Rear view mirror tchotchke (montage photos: Flickr.com)

In an unusual and unexpected ruling, the 6th Circuit Court of Appeals has struck down a Michigan law that forbids having a “dangling ornament or other suspended object that obstructs the vision of the driver of the vehicle.”
 
The case began when a man named Lonnie Ray Davis was pulled over by the police for having a Tweety Bird ornament hanging from his rear-view mirror. He was then arrested for driving without a license, and a search of the car subsequent to that arrest found open alcohol, 24 grams of crack cocaine, a large amount of cash and both a stun gun and a .38 caliber handgun.

Davis filed a motion to have the evidence suppressed because there was no probable cause for the traffic stop, arguing that there was no reason to believe the ornament was obstructing his vision. A district court ruled against him, but now the appeals court has overturned that ruling and declared the Michigan law to be unconstitutionally vague.

Davis’ attorney, Richard Helfrick of the Legal Aid and Defender Association, told the Michigan Messenger that the ruling was unexpected, because neither side in the case ever made an issue out of the law being unconstitutional.

“We were surprised … because we had not raised that as an issue in the case, and it only came up briefly during the oral argument,” Helfrick said.

Davis’ case was based solely on the Fourth Amendment, which protects against unreasonable search and seizure.

Despite ruling the law unconstitutional, the court did not agree that the evidence had to be suppressed. Instead, the court said that the police officer who made the traffic stop had a good faith belief that the law was constitutional, and therefore there was no Fourth Amendment violation.

“It isn’t as shocking that [the court] didn’t hold that the constitutionality of the statute demands suppression of the evidence, because there are Supreme Court precedents to that effect,” Helfrick noted. “But we were certainly surprised by the ruling on the constitutionality of the statute itself.”

The court said that “going forward” this state law could no longer be enforced or used “to justify similar stops.”

The ruling says:

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. …

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.

But Orin Kerr, a legal scholar who specializes in Fourth Amendment cases, writes on his blog that the new ruling probably violates federal law, because the court struck down a state law without giving the state the chance to argue for its validity:

It appears likely that the decision was handed down in violation of a federal statute … requiring federal courts to give states notice and an opportunity to intervene before ruling that a state statute is unconstitutional. …

My understanding is that the court failed to notify Michigan state authorities that it was considering this issue. As I understand it, Michigan only learned of the panel’s inclination when the panel handed down its decision on December 19th.

Helfrick said they intend to file a request for an en banc rehearing, which if granted would mean that the case would be reconsidered by the entire slate of judges for the 6th Circuit Court of Appeals. Should that appeal fail, they could then appeal to the U.S. Supreme Court.

You can read the full ruling here.

Update: In an even more unusual move, the appeals court has now withdrawn this ruling. The withdrawal document does not state a reason for doing so, but it is almost certainly because of the federal law that Kerr mentioned requiring the court to allow the state of Michigan the opportunity to intervene in the case and defend the constitutionality of this law. One would expect that they will now reopen the case and allow Attorney General Mike Cox the opportunity to file a brief defending the law and then issue a new ruling.