F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 19 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee, No.99-2206
v. D.C. No. CR-98-863-JC
D. New Mexico
GARY DON BRISCOE,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BALDOCK, HOLLOWAY and EBEL, Circuit Judges.
A grand jury indicted Defendant Gary Don Briscoe (Defendant) for possession of
10 grams and more of methamphetamine with intent to distribute in violation of 21
U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B) and 18 U.S.C. § 2. Defendant moved to
suppress evidence of his drug possession, arguing that the evidence was the product of an
unlawful traffic stop. The district court disagreed and denied the motion. Defendant then
pleaded guilty, reserving the right to appeal for review of the denial of his motion to
suppress. This timely appeal ensued. For the reasons that follow, we affirm.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
I
On November 5, 1998 at about 11:00 or 11:15 a.m. Albuquerque Police Officer
Wayne Jones received a request from Detective Rock Hart to identify the driver of a black
Dodge pickup truck. See II App. at 5. Officer Jones began following the truck, looking
for a traffic violation that would allow him to stop the driver. See id. at 6. After waiting
at a traffic light, Officer Jones noticed that the brake lights on the truck stayed on, even
though the truck was moving. Officer Jones therefore pulled the truck over. See id.
After the truck had stopped, Officer Jones approached the driver, Defendant, and
told him why he had stopped the truck. See id. at 6-7. Defendant told the officer that he
thought that there might be something wrong with the brake lights because the truck’s
rear bumper had been stolen. Defendant also told the officer that he did not have his
driver’s license with him. See id. at 7.
Officer Jones then went back to his car to issue a citation and run a MVD through
his indices and an NCIC check on Defendant. See id. Those checks revealed that
Defendant had an outstanding misdemeanor warrant. See id. at 8. Pursuant to the
warrant, Officer Jones arrested Defendant. See id. Officer Jones’ partner, Officer Smith,
then patted down Defendant to check for weapons. See id. That pat-down revealed a
quantity of drugs on Defendant. See id.
After the arrest, Officer Jones issued Defendant a citation for driving without a
license and a warning citation for driving with defective equipment, the brake lights. See
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id. Defendant signed the latter citation, which constituted an admission of guilt. See id.
at 9. Another officer, Officer Mallory, then drove Defendant’s truck to the police station.
See id. at 19.
A grand jury indicted Defendant Gary Don Briscoe (Defendant) for possession of
methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 21
U.S.C. § (b)(1)(B). See I App. at 8. Defendant moved to suppress evidence of his drug
possession, arguing that the evidence was the product of a warrantless and illegal seizure
of Defendant in violation of his constitutional rights. See I App. 18 at 1. Specifically,
Defendant argued that continuous illuminations of the brake lights did not violate New
Mexico law. See I App. 19 at 3. The district court disagreed, holding that the
illuminations constituted an unsafe condition in violation of N.M. Stat. Ann. § 66-3-
801A. See II App. at 20-21. Defendant then pleaded guilty, reserving his right to appeal
for review of the denial of his motion to suppress. See I App. 46 at 2.
II
When reviewing the denial of a motion to suppress, we accept the district court's
factual findings unless they are clearly erroneous. See United States v. Davis, 197 F.3d
1048, 1050 (10th Cir. 1999). However, we review the ultimate reasonableness of a search
or seizure de novo. See id.
III
A
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When determining the propriety of a traffic stop, the question before the court is
whether “the particular officer had reasonable suspicion that the particular motorist
violated any of the multitude of applicable traffic and equipment regulations of the
jurisdiction.” United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998) (citation,
alteration, and internal quotation marks omitted).1 As noted above, the officer in this case
observed that Defendant’s brake lights continued to illuminate, even though the vehicle
was moving.
N.M. Stat. Ann. § 66-3-801A provides:
Except as otherwise provided in this section, it is a misdemeanor for
any person to drive or move or for the owner to cause or permit to be driven
or moved on any highway any vehicle or combination of vehicles which is
in such unsafe condition as to endanger any person or which does not
contain those parts or is not at all times equipped with such lamps and other
equipment in proper condition and adjustments as is required by Sections
66-3-801 through 66-3-887 NMSA 1978 or which is equipped in any
manner that is in violation of those sections or for any person to do any act
forbidden or fail to perform any act required under those sections.
As is apparent, the statute provides “three alternative ways that a vehicle would be
covered: (1) it is in such unsafe condition as to endanger any person, (2) it does not
contain those parts or is not at all times equipped with such lamps and other equipment in
proper condition and adjustments as required by Sections 66-3-801 through 66-3-887, or
1
Ordinarily, the court also considers whether the officer’s actions were
“reasonably related in scope to the circumstances that first justified the interference."
United States v. Burch, 153 F.3d 1140, 1141 (10th Cir. 1998) (citation and internal
quotation marks omitted). The parties do not contest the district court’s finding that the
officer’s actions satisfied that requirement.
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(3) it is equipped in any manner that is in violation of those sections.” State v. Munoz,
965 P.2d 349, 352 (N.M. Ct. App. 1998) (internal quotation marks omitted). The
government argues on appeal that Defendant’s truck fell within the second category. See
Appellee’s Answer Brief at 9-11. Specifically, the government notes that N.M. Stat. Ann.
§ 66-3-828B provides:
Every stop lamp shall be plainly visible and understandable from a
distance of one hundred feet to the rear both during normal sunlight and at
nighttime and a signal lamp or lamps indicating intention to turn shall be
visible and understandable during daytime and nighttime from a distance of
one hundred feet both to the front and rear. When a vehicle is equipped
with a stop lamp or other signal lamps, such lamp or lamps shall at all times
be maintained in good working condition. No stop lamp or signal lamp
shall project a glaring or dazzling light.
(emphasis added). Read together, then, N.M. Stat. Ann. § 66-3-801A makes it a
misdemeanor to use equipment that does not conform with N.M. Stat. Ann. § 66-3-828B
and N.M. Stat. Ann. § 66-3-828B, in turn, requires stop lights to be in “good working
condition.” As stated above, Defendant’s brake lights improperly continued to illuminate
when the truck was moving. Accordingly, the brake lights were not in “good working
condition,” as required by N.M. Stat. Ann. § 66-3-828B.
Defendant, however, presents two reasons why the government cannot rely on
N.M. Stat. Ann. § 66-3-828 B on appeal. First, Defendant notes that neither the
government nor the district court relied on this provision below. See Appellant’s Reply
Br. at 4-5. This court, however, may affirm the district court on any basis the record
supports, even one the district court did not reach. See Wolfgang v. Mid-America
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Motorsports, Inc., 111 F.3d 1515, 1524 (10th Cir. 1997) (“[W]e are not constrained by the
district court's conclusions, but may affirm the district court on any legal ground
supported by the record.”). Therefore, Defendant’s first argument is not well taken.
Second, Defendant argues that Officer Jones did not rely on N.M. Stat. Ann. § 66-
3-828B as a basis for stopping Defendant. Indeed, Officer Jones testified that N.M. Stat.
Ann. § 66-3-801A, by itself, warranted the traffic stop. See II App. at 15-16; see also
Appellant’s Reply Brief at 3-4.
Officer Jones did, however, correctly determine that a malfunctioning brake light
violated N.M. Stat. Ann. § 66-3-801A (even though he did not correctly cite the
additional necessary statute, N.M. Stat. Ann. § 66-3-828B). More importantly, the Fourth
Amendment looks not at the subjective belief of the officer, but at the objective evidence.
Davis, 197 F.3d at 1051 (“The ‘subjective belief’ of an individual officer as to whether
there was probable cause for making an arrest is not dispositive. “). Therefore, as the
New Mexico courts have observed, a traffic stop is valid, even when the officer cites the
wrong statute, if the driver was, in fact, violating the traffic code:
The subjective belief of the officer does not itself affect the validity of the
stop; it is the evidence known to the officer that counts, not the officer’s
view of the governing law. Accordingly, we can ignore the inappropriate
reference to Section 66-7-357 in the citation [the officer] prepared. If his
observations provided reasonable grounds to believe that another statute
was being violated, or that the vehicle constituted a safety hazard, the stop
was valid, regardless of his incorrect understanding of the law.
Munoz, 965 P.2d at 352 (citations omitted). As noted above, the malfunctioning brake
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light violates N.M. Stat. Ann. § 66-3-828B, when read in conjunction with N.M. Stat.
Ann. § 66-3-801A. Accordingly, the traffic stop was justified, even though Officer Jones
did not expressly rely on N.M. Stat. Ann. § 66-3-828B.
B
The trial judge correctly found that the subjective reason “is not of any
consequence. It’s the objective reason. The officers testified the brake lights were on. It
would be an unsafe condition, under 66-3-801 A.” II Tr. 19-20. Even ignoring N.M.
Stat. Ann. § 66-3-828B, the faulty brake lights violated N.M. Stat. Ann. § 66-3-801A. As
noted above, N.M. Stat. Ann. § 66-3-801A prohibits three different items, including
vehicles that are “in such unsafe condition as to endanger any person.” The district court
did not clearly err by determining that the truck was in such a condition.2
The Defendant says the traffic stop occurred on a clear day at 11:15 a.m. See
Appellant’s Brief-in-Chief at 15. Officer “Jones admitted that no other vehicle had to
take any evasive action by the brake lights remaining on.” Id. Indeed, Agent Mallory
drove the “otherwise alleged unsafe” truck back to the headquarters. Id. Taken together,
Defendant argues there was no evidence that the brake light rendered the truck unsafe on
the day in question. Defendant assumes that such proof prevents the government from
2
We note that this case differs from the ultimate outcome in Munoz. In Munoz,
the district court never made a factual finding on whether the vehicle was in “such an
unsafe condition as to endanger any person.” 965 P.2d at 353-54. Accordingly, the court
remanded for such a finding. See id. Here, the district court made such a finding and the
only question is whether that factual determination was clearly erroneous.
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establishing a violation of N.M. Stat. Ann. § 66-3-801A. Defendant is incorrect:
Under . . . Section 66-3-801(A), the law is violated by driving a
vehicle that is in an unsafe condition, regardless of whether it is being
driven unsafely at the time. . . . [T]he State is not limited to citing drivers
for safety violations as the wreckage is being towed away. It is the risk of
harm, not its realization that counts.
Munoz, 965 P.2d at 353 (internal quotation marks omitted). Officer Jones could have
reasonably concluded and the trial court could properly find that a faulty brake light
constitutes an unsafe condition generally, even though there was no evidence that it made
driving on that particular day unsafe.3 In the circumstances, the district court did not
clearly err by denying the motion to suppress.4
3
Officer Jones never stated that he believed that the vehicle was operating in an
unsafe condition. He believed that the brake light was not in proper working condition as
required by N.M. Stat. Ann. § 66-3-801A. However, as noted above, the officer’s
subjective belief is not determinative.
4
Defendant argues that two cases from this circuit require a contrary result.
In both cases, the statute at issue regulated the conduct of the driver. See United States v.
Gregory, 79 F.3d 973, 978 (10th Cir. 1996) (statute requiring a vehicle to be “operated as
nearly as practical entirely within a single lane”); United States v. Borcich, 460 F.2d
1391, 1392 n.1 (10th Cir. 1972) (statute prohibiting crossing the yellow line unless “it can
be made with safety”). In both cases, the court held that the driver’s conduct on the day
in question was not unsafe in violation of the statute. See, e.g., Gregory, 79 F.3d at 978-
79.
Unlike in those cases, the statute at issue here, N.M. Stat. Ann. § 66-3-801 A,
regulates the maintenance of the vehicle. Under that statute, the question is whether the
vehicle was safe at the time it was being driven. Because of these differences in the
statutes, neither Gregory nor Borcich provide guidance in this case.
Defendant also cites United States v. Miller, 146 F.3d 274 (5th Cir. 1998). There,
the officer cited the driver for “flashing his turn signal without turning or changing
lanes.” Id. at 277. The court held that no provision of the Texas Vehicle Code prohibited
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IV
For the foregoing reasons, we AFFIRM the judgment and the district court’s denial
of the motion to suppress evidence.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
that conduct. See id. at 278-79. As noted above, a provision in the New Mexico code
does prohibit equipment that is in an “unsafe condition.” Accordingly, Miller provides no
guidance in this case.
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