VA: Stop for parking pass hanging on mirror was objectively reasonable; subjective intent irrelevant

It was objectively reasonable for the officer here to stop the defendant for a parking pass hanging from the mirror which could have obstructed the driver’s view. Here, the driver was subjected to a consensual patdown for weapons that led to finding marijuana on him. That led to a search incident of the vehicle, and defendant was also charged with drugs. Mason v. Commonwealth, 2015 Va. App. LEXIS 35 (February 3, 2015), on rehearing en banc and reversing 63 Va. App. 587, 760 S.E.2d 831 (2014) (2-1):

Because courts “do not examine the subjective understanding of the particular officer involved,” Heien v. North Carolina, 135 S. Ct. 530, 539 (2014), it necessarily follows that, when deciding a suppression motion, a court should not limit itself “to what the stopping officer says or to evidence of his subjective rationale,” Raab v. Commonwealth, 50 Va. App. 577, 583 n.2, 652 S.E.2d 144, 148 n.2 (2007) (en banc) (quoting United States v. Brown, 232 F.3d 589, 594 (7th Cir. 2000)). Courts should instead “look to the record as a whole to determine what facts were known to the officer and then consider whether a reasonable officer in those circumstances would have been suspicious.” LaFave, supra, § 9.5(a), at 647 n.22 (quoting United States v. McKie, 951 F.2d 399, 402 (D.C. Cir. 1991)). Because the reasonable suspicion test “is purely objective,” the reasonable suspicion standard imposes “no requirement that an actual suspicion by the officer be shown.” Id. § 9.5(a), at 647 (second emphasis added). This approach “is obviously far preferable to a system based on the suppositions of individual officers.” Fox v. Commonwealth, 43 Va. App. 446, 450, 598 S.E.2d 770, 772 (2004).

We thus reject Mason’s contention that an officer making an investigatory stop must actually articulate, from the witness stand, the articulable facts and then explain, in his personal opinion, why these facts prompted him to be suspicious. Any assertion to the contrary is inconsistent with prior en banc precedent from our Court, Raab, 50 Va. App. at 583 n.2, 652 S.E.2d at 148 n.2, as well as the uniform view among courts that have addressed this issue.⁸

8. See, e.g., United States v. Bailey, 622 F.3d 1, 5-6 (D.C. Cir. 2010); Brown, 232 F.3d at 594; United States v. Ozbirn, 189 F.3d 1194, 1198-99 (10th Cir. 1999); United States v. Swann, 149 F.3d 271, 272 (4th Cir. 1998); United States v. Jones, 990 F.2d 405, 408 (8th Cir. 1993); McKie, 951 F.2d at 402; United States v. Causey, 834 F.2d 1179, 1183-84 (5th Cir. 1987); United States v. Hawkins, 811 F.2d 210, 213 (3d Cir. 1987); State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000), abrogated on other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001); Zimmerman v. N.D. Dep’t of Transp. Dir., 543 N.W.2d 479, 482-83 (N.D. 1996).