OFF THE WIRE
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)
