Response to Mason v. Commonwealth (Virginia Supreme Court)
by Eric S. Snow, Instructor of Criminal Justice, Radford University, E-mail: esnow@radford.edu
My colleague, Dr. Jack Call, provided an excellent synopsis and analysis of the Mason case. The court clearly could have clarified this particular case by issuing concrete guidelines and specific measurement restrictions for items attached to rearview mirrors. However, the Code of Virginia currently has several thousand code sections related to motor vehicle and criminal law that may very well contain vague language. For example, Va. Code §46.2-855 prohibits operating a vehicle “when there are in the front seat such number of persons, as to obstruct the view of the driver to the front or sides of the vehicle”[1]. How is an officer or the court to determine if the driver’s view is obstructed? Couldn’t an argument be made that, depending on the layout and angle of approach for an intersection, a properly seated front seat passenger wearing a seat belt can obstruct the view of the driver to the right side of the vehicle? Therefore, does this code section allow a police officer to stop the vehicle and issue a summons to every driver who is traveling with a passenger? The legislature clearly didn’t intend for this to be the case.
In contrast to Dr. Call’s suggestions to remedy the situation with changes to the written law, I propose three alternative suggestions: hiring quality police officers, departmental policies to address the potential for unlawful or unethical practices, and oversight of officers by first line and mid-management supervisors. These suggestions are not “quick fixes” to the issue at hand, but neither is the process of changing legislation and these suggestions have a much broader reach. The need to hire and train ethical, critical thinking, justice minded officers is extremely important. This practice allows departments and communities to trust the officers they employ. Police officers are entrusted with great power and authority. They not only have the authority to make traffic stops, as is the issue discussed here, but they have the authority to restrict an individual’s freedom or take the life of another human with justification. The exact manner of hiring and training quality police officers is an extremely deep topic and is outside the scope of this article, but it is the crucial first step in the process. A second suggestion is the use of departmental policies to control police activity. Any state or nationally accredited agency maintains policies and procedures on employee conduct. These policies serve as the rules and guidelines for officers as they perform their jobs. Policies on when traffic stops are made or the rationale for stops and searches can be dictated by the agency head in response to their specific focus and crime prevention strategy. For example, many agencies no longer allow pursuits in general or pursuits based on a traffic violation. This strategy allows an agency head the authority to put policies in place based on their personnel and specific strategies as well as the desires of the community. Lastly, direct oversight by first line supervisors on the conduct and activities of their subordinates is critical. An ethical supervisor who is involved in the workings of a patrol shift and not tied to a desk will “have a finger on the pulse” of the shift and be able to address issues as they arise. For example, a supervisor may observe an officer who is quick to use force on a suspect, even when justified, and be able to counsel or retrain that officer before the behavior escalates into a serious unjustified use of force concern. Agency heads simply don’t have the time to monitor the activities of all their subordinates on a one to one basis so they must rely on front line supervisors to manage their people.
Dr. Call advocated for several police practices to be discontinued: allowing reasonable suspicion for traffic stops, the use of pretextual stops, and allowing officer to obtain consent to search during a traffic stop. I’m in complete disagreement on these issues and I feel they are necessary tools for law enforcement officers to combat crime. I certainly agree with Dr. Call’s analysis of Terry Stops and the wording the Court used to reference criminal activity, but I believe it is harder to draw the line between criminal and traffic violations on this issue. The easiest way to distinguish if a violation is criminal or traffic in the Commonwealth of Virginia would be to evaluate which code section it falls under. For example, all code sections in Title 18.2 would be criminal and all code sections in Title 46.2 would be traffic violations. However, driving under the influence, which is typically accomplished in a motor vehicle falls under Title 18.2 and several code sections in Title 46.2, such as reckless driving, are class 1 misdemeanors with a possible penalty of twelve months in jail or a class 6 Felony if death occurs. How do we properly define “criminal activity”? Is it solely a matter for the Court or does public opinion matter? Regardless of the answer, I think traffic stops based on reasonable suspicion are a necessary tool for police. Consider a scenario where an officer observes a vehicle leaving a bar at 2am that travels approximately five miles per hour under the speed limit, takes wide sweeping turns, but maintains within the lane of travel, and waits approximately five or ten seconds to proceed after a traffic light turns green. This vehicle has not committed any specific traffic violations that would rise to the level of probable cause for the stop, but the behaviors certainly would lead a reasonable person to believe the driver might be impaired. Should it be necessary for the officer to continue to follow the vehicle until a traffic violation occurs before stopping to investigate? What if the observed traffic violation is crossing into incoming traffic and striking another vehicle or failing to yield to a pedestrian in a crosswalk and striking an individual? I believe that most judicial authorities, and the general public, would desire it not to get to that point. I will concede that a drunk driver has a greater potential for harm than a driver with dangling objects as is the issue here, but I remain convinced of the necessary use of reasonable suspicion for traffic stops.
A similar argument for the necessity of pretextual stops could be made. The Court held, as long as a legitimate reason for the stop occurs, the specific intent of the officer doesn’t matter. An officer observing a vehicle without two operating headlights at night can legally stop the vehicle for that violation while actually intending to investigate impaired driving. Is the driver of that vehicle any less detained if the officer is only concerned with an inoperable headlight and not a DUI investigation? In Brendlin v. California[2], the Court ruled a passenger in a stopped vehicle is seized as equally as the driver, so it is unlikely the Court would rule someone is less seized based on the intent of the officer. Consider the stop and arrest of Timothy McVeigh after he committed the bombing of the Oklahoma City federal building. He was stopped because his vehicle didn’t display a license plate, a relatively minor infraction. Trooper Hanger indicated he thought the vehicle might be stolen when he made the stop. Did probable cause exist that the vehicle was stolen prior to the stop? No. However, the use of a pretextual traffic stop allowed Trooper Hanger justification to stop the vehicle for a traffic infraction, conduct an investigation into the status of the vehicle, develop probable cause to arrest McVeigh for carrying a concealed weapon, and ultimately help identify the culprit of domestic terrorism[3].
Lastly, consent searches of vehicles are also a necessary tool for law enforcement to oppose crime. Dr. Call makes an interesting observation, and potential legal argument, on the legality of obtaining consent after a traffic stop in light of the Rodriquez v. U.S.[4]case. It would not be surprising for the Court to hear a case with those facts in the near future, but until it does, the use of consent searches in conjunction with traffic stops is permissible. As with the previous suggestions by Dr. Call on limiting pretext stops and traffic stops based on reasonable suspicion to curb potential abuse, I’m doubtful those suggestions or prohibiting consent searches will dissuade officers who would misuse them and will actually hinder officers who are acting ethically and within the intent of the law. Rather than dissuading abuse of power by unethical police officers, the decision to prohibit consent searches during traffic stops would likely lead to these officers finding other, possibly illegal or unethical, ways to access the vehicle, such as arresting the driver on shaky probable cause or an offense that should be released on a summons to conduct a search incident to arrest or impounding the vehicle to conduct a vehicle inventory.
The solution to the issue lies with the quality of officers and their supervision rather than additional statutory regulations that limit police authority. This solution is not easy or quick to fix, but it is far more reaching than a traffic infraction or single consent search. Hiring and training professional, ethical officers will positively impact the community relations within a jurisdiction when citizens develop confidence in and a trust for their officers.
[1] Va. Code §46.2-855
[2] 551 US 249 (2007)
[3] Morava, K. (2009, February 25). Trooper who arrested Timothy McVeigh shares story. The Shawnee News-Star. Retrieved from http://www.news-star.com/article/20090225/NEWS/302259941.
[4] 575 U.S. ___, 135 S.Ct. 1609