Just last month in Mason v. Commonwealth of Virginia, 2016 WL 2586178, the Supreme Court of Virginia upheld a Terry stop based solely on the officer’s observation of an opaque 3 by 5 parking pass hanging from the rearview mirror of the car. The case is quite interesting because the lawful stop of the car led to felony drug convictions for the passenger, Mr. Mason.
On a breezy March afternoon in 2012, Officer Richards and his partner had parked their cruiser at the bottom of a hill and were monitoring traffic when they saw a green sedan come down and pass them. The car was not speeding or otherwise suspicious and it caught Officer Richards attention only because he “observed a dangling object hanging below its rear-view mirror.” 2016 WL 2586178 at 1. An untrained observer probably would not notice such a detail but Officer Richards reasoned that a violation of VA Code 46.2-1054 might be underway. (VA Code 46.2-1054 essentially makes it unlawful to drive a car with objects hanging from any part of the car where they might obstruct the driver’s view.)
He pulled the sedan over.
When he approached, Officer Richards noticed that the driver was not wearing a seatbelt. He testified at that point that he only intended to charge the driver with a seatbelt violation and a violation of the 46.2-1054 (i.e., the aforementioned “hanging object law.”) But then the officer asked the driver “if he would consent to a ‘pat-down’ search for weapons . . . .” The driver consented to the search and Officer Richards found a bag of marijuana in the driver’s pocket. Officer Richards then detained the driver for possession of Marijuana in addition to the two traffic offenses.
Meanwhile, Officer Richard’s partner asked Mr. Mason–who the actual case is about–to step out of the car and conducted a pat-down search on him. That search revealed nothing and Officer Richards testified at trial that Mr. Mason would “‘absolutely’ have been free to leave the scene at that point if he had so desired.” Officer Richards smelled marijuana in the car so he decided to search the car. In the middle of the backseat, he found a backpack that contained wrapped bags of marijuana, ecstasy pills, cocaine residue, and several letters that were addressed to Mason.
Mason was indicted and tried for felony drug offenses stemming from the arrest. At trial, he alleged that the initial stop was unlawful and moved to suppress all of the evidence against him as derivative of the unlawful stop. The Circuit Court of Sussex County disagreed, however, and denied his motion to suppress. He was convicted.
He appealed to the Court of Appeals of Virginia. A divided three-judge panel ruled in his favor, reversed the decision of the Circuit Court, and ordered a reahearing. Mason v. Commonwealth, 760 S.E.2d 831 (2014). But the Court of Appeals re-heard the case en banc on the Commonwealth’s motion and a closely divided court reversed the panel decision and affirmed the judgment of Circuit Court. Mason v. Commonwealth, 767 S.E.2d 726, 735 (2015).
The Supreme Court of Virginia granted Mason’s appeal of the en banc decision.
The Court split on the issue in favor of the Commonwealth 5-2. Senior Justice Russell, writing for the majority, applied Terry v. Ohio, 392 U.S. 1 (1968) and its progeny in straightforward way that lead inevitably to a conclusion in favor of the Government. Under Terry the Supreme Court held that the fourth amendment rule against unlawful seizures is not violated when police officer briefly detains a person for an “investigatory stop” if the officer has a reasonable suspicion, based on objective facts, that criminal activity might be occurring. Traffic stops are seizures for the purposes of the Fourth Amendment but they are covered by the Terry rule and are permissible if the officer has based the stop on specific and articulable facts of criminal activity. United States v. Arvizu, 534 U.S. 66, 273 (2002).
The “reasonable suspicion” inquiry, like many others, looks at the “totality of the circumstances” but the Supreme Court of Virginia laid out some guidelines: (1) the facts and circumstances the officer relies on must have been available at the time of the stop; (2) the officer’s subjective thoughts are irrelevant; and (3) the facts and circumstances must lead to an articulable suspicion (but the facts and circumstances need not be articulated).
Number two here is probably the most surprising. Since the officer’s subjective thoughts are irrelevant, even a stop that is based on the officer’s actual misunderstanding of the law or facts may be upheld as legal so long as the “facts and circumstances at the time of the stop would have been sufficient to create in the mind of a reasonable officer . . . a suspicion that a violation of the law was occurring or about to occur.” Likewise, even ulterior motives such as personal animus or racial bias are irrelevant. The test is purely objective.
Applied in Mason, this test meant that the officer’s observation of the parking pass dangling from the rearview mirror was enough for a reasonable person to conclude that if the parking pass was “sufficiently prominent to attract the officer’s attention during the brief moments that it passsed through his field of view that it might have violated the statute” which prohibits dangling objects from obstructing the driver’s view.
As a practical matter, the case means that if you are driving in the Commonwealth of Virginia with anything hanging in your potential field of vision you are giving any officer that sees you a license to pull you over.