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Sixth Circuit Panel, Acting Sua Sponte, Strikes Down Statute Prohibiting Driving When Driver's Vision Is Obstructed by Dangling or Suspended Objects:
On December 19, the Sixth Circuit handed down a remarkable decision in United States v. Lonnie Ray Davis. In an opinion by Judge Boyce Martin, the court struck down as unconstitutionally vague Michigan's law that prohibits driving with dangling objects from the rear-view mirror when the object obstructs the driver's vision.

  Notably, the briefs filed in the case did not argue that the statute was unconstitutional, and the parties did not discuss the issue at oral argument. The only issue raised in the case was whether the traffic stop was based on probable cause under the Fourth Amendment. (The appellant's brief is here, and the government's brief is here.) When the case was handed down, however, the Sixth Circuit panel had turned it into a very different sort of case, one with quite far-reaching implications. The resulting opinion strikes me as pretty unconvincing, so I thought I would blog about it.

  I. Statutory Background

  Most state traffic codes have provisions prohibiting objects inside the vehicle that obstruct the driver's vision. Some codes have provisions that are a bit more specific, and prohibit objects "suspended" from the rear view mirror or hanging on the windshield that obstruct the driver's vision. Some prohibit objects that "materially" obstruct the driver's vision, while others just prohibit objects that obstruct the driver's vision.

  Every code is worded differently, but these sort of traffic laws are pretty common. See, e.g., Va.Code Ann. § 46.2-1054 (Michie 1998) (“It shall be unlawful ... to drive a motor vehicle ... with any object ... other than a rear view mirror ... or other [approved] equipment ... suspended from any part of the motor vehicle in such a manner as to obstruct the driver's clear view ... through the windshield....”); N.Y. Veh. & Traf. Law § 375(30) (McKinney 1996) (“It shall be unlawful for any person to operate a motor vehicle with any object placed or hung in or upon the vehicle ... in such a manner as to obstruct or interfere with the view of the operator through the windshield....”); 625 ILCS § 5/12-503(e) ("No person shall drive a motor vehicle with any objects placed or suspended between the driver and the front windshield, rear window, side wings or side windows immediately adjacent to each side of the driver which materially obstructs the driver's view."); Neb.Rev.Stat. § 60-6,256 ("It shall be unlawful for any person to operate a motor vehicle with any object placed or hung in or upon such vehicle . . . in such a manner as to obstruct or interfere with the view of the operator through the windshield or to prevent the operator from having a clear and full view of the road and condition of traffic behind such vehicle."); La. Rev. Stat. 32:361.1(B) (“no person may operate a motor vehicle with any object or material placed on or affixed to the front windshield or to front side windows of the vehicle so as to obstruct or reduce the driver's clear view through the front windshield or front side windows....” ).

  As far as I know, no court has previously adjudicated a "void for vagueness" challenge on the merits to these statutes. I found one challenge that was brought to one statute in which the merits weren't reached, but other than that these statutes appear not to have been challenged (or if they are, the challenges are rare and presumably unsuccessful). The general understanding has been that these statutes are constitutional. That is, until December 19, when the Sixth Circuit handed down its opinion in Davis.

  II. Facts and Procedural History of United States v. Davis

  The facts of Davis are simple. Davis had a 4-inch tall "Tweety Bird" ornament hanging from his rear view mirror by a 3-inch string. An officer spotted Davis driving late one night and pulled over his car for violating a Michigan traffic law, Section 257.709(1)(c), which states: "A person shall not drive a motor vehicle with any of the following: . . . A dangling ornament or other suspended object that obstructs the vision of the driver of the vehicle." After he was stopped, Davis admitted that he had no driver's license, and he was arrested for driving without a license. A search incident to arrest revealed an open container of booze, four rolled up wads of cash in his pocket, a stun gun under his belt, 24 grams of crack in his sock, and a loaded .380 pistol under the driver's seat.

  Davis moved to suppress the evidence on the ground that the officer lacked probable cause to believe that the dangling Tweety Bird was actually obstructing his vision. As a result, he argued, the traffic stop wasn't permitted. District Judge Gerald Rosen disagreed, and Davis entered a conditional plea. On appeal, Davis revived his argument that the Tweety Bird was too small for a reasonable officer to think that it was obstructing his vision. At oral argument, the primary issue discussed was whether the correct Fourth Amendment standard for the traffic stop was probable cause or a lower threshold, reasonable suspicion, and whether these standards had been met. One of the judges, Judge Gilman, asked defense counsel if he had thought about raising the argument that the statute was void for vagueness. Counsel responded that he had not raised that argument.

  III. The Sixth Circuit Opinion

  When the opinion was handed down on December 19th, however, the case was no longer about the Fourth Amendment. In an opinion by Judge Boyce Martin, the court decided to decide whether the Michigan statute was unconstitutionally vague, and if so, whether the statute's unconstitutionality required suppression. Judge Martin's opinion held that the statute was unconstitutionally vague, but that the evidence could be admitted anyway because the officer had a good faith belief that the statute was constitutional under Michigan v. De Fillippo, 443 U.S. 31 (1979). In other words, the court came up with the constitutional challenge on its own; ruled that the statute was unconstitutional; and then concluded that the constitutionality of the statute had no bearing on the resolution of the appeal. (The panel rejected Davis's probable cause argument in a brief footnote — see fn 6.)

  The key point, emphasized by Judge Martin's opinion, was that "[g]oing forward, however, reliance on Mich. Comp. Laws § 257.709(1)(c) to justify similar stops" was not allowed. The statute was effectively off the books. Putting aside the extremely unusual procedural moves in the case, here's the heart of the analysis of why the law is unconstitutionally vague:
  The difficulty of this case lies in the ambiguity of this provision. This law does not ban all dangling objects; rather, it bans only ornaments that “obstruct the vision of the driver of the vehicle.” Yet the statute does not specify to what degree the driver’s vision must be obstructed or for how long. This leaves an undefined category of dangling ornaments that arguably violate the statute–one that could be very large depending upon how individual law enforcement officials interpret it–because the statute itself provides no additional guidance to govern enforcement.
  This is problematic for two reasons. First, the breadth of discretion it delegates to law enforcement: legislatures have a constitutional duty to set out “minimum guidelines to govern law enforcement,” Kolender v. Lawson, 461 U.S. 352, 358 (1983), but here no such neutral, objective standards are set forth. Second, the discretion delegated to law enforcement by this statute has a potentially far-reaching application in practice. Objects hung from rearview mirrors are legal in Michigan and are indeed quite common. Many vehicles on the road today have something hanging from the rearview mirror, whether it be an air freshener, a parking pass, fuzzy dice, or a rosary. And many organizations, both public and private, either encourage or require their use. Because of this, many vehicles on the road may violate the obstruction law, but the statute itself provides no guidance either to motorists or police as to which ones do. It is simply up to the officer on the street to decide. We believe that the Constitution requires more of Michigan’s legislature.
  IV. My Analysis

  On the merits of whether the statute is unconstitutionally vague, I don't find this ruling persuasive. The difference between objects that obstruct a driver's vision and those that don't does not strike me as such a difficult or metaphysical distinction for police or drivers to understand. The driver's vision is his vision of the road, road signs, and other cars on the road. If there is nothing obstructing his vision, he can see these things from his driver's position through the front windshield. If there is something obstructing his vision, he can't. It's not exactly rocket science, and it's not very similar to the kind of inscrutable legal standards that have led the Supreme Court to struck down statutes for giving the police too much discretion in cases like Kolender v. Lawson.

Related Posts (on one page):

  1. Sixth Circuit Withdraws Opinion Striking Down Traffic Law on Vagueness Grounds:
  2. Did the Sixth Circuit "Fuzzy Dice" Decision Violate Federal Law?:
  3. Sixth Circuit Panel, Acting Sua Sponte, Strikes Down Statute Prohibiting Driving When Driver's Vision Is Obstructed by Dangling or Suspended Objects:
David Chesler (mail) (www):
The difference between objects that obstruct a driver's vision and those that don't does not strike me as such a difficult or metaphysical distinction for police or drivers to understand. The driver's vision is his vision of the road, road signs, and other cars on the road. If there is nothing obstructing his vision, he can see these things from his driver's position through the front windshield. If there is something obstructing his vision, he can't.

Does that mean that if he can see the road, road signs, etc. that it may be concluded that the object does not obstruct his vision?

Anything blocks the vision of things in some direction, and as long as there is some clear bit of windshield the driver can move his head or point the car such that anything can be seen.

Ideally the statute should be written in terms of area (or steradians, which almost nobody understands.)
12.29.2008 11:08am
OrinKerr:
David,

In my experience as a driver, the driver's head is normally in a relatively fixed position while driving. As a result, the fact that it would be possible for the driver of the car to move his head in a way that something might be seen despite the obstruction of his view does not mean his vision isn't obstructed.

If you drive very differently from this, please let us know so we can make sure we're not on the road when you are. ;-)
12.29.2008 11:12am
NicholasV (mail):
I definitely move my head while driving, because otherwise the pillars block my vision of critical areas at certain times. For example, when turning, I have to move my head around to make sure that I'm not missing, say, a cyclist who is invisible because he or she is behind my A-pillar (the one next to the wind shield) which is wide enough to block my view of narrow objects. I also have to move my head around when changing lanes to make sure that the B or C pillars in combination with the blind spot aren't blocking my view of vehicles in the other lanes.

It's happened before that I might have hit something or someone had I not done this, since I didn't see the object until I shifted my head enough to reveal it from behind the pillar. Some cars have wider pillars than others. Mine aren't the worst but they aren't the best either.

So, I don't agree with the idea that a driver's head is fixed while driving. Not a good driver, anyway, since you want to be sure you have a clear view of the whole sector where you are about to move, and the pillars always block part of that view. The mirrors help, especially with the B and C pillars, but IMO you need to both check the mirrors and also turn your head and look directly, since they give you a different field of view.

Additionally I don't agree that it's obvious when an object obscuring part of the wind shield is a serious obstacle to the driver's clear vision. For a start, it varies from car to car just how large the wind shield area is. Some sports cares with heavily raked windscreens already block some of your view, perhaps more so than a car with a more vertical wind shield and something hanging from the rear view mirror. Why should one be legal and the other not? Additionally the size and position of the rear vision mirror varies. What about those GPS systems that adhere to the wind shield or dashboard with a suction cup? Do they block the view enough to be illegal? They're designed to be in your sight while you are driving so they obviously have to take up some fraction of the area of your vision.

I think it has to be clear to the average driver what is or isn't legal. Otherwise I'm not sure how they can be sure they are adhering to the law. Even if it just says how large an object is acceptable in terms of, say, the area it projects, that would help.
12.29.2008 11:22am
tbaugh (mail):
"Going forward, however, reliance on MICH. COMP. LAWS § 257.709(1)(c) to justify similar stops will not
suffice." Federal courts are amazing. The only federal court that binds state courts, even on federal constitutional questions (unless the case is for injunctive relief) is the United States Supreme Court. The decision of the 6th circuit in a federal prosecution that the state statute is unconstitutional (even if reached in a manner other than the odd one here) is not binding on Michigan state courts, which may reach the opposite conclusion if they desire. Perhaps the opinion was referring to "not sufficing" in future federal prosecutions involving the statute, but I doubt it.
12.29.2008 11:24am
Bill Poser (mail) (www):
Just out of curiosity, why does the list of contraband found in the course of the search include:

four rolled up wads of cash in his pocket

Surely there isn't an offence of irregular money-handling?
12.29.2008 11:26am
CJColucci:
If they want my fuzzy dice, they'll have to pry them from my cold, dead fingers!
12.29.2008 11:30am
OrinKerr:
NicolasV,

If you reread my post and comment, you will see that you have not accurately described my position (either of the post, or of the comment). Just thought I would flag that for interested readers.
12.29.2008 11:30am
OrinKerr:
Bill,

When you're a drug dealer, the drugs, guns, and wads of cash pretty much go together.
12.29.2008 11:31am
Paul Allen:
Orin writes:

As I've always understood it, the United States Supreme Court gets to determine whether its own decisions amount to an "abdication" of the Constitution, as well as whether certain rules are "more important" at some times rather than others.

I think you are being a bit unfair. The opinion does not damn the Court in the fashion you suggest. The argument is quite logical, the detailed legality of a traffic stop has been rendered more consequential as a result of Whren. Previously such an inquiry would have been pointless--without something of greater significance at play, the details of the traffic laws are rarely litigated in way that would shed light on their meaning.

Similarly when you write:

If courts can remove or limit such regulations one-by-one through the vagueness doctrine, then police have less power to use the pretextual stops that the Supreme Court allowed in Whren.

The presumption here is one of police power as a scalar magnitude of which the Supreme Court alone has the power to change. To argue that the Court was picking a level of police power is to suggest that they were deciding policy not interpreting rules. I disagree; you cast the Court in an ill light--Whren is a mechanistic rules-based extension. As such it does not set a level of police power per se. Martin's opinion is filling in consequent details.
12.29.2008 11:32am
Dan D (mail):
Secondary effects of a statute should not be determinative as to their constitutionality or appropriateness (the distinction is intentional).

The particular hazard of a dangling object from a rear view mirror is the result of human perception and patterns of recognition. A driver quickly adapts to a bobbing, weaving, jiggling object in motion in his or her near peripheral vision. The mind soon tunes this out, it becomes perceptual wallpaper.

Soon a driver encounters a small child darting from between two parked cars to the right of the lane of travel. Numbed by continual stimulation of unnecessary ornaments bobbing in the same plane of vision, the driver's mind is far less capable or likely to immediately recognize the child's intrusion and correctly decide upon an appropriate driver action to avoid a tragedy.

Driving a car is a serious business, non-functional distractions such as a toy or a tassle from a graduation cap, or air freshener I would argue should be banned on safety and responsibility grounds alone. Overturning such a ban on any grounds, such as assumed in this case, is irresponsible.
12.29.2008 11:36am
Bill Poser (mail) (www):
Orin,

Yes, I understand that the wads of cash are part of the "drug dealer scenario", but that doesn't make them evidence of anything. I understand an officer suspecting that someone is a drug dealer because he observes that the person is armed and carries wads of cash, but here we're talking about the result of a search.
12.29.2008 11:38am
OrinKerr:
Paul,

II'm having a little bit of trouble understanding your comment, so let me start with a question: Why do you think the Sixth Circuit held that the statute was unconstitutional given that no one raised the issue and there was no remedy even if it was? Why did the court reach the issue and try to reach a holding on it, given that it wasn't actually a part of the case?
12.29.2008 11:39am
Bobo Linq (mail):
Orin,

I think the problem is that any non-transparent object that dangles from a rearview mirror obstructs the driver's vision to some degree. If the object is in the driver's line of sight — as, potentially, it always will be — the driver won't see what is behind it.

Yet at the same time, most non-transparent objects do not materially obstruct a driver's vision, because they are small enough that even if they are in the line of sight, they won't obscure anything important. (As long as I can see a pedestrian's body, it doesn't matter if my dangling penny obscures the logo on his shirt.)

So from one perspective, every dangling object obstructs a driver's vision; from another, almost no dangling object obstructs a driver's vision. This leaves law enforcement with essentially unbounded discretion in enforcing the statute.

That, at least, is the argument, and I don't follow your criticism of it.
12.29.2008 11:44am
Steve:
The difference between objects that obstruct a driver's vision and those that don't does not strike me as such a difficult or metaphysical distinction for police or drivers to understand.

Well, I would have thought it was easy to understand, but apparently there's more of a difference of opinion than I thought. I, and I suspect most drivers, do not feel that a pair of fuzzy dice or a Tweety bird or whatever acts to obstruct my vision. Some drivers undoubtedly disagree, and they most likely do not have anything dangling from their mirror. It would be an odd person indeed who says "that pair of dice prevents me from seeing the road, but I'm going to leave it there anyway."

Most Michigan police officers appear to share my view, as I was never once pulled over in all those years of driving with my graduation tassel hanging from the mirror. If most people are, in fact, of the belief that a dangling tassel does not obstruct the vision, how does the statute serve to put the public on notice that a dangling tassel is illegal? If it's illegal to hang anything from the mirror at all, just say so.

I'm forced to agree with Judge Martin that this statute criminalizes everyday behavior, behavior that the police rarely if ever seek to punish in its own right, merely to provide a pretext for traffic stops.
12.29.2008 11:50am
OrinKerr:
Bobo,

I believe I addressed that question in the post.
12.29.2008 11:51am
David Schwartz (mail):
In this particular case, no reasonable officer could have thought that the tweety bird ornament materially disrupted the driver's vision. Otherwise, there would be a flood of people ticketed for having such ornaments. The standard for probable cause doesn't change just because you really want to stop this particular guy.
12.29.2008 11:52am
Gabriel McCall (mail):
I believe what Paul is saying is that the SC ruling makes it much more important to determine whether a given traffic stop is legitimate, since lower courts have been barred from excluding evidence gathered from legitimate traffic stops. That being the case, it's perfectly reasonable- and within the scope of their authority- for lower courts to go to greater efforts to define what sorts of traffic stops are or are not legitimate.

The SC said that courts must allow evidence from legitimate traffic stops. It did NOT say that courts must continue to recognize the same types of traffic stops as legitimate, as they did when the stakes were lower. Before Wren, it was relatively unimportant to test the constitutionality of traffic laws, since questions of constitutional import could be answered without having to accept or throw out the traffic law. Since that's no longer the case, it's now crucial that the traffic law itself be constitutional.
12.29.2008 11:54am
CDU (mail) (www):
It seems to me that the real problem with this statute isn't vagueness, it's that the statute is violated so often, by so many people that any enforcement of it is going to be arbitrary and capricious. If police officers pulled over every car they saw with fuzzy dice, air freshener, or a parking permit hanging from the rearview mirror they'd have no time to do anything else. This law doesn't seem to do anything to keep people from driving with stuff dangling from their mirrors, it just gives the police an excuse to pull over a substantial portion of the population any time they feel like it. When violation of a law is so widespread it's practically a social norm, I think it's the law, rather than society, that needs to change.
12.29.2008 11:57am
OrinKerr:
Gabriel,

When you say that this is now "important" and "crucial," may I ask with respect to what?

And what does it mean to go to "greater efforts"? I would hope that courts always apply the Constitution 100% in every setting 100% of the time, and that they never decide that the Constitution is more or less important depending on the day. Assuming you agree with me on that, I'm not sure what it means to start to go to "greater efforts."
12.29.2008 12:01pm
bbowers (mail):
My dad used to joke that he got in a wreck once while drunk because he swerved to miss a tree. It just so happened that tree was dangling from his rear view.

"I'm forced to agree with Judge Martin that this statute criminalizes everyday behavior, behavior that the police rarely if ever seek to punish in its own right, merely to provide a pretext for traffic stops."

Steve, I agree completely. If states want this thing outlawed, they should do it outright so everyone can know and avoid doing it. Because they would face obvious and legitimate outcry (at least, I assume a citizenry would be ticked if you started pulling them over for dangling objects), they have to use discretionary statutes, and then "discretion" not-so-subtly become "profiling."
12.29.2008 12:02pm
einhverfr (mail) (www):
I didn't see the lower court saying that the Supreme Court mandated abdication of judicial power under the Constitution in Whren. Instead I see them saying that the Supreme Court's opinion in Whren left them with a choice between tightening vagueness and arbitrary enforcement standards or abdicating their power.

It seems to me that the police here used a reasonable and legal ornament as a pretext to pull the guy over, and this is what the court is reacting against. The question is whether police may pull over people who have parking passes dangling from their rear-view mirrors as pretexts and claim they had a reasonable suspicion that these obstructed vision.

Such problems leave the courts with no good options. They can either abdicate their power to protect people from unreasonable searches, they can strike down the statute, or they can begin micromanaging things. In general, I think that if a court must aggressively micromanage a law where criminal cases are concerned (as they are here), the law should be void for vagueness.

So I agree with the 6th Circuit here, actually.
12.29.2008 12:06pm
rz:
CDU: "This law doesn't seem to do anything to keep people from driving with stuff dangling from their mirrors, it just gives the police an excuse to pull over a substantial portion of the population any time they feel like it."

Agreed. This is another example of a "cracked windshield" law: its only use is as a pretext to pull over "suspicious" vehicles. Because it is never enforced against the vast majority of drivers, the general public doesn't care that it exists. But police love it because it allows them to conduct traffic stops that might otherwise not be permitted.
12.29.2008 12:09pm
Gabriel McCall (mail):
Orin:

I would hope that courts always apply the Constitution 100% in every setting 100% of the time, and that they never decide that the Constitution is more or less important depending on the day.

I would hope exactly the same thing. My experience and my expectation are not identical with my hope. I have heard a traffic-court judge reject a constitutional argument with the exact words that "this is not a constitutional issue, it's a traffic ticket."
12.29.2008 12:10pm
einhverfr (mail) (www):
In short, I think if this were merely an issue with traffic infractions I would disagree with holding it void for vagueness, but when criminal cases get bolted on, then I think there ought to be a higher standard.

We allow a certain amount of vagueness in civil law which would be unacceptable in criminal law. We might allow lower standards for traffic infractions if they were entirely separate from criminal proceedings. However, if the areas with lower standards get tied into criminal proceedings, I think there are big issues.
12.29.2008 12:11pm
Gabriel McCall (mail):
Isn't it possible to argue that a law has become void if its enforcement is arbitrary and capricious? Or does "I thought he was a drug dealer" count as something other than caprice?
12.29.2008 12:12pm
einhverfr (mail) (www):
CDU:

It seems to me that the real problem with this statute isn't vagueness, it's that the statute is violated so often, by so many people that any enforcement of it is going to be arbitrary and capricious.


I thought that was the legal definition of void for vagueness. I.e. nobody has any idea where the line is, and so it is just a pretext for arbitrary enforcement.
12.29.2008 12:13pm
einhverfr (mail) (www):
OrinKerr:

And what does it mean to go to "greater efforts"? I would hope that courts always apply the Constitution 100% in every setting 100% of the time, and that they never decide that the Constitution is more or less important depending on the day. Assuming you agree with me on that, I'm not sure what it means to start to go to "greater efforts."


We tend to have lower standards of Constitutional protections where criminal cases are not at issue. For example, common law would probably be too vague for criminal prosecutions, and the like.

Traffic infractions themselves have very low standards of protections. They are not technically crimes, and so are not subject to a great number of our Constitutional restrictions. For example, we might tolerate a greater amount of arbitrary enforcement regarding speed limits than we might regarding grand theft.

However, here we get a case where a statute has been heavily abused (the ornament seems no bigger than a parking pass). At a bare minimum, the evidence should be suppressed and the guy should be entitled to a re-hearing as if the traffic stop never happened and his conviction vacated.

However, what choices are before the court? I think that the simplest approach is to reduce the level of vagueness tolerated in such statutes to a level permitted regarding criminal prosecution.
12.29.2008 12:20pm
whit:
the standard for traffic stops in every jurisdiction i have worked in, and thus presumably under the 4th - is reasonable suspicion, not probable cause.

defense attorneys and even prosecutors routinely will say things like "the PC for the stop was" etc. but technically speaking, it is RS not PC required for a traffic stop, at least constitutionally under the federal constitution.

can't speak for michigan.

it sounds like the PC vs. RS issue was glossed over once the vagueness thing came in? is that correct?
12.29.2008 12:22pm
David M. Nieporent (www):
So from one perspective, every dangling object obstructs a driver's vision; from another, almost no dangling object obstructs a driver's vision. This leaves law enforcement with essentially unbounded discretion in enforcing the statute.
Yes, it does. The problem is that the Court in Whren foreclosed that entire argument:

Petitioners urge as an extraordinary factor in this case that the "multitude of applicable traffic and equipment regulations" is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop. But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide, as petitioners would have us do, which particular provisions are sufficiently important to merit enforcement.


In real life, obviously the cops are lying and did not pull over the defendant for this; I'll wager that nobody in history has ever been pulled over for this. But Whren says tough.
12.29.2008 12:24pm
loki13 (mail):
OK,

I believe that Gabriel McCall is exactly right in this circumstance. I don't usually post on your 4th Am. threads (believing you correct descriptively, but incorrect normatively, ever since the Rehnquist Court began finding the Drug Exception to the Constitution) but I think that this is an interesting approach the 6th is taking.

I am reminded of a conversation I had with a Mass. Statie (state trooper) a while ago in an informal setting. He told me that if he chose to, he could pull my car over at any time given the traffic laws, and proceeded to rattle off a few that gave him the discretion to do so but were (shall we say) selectively enforced.

As Gabriel points out, any one who has spent time in Traffic Court knows the rules are often lax, and the magistrate (what, you expected a judge???) has better things to do than to hear a constitutional argument. Since Whren allows pretext stops, and the reality is that LEO has unlimited discretion if they so chose to execute a stop in at least some states... well, perhaps this is something to look forward to.

In the end, I a not sure what is better- the pretext stop, or the old 'testilying'. But it seems that as long as we want our highway patrol officers to do drug searches, we'll be in an uncomfortable area as far as the Constitution is concerned.
12.29.2008 12:25pm
Bob from Ohio (mail):

If states want this thing outlawed, they should do it outright so everyone can know and avoid doing it.


Speeding is outlawed, people know and usually speed anyway.

Yet, the police do not pull over every speeder.

Even a flat ban on rear view mirror objects will sometimes be used by the police to pull over people as a pretext.
12.29.2008 12:27pm
luci:
Isn't this a classic advisory opinion? Would a future panel even have to follow it, given that the opinion on the constitutionality of the act was not necessary to final holding?
12.29.2008 12:29pm
David M. Nieporent (www):
the standard for traffic stops in every jurisdiction i have worked in, and thus presumably under the 4th - is reasonable suspicion, not probable cause.
Do you have some actual constitutional basis for this claim, or do you just rely upon the fact that police officers routinely ignore the fourth amendment?

Because Whren reiterates that a traffic stop is a seizure, and probable cause is required.
12.29.2008 12:29pm
Bob from Ohio (mail):
Professor Kerr:

Since the finding of unconstitutionality of the statute was not necessary to the decision, it was dicta.

Does it being dicta create any argument that it does not completely destroy the possibility of good faith belief that the statute was constitutional under Michigan v. De Fillippo?
12.29.2008 12:34pm
Al Maviva:
Don't most federal judges have old 70's style roach clips with enormous feathers on them hanging from their own rearview mirrors?

But seriously. A simpler explanation of this holding would have sufficed: It doesn't pass the laugh test. While a textualist stands up for the legislature's ability to pass stupid laws, there's stupid, then there's Stoopid.
12.29.2008 12:35pm
whit:
[[Deleted by OK on civility grounds. Play nice, Whit.]
12.29.2008 12:36pm
loki13 (mail):
Bob from Ohio,

If there was a flat ban, then you would know that if you had an object dangling, you would be pulled over. Conversely, if there was some objective standard (nothing more than 4" by 3") you would also know whether you are breaking the law. It is similar with the speeding law- people know what the law is, and they choose to break it. The problem the 6th sees with this law is that people have no notice that they are breaking the law, leaving what is a common practice in the sole discretion of the officer to be lawbreaking or not. Orin disagrees (thinking that the line-drawing is simple) but I think the 6th has decent reasoning here.
12.29.2008 12:37pm
DiverDan (mail):
The thing that really jumps out at me in this case is the fact that the Court decided to go out on its own and rule on an issue that was never raised in the District Court and never briefed by the parties. This strikes me as making a mockery of the whole "case or controversy" requirement, which presumes an adversarial presentation on the issues to be decided. Also, if the constitutionality of the Michigan statute was properly put at issue in the District Court, FRCP Rule 5.1(a)(2) would have required notice to the Michigan Attorney General and an opportunity to intervene. I know that there is at least one en banc decision in the 5th Circuit which holds that is improper for a panel to decide a case based upon an issue not raised in the District Court and not briefed to the panel (“we review only those issues presented to us; we do not craft new issues or otherwise search for them in the record. “ United States v. Johnson, 718 F.2d 1317, 1325 n.23 (5th Cir. 1983)(en banc)), and the Supreme Court noted in Singleton v. Wulff, 428 U.S. 106, 120 (1976), that "a federal appellate court does not consider an issue not passed upon below." A Court raising a dispositive issue like this, without any opportunity for briefing, strikes me as a real denial of due process, and ought to be sanctionable. Cases like this are precisely why Judicial Misconduct boards ought to be able to consider conduct arising in the course of judicial proceedings.
12.29.2008 12:38pm
loki13 (mail):
[Deleted by Ok on civility grounds . Play nice, loki13.]
12.29.2008 12:39pm
luci:
So Judge Martin is doing exactly what he opposes. The police use the pretext of a "dangling object" to pull over and arrest a drug dealer for the "better good". Martin uses the pretext of this case and, ignoring all canons of judicial decision making, tries to reach a result which he thinks is for the "better good."
12.29.2008 12:45pm
whit:
david nieporent:

you asked for case law, you got it.

to correct your main point, yes traffic stops are seizures. seizures do not require PROBABLE CAUSE. they require reasonable suspicions (see: Terry. v. Ohio)

in regards to the special kind of seizure referred to as a traffic stop (for civil infractions a special kind of seizure as opposed to traffic stops that are RS of a CRIME), see below.

either way, the federal standard is RS as shown below

hth


United States v. Johnson, 2008 U.S. Dist. LEXIS 71494 n. 4(M.D. Pa. September 17, 2008):

In light of language from Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), there has been some confusion regarding whether probable cause or reasonable suspicion is needed to effect a traffic stop. Compare id. at 810 (dictum) (decision to stop automobile is reasonable when police have probable cause) with Prouse, 440 U.S. at 663 (holding) (traffic stops require "at least" reasonable suspicion). The Third Circuit dispelled any such confusion in United States v. Delfin-Colina, 464 F.3d 392 (3d Cir. 2006), when it held that reasonable suspicion--and not probable cause--is required for a "routine" traffic stop, id. at 397. As the traffic stop at issue here was not "routine," the reasonableness of its scope is more fully addressed infra.
12.29.2008 12:50pm
loki13 (mail):
Whit,

I am not trolling. I have not questioned your case cite- I am simply waiting for you to answer my question I've asked you on previous threads; since you claim all sorts of previous experience and personal stories, I've highlighted one of your many dubious claims:

LINK to refresh your memory

Please back up your claim, or acknowledge that you occasionally make up things. If you back it up, I'll stop posting on this blog forever. If you acknowledge that you occasionally cross the line, I'll stop pointing out your misstatements.
12.29.2008 12:50pm
einhverfr (mail) (www):
Tying this back to Lori Drew ;-).....

One of the big issues in the prosecution of Lori Drew was that even if the statute was INTENDED to prosecute cases like that, any act that criminalizes actions which the majority of the population engages in would be a violation of the due process guarantee of the 4th Amendment since enforcement would be fundamentally arbitrary. Note that Drew's case (like this one) is a matter of criminal charges, not mere regulatory infractions.

However, comparing this to speed limits..... We tolerate more vagueness in traffic infractions than we might in the criminal cases. Typically however, we demand that speed limits are enforced within reasonable and practical limits. I don't think you could be pulled over because the cop had a reasonable suspicion that you were driving half a mile an hour over the speed limit and use this as a pretext for a search for drugs (my radar said 55 in a 55 zone, but he seemed to be going just a little faster, so I pulled him over and found drugs). In a case like this, the courts could easily provide more guidance to law enforcement without micromanaging the law. I believe in Oregon the courts mandated a 5mph buffer (if the speed limit is 55, the courts said that a traffic stop for someone going under 60 is too arbitrary).

In this case, however, the law provides no hard lines of any sort. How many people here have NEVER driven with a parking pass hanging from your rear-view mirror? It allows police to pull over the vast majority of drivers at some point under this single statute. Expecting law enforcement officers to be micromanaged by the courts is not a good option.
12.29.2008 12:50pm
CDU (mail) (www):
I thought that was the legal definition of void for vagueness. I.e. nobody has any idea where the line is, and so it is just a pretext for arbitrary enforcement.


I think this would problematic even if there were a bright line (say, "having anything hanging from the mirror is prohibited"). Even a crystal clear law can be a pretext for arbitrary enforcement if it is as widely violated as these laws are and police have discretion to choose to enforce it or not as they wish.
12.29.2008 12:50pm
whit:
loki, i have already provided one cite for you, and it didn't stop your trolling. i can cite news articles. i cannot cite WSP crime lab reports. they aren't filed online, and it would also be a violation of dept. policy or me to do so. hth

i provided the link about the no "merry christmas" thang. if that isn't enough to assuage yer suspicions, then feel free to do a ride along (once you figure out what one is) when you come to seattle - ASSUMING you are not a convicted felon, or otherwise prohibited under my dfept. policy.
12.29.2008 12:52pm
OrinKerr:
Just a general comment to readers who like the decision:

Just to be clear, my post is on whether the decision is legally correct, not whether I think the law is good or bad or whether I like Whren or prextextual stops. That is, the question (beyond the procedural issues here) is whether Judge Martin accurately applied the law, not whether he reached a result that is nice or makes the world a better place. I realize that some readers aren't particularly interested in the rule of law issue, at least in this case, so it's fine if you want to comment on the decision as social policy. But it may be helpful to distinguish clearly between the two grounds for agreement or disagreement.

David Nieporent,

Whit is right that lower courts have allowed traffic stop on rs, not pc, that a traffic law has been violated. I think this is incorrect where the law is civil, not criminal, but so far the issue is splitless.
12.29.2008 12:53pm
OrinKerr:
LOKI13, WHIT,

If you keep this up, I will ban both of you. If you cannot be civil, you're both going to be banned.
12.29.2008 12:54pm
whit:
mea culpa. i am ignoring him from now on. i promise !
12.29.2008 12:58pm
loki13 (mail):
Whit,

I was not aware you have provided one cite. Again, out of your many misstatements, I highlighted the fact that you wrote that you have seen test results of hundreds of samples of mj laced with LSD. If you would like to provide a citation to that (not someone claiming it, but someone charged with it, since that would have to happen if a single LEO has seen it so many times) my offer stands. I will post, here, that you are an honest supercop, I am wrong, and I will no longer post on volokh. So... where is your citation?
12.29.2008 12:59pm
loki13 (mail):
OK-

Wrote before seeing that. Sorry. I will stop on your threads.
12.29.2008 1:00pm
bbowers (mail):
"Speeding is outlawed, people know and usually speed anyway.

Yet, the police do not pull over every speeder. "


That is true enough, but as another commenter pointed out, the letter of the law is clear. If I drive 26 in a 25, I know I am subject to a traffic stop, however unlikely. I know it because I have heard stories, and however random it may be, I know the next cop may be that cop.

In this case, I don't even know Tweety has any legal connotations. If I do, and I still do it, as in the speeding example, that is my own problem and I cannot complain that I was unreasonably searched at that point, in my opinion.
12.29.2008 1:03pm
Jim Rose (mail) (www):
I suppose that Garmin and other manufacturers of GPS devices that are affixed to the windshield with suction cups are breathing a sigh of relief.

I find the officer's judgment on what obstructs a driver's view to be no different than those cases (some of which I prosecuted eons ago) involving cars and buses that make "excessive" noise (People v. Byron 17 NY2d 64) or emit "excessive" smoke (People v. Swist 35 NY2d 920.
12.29.2008 1:04pm
The_Ace:
Is constitutional avoidance dead?
12.29.2008 1:19pm
einhverfr (mail) (www):
OrinKerr:

Just to be clear, my post is on whether the decision is legally correct, not whether I think the law is good or bad or whether I like Whren or prextextual stops.


I think that part of the problem is that some of us read the decision differently from you. For example, you wrote:


That's an interesting policy argument, but I wonder if it reflects what we might call a "nontraditional" understanding of the relationship between the Supreme Court and the inferior courts. As I've always understood it, the United States Supreme Court gets to determine whether its own decisions amount to an "abdication" of the Constitution, as well as whether certain rules are "more important" at some times rather than others.


My point is the Whren left the courts with a set of bad choices without changing the fundamental constitutional considerations in criminal cases. Given the bad choices, I think that the 6th circuit did the right thing. I think this is the court's sense too, when they wrote:

Finally, we note that the rule of law concerns underlying the vagueness doctrine are even stronger in the Fourth Amendment context after the Supreme Court’s decision in Whren v. United States, 517 U.S. 806 (1996), which did away with pretext analysis under the Fourth Amendment. If courts cannot review the motives of law enforcement officers after the fact, it is crucial that they review the breadth of discretionary authority police receive from legislatures at the outset. The alternative is a broad abdication of the judicial duty to enforce the Fourth Amendment’s prohibition on unreasonable searches and seizures at a time when this duty is more important than ever.


The court is not saying that SCOTUS has abdicated such but rather that refusing to consider criminal implications of traffic infractions in voidness analysis would amount to such an abdication in light of Whren.

Now as to my feelings regarding Whren, I think that this was a reasonable opinion too. The fact is that pretext analysis is generally problematic and gets rid of legitimate marker infractions which are useful in identifying and stopping such things as intoxicated drivers.

For example, I was in a car with my sister and her boyfriend (who was driving) at the time a number of years ago. He ran a stop sign and was pulled over. The police officer gave him a warning after basically getting up in his face (IMO to smell his breath to see if he had been drinking). No harm, no foul. But the stop sign was clearly a pretext to see if there was a drunk driver on the road. That was fine with me. Also in Wren, the passenger had a bag of cocaine in the car in plain sight, so the question was not whether there was probable cause to SEARCH the vehicle since this was not necessary.

Whren might have been decided differently if the drugs were hidden and the driver objected to a search, and the Constitution does not provide a right to openly violate the laws. However, in light of Whren, I would argue that, where criminal cases are tied to infractions, vagueness issues become a bigger concern and hence the analysis really needs to reflect something more clear. In my state, traffic infractions are not even misdemeanors, and consequently are subject to fewer constitutional protections themselves.

For example, most people technically violate speed limits. In a criminal case, such laws might therefore be void for vagueness, but they aren't as regard traffic infractions. We tolerate this because the implications of being pulled over for speeding are small, while if we passed a law making it a crime to violate a web-sites TOS (and punishable by a year in prison) we might hold such a statute void for vagueness.

However, when pretexts are used the question becomes how much guidance does the court wish to give that the legislature should have given. In the case of speed limits, maybe the court would say (as I believe it did in Oregon) that someone can't be pulled over unless they are going 5mph over the speed limit. In the case of ornaments, it is more difficult. To my mind, I am not sure that this has been addressed in the case law, but my reading of vagueness analysis in other cases seems to suggest that this is the right call here.
12.29.2008 1:28pm
loki13 (mail):
OK,

On further thought, I think there is a divide between your analysis of this case and the way the law is applied in the context of Whren (which might be correct descriptively- I still think the vagueness of the statute might be right, although I have problems with the sua sponte nature of it) with the problems courts see in applying the law after Whren as a matter of justice.

In short, the Court believed that in order to avoid the problem of tstilying (or because police could be trusted, take your pick) they would simply allow pretext searches. I am reminded of a case out of Texas where an officer, seeing a van driven by a black man, went ahead and pulled into the breakdown lane with his lights off. The van, traveling at the speed limit, moved to the other lane to avoid the officer, and was pulled over because it didn't signal the lane changed (which was caused by the officer's actions). The officer used this stop to search the van and found marijuana. The reason this was all done, of course, was that the officer wanted to pull over a van driven by a black person in Texas. It *feels* wrong, it should be wrong, and yet it is legal.

So we are stuck in a position where we don't second-guess the motivations of officers, and it leads to inequitable outcomes. To those who reply- but the officer found drugs in Texas, I reply simply- that's because that case made it to court. How many times has the officer done something similar and just written the ticket, or given a warning? Those cases never get litigated.

So long as we want (and incentivize) the police to make arrests for drugs, we either have to accept a watering down of our constituional protections, or we accept that they will be less efficacious in their duties.
12.29.2008 1:35pm
OrinKerr:
einhverfr,

I appreciate that you see choices that you think are bad and that you think the 6th Circuit "did the right thing." But I want to know if, having read the major Supreme Court void for vagueness decisions, you think the Sixth Circuit's decision is consistent with those decisions or inconsistent with them. I realize that there is an audience for decisions that misapply the law for reasons of shared social policy, but my interest is in whether the Sixth Circuit properly applied the vagueness standard or did not.

I should add that if a law professor wrote an academic article arguing that the best end-run left around Whren is the void for vagueness doctrine, I would think that this could be a pretty good academic article. But a good academic article and a good legal opinion are two pretty different things. Opinions must follow the law, and articles need not.
12.29.2008 1:35pm
OrinKerr:
Loki13,

I understand your argument to be that Whren is not consistent with justice. That is a perfectly fine argument, and many would agree with it. But I'm not sure where that takes us.
12.29.2008 1:38pm
loki13 (mail):
OK,

I would go further and say that Whren allows for intuitively unconstitutional results. This is why I believe that, while you are correct descriptively when you describe the 4th Am., I hope the law moves away from Whren. Regardless, it has long been within the province of the circuits to let law percolate and find novel applications in other areas of the law to adjust and modify blanket holdings of the Court.

To answer your question posed, supra, the 6th stayed true to Whren. The question, then, is whether they correctly applied the vagueness standard. I think it is arguable; in other words, they did not violate precedent in that area. While you might believe it would be better to have ruled it not unconstitutionally vague, they were not compelled to do so. And that is how the law (gradually) changes.
12.29.2008 1:51pm
Gino:
A court finds a statute unconstitutional. I fail to see a problem.
12.29.2008 1:58pm
OrinKerr:
Loki13,

I don't think it's really close that the 6th Circuit was wrong on the vagueness issue. These are longstanding and widely adopted statutes that no one has even thought to challenge: We're quite far away from the kinds of statutes that the Supreme Court has thought was vague.

Of course, you may favor lower courts engaging in minor acts of "civil disobedience" with the Supreme Court, gradually changing the law to try to modify the Court's work. But that is a highly contested view, and it's a view that I personally think is wrong. Lower courts are inferior courts: Congress could abolish them at the stroke of a pen. Inferior court judges interpreting Supreme Court precedent are not like Olde English judges interpreting the common law; they're stuck with it.
12.29.2008 1:59pm
David M. Nieporent (www):
Whit is right that lower courts have allowed traffic stop on rs, not pc, that a traffic law has been violated. I think this is incorrect where the law is civil, not criminal, but so far the issue is splitless.
Having done some more research, I agree that the circuit courts seem to rule this way, but I think it takes some pretty fine dancing around Scalia's language in Whren to get to that point.`
12.29.2008 2:02pm
OrinKerr:
Having done some more research, I agree that the circuit courts seem to rule this way, but I think it takes some pretty fine dancing around Scalia's language in Whren to get to that point.`

I agree.
12.29.2008 2:09pm
David Schwartz (mail):
The point is that the 4th amendment invokes a reasonableness standard. Pre-Whren, a lot of things were reasonable that now are unreasonable.

Previously, it went like this:
X triggers Y. Y is reasonable in light of X.

Now, it's:
X triggers Y, but Y now triggers Z. Z is not reasonable in light of X, so X can no longer trigger Y.
12.29.2008 2:10pm
David M. Nieporent (www):
In short, the Court believed that in order to avoid the problem of tstilying (or because police could be trusted, take your pick) they would simply allow pretext searches.
Or, even more simply, that it's a problem of justiciability for judges. How on earth are they to decide what an officer's hidden motives were? Or, as Whren proposed, how on earth are they to decide what a "reasonable" police officer would have done?

The problem is that, as Whren argued, traffic law enforcement is essentially arbitrary and capricious in toto. The traffic code provides unfettered discretion for officers to pull over motorists. Assuming that the Court wasn't being dishonest, it was being naive; it assumed that there was some objectivity to traffic laws.


einhverfr:
For example, most people technically violate speed limits. In a criminal case, such laws might therefore be void for vagueness, but they aren't as regard traffic infractions.
Huh? You seem to be confused about what "vagueness" means. It doesn't mean "selectively enforced." Speed limits are about the least vague laws on the planet; they set a bright line rule that can be objectively measured.
12.29.2008 2:10pm
loki13 (mail):
OK,

I think you are correct- that the lower courts are bound by horizontal stare decisis. I think that there is often a question of how much play a given Court decision can have (for an example of "conservative activism", see the use of various conservative circuits using the binding Scalia precedent from Lawrence v. Texas to interpret that holding), but the inferior courts are bound.

Where we disagree is reading the vagueness decisions. I think that a Court *could* find the traffic law to be unconstitutionally vague and be within the outer bounds of the Court's holdings on the issue; you do not. For an example of how much play there can be simply see how lower Circuits have found reasonable suspicion in Scalia's probable cause in Whren.
12.29.2008 2:11pm
danfromutah (mail):
The statute is obviously vague.

An object "hanging on the windshield" that "obstructs the driver's view" would include a bug on the windshield.

The law is so poorly written and vague that it would criminalize more than 90% of the drivers on the road - depending on how much of an a-hole a particular officer wished to be.
12.29.2008 2:13pm
zippypinhead:
Wow, even by 6th Circuit standards, this is one strange opinion.

Let me see if my pinhead brain understands: The panel ruled on a Constitutional issue that was neither raised nor briefed below, but which became the basis for sua sponte invalidating a state statute -- without either requesting party briefing on the issue, or presenting the state with the opportunity to intervene to defend its law. And then the panel's opinion basically confesses that it took this extraordinary action mostly because it disagrees with the Supreme Court's controlling precedent in Whren on how much you con examine subjective motivations in alleged pretext traffic stops. But then the panel goes on to not only reject the arguments the defendant made on the merits, but also to decline to suppress the evidence obtained during the allegedly unconsisutional traffic stop, because of the De Fillippo variant on the good faith exception. So in the end, the opinion merely affirmed the conviction.

Whoa... did I miss something that somehow makes this opinion pass the laugh test? This one feels a bit like I was reading something cut from the script of an old Cheech &Chong movie as being too preposterous even for a satire comedy.

Procedurally, it will be very interesting to watch whether and how the Court en banc makes this bizarre opinion go away.
12.29.2008 2:16pm
OrinKerr:
David Schwartz,

Fascinating and novel theory, but one that the Supreme Court has already rejected in Whren, no?

Zippypinhead,

Yes, that is correct.
12.29.2008 2:21pm
OrinKerr:
DanfromUtah,

I'm curious, how many other violations listed in the traffic code do you think are also vague? Common traffic laws include driving at a "reasonable" speed and keeping a "safe" distance from other cars. Are these traffic laws also void for vagueness, in your view?
12.29.2008 2:25pm
loki13 (mail):
never post when you have the flu-

for horizontal stare decisis, please read vertical stare decisis.

Lower courts are bound by strong vertical stare decisis, the Court is bound (if that is the right word) by weak horizontal stare decisis.

finis.
12.29.2008 2:33pm
TomHynes (mail):
Orin Kerr:

Why don't you e-mail Davis's attorney and ask for his reaction to the case?

I am curious as to whether he didn't think about the vagueness issue, or thought about it and predicted, correctly, that even if he could get the law declared unconstitional it wouldn't have done his client any good.
12.29.2008 2:42pm
Dilan Esper (mail) (www):
And what does it mean to go to "greater efforts"? I would hope that courts always apply the Constitution 100% in every setting 100% of the time, and that they never decide that the Constitution is more or less important depending on the day.

This is certainly one way of looking at it, Professor Kerr. Another way of looking at it, however, is that where the consequences of a constitutional violation are greater, it is more important for the courts to scrutinize the matter carefully. This, of course, is one policy underlying the distinction between civil and criminal due process rights. But it shows up in other areas as well. For instance, there's some of this in the definitional balancing in the First Amendment context, e.g., prior restraints are considered to have greater consequences than subsequent punishments, so New York Times v. United States requires a greater scrutiny.

But I see no reason why a court can't do this in other cases too. If the consequence of a vague statute on obstructions in the windshield is simply that a cop might write a ticket for obstructions in the windshield, that's one thing. But if the consequence is that, for instance, racist cops might use it as a pretext to stop people for Driving While Black, that's quite another. While you could say that this is varying one's degree of enforcement of the Constitution, one could also say that this is applying scarce judicial resources to circumstances where constitutional violations carry more serious consequences. Put that way, it doesn't look so bad.
12.29.2008 2:46pm
zippypinhead:
Common traffic laws include driving at a "reasonable" speed and keeping a "safe" distance from other cars. Are these traffic laws also void for vagueness, in your view?
And let's not forget:

-- driving "too fast for conditions;"
-- "reckless" driving;
-- "impeding" traffic;
-- driving while "impaired" (anon-lcohol);
-- and about 50 other traffic violations with an arguably subjective element.

All of which, until I was enlightened by the 6th Circuit panel opinion here, I thought were generally issues best decided by the trier of fact. Silly me...

If this 6th Circuit panel wants to indirectly attack Whren by invalidating all the ways the traffic code might be used to justify pretext stops one-by-one, methinks they're going to have to find a different donkey to ride besides "void for vagueness" when they inevitably get to purely objective offenses such as operating a vehicle with a burned-out tail light, failure to signal while turning, not wearing a seat belt, etc.
12.29.2008 2:48pm
Dave N (mail):
I am always amazed at cases like this where federal prosecutors get their mitts on a case that has no real federal nexus. While I am fully aware of the concept of dual sovereignty and that both Michigan and the feds can prosecute, it seems that someone had to shop this case to the U.S. Attorney rather than have it wind its way through state courts.
12.29.2008 2:52pm
asdf (mail):

I'm curious, how many other violations listed in the traffic code do you think are also vague? Common traffic laws include driving at a "reasonable" speed and keeping a "safe" distance from other cars. Are these traffic laws also void for vagueness, in your view?

Yes.

And, I also believe that these vague laws (like the anti-air freshner hanging from the rear view mirror law) are primarily enforced as a pretext to stop cars that the officers want to stop.

Let me ask you this: Suppose you are driving down the interstate and you are pulled over. The officer says that he observed you 3 miles back following a blue sedan too closely, at an unsafe distance. (It took the officer a few minutes to drive from the overpass where he observed this and to catch up to your vehicle.) How do you defend yourself against this charge when you go to contest the ticket?
12.29.2008 2:54pm
einhverfr (mail) (www):

Huh? You seem to be confused about what "vagueness" means. It doesn't mean "selectively enforced." Speed limits are about the least vague laws on the planet; they set a bright line rule that can be objectively measured.


The laws are selectively enforced but generally they are selectively enforced in a consistent (rather than arbitrary) manner which means they do not violate the due process clause. My point is that if there was another law which everyone violated but instead resulted in jail time and was enforced in the same way, it might be vague in the sense of allowing for arbitrary enforcement.
12.29.2008 3:01pm
Phil Smith (mail):
How could they be so unkind, as to arrest a man for driving while blind?
12.29.2008 3:05pm
OrinKerr:
asdf:
Let me ask you this: Suppose you are driving down the interstate and you are pulled over. The officer says that he observed you 3 miles back following a blue sedan too closely, at an unsafe distance. (It took the officer a few minutes to drive from the overpass where he observed this and to catch up to your vehicle.) How do you defend yourself against this charge when you go to contest the ticket?
I would use a tool called "cross examination."
12.29.2008 3:06pm
einhverfr (mail) (www):
OrinKerr:

I appreciate that you see choices that you think are bad and that you think the 6th Circuit "did the right thing." But I want to know if, having read the major Supreme Court void for vagueness decisions, you think the Sixth Circuit's decision is consistent with those decisions or inconsistent with them.


The type of analysis I have seen in the question of vagueness has been whether it necessarily results in arbitrary enforcement. This seems to be the case here at least in this case.

I will provide the counter-argument though. This is that a court should not strike down a statute as facially unconstitutional if it is constitutional in some applications. One other option (which I suspect you might favor) is that the court might say "you cannot pull someone over for a rear-view mirror ornament unless you have a good-faith reason to believe that their driving is materially impaired by it."

Out of curiosity, what do you think the opinion should have said?
12.29.2008 3:19pm
MCM (mail):
Yes, I understand that the wads of cash are part of the "drug dealer scenario", but that doesn't make them evidence of anything. I understand an officer suspecting that someone is a drug dealer because he observes that the person is armed and carries wads of cash, but here we're talking about the result of a search.


On the contrary, wads of cash, even in the possession of someone with no significant criminal history, are "'strong evidence' of a connection to drug activity." - US v. $124,700

Anyway, didn't you ever see that episode of The Wire?
12.29.2008 3:25pm
asdf (mail):

I would use a tool called "cross examination."

Okay.

On direct, the Cop says that you were following behind a blue sedan and that based on his many years of observing traffic, you were following "too closely". The statute does not define "too closely." That's sufficient grounds for the court to find against you, isn't it?

When you say that you will rely on cross examination, I think what you are really saying is that you will demonstrate to the court that the statute is too vague.
12.29.2008 3:26pm
OrinKerr:
asdf,

Ah, my experience being a prosecutor in traffic court is finally being used for something!

The officer couldn't just say he thought I was traveling "too closely." That's a conclusion of law, not testimony as to the facts. Rather, the officer would have to give the distance, the speed, the road conditions, etc., upon which a court could judge whether the distance was too close so that I was posing a traffic hazard in the event the car in front of me applies his brakes quickly. I would then argue that in light of the totality of the circumstances, my driving was not too close and that I posed no danger in the even of a sudden stop: I actually had more than enough distance to stop, and was therefore not too close.

In short, I would argue the application of a known legal standard to the facts. This has absolutely nothing to do with vagueness, which is about uncertainty as to what a law prohibits.
12.29.2008 3:34pm
asdf (mail):
You seem to believe that "too closely" is defined something like "When a vehicle is travelling at X speed, a vehicle following behind it may not follow more closely than X feet".

Where do you get that? The statute says nothing about that.

I would your post implicitly concedes that the statute, as written, is too vague.
12.29.2008 4:04pm
whit:

In short, the Court believed that in order to avoid the problem of tstilying (or because police could be trusted, take your pick) they would simply allow pretext searches.



right. and note that in some jurisdictions, pretext stops are unlawful. in wa state, i believe the case was ladson (independent grounds reading state constitution). iirc, HI also bans pretext stops. imo, banning pretext stops is a bad idea, for several reasons, but it's "do'able"
12.29.2008 4:11pm
PaiGow:
asdf,

You seem to believe that "too closely" is defined something like "When a vehicle is travelling at X speed, a vehicle following behind it may not follow more closely than X feet".

Where do you get that? The statute says nothing about that.



Why should the statute define words that have ordinary meaning, such as "too" and "closely"?
12.29.2008 4:16pm
Gabriel McCall (mail):
...the officer would have to give the distance, the speed, the road conditions, etc., upon which a court could judge whether the distance was too close so that I was posing a traffic hazard in the event the car in front of me applies his brakes quickly.

The wording of the Georgia statute, and I presume others are similar, is "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."

The specific rules by which a court may decide what is or is not "reasonable and prudent" are not articulated in the statute. Is there a reproducible formula or algorithm which traffic court judges use to make that determination, or does it come down to a gut feel call on the part of the court? If the latter, does that not meet the definition of vague or arbitrary?

Even if such rules have been crafted by the courts, doesn't the fact that they're not specified in the statute leave the statute vague? I wouldn't think that a court making up rules to fill in the blanks in a vague law would render it unvague.
12.29.2008 4:18pm
OrinKerr:
asdf,

The violation "following too closely" is generally a short hand for a longer statute, and the longer statute generally is clear that the following too closely has to be in reference to safety. That is how judges interpret such provisions, in my experience.

Anyway, I have a feeling that no matter what the law actually is, or what I say, you are going to continue to assert that I really deep down think that the law is void for vagueness. Life's a bit too short for that, so perhaps we should call it quits.
12.29.2008 4:23pm
OrinKerr:
Gabriel McCall,

Thanks for the example. Yes, that's typical, and I have never heard of any court even suggesting that such a traffic law is void for vagueness.

It's also worth noting my update: civil laws generally are given more lax treatment in vagueness cases than are criminal laws.
12.29.2008 4:26pm
Gabriel McCall (mail):
Orin, you're right that the civil/criminal difference is noteworthy. But that would seem to reinforce my earlier argument that Whren changes the standards under which the validity of traffic laws should be judged. If criminal charges can result directly from stops made under a traffic statute, without the extra layer of insulation that Whren strips away, shouldn't the traffic laws be evaluated under the criminal standard rather than the civil one?
12.29.2008 4:33pm
asdf (mail):
Orin - we probably will not agree about the "too closely" issue, so let me ask you the following question about one of the statutes you quoted in your original post:

“no person may operate a motor vehicle with any object or material placed on or affixed to the front windshield or to front side windows of the vehicle so as to obstruct or reduce the driver's clear view through the front windshield or front side windows....”

Would you agree that a bug smashed on the windshield of a vehicle "reduces the driver's clear view"?

Notice that this statute does not (apparently) say that the reduction must be such that it prevents the driver from driving safely, only that the view must be "reduced."
12.29.2008 4:36pm
einhverfr (mail) (www):
I think the bigger question is when an officer can pull you over due to the reasonable suspicion that your visibility has been reduced. Theoretically the little sticker the corner of your windshield which states when you next need to get your oil changed would qualify....
12.29.2008 4:41pm
MIG:
Here's my question: let's say Orin, et. al., that the statute was clearly void for vagueness, but that was not briefed. (def attorneys have little incentive to brief it for the DeFillippo reasons).

Should the court not act? Just state that it was waived and note it for the future? I always thought that, especially in the criminal context, appellate courts review judgments. The Supreme Court - a unique kind of court of course - does this all the time. I.e. Booker, etc.

Correct me if I'm wrong. But I would think the argument is more avoidance than sua sponte charges.
12.29.2008 4:55pm
loki13 (mail):
whit is correct- Whren is a (US) constitutional floor; state constitutions may provide higher protections.

This doesn't get to the heart of the issue/problem. Many eons ago, in my UG years, I was with a group of friends driving on the Cape. We were pulled over at night. The officer gave us some vague reason for the stop (we were not speeding) and asked us to open the car's ashtray. He then examined the contents. All that was in it was an old straw wrapper. Why, you might ask? My friend drove an old beater with Grateful Dead stickers on it. Driving while having GD stickers? Anyway, you don't read about this case (or so many others) because we were let go with a warning... for, uh, having a safe drive. Had there been drugs in the car, we might be in the latest LaFave/Kerr textbook for pretext stops.

Since then, I haven't had any problems, being part of a more respectable crowd (I guess, if lawyers are respectable). But it underscores the problem:

1. We want LEO to stop drugs being transported.

2. We don't want every drug bust to turn into a court inquiry into the motives of the police officer who stopped the car; either the officer will be forced to concoct a post-hoc story (testily) or LEO will not look for the drugs.

3. Given that, LEO will look for indicators of drugs and make their pretext searches. Unfortunately, this leads to certain classes of people being pulled over (minorities, deadheads, people in West Texas). If there are drugs, GREAT! If not, they get a warning -- but the members who got pulled over have less respect for the law.

I'm reminded of the old canard about profiling a drug courier- either they drive too fast to make their drug connection, they drive under the speed limit so they won't get pulled over, or they drive exactly the speed limit so they fit in.

Anyway, given these factors, if there is to be some protection for our rights, then people should have notice about when they are breaking the law. While Orin says that 'many' traffic laws are already vague and not unconstituional, perhaps the reliance on these vague laws is the problem.

In short, is it too much to ask that a person have a reasonable idea when he is driving ass to what will subject him to being stopped? I don't think this law does this. Any object 'reduces' the clear view- so either this is a complete ban, or it needs some other reference (reduces so as to impede the safe operation of the motor vehicl, for example).
12.29.2008 4:56pm
MIG:
Also, I'm not sure why the civil/criminal distinction matters post Atwater/Virginia v Moore. You can be arrested for civil infractions and the "arrestableness" of a state crime and it's state distinction as civil or criminal this seems irrelevant to me. Moore talks about state law defining crimes, and then state law being irrelevant to the federal inquiry. I know Orin disagrees with that one too, but at least that is at least the supreme court.
12.29.2008 5:00pm
OrinKerr:
MIG,

Courts can't act unless they have a case or controversy, and they normally can't reach an issue unless it's raised by the parties and is properly before them. The fact that they might see some interesting constitutional questions is of course interesting, but it's not their role to render advisory opinions on these issues expressed as holdings.

Also, I don't think you can be arrested for a civil infraction, even under Moore.

Loki13,

Given your strong feelings on the issue, what's the new statute that you would pass that would be clear?
12.29.2008 5:13pm
OrinKerr:
Oh, just saw your suggestion, "impedes the safe operation of the motor vehicle." Wouldn't that have the vagueness problem that was an issue in City of Chicago v. Morales, that it requires the suspect to know when a third party would know that it looks like he is committing the offense?
12.29.2008 5:15pm
loki13 (mail):
OK,

Haven't given rewriting the statute too much thought, since (1) I have the flu and (2) I've always hated drafting (that's why I went litig- rather find loopholes). Nevertheless, I think that the statute as given is too vague (reduce the driver's clear view) since that is either a complete ban (as all rear mirror hangings reduce the clear view) or there are no gudelines to interpet it. Unless there is some reference to a something a little more objective (I was going for safety, since it was in keeping with your safe distance example, but I would prefer a more objective measurement such as size &opacity) I don't see it how it could pass.

But to get back to my earlier question, while you might not like the result, and think it makes other traffic laws come into question, is there anything in prior SCOTUS cases that *compels* a contrary result? I think you have a good-faith belief that the 6th should have interpreted the precedent on vagueness the way you prefer, but I don't see them taking an untenable position.
12.29.2008 5:27pm
whit:

Why, you might ask? My friend drove an old beater with Grateful Dead stickers on it. Driving while having GD stickers?


grateful dead stickers are no longer considered RS for a stop, btw. about a decade or so ago, it changed to Phish stickers.


make their pretext searches


there's not much (if any) case law on pretext SEARCHES. for example, in our state we are prohibited from pretext STOPS (seizures), but even in this liberal lalaland, there is no prohibition on a pretext SEARCH. iow, if you have PC to arrest for even a chippy (minor) offense, you can always arrest and search. even if pretextual.

and if we could end the *dumb* war on drugs, we could largely eliminate your first prong

as for vagueness, there are a lot of laws that have to be somehwat vague, using words like "reasonable, prudent, safe for conditions, etc"

we recently had a pretty bad snowstorm here in seattle area and it was certainly UNreasonable to be driving a 2 wheel drive vehicle, no chains, on snow and ice, at speeds that were within the speed limit, but still WAY too fast for the skid factor of the roads.

we weren;'t giving tickets anyway (winter rules--- we don't make stops when the roads are this bad), but subjective standards are necessary exactly for cases like this.

as for following too closely, the old rule of thumb i learned in driver's education class, and that is pretty reasonable is 1 car length per 10 miles per hour given dry roads and good visibility.

at least. ( i give more distance but then i'm a safe driver)
12.29.2008 5:38pm
Dilan Esper (mail) (www):
In light of loki's and Professor Kerr's discussion, I might also indicate that this seems to me to be a classic legal realism vs. formalism debate (and I say that even though I don't take Professor Kerr to be a formalist-- he's often very pragmatic-minded when interpreting the Fourth Amendment).

Professor Kerr is correct that the formal categories would say you have a Supreme Court decision that says pretextual traffic stops are permissible, and you have a law that is no more vague than 100 other statutes, so the 6th Circuit's conclusion would seem to be in error.

But Loki is also correct, in that realistically, by eliminating any bar on pretextual searches, the Supreme Court just made vagueness (and probably several other doctrines) a heck of lot more important as a line of defense against arbitrary police conduct. Had he been alive to see this, Karl Llewellyn would surely have predicted it!

We like to think of constitutions having fixed meanings, but in reality, one way they change is that as certain doctrines contract in ways that might be unjust, other doctrines organically expand. Perhaps the Sixth Circuit is wrong, perhaps they will even be slapped down by the Supreme Court, but this sort of thing is bound to happen, because eliminating the pretextual search doctrine didn't eliminate the problems caused by pretextual searches.
12.29.2008 5:44pm
OrinKerr:
Dilan,

Your explanation doesn't work, I think, as I don't doubt why the court did this: Indeed, that was a chunk of the post, 100+ comments ago. My point was that even though this no doubt struck the court as a nifty idea, it wasn't actually legally correct. To put it another way, there is no conflict between being a legal realist and saying that precedent points to a correct answer.
12.29.2008 5:50pm
OrinKerr:
Oh, and Loki13, feel better soon!!!
12.29.2008 5:51pm
Paul Allen:
Orin asks:

Why do you think the Sixth Circuit held that the statute was unconstitutional given that no one raised the issue and there was no remedy even if it was?

You characterized the court's motivates as an evasion of Whren; whereas I see the court as being cognizant of Whren in dicta only.

As a technical matter, it seems likely that the court first attempted to determine the question briefed: Davies argues that it was unreasonable for the officer to believe that a violation of MCLA 257.701 (1)(c) had taken place. The vagueness of the statute arose as a result of that consideration. i.e., the court concluded that the statute was too vague so to admit a clear statement of the law. This seems like a plausible incidental result of considering the issues as briefed.

Although it is clear that you disagree with the primary holding, you do not explicitly say whether you think that Morales is properly controlling or then where the court errs in applying Morales.
12.29.2008 5:56pm
OrinKerr:
Paul,

I believe your theory is contradicted by footnote 6 of the court's opinion, in which the court has no difficulty in rejecting the argument Davis made.
12.29.2008 6:01pm
Jonathan F.:
OrinKerr wrote:
Ah, my experience being a prosecutor in traffic court is finally being used for something!

The officer couldn't just say he thought I was traveling "too closely." That's a conclusion of law, not testimony as to the facts. Rather, the officer would have to give the distance, the speed, the road conditions, etc., upon which a court could judge whether the distance was too close so that I was posing a traffic hazard in the event the car in front of me applies his brakes quickly.
Funny enough, I once defended myself in court on a following-too-closely citation. The trooper never testified at what distance I was following, only that it was "too close." I objected on the grounds you indicate, and the objection was overruled. Further, on cross, the trooper essentially admitted that he had no memory of the stop and that the camera in his cruiser had been pointed the wrong way.

Naturally, I lost.
12.29.2008 6:03pm
David Schwartz (mail):
OrinKerr: I don't see where this argument was foreclosed by Whren. Whren simply authorized the temporary detention of a motorist based on PC to believe that traffic laws were violated. Had the officer pulled him over, investigated whether the object obstructed his vision, concluded it didn't and told him to have a nice day, we wouldn't have had this case.

I'm not arguing that there is a 4th amendment violation because he was singled out or because he was pulled over without probable cause. In Whren, officers didn't do anything they wouldn't do to investigate the suspected traffic offense. Such was not the case in Davis, where officers engaged in conduct not even remotely related to the obstructed view. (Otherwise, they would have investigated whether the bird blocked his view, concluded it did not, and sent him on his way.)
12.29.2008 6:04pm
David Schwartz (mail):
Dilan Esper:
But Loki is also correct, in that realistically, by eliminating any bar on pretextual searches, the Supreme Court just made vagueness (and probably several other doctrines) a heck of lot more important as a line of defense against arbitrary police conduct.
Exactly. If the 4th amendment demands reasonableness, what hinges on a decision will affect how that decision must be made. If the only consequence of a vague law is a minor fine, then perhaps it's reasonable. If the consequences are greater, the vagueness starts to look a lot less reasonable.

We can accept that the laws against "driving at an unsafe speed for road conditions" don't need to be as precise as the statutes prohibiting murder, which go into excruciating detail about every element.

The more serious perceived violations of traffic laws become in their legal consequences, the more precise those laws need to be to remain reasonable.
12.29.2008 6:08pm
whit:
david, you reference probable casse, but again (for the umpteenth time), the standard is reasonable suspicion, NOT probable cause.
12.29.2008 6:13pm
Dilan Esper (mail) (www):
My point was that even though this no doubt struck the court as a nifty idea, it wasn't actually legally correct.

Well, that depends on how much of a realist or pragmatist one is. Someone like a Llewellyn, or even a (Richard) Posner, would probably be willing to say that it's prefectly "correct" to pragmatically expand vagueness doctrine to solve this problem. You might not be willing to say that. But it strikes me as much more of fundamental question of jurisprudence as to how much latitude one thinks the lower courts should have to tweak doctrines to ameliorate the effects of Supreme Court decisions.

I don't think you are wrong, by the way. I just think there are probably 2 "correct" (in their own way) answers here.
12.29.2008 6:24pm
loki13 (mail):
OK,

Thank you for the good wishes. I guess my last thought (however muddled it might be) is this:

1. I think you are 100% correct in your assessment of Whren, and that we both agree the 6th was compelled to follow it and did (we may disagree about whether Whren should be good law, but there is no disagreement that it is good law).

2. I think you are correct that precedent on vagueness might normally lead to what you believe to be the correct result (upholding the statute). Where we disagree is whether the precedent compels this result. I am unconvinced by your reasoning, or that there are other similarly vague traffic laws. In short, I don't see the 6th's decision as foreclosed by precedent. But I could be influenced by my strong dislike of Whren.

3. What I think is more interesting, and which you highlight (but haven't fully discussed) is whether a court could, or should, have heightened standards given the normally-civil context of the law (traffic law) being applied to a now-constitutional context (cf. Atwater). That's both an example of legal realism (thanks, Dilan) and a topic that is worthy of greater scrutiny -- while traffic law and traffic court are the poor relative of criminal court (no offense to your experience), should we allwo what are often the law standards invoked in those contexts to be the guardians of our constitutional rights?

Okay. Sick hands do the blog commenter's work.
12.29.2008 6:25pm
Orion (mail):
I tend to agree with the court: there's no qualification in the act about a "reasonable person's" opinion if the dangly is a traffic hazard or not. The statute seems to leave the decision solely to the discretion of the police officer and in general that's a pretty dangerous standard.

The defendent's subsequent criminal charges make me suspicious about the conditions of the arrest. Was he known to the officer as a local thug? Did they have a history? Did the officer pull over EVERY driver he saw with a dangly, or did he simply use this as an excuse to search a known local gang member for contraband? The courts let him get away with it (a) because previous court decisions favored his decision and (b) no one approves of skunks at parties or gangbangers running around with stunguns.

It's fair to throw the (faulty) statute he was arrested under back to the courts for correction w/o voiding an otherwise socially useful arrest.
12.29.2008 6:32pm
Paul Allen:
Orin remarks:

I believe your theory is contradicted by footnote 6 of the court's opinion, in which the court has no difficulty in rejecting the argument Davis made.

So your argument is only that court could better have dispensed with the matter by cutting directly to the conclusion. I agree that there is oddity to the court's analysis being disjoint to the ultimate consideration, but I do not concur that it is necessarily improper. I see a plausible line of inquiry described by the opinion. That the end of inquiry permits cutting out the middle is a hindsight bias; it just renders the bulk of the opinion dicta--something technically faulty but so commonplace as to hardly warrant censure.

Focusing on existence of dicta is an ad hominem--the "interesting" issue is whether the dicta is correct.

I still think you are being too harsh in those particular remarks that I singled-out before. The idea that Whren exists only to extend the police power undermines its legitimacy. Its seems self-obvious that once traffic stops become sufficient--as they do under Whren--greater focus on the constitutionality of the traffic infraction itself will obtain consideration.
12.29.2008 7:07pm
TerrencePhilip:
As an aside: the 7th Circuit does a great service to the public in making briefs and oral arguments available online (though the briefs are not available online in criminal cases), and I wish every federal court would do the same. It is very illuminating to have access to these raw inputs and compare them to the court's finished product.

Of course, this particular opinion might illustrate why a court would NOT be willing to offer so much public access!
12.29.2008 8:57pm
David Schwartz (mail):
Whit:

"He moved to suppress the evidence obtained during the traffic stop on the grounds that the stop was made without probable cause..."

"As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred."

The phrase "reasonable suspicion" does not appear anywhere in the ruling. So if I've got it wrong, both parties and the court had it wrong too.
12.29.2008 9:09pm
whit:
read the whole thing. and i already cited the case where (as far as the 4th amendment is concerned) all ya need for a TS is RS not PC.
"At oral argument, the primary issue discussed was whether the correct Fourth Amendment standard for the traffic stop was probable cause or a lower threshold, reasonable suspicion, and whether these standards had been met"

it's RS. i can cite the reference again if you need it.


as i have said many times, cops, prosecutors and defense attorney frequently talk about "PC for the traffic stop" which is groovy, but in fact PC is not needed in most jurisdictions/under the federal standard.

it's a common error. but it's still an error.

United States v. Johnson, 2008 U.S. Dist. LEXIS 71494 n. 4(M.D. Pa. September 17, 2008):

In light of language from Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), there has been some confusion regarding whether probable cause or reasonable suspicion is needed to effect a traffic stop. Compare id. at 810 (dictum) (decision to stop automobile is reasonable when police have probable cause) with Prouse, 440 U.S. at 663 (holding) (traffic stops require "at least" reasonable suspicion). The Third Circuit dispelled any such confusion in United States v. Delfin-Colina, 464 F.3d 392 (3d Cir. 2006), when it held that reasonable suspicion--and not probable cause--is required for a "routine" traffic stop, id. at 397. As the traffic stop at issue here was not "routine," the reasonableness of its scope is more fully addressed infra.
12.29.2008 9:45pm
David M. Nieporent (www):
david, you reference probable casse, but again (for the umpteenth time), the standard is reasonable suspicion, NOT probable cause.
I think this was addressed to a different David, but to jump back in: I concede that the circuit courts say so; I think they are misreading the Supreme Court's opinion in Whren, which says PC.
12.29.2008 11:48pm
ScottB (mail):
Dave N-

Arrests for felons with firearms are often shopped to the U.S. Attorney's office. The program is called Triggerlock, and is fairly widely known. Larger police departments will often have an officer who is a liason to the BATF, who will take the strongest cases to the U.S. Attorney. The federal nexus is that the gun crossed state lines at some point. Usually, this is proven by expert testimony that the particular gun was manufactured in a different state or country from where the felon possessed it. Federal gun prosecutions often result in sentences several times longer than state prosecutions. This is why the police shop these cases to the Feds.
12.30.2008 4:24am
whit:

I concede that the circuit courts say so; I think they are misreading the Supreme Court's opinion in Whren, which says PC.


fair enough. but let me put it this way. can you find a (federal) case that disallows a traffic stop because there WAS RS but NOT PC. i am not aware of any. thus, based on the aforementioned posting, etc. the standard is RS.

i disagree that it is a misreading of whren, but that's another issue.

the standard is RS regardless.
12.30.2008 12:52pm
David Chesler (mail) (www):
I agree with rd agreeing with CDU at 12:09 pm on 12/29.

Back to the head-moving, besides moving relative to the car and any obstructions, there is also moving relative to objects outside the car. Three objects have to align for their to be blockage: The observer's eye, the obstruction, and the thing to see. Except for things directly in front of the driver, what the obstruction blocks now it won't be blocking in a moment.

My qualifications are a CDL with endorsements for buses. Also the middle seats in my own minivan are such that if someone is sitting there I can't see straight back, and the front passenger blocks out a lot of side view, so I've instructed my passengers to avoid the middle seats if possible, and to stay still in the front seat, because otherwise just as I'm adjusting to lean forward to see if there is cross-traffic that passenger might lean forward so I'm still unable to see the same direction. Passengers block a lot more than Tweety Bird or the tree or the parking placard.
12.30.2008 4:30pm
Careless:

Whit,

I am not trolling. I have not questioned your case cite- I am simply waiting for you to answer my question I've asked you on previous threads; since you claim all sorts of previous experience and personal stories, I've highlighted one of your many dubious claims:


Boy, Loki, you shouldn't make challenges that you can't stand up to yourself. Really, I want you to tell me why Marx should be taught in economics classes instead of political science classes. Remember that, where you asked me where I read Marx?
12.31.2008 1:34am

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