Virginia Lawyers Weekly VA Lawyers Weekly
A police officer was not justified in stopping a car because of a 5-inch parking pass on the rear view mirror, the Court of Appeals of Virginia has ruled, reversing convictions of marijuana distribution and other drug offenses for a passenger in the car.
Without evidence that the parking pass obstructed the driver’s view of the road, the circumstances could not support the officer’s suspicion that the driver was violating the law, a two-judge majority said in Mason v. Comm. (VLW 014-7-246).
The case marks a rare win for a defendant in a “dangling object” traffic stop.
The car in question was stopped by a Waverly police officer in 2012, based on his observation of a dangling object on the mirror, according to the facts recited by the court.
The officer had the driver step out of the car and got permission to pat him down for weapons. When the officer asked about a sunglasses case in the driver’s pocket, the driver blurted out, “I’m not selling it, I’m just using it.”
There was green leafy material inside the glasses case.
The officers at the scene then turned their attention to the passenger, Loren Mason, and a backpack lying in the middle of the back seat. In the backpack was a “large amount” of marijuana, along with digital scales, cocaine and ecstasy pills. Mason had $3,381 in cash on him, and police linked him to the backpack.
Sussex County Circuit Judge W. Allan Sharrett was initially inclined to suppress the results of the traffic stop. He repeatedly said that the parking pass would not obstruct the driver’s view. Nevertheless, Sharrett allowed in the drug evidence after concluding the case law was “stacked up against me.”
The court opinion featured photographs of the parking pass, one issued by the Department of Defense for use at Fort Lee, according to the court.
On appeal, the panel majority said the officer wrongly believed that any dangling object justified a stop, regardless of the driver’s view of the road.
“Officer Richards never testified to any facts or circumstances that suggested a reason to suspect that this 3” x 5” object hanging from behind a mirror affixed to the top of the vehicle’s windshield obstructed the driver’s view of any part of the highway,” wrote Judge Robert J. Humphreys for the majority.
Dissenting was Judge D. Arthur Kelsey, who said the officer was justified in stopping the car to see if the “dangling object” he spotted might impede a driver’s vision.
The opinion is not a slam dunk win for Mason. The majority sent the case back to Sharrett with a suggestion that Mason’s consent to a search of his person might lessen the role of the illegal stop in discovery of the incriminating evidence.
Earlier this year, the Court of Appeals approved a traffic stop based on sighting of a common “pine tree shaped” air freshener dangling from a rear view mirror. That case is Richardson v. Comm. (VLW 014-7-083).
