5th Circuit Court Ruled Air Freshener Reasonable Suspicion for Criminal Activity in a Car

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On March 9, 2011 a traffic stop along highway 77 that runs through south Texas further blurred the line between the war on drugs and infringement of human rights. This is after a panel of 5th Circuit Court judges decided that having bumper stickers, air freshener and religious symbols in your car like rosaries can be considered “reasonable suspicion of criminal wrongdoing.”

The fourth amendment provides for ultimate rights to privacy protecting people against unreasonable searches and seizures unless there is probable cause. But, what counts for probable cause?

When police continue to stretch thin what they believe is probable cause, that protection of the fourth amendment rights becomes a mirage.

The Tamez Vs Pena Incident

On the fateful day, Officer Mike Tamez of the Kingsville Police Department was patrolling highway 77 when he noticed a Chevy Tahoe travelling at 2 MPH above set speed limit. In the vehicle were two adults and a child at the back. He flashed his patrol lights and pulled them over. He also noticed D.A.R.E bumper stickers and three rosaries on the rear view mirror.

Behind the wheel was a woman, Nohemi Pena, the wife of Pena Gonzalez who was on the driver’s seat and their daughter was at the back. Officer Tamez approached the vehicle on the passenger’s side and noticed an overwhelming smell of air freshener when the windows were rolled down. Tamez noticed that the car had four air fresheners inside.

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He moved to the driver’s side and requested the driver for her insurance and driver’s license. He also asked her to step out of the vehicle. Tamez noticed Pancho Villa and St. Judes symbols on Mrs. Pena’s key chain. Officer Tamez explained that he was pulling them over for speeding to which Mrs. Pena responded by saying her daughter needed to use the restroom.

He then continued to question Nohemi Pena about their journey, how long they have been in Houston, when they left for Houston and the purpose of their journey. Mrs. Pena stated that they were going back home to Mission which the officer says he found odd because her insurance indicated they were from Palmview. Plamview is a suburb of Mission.

On the purpose of their visit, she said that they had come so her husband could attend a car auction. The officer followed up by asking if they had bought anything. At first she said no, then immediately changed her answer saying he was interested in an Impala and another car.

Tamez also asked where they had spent the night and she answered him at which point he told her he would let her off with a warning. However, he asked if he could speak with her husband and she agreed. From the DARE bumper stickers, the strong smell of air freshener and religious symbols, officer Tamez had concluded that these were drug runners and was determined to search the car.

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Pena Gonzalez was questioned for about three minutes by the officer and later agreed to allow the officer to search the car. It was during this search that officer Tamez found bundles of cash amounting to $670,000 hidden in the car.

Pena Gonzalez was indicted for money laundering and conspiracy to commit money laundering.

Fishing for probable cause

After writing the infraction for over speeding, did the officer have authority to continue detaining the family for further questioning? In what they called a “close call” the district court denied the move by Pena to suppress the evidence and sentenced him for 41 months.

In his appeal, Pena Gonzalez raises the concern that Tamez did not have reasonable suspicion to extend his stop. The fourth amendment on permissible stop duration is determined by the “mission.” Further it states that “authority of the seizure ends when the tasks tied to the traffic infraction are – or reasonably should have been – completed.”

Gonzalez therefore argues that officer Tamez did not have the authority to continue holding them. The ruling given however disagrees with Gonzalez even after noting that the purpose of the stop had been served. They stated that Mrs. Pena gave the officer permission to talk to Pena Gonzalez and two “reasonable suspicion for criminal conduct” existed.

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When does reasonable suspicion exist? According to the fourth amendment rights it is only existence when a police officer is able to point to “specific and articulable facts indicating that criminal activity is occurring or is about to occur.” In this case none of that had happened.

So what activities did Tamez use to continue the stop? Tamez said the following things made him suspicious;

  1. The many bumper stickers supporting law enforcement which he said was supposed to portray a “good guy who can’t do no wrong.”
  2. The many air fresheners in the vehicle which he said in his experience was used to mask the odor of drugs or drug money.
  3. The Pancho Villa and St. Jude medallions which he said were used by many drug smugglers caught along highway 77 as symbols of protection.
  4. Inconsistencies in Mrs. Pena’s answers about where they lived and how long they had been in Houston.

The district court had not used inconsistencies in Mrs. Pena;s answers to officer Tamez to make their ruling but instead focused on the bumper stickers, air freshener and religious symbols.

The panel of judges that passed the ruling in the appeal that the presence of air freshener, let alone four of them in the SUV strengthened probable cause to search the SUV.

This is not the first ruling where presence of air freshener or the smell of air freshener has been used as probable cause for seizure. Does this ruling given by the three judge panel, give “reasonable suspicion” precedence over the possibility of innocent conduct? Is presence of air freshener in a car a strong indicator of criminal activity?

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