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.