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‘Dangling’ Object Supported Traffic Stop

The Court of Appeals say police had a reasonable suspicion that the cluster of objects hanging from the rearview mirror of defendant’s vehicle could impair his view of the highway in violation of Va. Code § 46.2-1054, and the appeals court declines to review the constitutionality of that statute.

Police, who had been conducting surveillance of defendant as part of a drug investigation, looked through the back window of his vehicle and saw multiple objects dangling from the rearview mirror. The size alone of the clumped objects caused an investigator to be concerned that the objects might impair or obstruct defendant’s view of the highway in violation of Va. Code § 46.2-1054. The officers stopped defendant, took photographs of the air fresheners and copies of those photos were introduced into evidence. The pictures reveal a cluster of several air fresheners, one of which appears to be a replica of a hand grenade, which hung from the rearview mirror down to the dashboard of the car.

The trial court denied defendant’s suppression motions which argued that the officer had no objective basis for believing a traffic infraction had occurred and the statute was void for vagueness.

In comparing the photographs of the clump of air fresheners hanging from this defendant’s rearview mirror with the photograph of the parking pass included in our opinion in Mason v. Commonwealth, 64 Va. App. 292 (2015), we have no hesitation in concluding that the officer had an objectively reasonable suspicion that the objects obstructed defendant’s vision of the highway. The officer had a reasonable suspicion defendant might be violating Code § 46.2-1054, and the court did not err in denying the suppression motion on this basis.

We decline to opine on the constitutionality of the statute because it is unnecessary to our decision. We conclude that, irrespective of the statute’s validity, based on the state of the law at the time of the stop, the trial court was correct in refusing to suppress the evidence.

When the investigator observed the objects dangling from defendant’s rearview mirror, he was aware that the General Assembly had duly enacted Code § 46.2-1054. Duly enacted laws are presumed constitutional. At the time the investigator stopped defendant, there was no controlling precedent that Code § 46.2-1054 was or was not constitutional, and hence defendant’s conduct violated a presumptively valid ordinance. The statute is presumptively valid and remains valid until declared otherwise. The investigator had a reasonable suspicion in view of all the circumstances that defendant’s conduct was unlawful. Consequently, there was no Fourth Amendment violation in the first place.

The court declines to consider whether Va. Code § 46.2-1054 is unconstitutionally vague

Here, the trial court denied the suppression motion because it held that the statute involved was not unconstitutionally vague. The court did not need to make this finding because there was a narrower basis for deciding the issue. Further, the facts necessary for our de novo review of the applicability of the good faith exception to the exclusionary rule were fully developed. We conclude the right result, wrong reason doctrine applies and we affirm denial of the motion on different grounds.

Conviction on a conditional guilty plea is affirmed.

Freeman v. Commonwealth (Petty) No. 2302-14-4, Nov. 17, 2015; Clarke County Cir.Ct. (Napier) David A. Downes for appellant; Katherine Q. Adelfio, AAG, for appellee. VLW 015-7-301, 16 pp.

VLW 015-7-301

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