In August 2014, I gleefully blogged about a Virginia Court of Appeals opinion that a dangling object does not obstruct one’s view is not a lawful basis for a car stop by police. That glee was dashed when an en banc Court of Appeals, 6-5, reversed and affirmed the drug conviction of Loren Mason, a passenger in a car stopped for no other reason than a parking pass affixed to the vehicle’s rearview mirror and not obstructing any view, and therefore not in violation of the dangling object law. Mason v. Virginia, ___ Va. App. ___ (Feb. 3, 2015).

On May 5, 2016, the Virginia Supreme Court, 5-2, also affirmed Mason’s conviction, concluding that the police officer had reasonable suspicion to stop Mason’s car for being in violation of the dangling object law, and stated:

“Police officers charged with enforcement of the statute are confronted with a demanding task. Some dangling objects may turn out not to obstruct the driver’s clear view of the highway; others will. The officer’s dilemma consists in the virtual impossibility of determining to which category the dangling object belongs while the car containing it is in motion. The offense exists only when a person ‘drive[s] a motor vehicle on a highway.’ Code § 46.2-1054.”

Mason v. Virginia, ___ Va. ___ (May 5, 2016).

Praised be dissenting Justice Cleo Elaine Powell, for underlining the majority’s faulty reasoning, while reminding us of the United States Supreme Court’s directions for analyzing a claim for reasonable suspicion by police, including:

“According to the majority, Officer Richards’ clear misinterpretation of the law “is irrelevant if the facts and circumstances at the time of the stop would have been sufficient to create in the mind of a reasonable officer in the same position a suspicion that a violation of the law was occurring or was about to occur.” Stated another way, the majority today holds that an officer’s mistake of law may be disregarded if another, hypothetical officer would not have made the same mistake. As I believe that the United States Supreme Court has explicitly held that an officer’s mistake of law must be considered, especially where it serves as the basis for initiating an investigatory stop, I must respectfully dissent.”

Mason not only now invites police to stop any vehicle for a hanging parking permit that does not obstruct the officer’s view (so beware if you have such a hanging permit), but, more broadly, invites police to be all the more at the ready to justify bad stops of suspects on the grounds of a mistaken interpretation of the law, even if the mistaken interpretation was not reasonable.