The Great Change: Turning Cathy into a Lawyer

The Legal Pad blog had a post the other day about a recent California case I found troubling. The court upheld a search following a traffic stop. The alleged infraction justifying the stop? An tree-shaped air freshener was hanging from the rearview mirror.

[The police officer] based his traffic stop on his belief that a tree-shaped air freshener — which was 4.75 inches tall and 2.75 inches at its widest point — violated a Vehicle Code preventing drivers from hanging anything from their rearview mirrors that obstruct their vision.

In fact, according to this post, it was this specifically-articulated belief that distinguished this case from a 2003 ruling where a sister court found that things merely dangling in the windshield provided too specious a ground to warrant a traffic stop upon which a search could follow.

What troubles me most about any of these cases is how ordinary it is to have something hanging in the windshield. Now, it may be illegal - under Vehicle Code section 26708, subdivision (a)(2), “No person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle which obstructs or reduces the driver’s clear view through the windshield or side windows” - but unless so much of the windshield is blocked so as to present an immediate and manifest hazard to the operation of the vehicle, it seems to be much too minor an infraction to provide an overture for the police to invade a driver's privacy.

Even minor windshield-obscuring scofflaws should have an expectation of privacy in the rest of the vehicle, but, because once the car is pulled over the police can look through it more thoroughly in an attempt to prosecute even greater crimes than windshield-obscuring, this is why minor windshield-obscuring alone should not provide grounds for a traffic stop. The 2003 ruling largely said as much, ruling that without some objective basis to believe a driver's view was actually being impeded (e.g., erratic driving), the mere presence of an object alone could not justify a stop.

Sure, one can argue that if you aren't guilty of anything you have nothing to hide - so what if a cop pulls you over? But it's a bad argument. I remember a few years before I went to law school a friend of mine working in a criminal defense clinic through his law school. One of his clients had the misfortune of being in the wrong place at the wrong time. Other nearby miscreants were creating criminal mischief, but because a police officer saw something dangling off of his rearview mirror he got pulled over, and his life derailed. A nearly-indigent parolee without the resources to properly defend himself, even though he had been wholly innocent of the crime accused, because the cops were able to make the stop the whole weight of the legal system fell on his head. My friend fought tooth and nail to get the charges (including the parole violation stemming from his alleged participation in the crime) thrown out as a result of it being a bad stop (this was several years before the 2003 case that might have made it easier), arguing that what his client had dangling from his mirror was so ordinary that nearly every driver in California could be pulled over for the same reason. Even cop cars themselves are typically outfitted with greater obstructions to the driver's view.

In the end the best my friend could do was arrange a less draconian plea than the original charges would have led to. This poor guy ended up in a whole host of trouble that far outweighed the imaginary danger his small, dangling talisman might possibly have posed. The judge had rejected his challenge to the initial stop, clinging instead to an absurdly strict reading of the statute. Anything - bird droppings, dust, even conceivably windshield wipers - could violate the statute if it even slightly obscured the driver's view -- and thus provide grounds for a traffic stop. In other words, pretty much every driver could be pulled over. (Point of note: California notes the current registration of a vehicle through a sticker placed on the license plate, unlike other states which place stickers on the windshield. By this judge's thinking, then, in theory any such out of state vehicle could be subject to a traffic stop merely for being properly registered.)

But if the police could effectively have grounds to pull over any driver, then any right of privacy has essentially been eviscerated. Standing on the pretense that traffic stops require the violation of such a statute is meaningless if everyone could be found to have violated it. The court in 2003 seemed to understand this problem and re-established some Fourth Amendment protections for drivers by requiring police to have an objectively reasonable belief that the driver's view was indeed obstructed. Unfortunately this new ruling rolls back those protections, allowing police to foment a sufficiently objective and reasonable belief of an impairment over essentially de minimis obstructions. Because the officer in this later case knew first hand the dimensions of the air freshener, small though they were, the court allowed the stop.

Again, though, if such small and ordinary objects can justify a traffic stop we're back to a legal world where everyone is vulnerable to them. In this case the cop testified that because he once had his own tree air freshener he knew first hand that it could impede a driver's view. And the court seems to have bought this testimony hook, line, and sinker, allowing the cop to narcissistically infer that his own personal experience would be universally applicable to everyone, despite the obvious physical differences among cars and drivers that clearly render such an inference impossible. The only real way to know if a driver's view is impeded is to see some evidence of it, which would then provide its own justification for a stop. Without this requirement, however, no driver is safe.

Edit 12/20: Eugene Volokh posted on a spate of even more specious traffic stops in California and questions their constitutionality. The language he uses is helpful here:

A police officer's flashing red lights at a driver, which causes the driver to support, constitutes a seizure — a situation "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Under the Fourth Amendment, such seizures must be reasonable, which generally means (for brief seizures) either that there's reasonable suspicion that the seized person has committed a crime (including a traffic infraction), or that there's some administrative need mandating a particular non-law-enforcement search or seizure system (such as airport screening).