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Is There a Problem (With My Car Smelling Awesome), Officer?

January 6, 2018

 

We’ve all seen those little tree-shaped air fresheners that hang from rear view mirrors.  Unfortunately those fragrant little bastards can get you pulled over.

 

The first and most obvious questions are how and why?  This is America.  If I want my car to smell like Royal Pine, who gon’ stop me?

 

The law says you can’t have things in your windshield that block your view of the highway (see Va. Code Section 46.2-1054).  An officer can stop you to investigate if he reasonably suspects you’re breaking that law.  If you've made some questionable life choices and the officer discovers something illegal (like drugs or the fact that you smell like a brewery) during the time it takes to write you a ticket, you could end up in a world of trouble.  And it all started with an air freshener...

 

 

 

 

Three noteworthy cases, Richardson, Freeman, and Mason, involved police officers who stopped cars for either (1) a single 3-inch by 3-inch tree-shaped air freshener, (2) “several air fresheners, one of which appear[ed] to be a replica of a hand grenade [hanging] from the rear view mirror down to the dashboard”; or (3) a 3-inch by 5-inch parking pass, part of which was behind the rearview mirror.

 

In the case with the single tree freshener, the officer was doing 40 mph on a two-lane highway.  He glanced over at a black Mitsubishi for "a second or two," spotted the tree, and decided the driver's view of the highway was likely obstructed.  The driver gets pulled over, the car smells like weed, and the officer searches the car.  Then he finds some weed...and then he finds some coke.  

 

So the stop happens and they find drugs.  Part of you might think, “Well if the guy had drugs, what’s the big deal?  That’s one more criminal off the streets.”  The far more intelligent part of you would say, “That’s messed up.  If our Fourth Amendment right against unreasonable seizures means anything, the officer should have to articulate the facts that led him to believe that a 3-inch air freshener was obstructing that driver’s view.”

 

My beef with the court in this case is that they did zero analysis to determine that it was reasonable for the officer to think the air freshener actually obstructed the driver’s view.  The court relied on: "The air freshener was large enough that the officer could see it from his own vehicle as he passed the driver."  So??  Has anyone actually been in a scenario where they couldn’t see the road because their air freshener was in the way?

 

At least case #2 involved a “clump” of 2 or 3 air fresheners and a “replica hand grenade” air freshener.  However, I found it strange that the trial court fully endorsed the officer’s position that it was reasonable to think the air freshener was an actual live hand grenade.  Coincidentally, the officer had been investigating the guy for drugs but didn't have a reason to stop him before deciding the air fresheners were obstructing his vision.

 

If only lie detector tests were reliable.  Maybe then defense attorneys could motion the court for officers to be polygraphed.  I can see it now:

 

Q:  Is it true that you really wanted to stop this guy for drugs but didn’t have enough evidence?

 

A:  Umm, yes.

 

Q:  Is it true that you were also worried his air freshener was obstructing his view of the road?

 

A:  Um.  Yes.  Very much… concerned about that.

 

Q:  Did you suspect one of his air fresheners was actually a live hand grenade doubling as a decorative item hanging from his rear view?

 

A:  That was a massive concern for me.

 

In the case with the parking pass (another drug case) the Court of Appeals actually said that the stop was unconstitutional.  Hooray, right?  No.  The same court decided to rehear the case with more judges, changed its mind, and then ruled the stop was legit.  Dang...so close.  Then they paid some constitutional lip service by noting that officers can’t necessarily use the statute to stop someone every time there’s a dangly.  However, trees are clearly no good, and anything short of a graduation tassel or tiny chain locket is probably enough to stop you (the Court of Appeals' example of kosher danglies, not mine).  The VA Supreme Court agreed with most of what the Court of Appeals said but issued an opinion that made it sound like an officer can pull you over to investigate pretty much anything hanging from your rearview.

 

My personal gripes aside, you can’t say you weren’t warned if you end up getting stopped for dangly stuff.  I recommend sharing this post with your loved ones since everyone needs to know the deal.  Use an AC clip to keep your ride fresh.  Express your Puerto Rican pride without a colorful flag.  And of course, don’t ride dirty.

 

But if you do get pulled and end up in a jam, call Virginia Beach’s finest defense attorneys Westendorf & Khalaf at (757) 961-3311.

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