Mason v. Commonwealth (Virginia Supreme Court): Rearview Mirrors Have Acquired Great Law Enforcement Significance
by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail: firstname.lastname@example.org
On May 5, 2016, the Virginia Supreme Court decided Mason v. Commonwealth, a case of great significance giving law enforcement officers extensive discretion to stop motorists. The case began when a Waverly Police Department officer, Willie Richards, operating stationary radar, observed a car pass him with an object hanging from the rearview mirror. He pulled the car over because he thought it might be in violation of Va. Code §46.2-1054. That provision makes it unlawful for any person to drive a vehicle on public highways with any object “suspended from any part of the motor vehicle” so as to “obstruct the driver’s view through the windshield.”
When Officer Richards approached the car, he observed a 3” by 5” plastic parking pass from a nearby military facility hanging from the rearview mirror. He asked the driver of the vehicle, Tony Jarrett, to exit the car and come to the rear of the vehicle. He told Jarrett that he intended to give him tickets for driving without his seat belt fastened, as well as for violating §46.2-1054. He asked Jarrett for permission to pat him down for weapons, and Jarrett agreed. The pat down turned up a bag of marijuana.
Because of the marijuana found on Jarrett and a strong aroma of marijuana coming from the interior of the car, Officer Richards and Officer Parker, who was partnered with Officer Richards that night, searched the car’s interior. They found numerous individual bags of marijuana, a bag of “Ecstasy” pills, and several letters in a backpack in the back seat of the car. The letters were addressed to Loren Mason, a passenger in Jarrett’s car, so they arrested Mason for possession of the drugs found in the backpack. Mason was convicted and appealed on the basis that the officers’ stop of the vehicle was unconstitutional.
On appeal before a three judge panel of the Virginia Court of Appeals, the state argued that the presence of any object hanging from a rearview mirror provides reasonable suspicion to think that §46.2-1054 has been violated. Judge Humphreys, writing for himself and Judge Petty, rejected this argument, citing Supreme Court cases holding that determinations of reasonable suspicion (and probable cause) require examination of the particular facts in each case. They cannot be decided on the basis of a per se rule. The majority then turned to the issue of whether the officers in this case had reasonable suspicion to think that the object they had observed obscured Jarrett’s vision of the highway. They ruled against the state on this issue as well. Officer Richards testified that he noticed nothing unusual about Jarrett’s driving. His suspicion was limited to the presence of the dangling object, which he thought alone provided reasonable suspicion. Thus, Richards was unable to articulate facts sufficient to constitute reasonable suspicion.
Judge Kelsey dissented. He pointed out that the reasonable suspicion standard is an objective standard. The issue is not whether the police officer in question thought he or she had reasonable suspicion, but whether the facts that existed at the time were sufficient to cause a reasonable officer to conclude that reasonable suspicion existed. The parking hang tag in this case extended some distance below the rearview mirror. Judge Kelsey described several hypothetical scenarios where the additional obstruction of the driver’s view of the highway caused by the parking pass could obscure a driver’s vision. Therefore, he concluded that reasonable suspicion was present.
The Court of Appeals then chose to rehear the case en banc and overturned the panel decision 6-5. Judge Kelsey wrote the majority decision. In effect, his dissenting opinion in the panel decision became the majority opinion for the en banc court. However, he added an important section that seemed designed to rebut the very important contention that the holding does, in fact, create a per se rule that any object hanging from a rearview mirror creates a basis for stopping the vehicle.
Needless to say, our holding does not endorse any per se rule authorizing traffic stops whenever an object of any kind is observed dangling from a vehicle’s rearview mirror. While the prosecutor asserted as much in the trial court …., the Attorney General correctly disavowed the overstatement on appeal …. Code §46.2-1054, after all, does not uniformly forbid drivers from dangling objects from their rearview mirrors – only those positioned “in such a manner as to obstruct the driver’s clear view of the highway.”
In an apparent effort to demonstrate that the ruling by the court does not, in fact, create a per se rule, Judge Kelsey provided examples of objects dangling from a rearview mirror that presumably would not provide reasonable suspicion to stop a vehicle.
That we must, from time to time, make fine distinctions [as to when a dangling object would constitute reasonable suspicion to stop] is no reason to abandon the task altogether and treat all such dangling objects as indistinguishable. A five-by-three inch opaque parking pass is obviously different from a high school graduation tassel or a tiny chain locket. We thus have no fear that our holding will be misconstrued as a constitutional blank check for police officers to make traffic stops under circumstances wholly dissimilar from those presented in this case.
Judge Humphries, who wrote the majority panel decision, wrote the dissenting opinion for the en banc court. The dissenters would have reversed the conviction in this case for two reasons. First, Officer Richards was not justified in stopping the defendant’s car on the pretext that he thought the parking pass obscured the defendant’s vision of the highway because after stopping the vehicle, the officer made no effort to determine whether the parking pass in fact obstructed vision of the road. Second, Officer Richards’ testimony at trial failed to articulate any basis for his decision to stop except that he observed something hanging from the rearview mirror. Therefore, his stop of Mason’s car was based on an unreasonable mistake of law, i.e., that any object hanging from a rearview mirror constitutes a violation of Va. Code §46.2-1054.
The defendant appealed the Court of Appeals decision to the Virginia Supreme Court, which agreed to hear the defendant’s appeal and upheld the en banc decision of the Court of Appeals, 5-2. The majority stressed that the subjective thoughts of Officer Richards are irrelevant to the question of whether reasonable suspicion existed when the defendant’s car was stopped. What’s more, it is not necessary that an “officer conducting a stop …. precisely and individually articulate the facts that added up to suspicion in his mind.” Instead, the court need only examine whether the facts that were actually present at the time were sufficient to establish reasonable suspicion, whether or not the officer could say which of those facts he actually relied on. Thus, it is irrelevant “that Officer Richards failed fully to articulate the requirements of the offense and might have misunderstood the law he was trying to enforce.”
The court stressed the safety significance of Va. Code §46.2-1054. “Any obstruction in the [rearview] area can lead to tragic consequences when, for example, another vehicle backs out of a shrubbery-screened driveway ahead or a child darts out from between parked cars into a residential street in pursuit of a ball or a runaway pet.” Effective enforcement of this provision necessarily requires difficult judgments about whether an object hanging from a rearview mirror obstructs a driver’s vision. The court held that the record in the case amply supported the conclusion of the Court of Appeals that Officer Richards had reasonable suspicion to think the parking pass might have obstructed the defendant’s view.
The two dissenters agreed with the dissent in the Court of Appeals en banc decision, arguing that the key in this case was that Officer Richards’ actions in stopping the defendant’s car were based on an unreasonable mistake of law. In support of this conclusion, the dissenters cited the recent U.S. Supreme Court decision in Heien v. North Carolina. In that case, the Supreme Court permitted a stop of a vehicle by an officer who erroneously (but understandably) thought that the law in North Carolina required two working brake lights (when, in fact, North Carolina law only requires one working brake light). However, that case established that only if an officer’s misunderstanding of the law is unreasonable is the stop unconstitutional. The dissenters noted that Officer Richards was operating on the misapprehension that any object hanging from a rearview mirror violated Va. Code §46.2-1054, a misunderstanding of the law they found to be unreasonable, because the statute is clear that such objects violate the statute only if they obstruct the driver’s view of the highway. Therefore, the dissenters would have held Officer Richards’ stop of the defendant’s car to be unconstitutional based on an unreasonable mistake of law.
The Mason case becomes the most recent in a series of judicial decisions that give the police extensive (and some would say, disturbing) discretion to stop people. The beginnings of this trend were apparent in Whren v. United States, when the U.S. Supreme Court held that the motivation of a police officer in deciding to detain someone was of no constitutional significance. This decision extended Supreme Court approval to pretext arrests (and by implication, to pretext Terry stops). The decision created concern in many quarters that some police officers might stop persons for minor offenses just so they could look in the person’s car or ask for consent to search or search the person detained (if there was probable cause to arrest the person for a crime).
As a result of this concern, it was argued by some that the police could not arrest a person for a minor offense (say, for misdemeanors that do not carry the possibility of jail time) because such an arrest would be an unreasonable seizure prohibited by the 4th Amendment. However, the Supreme Court rejected this argument in Atwater v. Lago Vista, holding that the 4th Amendment does not prohibit custodial arrests for minor offenses. In Atwater, the Court hinted that state law might provide protection from pretext arrests for minor offenses by statute. In fact, Virginia appears to have done just that by adoption of a statute that requires Virginia law enforcement officers to issue a summons, rather than make an arrest, for most minor offenses. However, in Virginia v. Moore, the Supreme Court held that when the police make an arrest that violates state law the arrest does not, as a result, constitute a violation of the 4th Amendment. Since it does not violate the 4th Amendment, it is up to state law to determine whether evidence obtained as a result of the illegal arrest must be suppressed from use at trial. Consequently, not all states will provide an effective protection against pretext arrests for minor offenses – either because there is no law prohibiting such arrests or because there is no effective remedy for violation of a statute that does prohibit such arrests.
The Mason decision adds to the potential for this kind of abuse of discretion in Virginia. First and foremost, this decision almost certainly permits the police to pull over any vehicle with any object hanging from its rearview mirror – despite the assertions of the courts in the Mason opinions to the contrary. The majority opinion in the Virginia Supreme Court decision all but admits this.
Police officers charged with enforcement of the statute [Va. Code §46.2-1054] are confronted with a demanding task. Some dangling objects may turn out not to obstruct the driver’s clear view of the highway; others will. The officer’s dilemma consists in the virtual impossibility of determining to which category the dangling object belongs while the car containing it is in motion. The offense exists only when a person “drive[s] a motor vehicle on a highway.” (Emphasis added).
How can the police determine then when the driver’s view is in fact obstructed? The obvious answer is only by pulling over the vehicle in question (so it is no longer in motion). Just two paragraphs after the language quoted above, the court seems to confirm this conclusion by saying “[a] reasonable person could readily conclude from the fact that the tag was sufficiently prominent to attract the officer’s attention during the brief moments that it passed through his field of view that it might have violated the statute.” (Emphasis added). In other words, if the dangling object is big enough to be seen by an officer, it justifies a stop of the vehicle.
There is some danger that a few misguided officers might take inappropriate advantage of this discretion and use the “dangling object” statute as a pretext for stopping a vehicle. In the Mason case itself, the record suggests that Officer Richards made little serious effort to determine whether the parking pass actually obscured the driver’s vision. At trial, he was asked if he ever went inside the vehicle. He answered that he did “eventually,” suggesting that this was not a priority for him. What’s more, he testified that when he finally entered the vehicle, he got in on the passenger side – not the driver side. If one wanted to check out the extent to which the parking pass obscured the driver’s vision, the logic place to sit would be in the driver’s seat, rather than the passenger seat. At a minimum, this raises some question as to whether Officer Richards’ primary motivation in stopping Jarrett’s vehicle was to determine if the parking pass he had observed was obscuring the driver’s vision.
My own experience provides an additional basis for questioning the manner in which the dangling object statute is being enforced. I live in a community where a substantial number of residents work at either Virginia Tech or Radford University. Both of those institutions provide their employees parking passes of the same size and shape as the pass in Jarrett’s car. For over thirty years, I have displayed that pass while I have driven my car, and I have never been pulled over by a police officer for that reason. And while I have no empirical evidence to support this observation, I believe it is common practice amongst pass holders to leave the pass displayed while driving. I have never heard a colleague say that he or she has been stopped because they were displaying their parking pass.
In light of the discussion above, three changes to the Virginia Code come readily to mind. The first improvement concerns an issue that was not addressed in the Mason opinions (because it was not raised by Mason). It concerns the ambiguity inherent in Va. Code §46.2-1054. When does an object hanging from a rearview mirror obstruct a driver’s vision? Nearly everyone who works in or studies the criminal justice system understands and accepts that a certain degree of ambiguity in the criminal law is inescapable. The Supreme Court recognized this fact in U.S. v. Powell, a case dealing with the constitutionality of a federal statute that prohibits mailing a firearm “capable of being concealed on the person.” Powell had mailed a 12-inch sawed off shotgun and argued that the statute was unconstitutionally vague and left him uncertain as to whether the shotgun fell within the statute’s prohibitions. While expressing some sympathy for Powell’s position, the Court nevertheless upheld the statute as being clear enough to encompass a “comprehensible course of conduct.”
Nevertheless, Va. Code §46.2-1054 arguably leaves too much uncertainty in the minds of Virginia drivers. Is a parking pass that hangs one inch below the rearview mirror a violation of the statute? If not, what about two inches, or three? The presence of parking passes designed to be hung from a car’s rearview mirror has become ubiquitous in our society. The statute could be revised to bring at least some greater clarity to the situation by stating that an object hanging from a rearview mirror that does not extend more than a certain distance (say, two inches) from the mirror does not violate the statute. Alternatively, the statute could exempt parking passes no larger than a certain size. (As indicated above, the parking pass in the Mason case was the same size – 3” X 5” – as the passes used by Virginia Tech and Radford University, suggesting that this is a common size for parking passes).
A second possible statutory improvement would be to require that traffic stops be based on probable cause to think a violation of law has occurred, rather than reasonable suspicion. In Terry v. Ohio, the Supreme Court permitted the stop in that case because the officer making the stop had reasonable suspicion to think that “criminal activity may be afoot.” In Virginia (as in some other states), ordinary traffic offenses are not criminal. In Virginia, they are classified as “violations of public order.” The U.S. Supreme Court has never addressed the issue of whether Terry stops are limited to cases of suspicion of criminal activity (and therefore not applicable to non-criminal traffic offenses). Most lower courts that have addressed this issue have permitted traffic stops based on reasonable suspicion. However, most traffic stops are based on probable cause anyway, so removing the authority to make non-criminal traffic stops on less than probable cause would significantly limit the ability of law enforcement officers to make pretextual traffic stops without undermining substantially their ability to effectively enforce traffic laws.
The third suggestion for improvement in the Virginia Code is probably the most controversial. It would add to the Code a new provision that would prohibit the police from asking the occupants of a vehicle stopped for a traffic infraction for consent to search their persons or the vehicle. It is no secret that many law enforcement officers routinely ask for consent to search a vehicle pursuant to a traffic stop. If the police could not seek consent to search as part of a routine traffic stop, the incentive for police officers to stop vehicles as a pretext to search would be vastly reduced.
A substantial argument can be made that the U.S. Supreme Court has essentially established such a rule already. In a 2015 case, Rodriquez v. U.S., the Court disallowed a “walk-around” of a car by a drug detection dog as part of a traffic stop. The Court ruled, 6-3, that the canine sniff was unconstitutional because once the traffic stop was concluded, there was no justification under the 4th Amendment for continuing to detain the motorist long enough to conduct the drug dog “walk-around.” It can be argued that this reasoning also prohibits prolonging the traffic stop long enough to ask for consent to search the vehicle. It can also be argued that the officer may not seek consent to search before concluding the traffic stop, because consent to search obtained at that point would be viewed as involuntary (since the motorist would be concerned that a failure to give consent would eliminate any chance that the officer would give the motorist a warning, rather than a citation).
An argument that Jarrett’s consent to search was the product of an improperly prolonged stop under Rodriquez was not made by the defendant in the Mason case, probably because the Rodriquez case had not yet been decided when the initial motion to suppress was made in the case. It is also, of course, just an argument – one that the U.S. Supreme Court might well reject. In any event, a statute prohibiting the police from asking for consent to search as part of a traffic stop would eliminate the need to even make this argument.
The potential that a small percentage of police officers might abuse the broad discretion the police have been given by the Mason case creates an issue of great public significance. One does not have to be a harsh critic of the police or even be inclined to think that a large number of police officers will abuse this discretion to believe that the proposals suggested in this article would be useful improvements in the law. Nevertheless, it seems unlikely that these proposals are likely to garner the support needed in the Virginia General Assembly to bring about their passage.
One thing I can say for certain, though. I am going to try to adopt a new habit and remove my Radford University parking pass from my rearview mirror before I put my car in motion. Perhaps if I get to campus, forget to hang the pass from my rearview mirror, and get a parking ticket, I will send the ticket to my local delegate to the House of Delegates for payment. I’m sure he would be more than happy to pay it for me.
 2016 Va. LEXIS 59.
 Mason v. Commonwealth, 760 S.E.2d 831 (Va.Ct.App. 2014)
 Mason v. Commonwealth, 767 S.E.2d 726 (Va.Ct.App, en banc, 2015).
 The state did not abandon this approach until after the panel decision. 767 S.E.2d 739.
 Throughout the judicial journey of this case, the courts stressed that the issue of whether Va. Code §46.2-1054 is unconstitutionally vague was not before the courts.
 574 U.S. _____, 135 S.Ct. 530 (2014).
 517 U.S. 806 (1996).
 A Terry stop, of course, is a temporary seizure of a person for investigatory purposes based on reasonable suspicion to think the person stopped has committed, is committing, or is about to commit a crime. Terry v. Ohio, 392 U.S. 1 (1968).
 532 U.S. 318 (2001).
 Va. Code §19.2-74(A)(2).
 553 U.S. 164 (2008).
 In Virginia, evidence obtained in violation of a state statute is not excluded at trial, unless there is a statute requiring exclusion. Moore v. Commonwealth, 609 S. E. 2d 74, 82 (Annunziata, J., dissenting).
 There is an advisory on the back of the parking passes provided by both universities that the pass should be removed when the vehicle is in motion. Until I read the judicial opinions in this case, I was unaware that displaying the pass might be in violation of a statute. To be quite honest, even after this case, I am still unsure as to whether displaying the pass violates Va. Code §46.2-1054.
 One obvious reason for leaving the pass displayed at all times is a fear that one will forget to display the pass after parking and receive a parking ticket.
 423 U.S. 87 (1975).
 Va. Code §18.2-8 and §46.2-100.
 Wayne LaFave, Search and Seizure: A Treatise on the Fourth Amendment, §9.3(a) (Thomson Reuters/West, 2015).
 For a humorous example of this police tactic, see http://www.youtube.com/watch?v=GPo7vW3mxx0, where a police officer uses a discussion about a presumed relationship between frisbie golf and marijuana use in an attempt to entice a motorist to consent to a search of his car.
 575 U.S. ___, 135 S.Ct. 1609. This case is discussed in Jack Call, “Rodriquez v. United States: Terry Stops May Not Be Extended to Accommodate a Canine Sniff,” Virginia Police Legal Bulletin, Vol. 10, No. 2 (August 2015).
 Of course, in order to make this change effective, it would also seem wise to amend the Code to provide that evidence obtained as a result of a search based on consent obtained in violation of this new rule would be inadmissible at trial. Supra, note 12.The wisdom of adopting such an exclusionary rule requires discussion beyond the scope of this article.