UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4792
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
SHON MCHUGH,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:08-cr-00078-JRS-1)
Argued: September 23, 2009 Decided: November 4, 2009
Before MOTZ, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Irene M. KEELEY, United States District Judge for the Northern
District of West Virginia, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Richard Daniel Cooke, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellant. Paul Geoffrey
Gill, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia,
for Appellee. ON BRIEF: Dana J. Boente, Acting United States
Attorney, Alexandria, Virginia, Olivia N. Hawkins, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellant. Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
On January 30, 2008, Virginia State Police Trooper Michael
Miller (Trooper Miller) stopped a vehicle driven by Shon McHugh
(McHugh) on Interstate 95 in Greensville County, Virginia.
During the stop, Trooper Miller asked for and received consent
to search the vehicle. During the search, Trooper Miller
discovered and seized crack cocaine, marijuana, and oxycodone.
Following his indictment on charges of conspiracy to distribute
five kilograms or more of crack cocaine and oxycodone, and
possession with intent to distribute five kilograms or more of
crack cocaine and oxycodone, McHugh moved to suppress the drugs
seized during the stop, contending that Trooper Miller lacked
reasonable suspicion to stop his vehicle. The district court
initially denied McHugh’s motion, but granted it upon
reconsideration. The government appeals, and we vacate and
remand for further proceedings.
I
The circumstances surrounding the stop are not in dispute.
McHugh was driving a Ford Expedition (the Expedition) with
Massachusetts license plates northbound on Interstate 95 when
Trooper Miller, who was parked on the side of the interstate,
observed that the Expedition’s taillights had clear lenses on
them, equipment he believed was unlawful under Virginia law.
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Virginia Code § 46.2-1013 provides in relevant part:
Every motor vehicle . . . shall carry at the rear two
red lights plainly visible in clear weather from a
distance of 500 feet to the rear of such vehicle.
. . . Any such tail lights . . . shall be of a type
approved by the Superintendent [of the Department of
State Police of the Commonwealth of Virginia].
Va. Code Ann. § 46.2-1013. 1 Trooper Miller testified that,
through his training, he knows that anything that comes stock on
vehicles fits within the parameters of the State Inspection
Manual and the Virginia Code. According to Trooper Miller, the
purpose of his stop of the Expedition was “[t]o investigate the
fact that the taillights . . . appeared to be unauthorized
equipment by Commonwealth of Virginia law and I needed to check
and make sure that they were in fact approved equipment.” (J.A.
14). Trooper Miller suspected the taillights on the Expedition
were unlawful because: (1) he knew 1997 Ford Expeditions came
1
In 19 Virginia Administrative Code § 30-70-150, the
Superintendent set forth, in regulatory form, the standards
governing the inspection of vehicles in Virginia with respect to
“Rear lamps:tail lamp; license plate lamps and rear lamp
combinations.” Id. Such regulation directs that the inspector:
Inspect for and reject if:
1. Vehicle is not equipped with a rear (tail lamp) or rear
lamp combination of an approved type or light assembly does not
work as designed by the manufacturer. The approval designation
letters that must appear are DOT or SAE-A-I-S-T-P for single
lamps, DOT or SAE-A-I-S-T-P-R with a backup light, DOT or SAE-A-
I-S-T-P-P2-R with a wrap around side-marker lamp and backup
light.
Id. at § 30-70-150(1).
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stock with red-lensed taillights; (2) he clearly observed that
the Expedition had after-market, clear-lensed taillights; (3) in
his experience, he had encountered non-approved, after-market
taillights “[m]any, many, times”; and (4) he had written “many,
many tickets for unapproved taillight covers that weren’t . . .
approved.” (J.A. 35).
Before initiating the stop, Trooper Miller confirmed with
another Virginia State Trooper that the clear lenses on the
Expedition’s taillights probably did not comply with Virginia
law. After receiving this confirmation, Trooper Miller stopped
the Expedition. As Trooper Miller executed the stop, he
observed that the Expedition’s taillights emitted red light.
After the stop, Trooper Miller inspected the Expedition’s
taillights. He noticed the lenses on the Expedition’s
taillights were clear, but that the taillights’ bulbs and
reflectors were red. He also noticed that the taillights were
stamped with markings indicating they may have been of a type
approved by the Superintendent.
Upon noticing only one key on McHugh’s key chain and the
presence of air fresheners and a CB radio in the vehicle,
circumstances he believed were indicative of drug trafficking,
Trooper Miller asked for and received consent to search the
vehicle. During the search, Trooper Miller discovered and
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seized approximately six kilograms of crack cocaine, one-half
pound of marijuana, and approximately 100 oxycodone pills.
On February 20, 2008, a federal grand jury sitting in the
Eastern District of Virginia returned a two-count indictment
against McHugh. In Count One, McHugh was charged with
conspiracy to distribute five kilograms or more of crack cocaine
and oxycodone, 21 U.S.C. § 846. Count Two charged McHugh with
possession with intent to distribute five kilograms or more of
crack cocaine and oxycodone, 21 U.S.C. § 841.
McHugh moved to suppress the evidence seized from the
Expedition, contending that there was no reasonable suspicion to
support the stop. In response, the government posited that the
stop was justified, principally because Trooper Miller had
reasonable suspicion to believe that the clear lenses on the
taillights violated § 46.2-1013, because they were: (1) clear
and (2) not of a type approved by the Superintendent.
Initially, the district court denied the motion. However, upon
McHugh’s motion for reconsideration, the district court granted
the motion.
The district court began its analysis by noting that a
suspicion “based on a mistaken belief does not make the
suspicion (or the stop that it motivated) unreasonable, provided
that the error was a reasonable mistake of fact.” (J.A. 83).
In contrast to a mistake of fact, the district court next
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observed that “a mistake of law cannot justify a stop, even if
the mistake was reasonable.” (J.A. 83). Turning to the issue
of whether the case involved a mistake of fact or a mistake of
law, the district court concluded that it was one of law
because, while Trooper Miller correctly perceived that the
taillights on the Expedition had clear lenses, he incorrectly
believed that such clear lenses violated Virginia law, as
“section 46.2-1013 does not prohibit motor vehicles from being
equipped with taillights whose lenses are clear.” (J.A. 94).
In view of this perceived mistake of law, the district court
concluded that Trooper Miller did not have an articulable,
reasonable suspicion that the Expedition, as configured,
violated Virginia law.
II
This court reviews the district court’s factual findings
underlying a motion to suppress for clear error, and the
district court’s legal determinations de novo. United States v.
Grossman, 400 F.3d 212, 216 (4th Cir. 2005). The decisive issue
in this case is whether the stop of the Expedition was supported
by reasonable suspicion under the Fourth Amendment. The
validity of McHugh’s consent is not at issue.
The Fourth Amendment protects citizens from unreasonable
searches and seizures by the government, and its protections
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extend to brief investigatory stops that fall short of
traditional arrest. United States v. Arvizu, 534 U.S. 266, 273
(2002). In the context of investigatory detentions, the Supreme
Court has held that, consistent with the Fourth Amendment, a
police officer may conduct an investigatory stop if the officer
has a reasonable suspicion that criminal activity may be afoot.
Terry v. Ohio, 392 U.S. 1, 31 (1968). Such an investigatory
stop must be based on “at least a minimal level of objective
justification” but the standard for reasonable suspicion is less
demanding than for probable cause. Illinois v. Wardlow, 528
U.S. 119, 123 (2000).
In assessing whether an officer had a reasonable suspicion
of criminal activity, this court must consider the totality of
the circumstances surrounding the seizure. United States v.
Sprinkle, 106 F.3d 613, 618 (4th Cir. 1997). “Reasonable
suspicion is a commonsensical proposition. Courts are not
remiss in crediting the practical experience of officers who
observe on a daily basis what transpires on the streets.”
United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993).
To establish reasonable articulable suspicion, an officer
must be able to articulate something more than an inchoate and
unparticularized suspicion or hunch. United States v. Sokolow,
490 U.S. 1, 7 (1989). However, reasonable articulable suspicion
may be established by a series of acts, each of them perhaps
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innocent when viewed separately, but when viewed in the
aggregate by a trained police officer warrant further
investigation. Id. at 9-10. In assessing whether reasonable
suspicion existed, the facts, whether seemingly innocent or
obviously incriminating, are to “be assessed in light of their
effect on the respective officer’s perception of the situation
at hand.” United States v. McCoy, 513 F.3d 405, 414 (4th Cir.
2008). Even when each fact alone may be susceptible of an
innocent explanation, “the question is whether taken together,
they are sufficient to form a particularized and objective basis
for an officer’s suspicions.” United States v. Black, 525 F.3d
359, 365-66 (4th Cir. 2008) (internal quotation marks and
alteration omitted).
Under the totality of the circumstances in this case,
Trooper Miller had an articulable, reasonable suspicion that the
Expedition, as configured, violated Virginia law. Trooper
Miller stopped the Expedition because he reasonably believed the
after-market, clear-lensed taillights may not have been of a
type approved by the Superintendent. This reasonable belief was
based on the following objective facts: (1) the lenses on the
taillights were clear; (2) Trooper Miller knew 1997 Expeditions
came stock with red-lensed taillights; (3) Trooper Miller had
encountered non-approved, after-market taillights “[m]any, many,
times”; and (4) Trooper Miller had written “many, many tickets
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for unapproved taillight covers that weren’t . . . approved.”
(J.A. 35). Because Trooper Miller pointed to specific and
articulable facts which, taken together with rational inferences
from those facts, evince more than an inchoate and
unparticularized suspicion or hunch of criminal activity (i.e.,
a violation of § 46.2-1013), the Fourth Amendment’s reasonable
suspicion requirement for a brief investigatory stop under Terry
was satisfied in this case. 2
The flaw in the district court’s analysis is evident. It
concluded that a mistake of law was present because § 46.2-1013
does not prohibit clear lenses on taillights. 3 While it is true
2
Although McHugh acknowledges that the Expedition, despite
being registered out of state, was subject to § 46.2-1013, he
argues that the statute is not enforceable against him because
it does not have a corresponding implementing regulation.
According to McHugh, 19 Virginia Administrative Code § 30-70-
150, which specifies the Superintendent’s taillight requirements
(including that approved taillights must have certain approval
markings), does not operate as the standard by which taillights
on every vehicle in Virginia are to be measured for compliance
with § 46.2-1013. We reject this argument for the simple reason
that § 46.2-1013 specifies that every motor vehicle must have
taillights of a type approved by the Superintendent. Moreover,
the fact that the standards set forth by the Superintendent in
§ 30-70-150 supply the standards to be applied by designated
state vehicle inspectors does not prevent them from serving as
the standards for the types of taillights approved by the
Superintendent. Indeed, § 30-70-150 clearly sets forth the
types of taillights approved by the Superintendent.
3
For purposes of our discussion, we assume, without
deciding, that an officer’s reasonable mistake of law may not
provide the objective grounds for reasonable suspicion to
justify a traffic stop.
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that § 46.2-1013 does not in explicit terms prohibit clear
lenses on taillights, the district court’s analysis overlooks a
critical component of § 46.2-1013--that the taillights “shall be
of a type approved by the Superintendent.” Here, Trooper Miller
had an articulable, reasonable suspicion to believe that the
clear lenses on the Expedition’s taillights were not of a type
approved by the Superintendent. While he may have been mistaken
in believing that the clear lenses on the taillights were not of
a type approved by the Superintendent, he clearly was not
mistaken in his belief that Virginia law required the clear
lenses to be of a type so approved. Thus, any mistake on the
part of Trooper Miller involved one of fact, not law. Put
another way, under the facts before him, it was reasonable for
Trooper Miller to believe that a § 46.2-1013 traffic violation
may have been committed and, therefore, the stop was objectively
reasonable. 4
4
At oral argument, McHugh heavily relied on our en banc
decision in United States v. Wilson, 205 F.3d 720 (4th Cir.
2000) (en banc). In Wilson, the defendant was pulled over
solely because the officer could not read the handwritten
expiration date on the vehicle’s temporary license tag. Id. at
723-24. We concluded that an “objective assessment of the facts
and circumstances of this stop compels the conclusion that the
officer lacked any articulable, reasonable suspicion that a
violation had occurred.” Id. at 724. In so concluding, we
noted that the officer “saw nothing wrong, and he suspected
nothing.” Id. In contrast to Wilson, objective facts were
before Trooper Miller in this case that gave rise to a
reasonable suspicion that a violation of § 46.2-1013 had
(Continued)
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III
For the reasons stated herein, the judgment of the district
court is vacated and the case is remanded for further
proceedings. 5
VACATED AND REMANDED
occurred. For this reason, McHugh’s reliance on Wilson is
misplaced.
5
In view of our conclusion that reasonable suspicion
justified Trooper Miller’s stop of the Expedition, we need not
consider the government’s alternative argument that the stop was
justified under the good faith exception to the exclusionary
rule. In addition, on August 20, 2009, the government filed a
motion to expedite oral argument. We dismiss this motion as
moot.
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