, must actually constitute an infraction in order
                                               13
      No.   2011AP2907-CR



for   the   officer's       belief   that    an   infraction   occurred   to   be

objectively reasonable.").           See also State v. Cantsee, 321 P.3d

888, 891 (Nev. 2014); State v. Dunbar, 728 S.E.2d 539, 545 (W.

Va. 2012); State v. Louwrens, 792 N.W.2d 649, 654 (Iowa 2010);

McDonald v. State, 947 A.2d 1073, 1079-80 (Del. 2008); State v.

Williams, 185 S.W.3d 311, 319 (Tenn. 2006); State v. Lacasella,

60 P.3d 975, 981 (Mont. 2002); State v. Lussier, 757 A.2d 1017,

1029 (Vt. 2000); Commonwealth v. Rachau, 670 A.2d 731, 735 (Pa.

Commw. Ct. 1996); Commonwealth v. Bernard, 3 N.E.3d 1113, 1115

n.2 (Mass. App. Ct. 2014); Gilmore v. State, 42 A.3d 123, 135

(Md. Ct. Spec. App. 2012); Robinson v. State, 377 S.W.3d 712,

722 (Tex. Crim. App. 2012); J.D.I. v. State, 77 So. 3d 610, 617

(Ala. Crim. App. 2011);              Gunn v. State, 956 N.E.2d 136, 139

(Ind. Ct. App. 2011); People v. Cole, 874 N.E.2d 81, 88 (Ill.

App. Ct. 2007); State v. Kilmer, 741 N.W.2d 607, 611 (Minn. Ct.

App. 2007); People v. Ramirez, 44 Cal. Rptr. 3d 813, 816 (Cal.

App. 2006); State v. Puzio, 878 A.2d 857, 860 (NJ App. Div.

2005); Gordon v. State, 901 So. 2d 399, 405 (Fla. Dist. Ct. App.
2005); Byer v. Jackson, 661 N.Y.S.2d 336, 338 (N.Y. App. Div.

1997).11




      11
       We acknowledge that a minority of the state courts that
have addressed the issue have taken a contrary position.  See,
e.g., State v. Heien, 737 S.E.2d 351 (N.C. 2012); Moore v.
State, 986 So. 2d 928, 935 (Miss. 2008); Travis v. State, 959
S.W.2d 32, 34 (Ark. 1998); McConnell v. State, 374 S.E.2d 111,
113 (Ga. Ct. App. 1988); DeChene v. Smallwood, 311 S.E.2d 749,
751 (Va. 1984).

                                        14
       No.   2011AP2907-CR



       ¶26    Having      examined     the         application        of        constitutional

principles      underlying     traffic        stops,       we   turn        to    address       the

interpretation of Wis. Stat. § 347.13(1) in order to apply those

principles in this case.              Statutory interpretation begins with

the language of the statute.                   State ex rel. Kalal v. Circuit

Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681

N.W.2d 110.          The language in a statute "is given its common,

ordinary,      and     accepted       meaning,        except      that           technical      or

specially-defined words or phrases are given their technical or

special      definitional      meaning."             Id.        Further,          a    statute's

language is interpreted in the context in which it is used, "in

relation      to    the    language      of    surrounding            or    closely-related

statutes;      and     reasonably,       to        avoid    absurd         or     unreasonable

results."      Id. at ¶46.

       ¶27    Wisconsin Stat. § 347.13(1) requires a vehicle to have

at   least    one    tail    lamp    which     emits       a    red    light          visible    to

another      vehicle      traveling    500     feet        behind      it       and    prohibits

operation of a vehicle at night when its tail lamps are not "in
good   working       order."      Wis.    Stat.       §    347.13(1).             The    statute

provides:

       No person shall operate a motor vehicle . . . upon a
       highway during hours of darkness unless such motor
       vehicle . . . is equipped with at least one tail lamp
       mounted on the rear which, when lighted during hours
       of darkness, emits a red light plainly visible from a
       distance of 500 feet to the rear. No tail lamp shall
       have any type of decorative covering that restricts
       the amount of light emitted when the tail lamp is in
       use. No vehicle originally equipped at the time of
       manufacture and sale with 2 tail lamps shall be


                                              15
       No.   2011AP2907-CR


       operated upon a highway during hours of darkness
       unless both such lamps are in good working order.
Wis. Stat. § 347.13(1) (emphasis supplied).                           The term "tail

lamp" is defined as "a device to designate the rear of a vehicle

by a warning light."12             Wis. Stat. § 340.01(66).              At issue in

this    case    is    what   constitutes    a   tail     lamp    in    "good   working

order."

       ¶28     The phrase "good working order" is not defined in the

statute, thus we accord the phrase its common, ordinary and

accepted       meaning.      "In    determining      the   ordinary       meaning    of

undefined       words,    '[w]e    may    consult    a   dictionary       to   aid   in

statutory construction."            Xcel Energy Servs. v. Labor & Indus.

Review Comm'n, 2013 WI 64, ¶30, 349 Wis. 2d 234, 833 N.W.2d 665

(quoting Cnty. of Dane v. Labor & Indus. Review Comm'n, 2009 WI

9, ¶23, 315 Wis. 2d 293, 759 N.W.2d 571).

       ¶29     Dictionary     definitions       of   "good,"       "working,"        and

"working order" suggest that the term "good working order" means

suitable       or    functioning    for   the   intended        use.13     Thus,     the




       12
       Because Wis. Stat. § 340.01(66) defines "tail lamp" as "a
device," it is the entire tail lamp, and not each individual
light bulb in the tail lamp, that must function as indicated by
Wis. Stat. § 347.13(1).
       13
       For definitions of "good" see The American Heritage
Dictionary of the English Language 780 (3d ed. 1992) ("[s]erving
the desired purpose or end, suitable"); The Random House
Unabridged Dictionary 822 (2d ed. 1993) ("satisfactory in
quality, quantity, or degree"); and Webster's Third New
International Dictionary 978 (1986) ("adapted to the end
designed or proposed: satisfactory in performance").

                                          16
      No.    2011AP2907-CR



ordinary meaning of "good working order" focuses on whether an

object is functioning so as to fulfill its intended purpose.

      ¶30    Further,        construing     "good     working    order"   in    the

context of Wis. Stat. § 347.13(1) to mean functioning for the

intended purpose is consistent with how we have construed "good

working order" in the past.

      ¶31    In State v. Trailer Service, Inc., 61 Wis. 2d 400,

404, 212 N.W.2d 683 (1973), the court looked to function when

determining whether a certified scale for weighing a vehicle was

in   "good    working   order."       The      case   involved   a   dispute   over

whether a truck had been properly weighed before its driver was

given a citation for overload.              Id. at 402.     The court examined

two statutes: Wis. Stat. § 348.19(1)(a), permitting an officer

to require a truck to be weighed on the nearest usable scale,

and Wis. Stat. § 348.15(5), requiring trucks to be weighed on

scales that are in "good working order."                   Id. at 404-05.        It

noted that "'[u]sable' also means 'in good working order,' i.e.,


     For definitions of "working" see The American Heritage
Dictionary of the English Language         2057 (3d ed. 1992)
("[o]perating or functioning as required," "[s]ufficient to
allow action," and "[a]dequate for practical use"); The Random
House Unabridged Dictionary 2189 (2d ed. 1993) ("operating;
producing effects, results, etc.," and "adequate for usual or
customary needs");    and   Webster's Third New International
Dictionary 2635 (1986) ("adequate to permit work to be done").

     For definitions of "working order" see The Random House
Unabridged Dictionary 2189 (2d ed. 1993) ("[T]he condition of a
mechanism when it is functioning properly."); and Webster's
Third New International Dictionary 2635 (1986) ("[A] condition
of a machine in which it functions according to its nature and
purpose.").

                                          17
       No.    2011AP2907-CR



in    such    operating       or    mechanical     condition     that     it   correctly

performs the function or utility or the purpose of a scale."

Id. at 405.        Accordingly, the court determined that the scale's

use    was    permissible          because   it    was   shown    to   make     true    and

accurate measurements.              Id.

       ¶32    Other jurisdictions have also focused on function when

determining       whether          tail    lamps   are    in     compliance      with    a

statutory requirement that they be in good or proper working

order.       See Kroft v. State, 992 N.E.2d 818, 822 (Ind. Ct. App.

2013) (determining that a tail lamp was still in good working

order despite a dime-sized hole because there was no evidence

the    hole     affected      the     visibility     of    the    light    to    another

vehicle); Vicknair v. State, 751 S.W.2d 180, 189-90 (Tex. Crim.

App. 1988) (taillight in proper condition despite crack in a

taillight because it still emitted a red light visible within

the requisite distance).14                We likewise conclude the focus should

be on the function of a tail lamp in determining whether it is

in "good working order" under Wis. Stat. § 347.13(1).
       ¶33    The statutory definition of "tail lamp" provides that

its intended purpose is to "designate the rear of a vehicle as a

warning light."         Wis. Stat. § 340.01(66).               The language of Wis.

Stat. § 347.13(1) clarifies that a tail lamp does so by emitting


       14
       Contrary to Justice                Roggensack's dissent's assertion, we
do not cite to Kroft and                  Vicknair in support of a conclusion
that "the officers acted                   unreasonably." Justice Roggensack's
dissent, ¶112. Rather, the                cases are cited for the premise that
courts look to function                    to determine whether there is a
violation of a statute.

                                             18
       No.   2011AP2907-CR



during hours of darkness "a red light plainly visible from a

distance of 500 feet to the rear."                Accordingly, a tail lamp is

functioning for its intended use and thus in good working order

when during hours of darkness it emits a red warning light that

is visible to another vehicle traveling 500 feet behind it.

       ¶34    We do not agree with the State that when read in the

context of surrounding statutes Wis. Stat. § 347.13(1) requires

all light bulbs in a tail lamp to be lit.                  The State points to

Wis. Stat. § 347.06(3) and Wis. Admin. Code § Trans. 305.16(2)

which       require    tail    lamps   to    be    kept   in     "proper    working

condition."         However, "proper" is not a synonym for "perfect."

Rather it is more akin to "good" or "suitable."15                       Thus, the

statutes requiring tail lamps to be in proper working condition

are more in line with requiring a tail lamp to function for its

intended purpose than with requiring all light bulbs in a tail

lamp to function perfectly.

       ¶35    Construing Wis. Stat. § 347.13(1) as requiring every

single light bulb on the back of a vehicle to be in perfect
condition would lead to absurd and unreasonable results.                        Not

only    is    such    an    interpretation    inconsistent       with   the   plain

language       of     the   statute,   but    it    is    also    not      practical

       15
       "Proper"     is    defined     as    "[c]haracterized     by
appropriateness   or   suitability."      The   American   Heritage
Dictionary of the English Language 1452 (3d ed. 1992); see also
Random House Unabridged Dictionary 1550 (2d ed. 1993) (defining
"proper" as "adapted or appropriate to the purpose or
circumstances;    fit;    suitable");     Webster's    Third    New
International   Dictionary   1817    (1986)   ("adequate   to   the
purpose").

                                        19
     No.    2011AP2907-CR



considering       the    variety       of    tail    lamp    designs    today.      Brown

points to tail lamps that are composed of multiple light bulbs

creating intricate designs.                  He cites as an example the tail

lamp of an Audi, composed of thirty tiny light bulbs, which is

pictured    in    his    brief.         We    agree    with    Brown    that    there   is

nothing to suggest that a single unlit bulb out of several in a

tail lamp would necessarily impair the tail lamp's function.

     ¶36     Wisconsin         Stat.    §    347.13(1)      requires     that    vehicles

with two tail lamps not be operated during hours of darkness

"unless both such lamps are in good working order."                        It would be

unreasonable to require the public to maintain every light bulb

in a tail lamp in perfect condition when that is more than is

required     by    the    statute.           The     legislature       determined    that

visibility from 500 feet is sufficient to protect public safety

and we defer to its policy decisions.

     ¶37     Contrary to the State's assertions, the standard we

adopt is not unworkable and does not fail to give guidance to

police     officers.           This    interpretation         requires     officers     to
determine if they can see a red light emitted from the back of a

vehicle from a distance of 500 feet.                    Officers routinely have to

gauge    distances       to    determine         whether    motorists    have    violated

traffic laws.           See, e.g., Wis. Stat. § 346.33(1)(e) (requires

officers to determine whether a driver making a U-turn on a

curve or crest can be seen by another driver approaching from

500 feet); § 346.51(1)(b) (requires officers to determine if a

standing vehicle can be seen by operators of other vehicles from
a   distance      of     500    feet);       §     346.14    (requires    officers      to
                                              20
      No.   2011AP2907-CR



determine whether there are 500 feet between vehicles).                      We are

confident that they can apply that ability to determine whether

Wis. Stat. § 347.13(1) has been violated as well.

      ¶38    In this case, the only basis that the State presented

for the stop of Brown's vehicle was the unlit bulb in his tail

lamp.     However, there was no evidence that his tail lamp was not

visible from 500 feet to the rear of the car.                        The officers

testified that only one of the bulbs on the back of Brown's

vehicle was unlit.           Because having one unlit bulb on the back of

a vehicle does not on its own violate the statutory requirements

for tail lamps, the State has failed to show that the officers

had   probable       cause   to   believe     that   a   traffic   violation       had

occurred.

      ¶39      We likewise reject the State's alternative argument

that it had reasonable suspicion for the traffic stop.                             The

State asserts that the officers could have reasonably believed

that the unlit light bulb was part of the tail lamp.                        In this

case,   such    an    argument     is   inextricably        intertwined    with    the
interpretation of the underlying traffic violation.                        It fails

because     even     assuming     the   officers     made    a   mistake   of     fact

regarding whether the unlit light bulb was part of the tail

lamp, they would still have to rely on a mistake of law to have

reasonable suspicion.

      ¶40      Like probable cause, reasonable suspicion cannot be

based on a mistake of law.              Rabin v. Flynn, 725 F.3d 628, 633

(7th Cir. 2013) ("[A] police officer's suspicion of wrongdoing
that is premised on a mistake of law cannot justify a Terry
                                         21
      No.   2011AP2907-CR



stop."); United States v. Tyler, 512 F.3d 405, 411 (7th Cir.

2008) ("[A] mistake of law (as opposed to a mistake of fact)

cannot justify an investigative detention."); Chanthasouxat, 342

F.3d at     1279 ("[A]      mistake of law cannot provide reasonable

suspicion or probable cause to justify a traffic stop.").

      ¶41     Because   one    unlit   bulb   in   a   tail    lamp   does     not

establish a violation of Wis. Stat. § 347.13(1), the unlit light

bulb on Brown's vehicle was an insufficient basis to reasonably

suspect that Brown had committed, was committing, or was about

to   commit    a   crime.      Given   that   there    was    no   lawful   basis

asserted as grounds for stopping Brown's vehicle, the evidence

the officers found in the vehicle pursuant to that stop is "the

fruit" of an illegal seizure.               Harris, 206 Wis. 2d at 263.

Accordingly, the evidence resulting from the search should be

suppressed.

                                       IV

      ¶42     In sum, we do not interpret Wis. Stat. § 347.13(1) as

requiring every single light bulb in a tail lamp to be lit.                    The
plain language of the statute requires that a tail lamp emit a

red light visible from 500 feet behind the vehicle during hours

of   darkness.       This     interpretation    is     further     supported    by

related statutes requiring that the lamps be in proper working

condition.

      ¶43     Because the only basis for the stop of Brown's vehicle

was the unlit bulb we conclude that there was not probable cause

or reasonable suspicion to stop the vehicle.                 Where the stop of
the vehicle was unlawful, so too was its search, and the results
                                       22
    No.     2011AP2907-CR



of that search must be suppressed.            Accordingly, we affirm the

court of appeals.

    By    the    Court.—The   decision   of   the   court   of   appeals   is

affirmed.




                                    23
                                                                    No.   2011AP2907-CR.dtp




       ¶44     DAVID      T.    PROSSER,       J.     (dissenting).           The        issue

presented in this case is whether two Milwaukee police officers

had probable cause to stop a vehicle when they perceived what

they believed was an unlit light bulb in the tail lamp of the

vehicle.       There is dispute whether there was or was not an unlit

light    bulb       in   the   tail     lamp   of    the    vehicle.        The    majority

concludes       that     it    makes     no    difference         because   "we     do    not

interpret Wis. Stat. § 347.13(1) as requiring every single light

bulb in a tail lamp to be lit."                      Majority op., ¶3.            Thus, the

majority concludes that the officers made an unconstitutional

mistake of law when they acted on the belief that a tail lamp

with an unlit bulb was not in "proper working condition at all

times" and not "in good working order."

       ¶45     In my view, the conclusion that partially unlit tail

lamps comply with Wis. Stat. § 347.13(1) if they are visible

from 500 feet away creates a vague, unworkable standard for law

enforcement.         Consequently, I respectfully dissent.
                                               I

       ¶46     On    July      3,     2010,    two    Milwaukee      police       officers,

William Feely and Michael Wawrzonek, were on patrol duty near

2900    West    Capitol        Drive    in    the    City    of   Milwaukee.        It     was

approximately 9:30 p.m.                  Officer Feely was driving a marked

squad car.          Officer Wawrzonek was in the passenger seat.                           The

officers spotted a 1977 Buick Electra turn south on North 28th

Street.         Both     officers       observed      what    they     perceived      as    a
defective tail lamp.                When the squad car was approximately three

                                               1
                                                             No.   2011AP2907-CR.dtp


car lengths behind the Electra, it activated its red and blue

emergency lights to make a stop of the Electra.                      At the same

time, the vehicle slowed down and pulled over to the curb to

stop.

      ¶47   Following       the    stop,   the   officers     seized     a   pistol

belonging to the defendant, Antonio D. Brown, who was riding as

a   passenger   in    his    own   vehicle    because   he    was    intoxicated.

Brown was a convicted felon on parole.             He subsequently moved to

suppress evidence of the weapon on grounds that police "seizure"

of his vehicle was unlawful.

      ¶48   At the suppression hearing on January 13, 2011, the

two officers described the stop.             Officer Wawrzonek testified:

      Q.   Is there anything specific              about     that    vehicle
      that caught your attention?

      A.    Yeah, defective tail light.

            . . . .

      Q.   Do you remember what tail light it was that was
      defective on that unit?

      A.   It was the driver side tail lamp.      There is a
      wide band and there is actually three light panels on
      that wide band and one of those panels was out.

            . . . .

      Q.   Now, when you said that there was a defective
      tail light . . . are you referring to the reflective
      red lights or the white back-up lights?

      A.   One of the red lights.     He was going——he was
      going forward so there was no reverse going on at this
      point so I wouldn't see a white light. It was one of
      the red lights.

            . . . .

      Q.    So two of the panels were working properly?
                                  2
                                                       No.    2011AP2907-CR.dtp

    A.    That's my recollection.
    ¶49   When       Officer   Feely    testified,    he     identified    the

specific light that appeared to be defective:

    Q.   And do you recall what the basis for the stop
    was, Officer?

    A.    Defective tail lamp.

    Q.   And   when  you   say  that,   did            you      remember
    specifically which tail light was out?

    A.    Believe it was the driver side middle one.

    Q.   Would that have been a red or white light if you
    recall?

    A.    Red.
    ¶50   At     a   continuation      of   the   suppression    hearing    on

January 21, 2011, the driver of the Electra testified that there

were no defects in the tail lamps.            He also testified that the

vehicle "has red lights on both sides, and a white light is the

reverse light, and the middle light is a brake light."

    ¶51   The driver, Willie Lipsey (Lipsey), said that when the

vehicle was operating with its lights on, there were only two

red lights showing in the tail lamps on each side of the rear
license plate.       He said a red brake light situated between the

other red lights in the tail lamp1 did not illuminate until the

driver applied the brakes.

    ¶52   This description of the operation of the rear lights

does not explain why the officers noticed a difference in the

two tail lamp panels——with only the left panel appearing to have

    1
       "A stop lamp may be incorporated with a tail lamp." Wis.
Stat. § 347.14. From the testimony, it seems as though the stop
lamp was incorporated with the tail lamp in the Electra.

                                       3
                                                                  No.   2011AP2907-CR.dtp


a   gap    between      the    lights.       This       description     also   fails   to

explain why the officers did not state that both panels were

working      perfectly        when   the    driver      applied   the    brakes     before

stopping at the curb.                It may have been because the left brake

light was not working when the vehicle turned the corner and

when it came to a stop.                 It is also possible that one of the

light bulbs in the tail lamp, other than the brake light, was

out.

       ¶53      There appear to be only three possible scenarios: (1)

one of the light bulbs in the left tail lamp was not working;

(2) the officers thought that one of the light bulbs in the left

tail lamp was not working;2 or (3) the officers were not telling

the truth about what they saw.                    Although the facts remain in

dispute, the circuit court found that the officers were credible

when they testified that they saw a defective tail lamp and that

Lipsey was not credible when he testified that he remembered

that all the rear lights were functioning properly.

                                             II
       ¶54      Wisconsin      has     an    elaborate      motor       vehicle     code,3

including        detailed       provisions        for     motor    vehicle        lighting

equipment.        See Wis. Stat. §§ 347.06-347.30.

       ¶55      Chapter 347 begins with a section that indicates that

"Words and phrases defined in s. 340.01 are used in the same

sense      in    this    chapter        unless      a    different      definition     is

specifically provided."              Wis. Stat. § 347.01.

       2
           This possibility would have been a mistake of fact.
       3
           See Wis. Stat. chs. 340-51.

                                              4
                                                             No.    2011AP2907-CR.dtp


       ¶56       Section 340.01 includes definitions for numerous lamps

such        as     "Clearance       lamps,"4    "Direction         signal   lamp,"5

"Headlamp,"6 "Identification lamps,"7 "Multiple beam headlamp,"8

"Stop       lamp,"9   and   "Tail    lamp."10    Chapter     347    contains    both

general and specific provisions governing these various types of

lighting equipment.

       ¶57       For example, Wis. Stat. § 347.06 reads in part:

            (1) [N]o         person may operate a vehicle upon a
       highway during       hours of darkness unless all headlamps,
       tail lamps and       clearance lamps with which such vehicle
       is required to       be equipped are lighted.

       4
       "'Clearance lamps' means lamps on the left and right sides
of the front and rear of a vehicle which show to the front and
rear to mark the extreme sides of the vehicle."        Wis. Stat.
§ 340.01(7).
       5
       "'Direction signal lamp' means a lighting device used to
indicate the intention of the operator of a vehicle to change
direction." Wis. Stat. § 340.01(13).
       6
       "'Headlamp' means a major lighting device used to provide
general illumination ahead of a vehicle."            Wis. Stat.
§ 340.01(21).
       7
       "'Identification lamps' means   lamps  grouped   in  a
horizontal row and mounted on the permanent structure of the
vehicle at or near the vertical center line."      Wis. Stat.
§ 340.01(23m).
       8
       "'Multiple beam headlamp' means a headlamp designed to
permit the operator of the vehicle to use any one of 2 or more
distributions   of  light  on   the  roadway."     Wis.  Stat.
§ 340.01(36).
       9
       "'Stop lamp' means a device giving a steady warning light
to the rear of a vehicle to indicate the intention of the
operator of the vehicle to diminish speed or stop." Wis. Stat.
§ 340.01(63).
       10
       "'Tail lamp' means a device to designate the rear of a
vehicle by a warning light." Wis. Stat. § 340.01(66).

                                          5
                                                        No.   2011AP2907-CR.dtp

             . . . .

            (3) The operator of a vehicle shall keep all
       lamps and reflectors with which such vehicle is
       required to be equipped reasonably clean and in proper
       working condition at all times.
       ¶58   Wisconsin    Stat.   § 347.06    is   relevant   to    this      case

because it prohibits operation of a motor vehicle during hours

of   darkness    unless    "all . . . tail     lamps . . . are          lighted."

Wis.   Stat.    § 347.06(1).      Moreover,    the   operator      of    a   motor

vehicle "shall keep all lamps . . . in proper working condition

at all times."     Wis. Stat. § 347.06(3).

       ¶59   Wisconsin Stat. § 347.13 is entitled "Tail lamps and

registration plate lamps."        The section reads in part:

            (1) No person shall operate a motor vehicle,
       mobile home or trailer or semitrailer upon a highway
       during hours of darkness unless such motor vehicle,
       mobile home or trailer or semitrailer is equipped with
       at least one tail lamp mounted on the rear which, when
       lighted during hours of darkness, emits a red light
       plainly visible from a distance of 500 feet to the
       rear. No tail lamp shall have any type of decorative
       covering that restricts the amount of light emitted
       when the tail lamp is in use.    No vehicle originally
       equipped at the time of manufacture and sale with 2
       tail lamps shall be operated upon a highway during
       hours of darkness unless both such lamps are in good
       working order. This subsection does not apply to any
       type of decorative covering originally equipped on the
       vehicle at the time of manufacture and sale.

             . . . .

            (4) Tail lamps and registration plate lamps
       shall be so wired as to be lighted whenever the
       headlamps or auxiliary driving lamps are lighted.
Wis. Stat. § 347.13.

       ¶60   The first sentence of § 347.13(1) serves two purposes.
It prohibits a person from operating a motor vehicle during

                                      6
                                                  No.    2011AP2907-CR.dtp


hours of darkness unless the vehicle is equipped with at least

one tail lamp.      It also establishes equipment        standards for

motor vehicle tail lamps.

     ¶61    Most vehicle operators seeking to comply with motor

vehicle     equipment   laws    are   dependent    upon      automobile

manufacturers and parts suppliers for the equipment on their

vehicles.     These operators   expect that the tail lights they

purchase will meet the requirements of the law.         All four states

bordering Wisconsin have statutes like Wis. Stat. § 347.13(1)

that require 500 feet of visibility from rear lamps, implying

that 500 feet is a common standard.11

     11
       Every motor vehicle, trailer, or semi-trailer shall
     also exhibit at least 2 lighted lamps, commonly known
     as tail lamps, which shall be mounted on the left rear
     and right rear of the vehicle so as to throw a red
     light visible for at least 500 feet in the reverse
     direction . . . .

625 Ill. Comp. Stat. Ann. 5/12-201(b) (West 2014).

          Every motor vehicle and every vehicle which is
     being drawn at the end of a train of vehicles shall be
     equipped with a lighted rear lamp or lamps, exhibiting
     a red light plainly visible from a distance of five
     hundred feet to the rear.      All lamps and lighting
     equipment originally manufactured on a motor vehicle
     shall be kept in working condition or shall be
     replaced with equivalent equipment.

Iowa Code Ann. § 321.387 (West 2014).

          A motor vehicle, trailer, semitrailer, pole
     trailer, or vehicle which is being drawn in a train of
     vehicles shall be equipped with at least 1 rear lamp
     mounted on the rear, which, when lighted as required
     by this act, shall emit a red light plainly visible
     from a distance of 500 feet to the rear.

Mich. Comp. Laws Ann. § 257.686(1) (West 2014).

                                  7
                                                                   No.    2011AP2907-CR.dtp


       ¶62     The majority opinion appears to conclude that if a

tail lamp can be seen from 500 feet, it cannot violate the motor

vehicle equipment statutes.            Majority op., ¶3.

       ¶63     The   next   sentence    in     Wis.    Stat.      § 347.13(1),       which

bears     on     functionality,      shows      that       such    a      conclusion    is

incorrect.       The second sentence reads: "No tail lamp shall have

any type of decorative covering that restricts the amount of

light    emitted     when     the   tail   lamp       is   in     use."      Wis.   Stat.

§ 347.13(1) (emphasis added).                This sentence demonstrates that

there is a concern that each tail light be lit and unobscured.

The sentence does not say that a decorative covering may not

restrict the amount of light emitted so as to reduce visibility

unless it can be seen from 500 feet.                       The sentence permits no

restriction of light.

       ¶64     The third sentence of Wis. Stat. § 347.13(1) requires

that there be no flaw in the tail lamps: "No vehicle originally

equipped at the time of manufacture and sale with 2 tail lamps

shall be operated upon a highway during hours of darkness unless
both    such    lamps   are    in   good     working       order."        Id.   (emphasis

added).        This sentence requires both tail lamps to be operating

in good working order.          When this sentence is combined with Wis.

Stat. § 347.06(3), an operator is required to keep all tail




     "Every motor vehicle and every vehicle that is being drawn
at the end of a train of vehicles must be equipped with at least
one taillamp, exhibiting a red light plainly visible from a
distance of 500 feet to the rear."            Minn. Stat. Ann.
§ 169.50.1(a) (West 2014).

                                           8
                                                     No.    2011AP2907-CR.dtp


lamps in proper working condition at all times; that is, in good

working order at all times.

    ¶65     Wisconsin Stat.    § 347.14, relating to "stop lamps,"

reads in part as follows:

         (1) No     person    shall    operate   a    motor
    vehicle . . . upon   a   highway   unless  such   motor
    vehicle . . . is equipped with at least one stop lamp
    mounted on the rear and meeting the specifications set
    forth in this section. . . .      A stop lamp may be
    incorporated with a tail lamp.    No vehicle originally
    equipped at the time of manufacture and sale with 2
    stop lamps shall be operated upon a highway unless
    both such lamps are in good working order.

         (2) A stop lamp shall be so constructed as to be
    actuated upon application of the service or foot
    brake . . . and shall emit a red or amber light
    plainly visible and understandable from all distances
    up to 300 feet to the rear during normal sunlight when
    viewed   from  the  driver's   seat  of   the  vehicle
    following.
Wis. Stat. § 347.14 (emphasis added).

    ¶66     Like   the   previous   section,    Wis.       Stat.   § 347.14

requires a particular type of lighting equipment to be "in good

working order."     Inasmuch as a 1977 Buick Electra has only one

rear brake light on each side of the vehicle, a brake light that
is defective is 100 percent defective and cannot be——under any

reasonable definition——in "proper working condition" or "in good

working order."

    ¶67     The Wisconsin Department of Transportation (DOT) has

developed    administrative    rules    to   flesh   out     its   lighting

equipment statutes.      See Wis. Admin. Code § TRANS 305.

    ¶68     Among these rules are the following:

    Trans 305.01 Purpose and Scope.

                                    9
                                          No.   2011AP2907-CR.dtp

     (1) The purpose of this chapter is to prescribe
minimum   equipment  requirements   for  vehicles and
standards for the equipment used on vehicles.
      . . . .

Trans 305.02 Applicability.

      . . . .

     (7) Nothing in this chapter is intended to
modify the provisions of ch. 347, Stats., and all
vehicles to which this chapter applies shall also
comply with the requirements of ch. 347, Stats.
      . . . .

Trans 305.03 Enforcement.

     No person may operate or allow to be operated on
Wisconsin highways any vehicle subject to this chapter
that is not in conformity with the applicable
requirements of this chapter.
      . . . .

Trans 305.15 Stop Lamps.

      (1) Every   automobile   originally   manufactured
commencing   with   the   1950   models . . . shall   be
equipped with at least 2 stop lamps. All other motor
vehicles shall be equipped with at least one stop
lamp.

     (2) The stop lamps of every vehicle shall          be
maintained   in  proper   working   condition  and      in
conformity with this section and s. 347.14, Stats.
      . . . .

Trans 305.16 Tail Lamps.

      (1) Every   automobile   originally   manufactured
commencing   with   the   1950   models . . . shall   be
equipped with at least 2 tail lamps. All other motor
vehicles shall be equipped with at least one tail
lamp.

      (2) The tail lamps of every motor vehicle shall
be   maintained in proper working condition and in

                            10
                                                               No.    2011AP2907-CR.dtp

       conformity with this section and s. 347.13 (1) and
       (2), Stats.

            (3) All    wiring   and               connections        shall        be
       maintained in good condition.

                  . . . .

            (5) The tail lamps shall be so wired as to be
       lighted whenever the parking lamp or headlamps are
       lighted.
Wis.   Admin.       Code    §§ TRANS      305.01    (emphasis       added),       305.02,

305.03, 305.15 (emphasis added), 305.16 (emphasis added).

       ¶69    The     rules      repeat   the      phrase    "in     proper       working
condition"        from   Wis.     Stat.   § 347.06(3),       even    in    Wis.    Admin.

Code. § TRANS 305.15 and § TRANS 305.16, which implement Wis.

Stat. §§ 347.14 and 347.13 respectively.                    Those statutes use the

phrase "in good working order."                 This suggests that the DOT sees

these phrases as interchangeable.

       ¶70    As the majority notes, we may turn to a dictionary to

construe undefined words according to their ordinary meanings.

Majority op., ¶28.            However, the majority's definition of "good

working order" is incomplete because it defines "good working

order" and "working order" to mean essentially the same thing.

Using dictionary definitions, the majority defines "good working

order" as "suitable or functioning for the intended use."                              Id.,

¶29 (footnote omitted).

       ¶71    According          to   Webster's      Third     New        International

Dictionary 2635 (1986), "Working order" means "a condition of a

machine      in    which    it    functions     according     to     its    nature     and

purpose . . . ."            This definition is substantially similar to
the majority's definition of "good working order."                           Thus, the

                                           11
                                                                  No.   2011AP2907-CR.dtp


majority's definition renders "good" mere surplusage.                               In my

view,      "good      working      order"   must       mean    something     more    than

"working order."12

      ¶72       As the majority notes, one definition of "good" is

"adapted        to    the   end     designed      or   proposed:     satisfactory       in

performance."          Majority op., ¶29 n.13.                However, there is more

to   the    definition.            The   cited    definition     goes   on   to     define

"good"     as    "free      from    flaws   or     defects"     or   "not    impaired."

Webster's Third New International Dictionary 978 (1986).                               The

definition of "good" that includes "free from flaws or defects"

is more helpful than the majority's definition because it better

fits within the framework of statutory analysis and the aversion

to surplusage.           It also gives law enforcement a clear standard

to apply when confronted with broken tail lights.

      ¶73       Because "proper working condition" and "good working

order" appear to be interchangeable terms, it is hard to imagine

that a tail lamp or a stop lamp that has defective lights can be

described        as    being      "in    proper    working      condition"     and    the
condition to which the lamp should be kept "at all times."                           Wis.

Stat. § 347.06(3).


      12
        Two online definitions of "working order" are different
from the majority's minimalist definition.        One dictionary
suggests "in working order" means "working correctly, without
any        problems."                MacMillan        Dictionary,
http://www.macmillandictionary.com/us/dictionary/american/workin
g-order (last visited July 3, 2014).          Another dictionary
suggests that "(in) working order" means "working properly and
not broken" or "be in good/perfect/full etc working order."
Longman       Dictionary      of      Contemporary       English,
http://www.ldoceonline.com/dictionary/working_1   (last   visited
July 3, 2014).

                                             12
                                                            No.    2011AP2907-CR.dtp


                                       III

     ¶74    This    case    is     about     much    more      than    the    felony

conviction of Antonio Brown.          The majority opinion significantly

dilutes    the    meaning   of    "proper    working    condition"      and     "good

working order" in the lighting equipment statutes.                           This is

likely to affect the enforcement of these statutes.

     ¶75    Wisconsin Stat. § 347.30 provides:

          (1) Any person violating s. 347.06 or 347.13
     (2), (3) or (4) may be required to forfeit not less
     than $10 nor more than $20 for the first offense and
     not less than $25 nor more than $50 for the 2nd or
     subsequent conviction within a year.

          (2) Any person violating ss. 347.03, 347.07 to
     347.12, 347.13(1) or 347.14 to 347.29 may be required
     to forfeit not less than $10 nor more than $200.
     ¶76    The    majority      concludes    that   Wis.      Stat.   § 347.13(1)

does not require "every single light bulb in a tail lamp to be

lit."     Majority op., ¶3.        But it does not say what is required

for a violation of this statute.                The answer cannot turn on

whether the tail lamp can be seen from 500 feet because that is

not the correct statutory standard and would pose an impossible

burden of proof on law enforcement.

     ¶77    The    majority's      analysis     is     bound      to   affect    the

interpretation of other lighting equipment statutes involving

more than one light, and other statutes that employ the phrases

"in proper working condition" or "in good working order."13


     13
       For instance, there are at least 11 statutes in addition
to Wis. Stat. § 347.13 that use the phrase "good working order."
See Wis. Stat. §§ 30.62, 48.658, 283.31, 285.30, 347.14, 347.36,
347.38, 347.42, 348.15, 350.055(1m) (2013-14), 350.095.

                                       13
                                                        No.   2011AP2907-CR.dtp


    ¶78     Because the court has diluted the meaning of these

phrases, it has seriously impaired law enforcement's ability to

stop vehicles to alert the drivers of equipment defects.                    Of

course these stops sometimes serve other purposes.                 Now, these

purposes are in jeopardy because of the confusion created by the

court's decision.

    ¶79     Now that law enforcement officers are precluded from

pulling over vehicles with flawed tail lamps if the tail lamps

are visible from 500 feet, there is likely to be a bonanza for

litigants     seeking   to    challenge     motor   vehicle    stops.      The

uncertainty     in   the     law   will    create   difficulties     for   law

enforcement and new burdens on circuit courts.

    ¶80     In my view, this court is making a mistake.             It should

be providing a clear, commonsense, easy-to-understand standard:

if a tail light or brake light is out, the tail lamp or stop

lamp is not in good working order.

    ¶81     For the foregoing reasons, I respectfully dissent.




                                      14
                                                                    No.    2011AP2907-CR.pdr



     ¶82    PATIENCE      DRAKE        ROGGENSACK,          J.      (dissenting).         For

purposes of this dissent, I assume, arguendo, that the majority

opinion's conclusion that Antonio Brown's tail lamp was in "good

working order" under Wis. Stat. § 347.13(1) is correct.                            I write

in dissent to explain why the majority opinion's conclusion that

"an officer's mistake of law is not sufficient grounds for a

stop" is not correct.1        See State v. Longcore, 226 Wis. 2d 1, 9,

593 N.W.2d 412 (Ct. App. 1999).                   I conclude that the legality of

a   stop    depends      on   whether             under     the     totality      of      the

circumstances a reasonable officer could have believed that a

law violation was occurring.                See United States v. Martin, 411

F.3d 998, 1001 (8th Cir. 2005) (a search is valid when "an

objectively      reasonable      police           officer    could        have   formed    a

reasonable suspicion that [a defendant] was committing a . . .

violation").         Therefore, "in mistake cases[,] the question is

simply whether the mistake, whether of law or of fact, was an

objectively reasonable one."                United States v. Smart, 393 F.3d

767, 770 (8th Cir. 2005).               I further conclude that under the

totality of the circumstances a reasonable officer could have

believed     that      Brown's         tail        lamp     violated         § 347.13(1).

Accordingly,     I    would   reverse         the    decision        of    the   court    of

appeals, and I respectfully dissent from the majority opinion.

                                  I.    BACKGROUND

     ¶83    On   the    evening        of   July 3,         2010,    Milwaukee      police

officers Michael Wawrzonek and William Feely were patrolling an


     1
         Majority op., ¶25.

                                              1
                                                    No.    2011AP2907-CR.pdr


area near Capitol Drive as part of an effort to "saturate areas

that are targeted" by armed robbers.        Both officers testified

that they observed a 1977 Buick Electra with one panel of the

driver's   side     tail   lamp,   which   had     three    panels,     not

illuminated.      They pulled the vehicle over based on what they

described as a "defective tail light."

    ¶84    After stopping the car, Officer Feely approached the

vehicle and noticed Brown, who was sitting in the back seat,

kick a small wooden object under the passenger seat.           He ordered

all of the occupants out of the car, and ultimately recovered a

.38 Taurus revolver from under the front seat.

    ¶85    The State charged Brown with felony possession of a

firearm.   Brown moved to suppress all evidence obtained from the

stop because officers lacked probable cause to stop the car.

    ¶86    The circuit court denied the motion, finding that the

officers' observation of the unlit panel justified the stop.             In

denying Brown's motion for post-conviction relief, the circuit

court reiterated that stopping the car was proper because the
officers "believed that the taillight was out."            Even if it is

"later to be shown that somehow that . . . light is supposed to

not be on at that time," the circuit court reasoned that would

not be "a fatal flaw in the stop itself."

    ¶87    The court of appeals reversed.        It concluded that "[a]

tail lamp with one of three light bulbs unlit does not violate

Wis. Stat. § 347.13(1) when it otherwise meets the statutory

definition of a tail lamp."        State v. Brown, 2013 WI App 17,
¶21, 346 Wis. 2d 98, 827 N.W.2d 903.         Because "[t]he officers

                                   2
                                                                  No.    2011AP2907-CR.pdr


mistakenly believed that the law required all of the tail lamps

light bulbs to be lit; and 'a lawful stop cannot be predicated

upon a mistake of law,'" it held that the evidence should have

been suppressed.        Id. (quoting Longcore, 226 Wis. 2d at 9).

       ¶88       We granted the State's petition for review, which asks

us     to    decide    whether       the   officers        had    probable     cause    or

reasonable         suspicion    to    stop       Brown's    car    and     whether     the

officers had reasonable suspicion to search Brown's car.                                We

asked for additional briefing on the following issues:

             (1) whether the officer had reasonable suspicion
       to stop Brown's vehicle because the officer believed
       that Wis. Stat. § 347.13(1) was violated when not all
       the tail light bulbs on Brown's vehicle were working;
       [and]

            (2) whether, assuming an officer makes a good
       faith mistake of law on which the officer makes a
       traffic stop . . . that mistake of law nevertheless
       require[s] reviewing courts to conclude that the stop
       was not lawful.

                                    II.    DISCUSSION

                               A.    Standard of Review
       ¶89       This case is about the legality of a traffic stop,
which       is   constitutional       if   supported        by    probable     cause    or

reasonable suspicion.               State v. Anagnos, 2012 WI 64, ¶20, 341

Wis. 2d 576, 815 N.W.2d 675.                 We evaluate a stop according to

two steps.          "First, we review the circuit court's findings of

historical fact under the clearly erroneous standard."                            Id. at

¶21.        Next, "we review independently the application of those

facts to constitutional principles."                  State v. Post, 2007 WI 60,
¶8, 301 Wis. 2d 1, 733 N.W.2d 634.


                                             3
                                                                No.    2011AP2907-CR.pdr


                              B.   Lawfulness of Stop

                                   1. Introduction

     ¶90       The   majority      opinion       concludes     that    "an     officer's

mistake of law is not sufficient grounds for a stop."2                         See also

Longcore, 226 Wis. 2d at 9.              The majority opinion string-cites

cases    from    other   jurisdictions           that   have    concluded       that      an

officer's mistake of law cannot sustain a stop.3                         The majority

opinion    reasons     that     admitting        evidence    obtained     based      on    a

mistake of law "would defeat the purpose of the exclusionary

rule,    for    it   would    remove   the       incentive     for    police    to   make

certain that they properly understand the law that they are

entrusted to enforce and obey."4                 Because officers' understanding

of Wis. Stat. § 347.13(1),5 which is contrary to the majority

opinion's interpretation herein, provided the sole basis for the


     2
         Id., ¶25.
     3
         Id.
     4
       Id., ¶24 (quoting United States v. McDonald, 453 F.3d 958,
962 (7th Cir. 2006)) (further citation omitted).
     5
       Wisconsin Stat. § 347.13(1) provides in relevant part as
follows:

          No person shall operate a motor vehicle . . .
     during hours of darkness unless such motor vehicle
     . . . is equipped with at least one tail lamp mounted
     on the rear which, when lighted during hours of
     darkness, emits a red light plainly visible from a
     distance of 500 feet to the rear. No tail lamp shall
     have any type of decorative covering that restricts
     the amount of light emitted when the tail lamp is in
     use.   No vehicle originally equipped at the time of
     manufacture and sale with 2 tail lamps shall be
     operated upon a highway during hours of darkness
     unless both such lamps are in good working order.

                                             4
                                                                           No.    2011AP2907-CR.pdr


stop in this case, it suppresses all evidence obtained from the

stop.

       ¶91       I   do     not    agree          that      an   officer's       mistake    of    law

renders      a       search       per    se       unreasonable.           A     statute     may    be

ambiguous or unclear so that an objectively reasonable officer

could form a reasonable belief that a violation was occurring,

even when it was not.                     In that instance, I would uphold the

search.          While      the    majority            opinion's     circuit-counting         shows

that this may be a minority position, I nonetheless conclude

that it is the conclusion the law requires for the reasons I now

explain.

                      2.    General Fourth Amendment principles

       ¶92       The Fourth Amendment to the United States Constitution

protects against unreasonable searches and seizures.                                    "Temporary

detention of individuals during the stop of an automobile by the

police,      even      if     only      for       a    brief     period   and     for   a   limited

purpose, constitutes a 'seizure' of 'persons' within the meaning

of [that] provision."                    Whren v. United States, 517 U.S. 806,
809-10 (1996); see State v. Popke, 2009 WI 37, ¶11, 317 Wis. 2d

118,    765      N.W.2d       569.            A       traffic    stop     is    reasonable,       and

therefore constitutional, if:                          (1) an officer has probable cause

to believe a law violation has occurred; or (2) an officer has

reasonable suspicion that a crime is about to be or has been

committed.           Whren, 517 U.S. at 810; Terry v. Ohio, 392 U.S. 1,

22 (1968).           "Taken together, then, Terry and Whren stand for the

proposition that a traffic stop will be deemed a reasonable
'seizure' when an objective review of the facts shows that an

                                                        5
                                                            No.    2011AP2907-CR.pdr


officer possessed specific, articulable facts that an individual

was violating a traffic law at the time of the stop."                       United

States v. Delfin-Colina, 464 F.3d 392, 398 (3d Cir. 2006).

     ¶93       Evidence obtained in violation of the Fourth Amendment

may be suppressed under the exclusionary rule.                    Weeks v. United

States, 232 U.S. 383, 398 (1914); Hoyer v. State, 180 Wis. 407,

417, 193 N.W. 89 (1923).          The exclusionary rule is "a judicially

created    remedy      designed   to   safeguard   Fourth    Amendment      rights

generally through its deterrent effect, rather than a personal

constitutional right of the party aggrieved."                 United States v.

Leon,    468    U.S.    897,   906     (1984)   (quoting    United     States    v.

Calandra, 414 U.S. 338, 348 (1974)).6              By preventing the use of

illegally obtained evidence, it not only deters unconstitutional

police conduct, but also protects the integrity of the judicial

process by refusing to sanction unlawful searches.                       State v.

Knapp, 2005 WI 127, ¶79, 285 Wis. 2d 86, 700 N.W.2d 899.7

     ¶94       In some instances, "the substantial social costs of

excluding relevant evidence" obtained illegally outweigh "the
benefit of deterring future police misconduct" produced by the

rule.     State v. Eason, 2001 WI 98, ¶31, 245 Wis. 2d 206, 629

N.W.2d 625; accord Leon, 468 U.S. at 907-09.                 We therefore have

recognized a good-faith exception to the exclusionary rule in


     6
       See also Conrad v. State, 63 Wis. 2d 616, 636, 218 N.W.2d
252 (1974) ("The exclusionary rule is a judge-made one in
furtherance of conduct that courts have considered to be in the
public interest and to suppress conduct that is not.").
     7
       But see id. at 635 (questioning the effectiveness of the
exclusionary rule to accomplish its objectives.)

                                          6
                                                            No.    2011AP2907-CR.pdr


some circumstances.        Eason, 245 Wis. 2d 206, ¶28.               We recently

explained      our    approach    to    the    exclusionary        rule    and     its

exceptions as follows:

    To trigger the exclusionary rule, police conduct must
    be   sufficiently   deliberate   that  exclusion   can
    meaningfully deter it, and sufficiently culpable that
    such deterrence is worth the price paid by the justice
    system. . . . [T]he exclusionary rule serves to deter
    deliberate, reckless, or grossly negligent conduct, or
    in   some    circumstances   recurring   or   systemic
    negligence.
State v. Dearborn, 2010 WI 84, ¶36, 327 Wis. 2d 252, 786 N.W.2d
97 (quoting Herring v. United States, 555 U.S. 135, 144 (2009)).

    ¶95     For example, when an officer reasonably relies on a

warrant issued by an independent magistrate, but the warrant is

later held to be invalid, evidence seized in reliance on that

warrant may nonetheless be admissible.                Eason, 245 Wis. 2d 206,

¶3; Leon, 468 U.S. at 922.             In Eason, we explained that in such

a situation, the exclusionary rule would not serve its purpose

of deterring police misconduct because no misconduct occurred.

Eason,   245    Wis. 2d    206,    ¶55.       Although     it     might    later    be

discovered     that   an   officer     had    no   legal   basis    for    a   search

because the warrant on which the officer relied was defective,

the officer nonetheless could have acted reasonably.                      Id. at ¶3.

Because there is "no real benefit in regard to deterrence, the

social   cost    of    excluding       relevant    evidence     . . .      [is]    the

determining factor."       Id. at ¶58.

    ¶96     Suppression is likewise not required when an officer

relies in good faith on a substantive criminal statute that is
later held unconstitutional, Michigan v. DeFillippo, 443 U.S.

                                          7
                                                        No.    2011AP2907-CR.pdr


31, 39-40     (1979), or "when     the officer reasonably relies on

clear and settled precedent," Dearborn, 327 Wis. 2d 252, ¶46.

See also Davis v. United States, __ U.S. __, 131 S. Ct. 2419,

2423-24 (2011).        There again, because the officer is acting

reasonably,    "the    exclusionary   rule   would   have      absolutely    no

deterrent effect on officer misconduct, while at the same time

coming with the cost of allowing evidence of wrongdoing to be

excluded."    Dearborn, 327 Wis. 2d 252, ¶44.

    ¶97      And finally, when the basis for a traffic stop is

reasonable suspicion that criminal activity is afoot, the fruits

of the stop may be used against a defendant when the officer's

belief is reasonable, even if he is wrong and the defendant did

not actually commit an offense.            United States v. Thomas, 93

F.3d 479, 485 (8th Cir. 1996).            "The touchstone of the Fourth

Amendment is reasonableness" because only unreasonable seizures

are prohibited.       United States v. Knights, 534 U.S. 112, 118-19

(2001).       Therefore,    an   officer's    conduct     is     examined    to

determine whether it was reasonable.
                      3.   Mistakes of fact and law

    ¶98      Other jurisdictions allow the use of evidence obtained

from a stop based on a mistake of fact.8             In other words, "an

    8
       E.g., United States v. Delfin-Colina, 464 F.3d 392, 398
(3d Cir. 2006) ("mistakes of fact are rarely fatal to an
officer's reasonable, articulable belief that an individual was
violating a traffic ordinance at the time of a stop"); United
States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003)
("A traffic stopped based on an officer's incorrect but
reasonable assessment of facts does not violate the Fourth
Amendment."); United States v. Cashman, 216 F.3d 582, 587 (7th
Cir. 2000) ("the Fourth Amendment requires only a reasonable
assessment of the facts, not a perfectly accurate one").

                                      8
                                                      No.    2011AP2907-CR.pdr


officer need not be factually accurate in her belief that a

traffic law had been violated but, instead, need only produce

facts establishing that she reasonably believed that a violation

had taken place."     Delfin-Colina, 464 F.3d at 398.            This is so

"because of the intensely fact-sensitive nature of reasonable

suspicion and probable cause determinations."           United States v.

Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003).                 When an

officer    is   mistaken    as   to   whether   observed    conduct    is   a

violation, the law is less settled.

     ¶99    The majority opinion string-cites cases that have not

allowed an officer's mistake of law to serve as the basis for a

stop.9     The majority opinion asserts that "[a]n officer cannot

have a reasonable belief that a violation of the law occurred

when the acts to which an officer points as supporting probable

cause are not prohibited by law."           United States v. McDonald,

453 F.3d 958, 961 (7th Cir. 2006).         Under that view, "[i]t makes

no difference that an officer holds an understandable or 'good

faith' belief that a law has been broken."                  Id. at 961-62.
Other jurisdictions adopt a somewhat softer approach under which

"'[s]tops premised on a mistake of law . . . are generally held

to be unconstitutional' . . . [but] [a] stop is lawful despite a

mistake of law . . . if an objectively valid basis for the stop

nonetheless exists."       United States v. Booker, 496 F.3d 717, 722

(D.C. Cir. 2007) (quoting United States v. Coplin, 463 F.3d 96,




     9
         Majority op., ¶25.

                                      9
                                                                No.    2011AP2907-CR.pdr


101 (1st Cir. 2006));10 see Delfin-Colina, 464 F.3d at 399 ("In

situations    where   an     objective    review         of   the     record   evidence

establishes      reasonable    grounds        to   conclude     that     the    stopped

individual has in fact violated the traffic-code provision cited

by the officer, the stop is constitutional even if the officer

is mistaken about the scope of activities actually proscribed by

the   cited   traffic-code      provision.").             The   majority       does   not

discuss the reasoning of contrary authority that I conclude is

persuasive.

      ¶100 In some jurisdictions, "the validity of a stop depends

on whether the officer's actions were objectively reasonable in

the circumstances, and in mistake cases the question is simply

whether    the    mistake,     whether    of       law    or    of     fact,    was   an




      10
       The United States Supreme Court vacated the judgment in
Booker and remanded to the district court for further
consideration in light of Arizona v. Gant, 556 U.S. 332 (2009).
Booker v. United States, 556 U.S. 1218 (2009).         The D.C.
Circuit's holding regarding stops based on mistakes of law,
however, remains good law.    See United States v. Williams, 878
F. Supp. 2d 190, 200 n.4 (D.D.C. 2012). Prior decisions of the
D.C. Circuit on the same point also remain in tact.       United
States v. Southerland, 486 F.3d 1355, 1359 (D.C. Cir. 2007)
(stop was lawful "even assuming [officers] were mistaken that
the law required display of the front plate on the bumper");
United States v. Bookhardt, 277 F.3d 558, 565 n.9 (D.C. Cir.
2002) (where an independent valid ground for an arrest exists,
there is no reason to distinguish between arrests "where the
crime charged was not actually a crime" and arrests "in which
the charged offense was a crime but the officer lacked probable
cause to believe it had been committed").

                                         10
                                                              No.   2011AP2907-CR.pdr


objectively reasonable one."            Smart, 393 F.3d at 770.11             That is,

there is "no constitutional requirement to distinguish between

mistakes of fact and mistakes of law" and an officer's mistake

of law is not per se unreasonable.                  State v. Heien, 737 S.E.2d

351, 358 (N.C. 2012); see also United States v. Southerland, 486

F.3d 1355, 1359 (D.C. Cir. 2007) (concluding a stop was lawful,

even assuming the officers were mistaken about what the law

required,    because        their      interpretation         of    the       law     was

objectively reasonable under the circumstances).

    ¶101 One       reason       for    concluding      that    a     stop      can    be

reasonable       notwithstanding         a      mistake   of        law       is     that

determinations about the validity of traffic stops are not "to

be made with the vision of hindsight, but instead by looking to

what the officer reasonably knew at the time."                     United States v.

Sanders, 196 F.3d 910, 913 (8th Cir. 1999).                         Because courts

"should   not    expect   state       highway    patrolmen     to    interpret       the

traffic   laws    with    the    subtlety     and    expertise      of    a   criminal

defense attorney," it is possible that an officer could form a
reasonable, yet mistaken, understanding of the law.                            Id.     In


    11
       See also Harrison v. State, 800 So. 2d 1134, 1139 (Miss.
2001) ("deputies had probable cause to stop Harrison, even
though it was based on a mistake of law"); DeChene v. Smallwood,
311 S.E.2d 749, 751 (Va. 1984) ("an arrest resulting from a
mistake of law should be judged by the same test as one stemming
from a mistake of fact"); McConnell v. State, 374 S.E.2d 111,
113 (Ga. Ct. App. 1988) ("If the officer acting in good faith
believes that an unlawful act has been committed, his actions
are not rendered improper by a later legal determination that
the defendant's actions were not a crime according to a
technical legal definition or distinction determined to exist in
the penal statute.").

                                         11
                                                                 No.      2011AP2907-CR.pdr


those situations, "[a] post hoc judicial interpretation of a

substantive traffic law does not determine the reasonableness of

a previous traffic stop within the meaning of the state and

federal constitutions."         Heien, 737 S.E.2d at 357.

      ¶102 I      conclude   that      a    traffic       stop   is       valid      when    an

officer reasonably believes that a law has been or is about to

broken, notwithstanding "a later legal determination that the

defendant's actions were not a crime according to a technical

legal    definition    or    distinction."             McConnell          v.    State,      374

S.E.2d 111, 113 (Ga. Ct. App. 1988).                       As the Eighth Circuit

explained, "neither mistake of law nor mistake of fact renders a

traffic    stop    illegal   so     long     as     the    officer's        actions      were

objectively reasonable in the circumstances."                         United States v.

Bueno, 443 F.3d 1017, 1024 (8th Cir. 2006).                      Accordingly, when a

statute is either ambiguous or unclear so that an objectively

reasonable     officer   could      have      believed      that      a    violation        was

occurring, and that belief turns out to be incorrect, I would

uphold the search.
      ¶103 This approach is consistent with the cornerstone of

our Fourth Amendment jurisprudence:                    law enforcement must act

reasonably.       Reasonable suspicion does not involve a technical

analysis.      As with probable cause, it invokes "the factual and

practical considerations of everyday life on which reasonable

and     prudent    [persons],     not       legal     technicians,             act."        See

Brinegar v. United States, 338 U.S. 160, 175 (1949).                                 While it

is true that, as a matter of policy, courts should not destroy
incentives     for   officers     to       "properly      understand           the   law,"    I

                                            12
                                                             No.   2011AP2907-CR.pdr


nevertheless conclude that an officer can make an objectively

reasonable mistake of law.         This is particularly true where, as

here, members of this court reasonably interpreted Wis. Stat.

§ 347.13(1) and came to contradicting constructions12 and the law

at   issue   is    a   traffic    code        provision    that    has   not   been

previously interpreted in a published decision.13

     ¶104 There are several arguments against this approach that

merit discussion.       First, some courts say that "[t]o create an

exception      here      would     defeat          the      purpose      of      the

exclusionary rule, for it would remove the incentive for police

to make certain that they properly understand the law that they

are entrusted to enforce and obey."                McDonald, 453 F.3d at 962

(quoting United States v. Lopez-Soto, 205 F.3d 1101, 1106 (9th

Cir. 2000)).       Additionally, "if 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 [could] seem[] boundless and the
costs to privacy rights excessive."                    United States v. Lopez-

Valdez, 178 F.3d 282, 289 (5th Cir. 1999).                    And finally, the

rule excluding evidence from stops based on mistakes of law

aligns with the principle that courts should not use a statute's



     12
          See Prosser, J., dissenting, ¶73.
     13
       In an unpublished decision, the court of appeals held
that "[a] tail lamp with a burnt out bulb cannot be said to be
'in good working order.'"     State v. Olson, No. 2010AP149-CR,
unpublished slip op., ¶12 (Wis. Ct. App. Aug. 5, 2010).

                                         13
                                                            No.   2011AP2907-CR.pdr


ambiguity or vagueness against a defendant.                 Chanthasouxat, 342

F.3d at 1278-79.

      ¶105 Criticism about the incentives this "boundless" rule

would create are grounded in a misunderstanding of the proper

inquiry.     The question is not whether a particular officer made

a mistake of law.         Rather, it is whether, under a totality of

the circumstances an objectively reasonable officer could have

understood    the   law   in    such   a     way.    The    stopping    point   is

reasonableness.      Because a mistake of law must be reasonable,

this approach does not invite abuse.

      ¶106   As to the fact that sustaining a search premised on a

mistake of law has the effect of using an ambiguity against a

defendant, I agree with the following assessment of the North

Carolina Supreme Court:

      [T]he reasonable suspicion standard does not require
      an officer actually to witness a violation of the law
      before making a stop.     That rule generally applies
      regardless of the particular substantive law at issue,
      and results in part because Terry stops are conducted
      not only to investigate past crime but also to halt
      potentially ongoing crime, to thwart contemplated
      future   crime,  and,   most  importantly   in   these
      circumstances, to protect the public from potentially
      dangerous activity.
Heien, 737 S.E.2d at 356-57 (citations omitted).                       I likewise

conclude that "because we [should be] concerned for maintaining

safe roadways, we [should] not want to discourage our police

officers     from    conducting         stops       for     perceived     traffic

violations."    Id. at 357.

      ¶107 I therefore conclude that when an officer's mistake of
law   is   reasonable,    the   costs      of   excluding    evidence    are    not

                                        14
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outweighed by the benefit of deterrence.                        See Eason, 245 Wis. 2d

206, ¶31.       A reasonable mistake of law is, by definition, not

the kind of police misconduct the exclusionary rule aims to

deter.         It   is     not       the     result       of   deliberate        misconduct,

recklessness, or grossly negligent performance of duty.                                    See

Dearborn, 327 Wis. 2d 252, ¶36.                        It is an objectively reasonable

interpretation        that       a     later           legal   determination       declares

incorrect.      In those situations, I see no reason to distinguish

between mistakes of law and fact, and would uphold a traffic

stop if under the totality of the circumstances the officer's

interpretation of the law is objectively reasonable.

                                      4.    Application

    ¶108 I          conclude         that     the         officers     acted     reasonably

notwithstanding the majority opinion's determination that Wis.

Stat. § 347.13(1) does not require every panel in a tail lamp to

be lit.     Section 347.13(1) requires a tail lamp to be in "good

working order."           Although I assume, arguendo, that a tail lamp

is in good working order when it is visible from 500 feet, a
reasonable      officer     could          have    believed     otherwise.         In   other

words,    at    the      time    of    the        stop,    "good     working     order"    was

ambiguous and the officers acted reasonably.                          See Teschendorf v.

State Farm Ins. Cos., 2006 WI 89, ¶20, 293 Wis. 2d 123, 717

N.W.2d 258 ("[a] statute that is unambiguous in one context may

be ambiguous in another").

    ¶109 To         explain      further,          a    tail   lamp    is   "a    device    to

designate the rear of a vehicle by a warning light."                             Wis. Stat.
§ 340.01(66).         The individual panels of a tail lamp generally

                                                  15
                                                               No.    2011AP2907-CR.pdr


function together as a unitary device.                   The majority opinion

concludes that the device is functional when the light it emits

can be viewed from a distance of 500 feet.14                   It takes no great

leap of logic to conclude that an unlit panel might impair the

function of the lamp.           As Justice Prosser explains, "it is hard

to imagine that a tail lamp or a stop lamp that has defective

lights        can     be   described      as     being   'in         proper   working

condition.'"15         Put differently, a reasonable officer could have

suspected that the unlit panel in Brown's tail lamp violated

Wis. Stat. § 347.13(1) because an unlit panel could render the

tail lamp less visible, or even invisible, from a distance of

500 feet.16

       ¶110 I also note that the court of appeals has previously

interpreted Wis. Stat. § 347.13(1) differently than the majority

opinion       does    today.     In    State    v.   Olson,    No.     2010AP149-CR,

unpublished slip op. (Wis. Ct. App. Aug. 5, 2010), an officer

observed "a slow moving vehicle equipped with four tail lamp

bulbs, one of which was burnt out" and stopped the vehicle.                        Id.
at ¶2.        The court of appeals upheld the stop, concluding that

"[a] tail lamp with a burnt out bulb cannot be said to be 'in

good working order.'"           Id. at ¶12.       "Though not dispositive, the

fact        that     [courts]   reached        contradictory     interpretations,

       14
            Majority op., ¶33.
       15
            Prosser, J., dissenting, ¶73.
       16
       Moreover, the record does not indicate whether the tail
lamp was visible from a distance of 500 feet.   It is possible
then, given the record before us, that the tail lamp violated
Wis. Stat. § 347.13(1).

                                          16
                                                    No.   2011AP2907-CR.pdr


despite both courts concluding that the statute was clear, is

indicative of ambiguity."     Teschendorf, 293 Wis. 2d 123, ¶19.

    ¶111 The Mississippi Supreme Court upheld a stop based on a

similar mistake of law to the one in the present case.            In Moore

v. State, 986 So. 2d 928 (Miss. 2008), an officer stopped a

vehicle for having only one working tail lamp.                Id. at 929.

There, the court upheld the search even though it was "clear [to

the court of appeals] that what the police observed did not

constitute a violation of the cited traffic law."              Id. at 931

(citation omitted).       The officers' mistake in the present case

is equally reasonable.

    ¶112 The majority cites to two cases in support of its

conclusion that the officers acted unreasonably because the tail

lamp was functional and therefore in good working order:             Kroft

v. State, 992 N.E.2d 818 (Ind. Ct. App. 2013) and Vicknair v.

State, 751 S.W.2d 180 (Tex. Crim. App. 1986).17              In Kroft, an

officer stopped a vehicle with a dime-sized hole in the plastic

cover of a tail lamp.      Kroft, 992 N.E.2d at 820.         Rejecting the
State's argument that the tail lamp was not in good working

order, the court concluded that "there [wa]s simply no evidence

[the vehicle] posed any danger to motorists approaching [the

vehicle] from behind" and the officer "did not testify that he

had trouble spotting [the vehicle] from behind."              Id. at 822.

Vicknair   involved   a    similar   defect,   a   cracked    tail   lamp.

Vicknair, 751 S.W.2d at 187.         There, the court concluded that



    17
         Majority op., ¶32.

                                     17
                                                                          No.    2011AP2907-CR.pdr


the    device       was   in    good       working       order     because       it    was   still

visible from the requisite distance.                           Id. at 189-90.

       ¶113 These cases are easily distinguished.                               Unlike in Kroft

and Vicknair,          the defect in the present case implicates the

function of a tail lamp, which the defects in Kroft and Vicknair

did not.         Here, the totality of the circumstances on July 3,

2010,       could    have      led    a    reasonable           officer    to     suspect    that

Brown's vehicle violated the law because a panel in the tail

lamp was not functioning.

                                      III.       CONCLUSION

       ¶114 For purposes of this dissent, I assume, arguendo, that

the majority opinion's conclusion that Brown's tail lamp was in

"good working order" under Wis. Stat. § 347.13(1) is correct.                                    I

write       in   dissent        to        explain        why     the     majority      opinion's

conclusion that "an officer's mistake of law is not sufficient

grounds for a stop" is not correct.18                           See Longcore, 226 Wis. 2d

at 9.       I conclude that the legality of a stop depends on whether

under the totality of the circumstances a reasonable officer
could have believed that a law violation was occurring.                                        See

Martin, 411 F.3d at 1001 (a search is valid when "an objectively

reasonable          police     officer           could     have        formed     a   reasonable

suspicion that [a defendant] was committing a . . . violation").

Therefore, "in mistake cases[,] the question is simply whether

the    mistake,       whether        of    law    or     of    fact,     was    an    objectively

reasonable one."             Smart, 393 F.3d at 770.                     I further conclude

that    under       the     totality        of     the     circumstances          a   reasonable

       18
            Id., ¶25.

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officer    could     have     believed   that    Brown's   tail     lamp   violated

§ 347.13(1).

     ¶115 Accordingly, I would reverse the decision of the court

of   appeals,      and    I    respectfully     dissent    from      the   majority

opinion.

     ¶116 I     am       authorized      to    state   that     Justice     ANNETTE

KINGSLAND ZIEGLER joins this dissent.




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