Police lacked probable cause to stop Brown for a defective tail lamp, § 347.13, based on one unlit bulb (out of four) in the tail lamp assembly:
¶19 The parties agree with the circuit court’s finding that the police officers stopped the vehicle because “the middle” rear tail light on the driver’s side of the vehicle was unlit. It is undisputed that both the first and the third rear light bulbs on both the driver’s side and the passenger’s side (totaling four lights) were lit. The driver testified, and his testimony is undisputed, that those four lights were lit whenever the vehicle was in motion, and therefore, they were the lights which designated the rear of the vehicle, to wit, all four of the lights which made up the vehicle’s two tail lamps were in working order.
¶20 Brown argues that even if the second light was unlit and was part of the vehicle’s tail lamp, when a vehicle’s tail lamp is made up of three lights, and two of those lights are lit, the tail lamp is “in good working order” as required by Wis. Stat. § 347.13(1). As such, Brown contends that the police officers had no basis to stop the vehicle and the stop was unconstitutional. We agree.
¶21 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. The statute does not require that a vehicle’s tail lamps be fully functional or in perfect working order. It only requires “good working order.” See id. Here, the two lit light bulbs making up the driver’s side tail lamp satisfied the definition of a tail lamp as “a device to designate the rear of a vehicle by a warning light.” See Wis. Stat. § 340.01(66). Because the two lit light bulbs on the rear driver’s side of the vehicle were sufficient to designate the rear of the vehicle to a vehicle travelling behind it, the officers did not have probable cause of a traffic violation and the stop was unconstitutional. The officers 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.” See Longcore, 226 Wis. 2d at 9. As such, we reverse.
The first rationale for the court’s decision is predicated on a nice little factual nuance: The driver testified that just before the stop he observed the tail lights were in working order; the circuit court found that testimony incredible, but not his testimony that the unlit bulb was the brake light that wouldn’t have been lit unless the driver applied the brakes. (¶19 n.5). Thus, apparently, all the bulbs intended to work as a “tail lamp” were lit when the police saw the car, and there was no violation.
The court’s second rationale–that “good working order” does not mean “perfect” working order (¶21)–is contrary to the conclusion reached in State v. Laurence Evan Olson, 2010AP149-CR (8/5/10), an unpublished (and therefore non-binding) opinion that the state cited in its brief for its persuasive value under Rule 809.23(3)(b). Clearly it was not persuasive to this panel of the court, whose conflicting opinion will be binding if it is published; and that conflict may set the issue up for supreme court review.