[Posted May 5, 2016] Today’s ruling in Mason v. Commonwealth will have secondary effects in every corner of the Commonwealth. Most of you will look at those dangly things below your rear-view mirror in a new and suspicious light. Criminal-law practitioners will reexamine how courts evaluate articulable suspicion.

The case became at least somewhat famous during its journey through the Court of Appeals. It arose from a traffic stop in Waverly, in Sussex County. That’s one of several speed traps in Southside Virginia; many Virginians and even more tourists probably suspect that traffic-ticket revenue is an important component of local fundraising.

Tony Jarrett evidently knew about the speeding danger, so when he drove through town one afternoon in 2012, he obeyed the speed limit. That didn’t prevent him from getting pulled over by a town police officer. According to today’s opinion, Jarrett’s car caught the officer’s eye “only because he observed a dangling object hanging below its rear-view mirror.” The object in this case was a parking pass for a military base; it was 3”x5” and encased in plastic.

So how many of you have objects like that in your car? Perhaps yours is an air freshener. Needless to say, Jarrett never believed that there was anything wrong with doing that.

Ah, but there is; at least in theory. As Justice Russell, who writes today’s majority opinion, notes, “Although Code § 46.2-1054 proscribes conduct few might think unlawful, its legislative purpose is far from trivial.” That statute proscribes driving a car with any object other than a rear-view mirror suspended from it “in such a manner as to obstruct the driver’s clear view of the highway through the windshield” or other windows.

As you might imagine from the fact that we have a legal proceeding going on here, the traffic stop bore prosecutorial fruit. In our case, the appellant is actually the passenger, Mason, who was charged with three drug-distribution felonies. He moved the trial court to suppress the evidence, claiming that the officer had no right to stop the car. At the hearing, the prosecutor asked the officer what brought his attention to the car. The answer was, “Dangling object on the rearview mirror.” When asked if the object could obstruct a driver’s view, the officer answered, “It could. Yes, ma’am.”

The trial court found that to be sufficient as the basis for a traffic stop. Today the justices affirm –

[I’m now pausing to allow many of my readers to go out to their cars, remove their own dangly things, and then return for the rest of the analysis. Give ‘em just a moment longer …]

– because irrespective of this officer’s belief as to the state of the law, a reasonable officer in his position could have concluded that a Terry stop was warranted. The majority finds that since the Fourth Amendment imposes a standard of objective reasonableness, our officer’s subjective belief – even his subjective mistake as to the state of the law – is irrelevant.

In two paragraphs on page 7 of the slip opinion, Justice Russell explains the plausible legislative purpose in proscribing dangly things. Given the configuration of modern cars – with reclining seats and sloped windshields – “[a]ny obstruction of that narrow band of glass can have serious consequences.” He gives the example of a car or a child suddenly darting out into the roadway from the right. You have to admit that, no matter how harmless you might think they are, the statute has at least an arguable basis for banning driving with dangly things.

Justices Powell and Millette dissent. They believe that while the Fourth Amendment requires objective analysis, that actually means an objective analysis of the officer’s actions; not of his perceptions. The dissent reads SCOTUS caselaw to require officers to articulate the factors leading to their decisions to arrest. If so, they ask, how could the recent case of Heien v. North Carolina (SCOTUS, 2014) have concluded what it did?

In Heien, the Big Robes held that when an officer makes a mistake of law, the relevant question is whether the statute is ambiguous. If not, then the officer’s mistake was unreasonable and there’s no support for the stop. Here, the dissent observes that the officer’s explanation for the stop was terse: “Dangling object on the rearview mirror.” He never testified that that object actually obstructed Jarrett’s view of the road, just that it could obstruct a driver’s view.

The key difference here is that the majority finds that this evidence is sufficient to warrant a brief investigative detention – a traffic stop – to see if criminal activity was afoot. In the majority’s view, there was no way for the officer to be sure that this driver’s view was obstructed without stopping him, so it finds that the stop was an appropriate response.