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Federal Court Rules Driving with Air Fresheners is Suspicious
Federal appeals court rules that motorists can be stopped for 30 minutes and searched if they are nervous and use an air freshener.

Judge J. Harvie Wilkinson III
A federal appellate court ruled last week that police can delay a routine traffic stop as long as necessary to conduct a search for drugs. In its decision, the US Court of Appeals for the Fourth Circuit upheld the validity of a thirty-minute traffic stop in Maryland because the arresting officer claimed the nervous driver had an air freshener hanging from his rear-view mirror and had previously been spotted driving in a run-down neighborhood.

The case began on October 29, 2004 when Anne Arundel County Police Officer Tim White saw Michael Lawrence Branch behind the wheel of a White Mercedes Benz sedan. White ordered Branch to pull over at 6:50pm for allegedly running a red light. Officer White remembered having stopped the same sedan less than a month before in a high-crime area, but he had nothing to link the vehicle to illegal drug activity. Nonetheless, White stuck with his hunch.

White claimed he saw an air freshener and smelled laundry detergent, so he immediately got on the radio to request a drug dog, which turned out not to be available. A second officer at the scene told White that the defendant, "knows the law... so getting in the car is going to be difficult." White replied, "10-4" and made Branch wait while he tried to call in a dog from another law enforcement agency.

During the wait, a check showed Branch was properly licensed and had no outstanding warrants, but the car's registration did not show up on the computer. The car was, in fact, properly registered to Branch's cousin. Some 27 minutes into the stop, Officer White called the owner, Christine Retz, who confirmed that Branch had permission to drive the Benz. After Branch had waited a total of thirty minutes, the drug dog arrived and Branch was handed his ticket. A two-judge majority found Officer White had a reasonable suspicion that Branch was a criminal.

"First, the presence of several air fresheners -- commonly used to mask the smell of narcotics -- hanging in the Mercedes," Judge J. Harvie Wilkinson III wrote to explain the source of probable cause. "The prior traffic stop of the Mercedes in a drug-trafficking area, Branch's evident nervousness, the presence of air fresheners, and the fact that Branch was driving a car not registered to him. These factors, in combination, could form the basis for a 'reasonable suspicion' of narcotics trafficking."

Circuit Judge Roger L. Gregory disagreed and argued that it was obvious that Officer White was dragging out the ticket writing process in order to conduct a fishing expedition with the drug sniffing dog. Judge Gregory cited the US Supreme Court decision Illinois v. Caballes as explicitly outlawing such conduct.

"A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission," the high court ruled.

Gregory argued further that past supreme court precedent has found fifteen minutes to be an excessive delay. He also cited testimony from Metropolitan Transportation Authority Officer Vincent Edwards who saw no air fresheners and smelled no particular odor from the vehicle. Edwards had brought the drug dog and was on the look out for air fresheners specifically because they caused his dog to give a false positive response on several occasions.

"Officer Edwards's testimony clearly contradicted that of Officer White," Judge Gregory wrote. "In sum, there is insufficient evidence to establish the presence of air fresheners and at the very least there was evidence that called into question Officer White's wavering testimony in this regard. Given that most people are nervous when pulled over by police officers, Officer White's observation that the defendant seemed nervous in conjunction with the defendant's reputation as a drug dealer does not in my opinion rise to the level of reasonable articulable suspicion that would justify a thirty minute detention during a routine traffic incident."

Judge Gregory failed to persuade his colleagues and the court upheld Branch's conviction. White's search had found cocaine base and a digital scale in a locked glove compartment. Crack cocaine and a gun were also found hidden in the back of the car. Branch was sentenced to twenty-five years in jail for multiple offenses.

A full copy of the decision is available in a 120k PDF file at the source link below.

Source: PDF File US v. Branch (US Court of Appeals for the Fourth Circuit, 8/20/2008)

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