Dangling Object Cause for Traffic Stop in Michigan

by baronedefensefirm on May 5, 2009

In Michigan it is a civil infraction to have “defective equipment” in or on your car.  This is known to the cops as a “3400″ violation, and to lawyers as a violation of MCL 257.709. 
If a police officer sees you commit such a civil infraction he or she can stop your car.  One such defective equipment violation is to have an object dangling from your rearview mirror.   Because of this, if you have an air freshener such as a “tweety bird” hanging from your mirror, the police can stop you.
According to a March 5, 2009 Free Press article by Matt Helms this is exactly what happened when “[A]n officer stopped Lonnie Ray Davis on Middlebelt just after 2 a.m. on a January night after spotting a 4-inch Tweety air freshener hanging behind Davis’ front windshield.   
The article further indicates that “[S]tate Police say Michigan law has been pretty clear: It’s illegal to hang graduation tassels, handicap signs, garter belts, jewelry and, yes, fuzzy dice while driving because they block a driver’s view of the road. It’s a civil infraction with a fine of $100 or more.” 
Additionally, Matt Helm’s article indicates:
Court finds law too vague
U.S. 6th Circuit Court of Appeals found Michigan’s law unconstitutionally vague in a ruling last month, although the decision didn’t overturn Davis’ conviction. The court said that Michigan’s statute doesn’t ban “all dangling objects; rather, it bans only ornaments that ‘obstruct the vision of the driver of the vehicle’.
The court found the state law too ambiguous, leaving too much discretion to police to make arbitrary calls about what constitutes obstructed vision.
The court reversed itself on Dec. 31, however, withdrawing the order without explanation. A court official declined to comment. Helfrick said he presumes the court pulled the decision so that the state can intervene in the case and defend its law.
It is my belief that this law has long been a basis for “pretextual stops.”  In my book “Defending Drinking Drivers,” I indicate as follows:
§536.3.1     The Doctrine of Pretextual Traffic Stops
In State v. Lopez, 873 P.2d 1127, 55 Crim. L. Rep. (BNA) 1182 (Utah 1994), the Utah Supreme Court rejected the “pretextual stop” doctrine which condemns vehicle stops that are ostensibly predicated on traffic offenses, but actually are made because of other unrelated suspicions. The pretext doctrine requires the court to determine whether a reasonable officer “in view of the totality of circumstances confronting him or her, would have stopped the vehicle.” State v. Sierra, 754 P.2d 972, 978 (Utah App. 1988). The Lopez court reasoned that the doctrine is unsound and unnecessary to the preservation of either state or federal constitutional protections against unreasonable searches and seizures. (Note: For further information on pretextual stops, including the Supreme Court’s opinion in Whren v. United States, 116 S. Ct. 1769 (1996) [upholding pretextual stops against a federal constitutional attack], see §536.12, infra.
In Lopez, an officer mistook a defendant for a drug suspect and followed him until he made an illegal turn. The defendant turned out to have outstanding warrants and was placed under arrest. An inventory search of the car turned up cocaine, but the defendant sought suppression on the grounds that the stop was, by the officer’s own admission, pretextual. The court rejected the defendant’s argument and held that the pretext doctrine does more harm than good. It reasoned that there were adequate objective protections existing for controlling the basis for and the scope of traffic stops. Additionally, the court found the doctrine’s focus on an officer’s subjective motivations to be out of line with Fourth Amendment jurisprudence that requires, or at least emphasizes, objective reasonableness.
llinois Law is significantly different from Michigan’s:
In the case of People v. Mott, No. 4-07-0756 (April 20, 2009) Clark County (Knecht) affirmed the Trial court’s finding that police officer, who stopped defendant’s vehicle for having a leaf shaped air freshener hanging from her rearview mirror, lacked probable cause to believe that defendant violated Motor Vehicle Code by having a material obstruction hanging from mirror, is not against the manifest weight of the evidence. Officer, who was operating under a mistaken belief as to the legal definition of “material obstruction,” over estimated the size of the air freshener; and lacked specificity in his testimony about level of obstruction that object created.
If you are stopped for this reason in Michigan however, there may still be an argument that the stop is unlawful.   The 6th Circuit left open the void for vagueness Constitutional challenge, as it was not raised by the Defendant in the lower court.
In the meanwhile, here is what I wrote in The DUI Book about how to avoid a drunk driving stop:
 2.6. Driving a Vehicle that Invites Being Pulled Over.  Equipment defects or vehicle safety problems sometimes provide the basis for an officer to pull you over.  Examples include: tires with insufficient tread; a damaged windshield; dim or burned out headlights or brake lights; someone in the vehicle not wearing a seatbelt; or smoke emerging from the vehicle.
These correctable items (which likely would never merit a pullover during morning rush hour) have led to many traffic stops that ultimately resulted in OWI arrests.  Remember, the officer only needs a single REASON for coming in contact with your vehicle.  His or her REAL purpose in stopping you is to see if you are impaired or have other smells, visible or audible evidence of possible impairment.  If this sounds “unconstitutional” to you, it does NOT sound unconstitutional to the United States Supreme Court!
Starting more than 10 years ago, the high court UNANIMOUSLY approved of this tactic by police in a landmark decision that drastically reduced our legal and privacy rights as Americans.
See, e.g., Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).  Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996); Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001); Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004); Illinois v. Caballes, ___ U.S. ___, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).

This post was written by...

– who has written 204 posts on Michigan Drunk Driving Lawyers.

Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.

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