It used to be very common for me to see cases that started with a traffic stop where the police officer said the reason for the stop was an object dangling from the rearview mirror. In many of those cases, it seemed obvious that wasn’t the real reason for the stop; it was just an excuse for a stop. Unfortunately, the United States Supreme Court has stated the real reason a police officer decided to stop a driver doesn’t matter. The only thing that matters is whether a legitimate reason actually existed even if the officer didn’t care about that reason. This is something defense lawyers often call a “pretextual stop.”
An example would be a police officer who wants to stop you because you looked uncomfortable when you saw the officer nearby. A glance at an officer in a way that makes the officer believe you are up to no good is not a valid reason to stop. So, the officer checks to make sure the license plate is valid, all the lights work, etc. and decides the parking pass or air freshener that hangs an inch or two below the bottom of the rearview mirror is obstructing your vision and uses that to begin a traffic stop. Of course, since it was never really about the dangling object, you may or may not get a ticket for that. What you do get is questions about where you are coming from and where you are going to, along with a request for permission to search the car for drugs or weapons.
I haven’t seen many dangling objects used to justify pretextual stops recently. It may be because last fall, a panel of judges from the Virginia Court of Appeals decided a parking pass hanging from a rearview mirror is not the kind of dangling object that obstructs a driver’s view and therefore is not a valid reason for a police officer to stop a car.
That is about to change again. The judges at the Court of Appeals decided they should all make a decision about this question as a larger group. On February 3, 2015, they issued a decision in the case of Mason v. Commonwealth ruling that the parking pass on a rearview mirror is a valid reason for a police officer to stop a car to investigate whether the parking pass obstructs the driver’s view of the windshield and is therefore a violation of Virginia’s traffic law (code section 46.2-1054).
What does this mean to criminal and traffic defendants in Virginia? Expect to see more pretextual stops based on obstructing the view through the windshield with some type of object when an officer is really interested in some other crime like driving with a suspended license or drugs. At the very least, many parking passes need to come down from the mirror before leaving the parking space or you can be stopped.
It won’t stop with parking passes. EZ Passes and GPS systems take up more space on the windshield than the portion of a parking pass that hangs below the bottom edge of a rearview mirror. As I read the Mason case, an officer who wants to stop you but doesn’t have a valid reason to do so now has authority to claim an object that is attached to many windshields is actually illegal to have on the windshield. Of course, if you take your EZPass off the windshield, you can still get a ticket if you forget to put it back up as you drive through a toll booth. So can causing an accident when you take your eyes off the road to look for the EZPass that is not obstructing your view of the windshield!
It will be interesting to see how this area of the law continues to develop. The moral of the story here can best be described as a warning to all: don’t drive if you’re committing a crime or if driving itself is a crime.