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State v. Webber
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 168
Docket: 	Som-00-104
Submitted 
  on Briefs:  	September 14, 2000
Decided:	October 3, 2000


Panel: 	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

STATE OF MAINE v. ALAN WEBBER


CALKINS, J.
	[¶1]  The State appeals the order of the District Court (Skowhegan,
Clapp, J.) granting Alan Webber's motion to suppress all evidence resulting
from a police stop of Webber's vehicle.  The State contends that the court
erred in suppressing the evidence obtained by the police as a result of the
stop and in ruling that a broken or missing rear brake light did not give the
police a justifiable basis to stop Webber's vehicle.  We vacate the suppression
order.
	[¶2]  On June 17, 1999, in the afternoon, Officer Anderson of the
Fairfield Police Department investigated a complaint from a citizen that two
unidentified men appeared to be smoking marijuana in a black pickup truck
in a parking lot across the street from the citizen's residence.  While driving
her cruiser to the parking lot to investigate the citizen's complaint,
Anderson received an update that the black pickup was heading toward
town.  About half a mile from the parking lot Anderson passed a black
pickup with two male occupants heading away from the parking lot.  
	[¶3]  After the black pickup passed by Anderson, Anderson looked in
her rear view mirror and saw that when the driver applied the brakes, only
one of the rear brake lights was illuminated.  Anderson turned the cruiser
around and stopped the black pickup.  The trial court found that Anderson
stopped the pickup solely because of inadequate brake lights.{1} 
	[¶4]  Anderson asked Webber, the operator of the black pickup, for his
license and other papers, and Webber replied that he did not have a license. 
There was no indication that anyone had been smoking marijuana.  Webber
was charged with the Class E offense of operating after suspension in
violation of 29-A M.R.S.A. § 2412-A (1996 & Supp. 1999).
	[¶5]  Webber filed a motion to suppress all evidence obtained by
Anderson on the ground that the stop of his vehicle was made without any
objectively reasonable and articulable suspicion of unlawful activity.{2}  After
hearing and after giving the State and Webber an opportunity to provide the
court with written argument, the court granted Webber's motion and held
that Anderson was not justified in stopping the vehicle for inadequate brake
lights because there is no requirement that a motor vehicle have two
operating brake lights.  The court held that there is no statute requiring
vehicles to show more than one red light when braking.  The court rejected
the State's argument that the Chief of the State Police has the authority to
promulgate a rule requiring two brake lights.  The court concluded that
Anderson had no justifiable basis to stop the vehicle and ordered that all
evidence obtained by Anderson be suppressed.
	[¶6]  The State was unable to furnish the trial court any statute
expressly requiring vehicles to have two or more working brake lights.  The
provision that vehicles be equipped with two rear lights does not appear to
apply to brake lights.  See 29-A M.R.S.A § 1905 (1996).  The State argued,
however, that regulations promulgated by the Chief of the State Police
require more than one brake lamp.  See Maine Motor Vehicle Inspection
Manual, Rev. 1998, § 2(I)(3)(b) (III)(BB), p. 2-22.  
	[¶7]  The violation of a traffic infraction witnessed by a police officer is
sufficient justification for the stop of the vehicle.  State v. Taylor, 1997 ME
81, ¶ 9, 694 A.2d 907, 909 (holding stop for inadequate illumination of
plate light justified); State v. Seavey, 564 A.2d 388, 389  (Me. 1989)
(holding failure to use turn signal sufficient basis for stop).  A traffic
infraction is any violation of any provision of Title 29-A of the Maine Revised
Statutes Annotated or of any rule promulgated under the authority of Title
29-A (except those violations expressly defined as crimes).  29-A M.R.S.A.
§ 101(85) (1996).  The Chief of the State Police has general rule-making
authority, pursuant to 29-A M.R.S.A. § 1769 (1996 & Supp. 1999), to adopt
rules for the inspection of vehicles, and specific statutory authority to adopt
rules "governing the adjustment, use and operation of lights on vehicles." 
29-A M.R.S.A. § 1910 (1996).  The Chief promulgated the Maine Motor
Vehicle Inspection Manual.  The Manual establishes a regulatory inspection
requirement that original lights or their equivalent replacements be present
and functioning.  Maine Motor Vehicle Inspection Manual, Rev. 1998,
§ 2(I)(1), p. 2-19.  It also refers to stop lamps in the plural and requires that
stop lamps emit a red light.  Id. at § 2(I)(3)(b) (III)(BB), p. 2-22.   
	[¶8]  Webber argues that any rule requiring two functioning brake
lights is invalid as the result of an unconstitutional delegation of authority by
the Maine Legislature.  He asserts that an agency rule cannot require more
equipment on a vehicle than the statute requires.  He does not suggest that
the pertinent rules in the Manual are inconsistent with any inspection or
equipment statute, but he contends that because there is no statute
requiring two or more functioning brake lights, the rule must fall.  This
argument is not persuasive.  In the first place, the rules promulgated by the
Chief of the State Police are considered substantive rules, which by statute,
are required to be approved by the Maine Legislature.  29-A M.R.S.A.
§ 1769(2) (Supp. 1999); 5 M.R.S.A. § 8072 (Pamph. 1999).  Secondly, the
entire statutory scheme governing motor vehicles provides sufficient
declaration of policy and standards to guide the Chief of the State Police and
to protect against arbitrariness.  See State v. Dube, 409 A.2d 1102, 1104-07
(Me. 1979) (holding rule requiring commercial vehicle drivers to be age 21
or older not an unconstitutional delegation to administrative agency and
affirming criminal conviction for violating rule); State v. Boynton, 379 A.2d
994, 995 (Me. 1977) (affirming conviction for violation of municipal
shellfish ordinance and holding ordinance not unconstitutional delegation of
legislative authority). 
	[¶9]  Because of the rules requiring stop lamps to emit a red light and
requiring that a vehicle's original lights or their equivalent replacements be
present and functioning, Anderson was justified in stopping Webber when
she saw that one of the brake lights was not functioning.
	The entry is:
Suppression Order vacated and case remanded to
the District Court for further entry of order denying
motion to suppress.

Attorneys for the State: David W. Crook, D.A. Janice Stuver, A.D.A. Somerset County Courthouse Court St. Skowhegan, Maine 04976 Attorney for the defendant: Janet Mills, Esq. Wright & Mills 218 Water St. P.O. Box 9 Skowhegan, Maine 04976-0009
FOOTNOTES******************************** {1} . The trial court stated, "[T]he sole articulated reason for the stop was that the officer believed that the vehicle showed an inadequate stop signal under Maine law." The State argues that the trial court erred in this finding in that Anderson testified that she stopped the vehicle for an inoperative brake light and because the vehicle fit the description given by the citizen. The State argued before the trial court and before us that Anderson's second reason was sufficient to justify the stop. We do not reach this argument as we conclude that the inoperative brake light provides a justifiable basis for the stop. {2} . Webber's written motion to suppress contains the additional ground that the stop was pretextual. He did not argue this ground in the trial court, and he has not argued the issue of a pretextual stop on appeal. The issue of a pretextual stop has not been preserved. See State v. Barlow, Jr., 320 A.2d 895, 898 (Me. 1974) (stating that issues neither briefed nor argued on appeal are deemed waived and abandoned).