Article from: www.thenewspaper.com/news/47/4750.asp
7/21/2015Federal Appeals Court Declares Air Fresheners Suspicious
US Court of Appeals rules that driving with air fresheners creates reasonable suspicion of criminal activity.
Driving a vehicle that has a couple air fresheners, rosaries and pro-police bumper stickers at 2 MPH over the speed limit is suspicious. That was the finding handed down last Thursday by the Fifth Circuit US Court of Appeals. A unanimous three-judge panel upheld the March 9, 2011 traffic stop that led to the conviction of Ruben Pena-Gonzalez in South Texas.
On that day, Kingsville Police Officer Mike Tamez was patrolling on Highway 77 when he saw a Chevy Tahoe with a woman behind the wheel, Pena-Gonzalez in the passenger seat, and a young girl in the back seat. The family vehicle had rosaries hanging from the rear view mirror, a DARE bumper sticker on the back and a few air fresheners. Officer Tamez concluded from this that they were probably drug runners. He decided to stop them for driving barely above the speed limit.
Officer Tamez ordered Nehmi Pena-Gonzalez, the driver, to step out of the vehicle after noticing her key chain had a St. Jude medal. She told the officer in Spanish that she was driving home to the city of Mission with her husband and daughter. Officer Tamez noted that this was an "inconsistent" answer, since her insurance card said she lived in Palmview, which is a suburb of Mission. She was also unclear about whether she spent one day or two in Houston. Officer Tamez said he would let her go with a warning, but then he decided to question her husband, Ruben Pena-Gonzalez, who agreed to a search of their vehicle.
At this point, the Court of Appeals stepped in to decide whether Officer Tamez exceeded his authority in detaining the family after he had finished writing the warning notice for the 2 MPH infraction. The court decided that the air fresheners provided "reasonable suspicion" that the family was involved in crime.
"We do have concerns that classifying pro-law enforcement and anti-drug stickers or certain religious imagery as indicators of criminal activity risks putting drivers in a classic 'heads I win, tails you lose' position," the appellate panel wrote in its per curiam decision. "But we need not decide whether these items alone, or in combination with one another, amount to reasonable suspicion because we find the more suspicious evidence to be the array of air fresheners and inconsistencies in the driver's responses to the officer’s basic questions. We have long recognized that the presence of air fresheners, let alone four of them placed throughout an SUV, suggests a desire to mask the odor of contraband."
Since the panel upheld the basis for extending the traffic stop, the evidence subsequently found in the Tahoe -- $670,000 in cash -- sustained Ruben Pena-Gonzalez's 41-month prison sentence for money laundering. This was far from the first major seizure by the Kingsville Police Department. Last year, the town confiscated 21 vehicles and $1,099,558 in cash.
A copy of the ruling is available in a PDF file at the source link below.
Source: US v. Pena-Gonzalez (US Court of Appeals, Fifth Circuit, 7/20/2015)
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