Federal court rules that bumper stickers, air fresheners are reasonable suspicion of criminal activity

(Photo: Pal Berge)

KINGSVILLE, TX — A panel of judges unanimously held that the presence of bumper stickers, air fresheners, and religious symbols in a vehicle can be considered “reasonable suspicion of criminal activity” during a traffic stop.

The case stems from a March 9, 2011, traffic stop that took place along U.S. Highway 77 in Kingsville, Texas.  Officer Mike Tamez of the Kingsville Police Department observed a Chevy Tahoe with a woman behind the wheel, going 2 MPH above the posted speed limit. The family vehicle had a man in the passenger seat and a young girl in the back. The vehicle’s bumper was decorated with a Drug Abuse Resistance Education (D.A.R.E.) sticker and other “pro-police” decals.  There were also a few rosaries hanging from the rear view mirror, and some air fresheners visible.

From these visual clues alone, Officer Tamez “concluded that they were probably drug runners.” He pulled them over for speeding, with the premeditated intention of searching the vehicle for drugs.

As Officer Tamez fished for probable cause, he had the driver, Mrs. Nohemi Peña, step out of the vehicle for questioning, while her husband, Ruben Peña-Gonzalez, waited inside with their daughter. The officer noticed things like the “smell of air freshener” and religious medallions on the driver’s key chain. He noted that Mrs. Peña “paused” before responding to his irrelevant line of questioning.

According to court documents, “Tamez testified that a number of things he observed and smelled during the course of the stop made him suspicious: the large number of bumper stickers supporting law enforcement, which he contends shows a desire to be viewed as a ‘good guy’ who ‘can’t do no wrong’; numerous air fresheners placed throughout the vehicle, which experience taught him is an attempt to mask the odor of drugs or drug money; Pancho Villa and St. Jude medallions on the key chain, both of which he characterized as icons commonly used by drug smugglers along Highway 77 as symbols for righteousness and protection; and three rosaries hanging from the rear view mirror, which his experience led him to believe are also used by drug traffickers for protection.”

The Fifth Circuit U.S. Court of Appeals was asked to consider if this was a reasonable standard for extending a traffic stop for an investigation. The panel, consisting of Judge Edith H. Jones, Judge Jerry E. Smith, and Judge Gregg J. Costa, unanimously agreed that these were reasonable circumstances for conducting an investigation, even after the relevant steps had been taken to deal with the speeding infraction.

“Officer Tamez had reasonable suspicion of criminal activity apart from the traffic violation,” the Court of Appeals wrote, in its July 20th, 2015, decision, upholding a lower court’s conviction of the couple and seizure of their cash.

“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 judges conceded.  “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.”

The ruling gives legal cover for police to perform intrusive and irrelevant investigations on motorists, who have otherwise not been observed doing anything illegal.  And police departments have a great incentive to perform these lucrative fishing expeditions.  In 2014 alone, the Kingsville Police Department seized 21 vehicles and $1,099,558 in cash using civil asset forfeiture, TheNewspaper.com reported.

SOURCE: U.S. v. Pena-Gonzalez (U.S. Court of Appeals, Fifth Circuit, 7/20/2015)

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