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A ‘dangling’ conversation

Air freshenerWalk through the parking lot of any shopping center and you will see them.

Walk up to the counter of any convenience store and you will see them.

Little pine-tree air fresheners.

They are designed to hang from the rear-view mirror of a car or truck, and presumably, to improve the smell of the vehicle’s interior.

There’s one problem, though. Police have used a little pine tree as a reason for a traffic stop: there is a Virginia Code section that prohibits the use of “dangling objects” from a mirror.

Code § 46.2-1054 states, “It shall be unlawful for any person to drive a motor vehicle on a highway in the Commonwealth with any object or objects…suspended from any part of the motor vehicle in such a manner as to obstruct the driver’s clear view of the highway…”

Cops have used this law to establish probable cause to stop a car, and on various occasions, they have found drugs or weapons, or a drunken or revoked driver, or other criminal activity.

The stop doesn’t always work. In fact, you can find many Virginia Court of Appeals cases and circuit court decisions that allow the stop and others that suppress the evidence. So much for consistency in the law.

Back in June, a Chesapeake General District Judge, Michael R. Katchmark, said enough is enough. He ruled that § 46.2-1054 is unconstitutionally vague in a case involving a guy who had a pine-tree air freshener hanging from his mirror. He was stopped and charged with driving on a revoked license. Oh, and also for having a dangling object hanging from his mirror.

The most recent dangling-objects case from the appeals court, Mason v. Commonwealth (VLW 015-7-022), was an en banc decision handed down in February. It was a 6-5 victory for the commonwealth. The dissent, written by Judge Robert Humphreys, observed that the defendant hadn’t attacked the statute for vagueness; Humphreys, a former commonwealth’s attorney, also noted that “the statute suggests a subjective standard of enforcement for police officers.”

Katchmark judge penned a meticulously detailed 38-page opinion, running through the cases, including analysis of an analogous Michigan case and statute that ended up in federal court. When was the last time you saw an opinion of that length to back a general district court ruling? Or a circuit court ruling, for that matter?

The Chesapeake case involved one of those local ordinances incorporating a state statute that are adopted to allow the locality to collect the fines. The City of Chesapeake was pulled in to argue on behalf of its ordinance, along with the local prosecutor.

The case was argued on appeal before Circuit Judge Randall Smith last Wednesday, according to Kathleen A. Ortiz, the public defender whose office represented the defendant.

Smith said he would rule within a few weeks, she said. She added that the judge was aware of an appeal moving through the Court of Appeals, Freeman v. Commonwealth.

That case, involving air fresheners on a mirror, arose in Clarke County. The defendant was stopped for dangling objects and convicted of drug and weapons charges. Even though Freeman is scheduled for argument in early October, Smith indicated he would rule within a few weeks, Ortiz said.

As these cases make their way through the system, though, it remains a matter of Dangler Beware.

“The air fresheners should carry a warning: ‘May or may not prompt a police stop,’” Ortiz said.

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