An opaque parking pass that measured three-by-five inches and hung from a rearview mirror justified a traffic stop on suspicion that the pass obstructed the driver’s view of the highway in violation of Va. Code § 46.2-1054; in a 6-5 split, the en banc court on rehearing rejects an earlier panel opinion and upholds the conviction of a passenger in the vehicle.
No one can be arrested on the basis of reasonable suspicion. It serves merely to justify a brief detention to investigate. Because the need for justification is quite low, so too is the justifying legal standard. An officer’s subjective characterization of observed conduct is not relevant to an objective application of the Fourth Amendment.
We reject defendant’s contention that an officer making an investigatory stop must actually articulate, from the witness stand, the articulable facts and then explain, in his personal opinion, why these facts prompted him to be suspicious. Any assertion to the contrary is inconsistent with our prior en banc precedent from our court, under Raab v. Commonwealth, 50 Va. App. 577 (2007), as well as the uniform view among courts that have addressed this issue.
Virginia Code § 46.2-1054 prohibits, among other things, any object from being suspended from any part of the motor vehicle in such a manner as to obstruct the driver’s clear view of the highway through the windshield, the front side windows or the rear window. Because a “highway” includes “the entire width between the boundary lines” of the “way or place” used by vehicular traffic, it includes overhead highway signs, on-ramps and off-ramps, merge lanes, deceleration lanes, roadways, bridges, intersections, shoulders, pedestrian walkways and shared-use paths. Thus, a “clear view of the highway,” as used in Code § 46.2-1054, no doubt means the pavement itself and everything physical on it. It would make no sense for Code § 46.2-1054 to prohibit a dangling object from obstructing a driver’s view of the pavement directly in front of him but not a vehicle, bicyclist or pedestrian moving across the same pavement.
We agree with the trial court that a reasonable officer could suspect that the opaque, five-by-three-inch parking pass dangling from a rearview mirror might violate Code § 46.2-1054 and thus warrant an investigatory stop.
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. We limit our holding to the suspected obstruction in this case: a five-by-three-inch opaque parking pass hanging from a rearview mirror of a sedan. Such a parking pass is obviously different from a high school graduation tassel or a tiny chain locket. We 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.
The trial court correctly held that a reasonable officer could make an investigatory stop of the sedan in this case to determine if, in fact, the parking pass he observed violated Code § 46.2-1054. Finding no fault with the trial court’s denial of defendant’s motion to suppress, we affirm his conviction.
Humphreys, J., joined by Frank, Petty, Alston and Chafin, JJ.: Despite the majority’s assertion to the contrary, I believe the majority opinion in this case will be read to provide “automatic” reasonable articulable suspicion for any officer to pull a citizen over if he/she observes any object dangling from a rearview mirror. Moreover, henceforth, reasonable suspicion justifying the seizure of citizens will be found even if police officers are mistaken concerning the law as long as their testimony includes magic words such as “I thought … I believed … I mistakenly believed … I suspected … I mistakenly suspected …” or as in this case, the officer just doesn’t know one way or the other.
I dissent from the analysis and judgment of the majority for two reasons. First, the officer’s failure to investigate the existence of the alleged “criminal activity” is fatal to any justification of defendant’s seizure under Terry v. Ohio and its progeny. Second, the officer’s testimony articulated absolutely no facts from which a reasonable suspicion of criminal activity can be inferred, and the parking pass, in its capacity as an exhibit, does nothing to overcome that failure.
Although I would hold that defendant’s Fourth Amendment rights were violated when the vehicle in which he was a passenger was stopped, I cannot say based upon the record before us that the exclusionary rule requires suppression of the evidence in this case. I would reverse and remand for a new trial including a determination regarding applicability of the exclusionary rule.
Mason v. Commonwealth (Kelsey) No. 1542-1-2, Feb. 3, 2015; Sussex County Cir.Ct. (Sharrett) Paul S. Roskin for appellant; Kathleen B. Martin, Sr. AAG, for appellee. VLW 015-7-022, 26 pp.