This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40.
On Appeal from Superior Court, Bennington Unit, Criminal Division. Nancy Corsones, J.
Alexander Burke, Bennington County Deputy State's Attorney, Bennington, for Plaintiff-Appellee.
David Scherr of Burke Law, P.C., Burlington, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Hayes, Supr. J., Specially Assigned.
[¶1] This case calls upon us to decide whether 23 V.S.A. § 1125 prohibits the hanging of any item on the inside of a windshield, including a pine-tree-shaped air freshener, without regard to whether the item materially obstructs the driver's vision. Defendant appeals the denial of his motion to suppress the fruits of a traffic stop based on the presence of an air freshener hanging from his rearview mirror, and his ensuing conviction. We conclude that the applicable statute does not per se prohibit the hanging of any item on the inside of a windshield without regard to whether it obstructs the driver's vision. However, because the officer's mistake of law on this point was objectively reasonable and thus justified the stop, we affirm the judgment below.
[¶2] In June 2013, defendant was driving through downtown Bennington when he was stopped by a police officer. As a result of observations the officer made in connection with the stop, and ensuing events, defendant was charged with driving over the legal limit and driving under the influence of alcohol in violation of 23 V.S.A. § 1201(a)(1) and (2). Defendant moved to suppress and dismiss.
[¶3] The facts underlying the suppression motion are undisputed. The police officer stopped the defendant after the officer saw a pine-tree-shaped air freshener hanging from the defendant's rearview mirror. The State argued that hanging an air freshener from the rearview mirror violates 23 V.S.A. § 1125. The defendant argued that hanging an air freshener from the rearview mirror does not violate that statute if the item does not materially obstruct the driver's vision. The State did not allege that the officer believed that the air freshener obstructed defendant's vision. At the subsequent bench trial, the officer testified that a driver of the car could " observe the road directly ahead," notwithstanding the presence of the air freshener.
[¶4] The trial court denied the suppression motion, concluding that the statute unambiguously prohibits the hanging of all objects from rearview mirrors, except those specifically exempted by the statute. Defendant was subsequently convicted at a bench trial and now appeals his conviction on the ground that the trial court erred in denying his suppression motion.
[¶5] " A police officer is authorized to make an investigatory stop based on a reasonable and articulable suspicion of criminal activity, or of a traffic violation." State v. Davis, 2007 VT 71, ¶ 7, 182 Vt. 573, 933 A.2d 224 (mem.) (quotation omitted). " [E]ven a minor traffic infraction can be the basis of a traffic stop. In the past, we have found stops justified where officers had reason only to suspect that a noncriminal motor vehicle code violation occurred ... even a violation of a statute that is often violated . ..." State v. Tuma, 2013 VT 70, ¶ 8, 194 Vt. 345, 79 A.3d 883 (citation and quotations omitted).
[¶6] The statute on which the officer based the traffic stop in this case is entitled " Obstructing windshields," and provides that:
No person shall paste, stick, or paint advertising matter or other things on or over any transparent part of a motor vehicle windshield, vent windows, or side windows located immediately to the left and right of the operator, nor hang any object, ...