State v. Antonio D. Brown

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
 No. 2011AP2907-CR.pdr

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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 No. 2011AP2907-CR.pdr

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