recognizing that unpublished opinions are not binding but can be “considered for their persuasive value”
How later courts described this case
- recognizing that unpublished opinions are not binding but can be “considered for their persuasive value”
- stating that defendant’s interpretation of statutes at issue would make language in Code § 46.2-1003 regarding defective equipment “superfluous and redundant”
- noting that unpublished opinions are persuasive but not binding precedent
- “Although not binding precedent, unpublished opinions can be cited and considered for their persuasive value.”
Written by the judges who cited it.
The opinion
COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Petty and McCullough
PUBLISHED
Argued at Richmond, Virginia
RICHARD ALVIN OTEY
OPINION BY
v. Record No. 2439-11-2 JUDGE STEPHEN R. McCULLOUGH
DECEMBER 26, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
David H. Beck, Judge
Joseph E. Hicks (Jarrell, Hicks & Waldman, P.C., on brief), for
appellant.
Aaron J. Campbell, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Richard Alvin Otey was stopped for driving with a defective brake light. The stop led to
the discovery of illegal drugs. He challenges the validity of the stop, contending that the stop
was not justified because, as a matter of law, his brake light was not defective. We disagree and
affirm. 1
BACKGROUND
On April 15, 2011, Deputy D.J. Hart of the Spotsylvania County Sheriff’s Office was
conducting surveillance of a suspect vehicle driven by appellant. As he drove closer to
appellant’s car, Deputy Hart noticed that “a portion of the third brake light, the high mount brake
light, was out.” This particular brake light had “two lights in it,” and Deputy Hart testified,
1
This is not the first time we have been presented with this issue. On two prior
occasions, albeit in unpublished opinions, we reached the same conclusion that we do here. See
Commonwealth v. Gaskins, No. 0101-11-4, 2011 Va. App. LEXIS 180 (Va. Ct. App. May 24,
2011); Ragland v. Commonwealth, No. 1036-96-2, 1997 Va. App. LEXIS 109 (Va. Ct. App.
Feb. 18, 1997).
“one-half of that light was out.” Based on this fact, Deputy Hart made a traffic stop. On
cross-examination, Deputy Hart acknowledged that he was able to see the brake lights
illuminate. He could not determine with certainty the distance between his vehicle and
appellant’s, but he stated that the two vehicles could have been separated by 500 feet.
As he approached the vehicle, Deputy Hart noticed “a strong and distinct odor of fresh
marijuana coming from inside the vehicle.” When asked about the odor, Otey admitted that
there was a bag of marijuana in the center console. Deputy Hart seized the bag, as well as a
digital scale located under the driver’s seat. Otey admitted to possessing two additional bags in
his pockets. Otey later stated that he was “fronted” the marijuana, meaning that he would sell it
and then reimburse his supplier with the proceeds from the sales.
Otey moved to suppress the evidence seized following the traffic stop, arguing that the
stop was improper. The trial court denied the motion, reasoning that the stop was justified based
on the defective brake light. Otey was convicted of possession of marijuana with intent to
distribute and sentenced to serve three years in prison, with all but 60 days suspended.
ANALYSIS
When this Court reviews a trial court’s ruling on a motion to suppress, “‘the burden is
upon [the losing party] to show that the ruling, when the evidence is considered most favorably
to the [prevailing party], constituted reversible error.’” McGee v. Commonwealth, 25 Va. App.
193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 220 Va. 1007,
1010, 265 S.E.2d 729, 731 (1980)). Although the facts here are not in dispute, we view the
evidence in the light most favorable to the prevailing party. Branham v. Commonwealth, 283
Va. 273, 279, 720 S.E.2d 74, 77 (2012).
The Fourth Amendment of the United States Constitution protects against unreasonable
searches and seizures. U.S. Const. amend. IV. An officer’s stop of a vehicle is reasonable under
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the Fourth Amendment if the officer possesses at least articulable and reasonable suspicion that
the vehicle is in violation of a statute or regulation governing the vehicle’s equipment. Delaware
v. Prouse, 440 U.S. 648, 663 (1979). See also McCain v. Commonwealth, 275 Va. 546, 553, 659
S.E.2d 512, 516 (2008) (“An officer may effect a traffic stop when he has reasonable suspicion
to believe a traffic or equipment violation has occurred.”). If the search violates the suspect’s
Fourth Amendment rights, exclusion of the illegally seized evidence generally constitutes the
remedy. See Davis v. United States, 131 S. Ct. 2419, 2423 (2011).
The issue before us pivots on a question of statutory construction, namely, the meaning of
the term “defective” in Code § 46.2-1003. “Statutory interpretation presents a pure question of
law and is accordingly subject to de novo review by this Court.” Washington v. Commonwealth,
272 Va. 449, 455, 634 S.E.2d 310, 313 (2006).
Code § 46.2-1003 makes it “unlawful for any person to use or have as equipment on a
motor vehicle operated on a highway any device or equipment mentioned in § 46.2-1002 which
is defective or in unsafe condition.” In turn, Code § 46.2-1002 mentions “lighting device[s],
warning device[s], signal device[s], safety glass, [and] other equipment for which approval is
required by any provision of this chapter . . . .” 2 Finally, Code § 46.2-1014.1 requires
automobiles to “be equipped with a supplemental center high mount stop light of a type
approved by the Superintendent or which meets the standards adopted by the United States
Department of Transportation.”
Appellant argues that Deputy Hart’s stop was based on a mistaken reading of the law. He
contends that Code § 46.2-1014 supplies the standard for what constitutes a “defective” brake
light. Code § 46.2-1014 provides in relevant part that
2
The Superintendent of the State Police is the person who is tasked with providing this
approval. See Code §§ 46.2-1005 and 46.2-1002.
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Every motor vehicle . . . except an antique vehicle not
originally equipped with a brake light, registered in the
Commonwealth and operated on the highways in the
Commonwealth shall be equipped with at least two brake lights of
a type approved by the Superintendent. Such brake lights shall
automatically exhibit a red or amber light plainly visible in clear
weather from a distance of 500 feet to the rear of such vehicle
when the brake is applied.
Appellant reasons that his brake light was not defective because it was visible from 500 feet.
“Ordinarily, when a particular word in a statute is not defined therein, a court must give it
its ordinary meaning.” Moyer v. Commonwealth, 33 Va. App. 8, 35, 531 S.E.2d 580, 593 (2000)
(en banc) (citing McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284 (1970)). The
plain, ordinary meaning of the term “defective” is straightforward. A brake light is “defective” if
it is “faulty, deficient.” Webster’s Third New International Dictionary 591 (1981). A brake light
that lights up by only half is faulty and deficient, just as an engine that sputters and lurches is
defective, even if it works well enough to enable the driver to reach his destination. We adopt
the plain language reading of the term “defective.”
In addition, Code § 46.2-1003 is codified among the provisions regulating “vehicle and
equipment safety.” As we noted in Ragland v. Commonwealth, No. 1036-96-2, 1997 Va. App.
LEXIS 109 (Va. Ct. App. Feb. 18, 1997), 3 this provision
does more than set a minimum standard; it regulates the
maintenance of devices or equipment used on a vehicle. In
particular, Code § 46.2-1003 prohibits the use on a vehicle of any
equipment mentioned in Code § 46.2-1002 that is either unsafe or
defective, whether or not this equipment exceeds the minimum
requirements set forth elsewhere in the Code. Thus, the apparent
intent of Code § 46.2-1003 is to compel automobile owners to
repair or replace any of their vehicle’s equipment that falls into a
defective or unsafe condition.
3
Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value. Rule 5A:1(f).
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Id. at *6-*7. Appellant’s attempt to harmonize Code § 46.2-1003 and Code § 46.2-1014 would
have “the effect of eviscerating the impact of Code § 46.2-1003 because it would create an entire
class of equipment that may be legally used on a vehicle in an unsafe or defective condition
simply because the equipment is in excess of the Code’s minimum requirements.” Id. at *7. We
decline to “construe these two provisions to achieve such an unwarranted result.” Id.
Moreover, reading Code § 46.2-1003 in the manner argued by appellant – that a brake
light is defective only if it is not visible from 500 feet – would render superfluous and redundant
the language in Code § 46.2-1003 prohibiting defective equipment. Under appellant’s suggested
reading, Code § 46.2-1003 would simply repeat the requirements already set forth in Code
§ 46.2-1014. Basic canons of statutory construction proscribe interpreting statutes in a way that
renders statutory language superfluous. See, e.g., Zhou v. Zhou, 38 Va. App. 126, 136-37, 562
S.E.2d 336, 340-41 (2002).
We also note that under the Virginia Administrative Code, a vehicle will not pass
inspection if a vehicle’s rear light assembly “does not work as designed by the manufacturer,” if
all rear lamps “are not in operating condition” and where a lamp’s “filaments do not burn.”
19 VAC § 30-70-150(1), (2), (10). 4 It certainly would be odd for a vehicle’s malfunctioning rear
light to cause the vehicle to fail the state inspection but at the same time not be “defective.” 5
Finally, appellant makes a policy argument in support of reversal, contending that a stop
such as this one is “unduly burdensome to the driver.” Appellant’s Br. at 12. Our role as a
4
This same regulation provides that “[f]or those vehicles that are equipped with a
multiple LED light (not filament-burning bulbs), they will pass inspection if more than 50% of
the diode lights are burning.” 19 VAC § 30-70-150(5).
5
Only “device[s] [and] equipment mentioned in § 46.2-1002” are required to be kept in a
non-defective condition under Code § 46.2-1003. As a result, assuming that some non-
functioning optional equipment would cause a vehicle to fail state inspection, such defective
optional equipment would not justify a stop under Code § 46.2-1003.
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reviewing court is to determine whether the stop conformed to the law. The legislature certainly
may choose to constrain the discretion exercised by law enforcement officers in particular
contexts beyond the requirements of the Fourth Amendment. That policy decision, however, is
for the legislature to make. 6
Deputy Hart’s stop of appellant’s vehicle was based on a reasonable, articulable
suspicion that appellant’s vehicle had defective equipment. Therefore, the trial court correctly
denied appellant’s motion to suppress.
CONCLUSION
The judgment of the trial court is affirmed.
Affirmed.
6
We note that officers are directed, subject to limited exceptions, to issue a summons
rather than effectuate an arrest for traffic infractions, and traffic infractions are defined to include
equipment violations. See Code §§ 19.2-74, 46.2-937, 46.2-100, and 46.2-113.
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