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         This order and judgment is not binding precedent, except under the doctrines of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 

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 

truck had stopped, Officer Jones approached the driver, Defendant, and

told him why he had stopped the truck. See 

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 

       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 

revealed that

Defendant had an outstanding misdemeanor warrant. See 

Pursuant to the

warrant, Officer Jones arrested Defendant. See 

partner, Officer Smith,

then patted down Defendant to check for weapons. See 

revealed a

quantity of drugs on Defendant. See 

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


                                             -2-


the latter citation, which constituted an admission of guilt. See 

Another officer, Officer Mallory, then drove Defendant’s truck to the police station.

See 

       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, 

, 1050 (10th Cir. 1999). However, we review the ultimate reasonableness of a search

or seizure de novo. See 

                                            -3-
       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, 

, 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, 

, 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.

                                            -4-
(3) it is equipped in any manner that is in violation of those sections.” State v. Munoz,

, 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

                                            -5-
Motorsports, Inc., 

, 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.

(“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.

(citations omitted). As noted above, the malfunctioning brake


                                              -6-
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.” 

Mallory

drove the “otherwise alleged unsafe” truck back to the headquarters. 

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 

. Accordingly, the court
remanded for such a finding. See 

district court made such a finding and the
only question is whether that factual determination was clearly erroneous.

                                            -7-
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.

(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, 

, 978 (10th Cir. 1996) (statute requiring a vehicle to be “operated as
nearly as practical entirely within a single lane”); United States v. Borcich, 

, 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., 

-
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, 

(5th Cir. 1998). There,
the officer cited the driver for “flashing his turn signal without turning or changing
lanes.” 

The court held that no provision of the Texas Vehicle Code prohibited

                                             -8-
                                           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 

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.

                                          -9-