Search and Seizure

Can Cops Pull You Over for Hanging an Air Freshener From Your Rearview Mirror? You'd Better Check.

Bans on dangling objects are just one example of the myriad petty rules that give police the power to stop nearly any driver at will.

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Daunte Wright, who was shot and killed this month by a Brooklyn Center, Minnesota, police officer who apparently mistook her handgun for a Taser, was pulled over because of an expired registration sticker. But after the cops stopped him, they also noted that the air fresheners hanging from his rearview mirror violated Minnesota's traffic code, which by itself would have been legally sufficient to detain him. That rule illustrates how easy it is for police to justify traffic stops by citing a petty civil violation, even when it is merely an excuse for conducting a criminal investigation that would otherwise be unconstitutional.

State transportation codes include hundreds of rules governing the operation and maintenance of motor vehicles. Many of them are picayune (e.g., specifying acceptable tire wear, restricting window tints, and dictating the distance from an intersection at which a driver must signal a turn) or open to interpretation (e.g., mandating a "safe distance" between cars, requiring that cars be driven in a "reasonable and prudent" manner, and banning any windshield crack that "substantially obstructs the driver's clear view").

"The upshot of all this regulation," University of Toledo law professor David Harris observed in a 1998 George Washington Law Review article, "is that even the most cautious driver would find it virtually impossible to drive for even a short distance without violating some traffic law. A police officer willing to follow any driver for a few blocks would therefore always have probable cause to make a stop."

In the 1996 case Whren v. United States, the Supreme Court said such stops are consistent with the Fourth Amendment's ban on unreasonable searches and seizures even when the traffic violation is merely a pretext for investigating other matters. If an officer stops a car for a traffic violation in the hope of finding illegal drugs or seizable cash, for instance, that is perfectly constitutional, even without any evidence of criminal conduct.

The arbitrary rule that Daunte Wright violated shows how even the pettiest violations can lead to interrogation, searches, arrests, and violent, potentially deadly confrontations. It says "a person shall not drive or operate any motor vehicle with…any objects suspended between the driver and the windshield."

The law specifies six exceptions: sun visors; rearview mirrors; electronic toll collection devices; "driver feedback and safety monitoring equipment when mounted immediately behind, slightly above, or slightly below the rearview mirror"; "global positioning systems or navigation systems when mounted or located near the bottommost portion of the windshield"; and "identifying device[s]" used by commercial transportation services "when the device is mounted or located near the bottommost portion of the windshield."

Air fresheners did not make the list, meaning they are categorically prohibited, even when they are designed to be hung from rearview mirrors. Graduation tassels, rosaries, crucifixes, and fuzzy dice are likewise verboten, so any of them is a license for an armed agent of the state to forcibly interrupt a Minnesota driver's travels.

Do such items obstruct a driver's vision more than an electronic device mounted "slightly below the rearview mirror" or "near the bottommost portion of the windshield"? Probably not. Minnesota legislators nevertheless thought it made sense to let cops stop drivers based on nothing more than small objects hanging from their rearview mirrors, including small objects expressly sold for that purpose.

Minnesota is hardly unique in that respect. The New York Times reports that most states have similar laws. Some of them are less categorical than Minnesota's rule. Maryland, for example, prohibits dangling objects only when they "interfere with the clear view of the driver through the windshield," although that stipulation still gives police a lot of discretion. More important, Maryland's law specifies that "a police officer may enforce this paragraph only as a secondary action when the police officer detains a driver of a motor vehicle for a suspected violation of another provision of the Code."

Until a few years ago, Maryland allowed primary enforcement of that provision. Legislators changed the statute in 2017, thereby slightly reducing the potential for police harassment of drivers who pose no threat to public safety.

The Times describes two incidents that illustrate that danger.

After a La Paz County, Arizona, sheriff's deputy stopped Phil Colbert in 2019, Colbert wondered why. "You can't have anything hanging from your rearview mirror," the deputy informed Colbert (who recorded the encounter on his cellphone) before grilling him about drug use. Maybe the deputy surmised that Colbert's air freshener was meant to cover the odor of marijuana, or maybe he routinely asks drivers such questions in the hope of finding contraband to justify an arrest. Either way, Colbert suddenly became a criminal suspect simply because he unknowingly flouted Arizona's traffic code, which prohibits any "object" attached to a car "in a manner that obstructs or reduces a driver's clear view through the windshield." As in Minnesota, the exceptions do not include air fresheners

Although Colbert, now 23, got off with a warning, things could have turned out much worse. If the deputy had ready access to a drug-sniffing dog, he could have used it to justify a search that would have been inconvenient and humiliating even if it turned up nothing incriminating. In practice, this judicially approved end run around the Fourth Amendment requires nothing more than a handler's claim that the dog "alerted" to the car.

If the deputy came across a substantial amount of cash, he could have seized it based on the bare allegation that it was somehow related to criminal activity. If he decided to order Colbert out of the car, which the Supreme Court has said is allowed during any traffic stop, any objection or perceived resistance could have led to violence, an arrest, or both. All because of that air freshener.

Brittany Mixon, now 35, had a similar experience as a high school senior in 2003. After an officer pulled her over in Galesburg, Illinois, ostensibly because of her air freshener, he immediately asked whether she owned the car she was driving, implying that it might be stolen. "He kept asking me questions like he wanted to trip me up," Mixon told the Times. To this day, she keeps her rearview mirror pristine and becomes anxious when she rides in a car whose owner has hung anything there.

Colbert and Mixon are both black. Is that relevant? Studies of traffic stops, which have repeatedly found that black people are especially likely to experience such harassment, suggest it is. But even if you are unimpressed by the evidence of racially skewed enforcement, the fact that cops have the legal authority to hassle people for such trivial reasons is more than a little troubling.

I have never hung an air freshener (or anything else) from my rearview mirror, but it never occurred to me that doing so might invite a cop to pull me over. Texas, where I live, authorizes arrests even for minor traffic offenses such as failing to buckle your seat belt, which the Supreme Court also has said is constitutionally kosher. That means you can go to jail for violations that are not punishable by jail. Can Texas drivers be arrested for air fresheners?

Under the Texas Transportation Code, it is a misdemeanor to drive a car with an "object" that "obstructs or reduces the operator's clear view," but only when that object is "placed on or attached to the windshield or side or rear window." KPRC, the NBC station in Houston, reports that Texas currently has no law that explicitly forbids "hanging items such as air fresheners, graduation tassels and chains around your rearview mirror." Whew.

Texas cops, of course, have plenty of other excuses to pull people over,  as do cops throughout the country. Incidents like the senseless deaths of Daunte Wright, Philando Castile, Walter Scott, and Sandra Bland suggest the hazards of giving police the power to mess with just about anyone who dares to travel in an automobile.

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  1. “Bans on dangling objects are just one example of the myriad petty rules that give police the power to stop nearly any driver at will.”

    That’s nothing.

    I heard the cops can shoot you for protesting on public property.

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  2. But after the cops stopped him, they also noted that the air fresheners hanging from his rearview mirror violated Minnesota’s traffic code”

    So the media narrative was wrong (read: a lie) from the start.

    1. They uncritically took the 2nd-hand account of what the mother said her son said. He (allegedly) fibbed to her – it’s not unusual for a kid to downplay something like this to his parent – and she apparently passed that along.

      I’m not sure it’s 100% on the media, but we’ve seen often enough that the grieving family’s or friends’ accounts in the immediate aftermath of incidents like this are unreliable at best. They should be more cautious at the very least.

      1. “but we’ve seen often enough that the grieving family’s or friends’ accounts in the immediate aftermath of incidents like this are unreliable at best.”

        They aren’t that much more unreliable than the accounts of the police themselves.

        1. Neither should be taken at face value. Not without supporting evidence, and definitely not in the initial hours.

  3. So, wait. It was an expired registration they stopped him for? Not an air freshener hanging off the mirror.

    Did you feel that?

    That quaking was the narrative shifting again.

    1. Not really. Neither the expired registration nor the air freshener should be a valid reason to pull someone over, much less to escalate to a lethal confrontation. Driving with an expired registration is justification for a photo and ticket sent to the address of record via the mail.

      A true cynic would note that you have the driver’s mother’s claiming the stop was over the air freshener and you have the cop claiming that the stop was over the expired license. That cynic might ask whether the cop had an incentive to bend the truth about which justification for the stop was noticed first.
      We will probably never know the truth. The point is that you should not blindly trust the cop’s story any more than others blindly trusted the mother’s story.

      1. You might also conclude that the mother also has an incentive to ‘bend the truth’.

        Why is a expired registration worth setting up surveillance cameras across the city though?

        I’d prefer to be stopped by a cop who happened to notice it, myself.

        1. re: the mother’s incentive – That was kind of my point. You are criticizing those who accepted the mother’s story at face value while being apparently uncritical of the cop’s story.

          re: surveillance cameras – That would not be my preferred solution. A snapshot by the cop who noticed it using a handheld camera would be less intrusive – and a lot less expensive. Take the picture (with a time-stamp), upload it to a back-office clerk at the department and save all the labor hours of making an otherwise unnecessary stop.

          That would also significantly reduce the officer’s exposure to other cars on the highway. Roadside stops are far and away the most dangerous things that we ask cops to do – and those risks are almost entirely from the combination of dark uniforms, poor visibility and being in the road, not danger from the driver that got pulled over.

          1. I’m not accepting anything.

            I am pointing out that the narrative has shifted from air freshener to registration.

          2. Rossami how is the cop supposed to use a hand-held camera to take a picture of a license plate without stopping the car to take the picture? Should the police academy now include a course in picture-taking while driving?

            1. High resolution dash cams that have a photo option?

              1. Or just pull appropriate stills out of the dash cam footage back at the precinct.

              2. Brett ok I didn’t think of that but I was reacting to this statement, “A snapshot by the cop who noticed it using a handheld camera would be less intrusive – and a lot less expensive.”

      2. Considering the expired license belonged to a known criminal then yes pull him over

        1. Sorry, no. This issue was recently decided by the Supreme Court but I believe they got it badly wrong. In Glover, the Supreme Court said it was okay to presume that the current driver of a car was the licensed registrant of the car. In reaching that decision, the majority ignored rather a lot of evidence that family and friends other than the registered owner also drive cars – and that granting police a warrantless right to stop cars on the basis of registration alone will inevitably result in stops which violate the rights of all those other drivers.

          1. Which rights. How?

            Because the last time I checked, you don’t have the right to drive a car with an expired registration – or lapsed insurance – on public highways. Whether its your car or not.

            Now, the USSC cases decided that you can’t stop a car solely because the *owner had a warrant* – and you can’t know if the owner is driving.

            But that’s a different situation.

            Here, with an expired registration, the driver *is* committing a crime (or at least a ‘civil infraction’) whether or not they are aware of it or own the vehicle.

            1. Hmmm…. That’s an interesting distinction that I’d missed. I want some time to chew on the reasonableness of asking every driver to confirm the registration of a borrowed vehicle. That seems unbalanced but you do have a point.

              1. You can confirm the registration by looking at the tag on the license plate.

                It’s no more unreasonable than expecting someone to check for a functioning tail light.

                1. you Flamer Trolls fight like male homosexual lovers having a spat

                  none of you. are intelligent enough to comment on the topic.

                  Go get a room and work it out.

      3. Wright had skipped out on a court appearance over weapons charge. What would make you think he would have complied with a mailed fine and order to get the vehicle registered?

        At some point, he is going to be confronted with law enforcement for ignoring these violations.

        1. you do a lot of Attacking the Messenger/ Victim.

  4. It actually doesn’t matter if something you do is against the law anyways. The Supreme Court has also said that as long as a cop honestly believed you were breaking some law (or is willing to lie to that effect) a traffic stop is constitutional. Meaning, as long as you can’t prove the individual cop that pulled you over has memorized the entire traffic code your screwed.

  5. I got stopped a few months ago because I had a turn signal light out. When his lights came on I was making the turn into the auto parts store to get a bulb. The cop said “Do you know why I stopped you?” I said “Not really.” He proceeded to tell me that I didn’t signal for the turn. I said that I had a bulb out in my turn signal and that I hand signaled the turn. I had witnesses. Then I said “I’m here to replace the bulb.” He left. By the way I’m white.

    1. But did you reach for a gun or act like a criminal.

      1. No. I was polite and he was professional.

    2. I have no clue what point this story is supposed to be making.

  6. This is a long article explains the awfulness of something that might have happened, but did not.

    And I am not sure what the point is that air fresheners are designed to hang from rear mirrors as if that somehow should make the law against using them moot.

    I am in general agreement that governments try to micromanage these things to a far too great extent, but this is dogged determination to worry at a narrative that has long since been disproven.

    Oh, wait, it is Sullum.

    1. Yep. He’s awful.

    2. besides Trolling and Attacking the Messenger, do you have an intelligent comment on the topic, Troll?

      You pretend to have pseudo intelligence with your rambling off topic crap.

  7. “but it never occurred to me that doing so might invite a cop to pull me over.”

    Do you have to actually read the traffic instructions in your state to get a license? I have known about hanging things from the interior mirror in every state I have lived in since I got my learner’s permit. I also learned in high school that a four inch wide object two feet from my face can block the view of a 20 foot object at the distances of an intersection.

    1. I guess Reason does not offer driver safety courses for the staff. Sullum’s complaint that it I s completely ridiculous to ban unecessary objects from the driver’s line of sight is rather weak and juvenile. You can make a good argument that there should be common sense in such regulations, but this is not it.

      1. Lie. A hanging air freshner us NOT in drivers line of sight. States broken windshield laws prove that

  8. Funny how these BS traffic laws came into being after Clinton handed out all of those block grants to hire more cops.

    1. those laws existed long before Clinton at least in California

  9. i got pulled over for a taillight out. Which had gone out a few minutes earlier. By two cops. Because they were bored? Probably. Or maybe this white guy looks like a gang banger. Who knows? But my parents had the talk with me too. Ya see you can be white and still get beat down. So you do your best not to antagonize them. It’s just that some people don’t learn or like confrontation. The difference is my face won’t be painted on brick with angels wings because that’s just not interesting to the race hustlers and grifters in the media and politics.

  10. It really does not matter, a cop can simply claim “I did not see him wearing a seatbelt.”

    1. He was pulled over for expired tags.

  11. He was pulled over for expired tags. This “air freshener” meme is typical ghetto babble like violent criminal Mike Brown was stopped for “walking while black” and was “executed for stealing cigars”.

    1. hey- ” rumning while Black” merits extra- judicial summary execution in the streets since running could lead to the Perp causing someone to fall and get a Boo- Boo on their knee.

      A Cop firing a 45 at ” Running man” ( in the Public) is certainly safer than all that dangerous running.

      Das es VERBOTEN!

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  14. Air Fresheners are a Gateway Accessory- very dangerous and habit forming. Next step, hanging 8 x 12 prints of pleasing country- side scenes from the mirror. When it becomes a full on addiction, theyll be reinforcing the mirror to hang full size museum quality Objet d’ Art totally obscuring the roadway view.

    At that point, deemed to be a danger to the Public, cops will be in the right to summarily execute them on the highway.

    Big Tech will offer a new self wrecking, I mean, self driving car as a solution.

  15. The simple answer is that all government employees, appointees and elected officials (or in other words EVERYONE) needs to play under the EXACT SAME rules.

    In Minnesota there are laws against texting while driving which is fine if that is was society wants, but police are driving around with a computer installed in the squad car. I’ve personally witnessed an officer typing on the screen while driving.

    This is just an example, not an argument either way. Either it’s risky enough behavior or it isn’t risky enough to pull people over for. The same standards need to apply for everyone and not grand special permissions to some people.

    Qualified immunity is another example. There should be absolutely ZERO qualified immunity for anyone. Not even the judge, president, governor or anyone else.

    One of the arguments I continue to hear from opponent of ending qualified immunity is the police will be constantly harassed with bogus lawsuits.
    To alleviate this, I propose adding a “check and balance” by empowering the jury to penalize the suing party if the case is overwhelmingly egregiously bogus. The first jury would determine if lawsuit was overwhelmingly egregiously bogus and present their finding to the presiding judge.

    The judge would invoke a process where a second trial would be conducted that is heard by a second jury to pass judgement and probably a second judge too.

    In Brooklyn Park, MN where Daunte Wright was shot. First he should not have been pulled over in the first place. Pulling people over for expired tabs is not something police should be enforcing on the roads.

    Once Daunte Wright was pulled over and he did show up with active warrants for his arrest, the police should arrest him. Daunte Wright did attempt to flee and avoid arrest, which the police would attempt to prevent this.

    Unfortunately Daunte Wright was shot instead of being tasered as I believe the officer intended based on the information I have. I do not see this as a racial issue, but rather a resisting arrest issue.

    There is a preponderance of “What if’s” and “20/20 hindsight” around, but from the moment of when Daunte Wright attempted to flee to when he was shot were mere moments.

    There are multiple problems with the events where both Daunte Wright, the police and Minnesota lawmakers are to blame. Passing judgement on a single party is specious at best and instead the individual problems need to be addressed separately.

    Calls to de-funding or eliminating the police is not an answer to these problems as it is not currently realistic to have no level of enforcement. Calling the police by a different name is still enforcement.

    Members of a society should be active participants in determining what kind of enforcement the society wants, what infractions should be met with force or ignored. It is a contract with all the members of the society on what is acceptable and what is not.

    Personally, I prefer less enforcement and more freedom. Instead of a law banning hanging an air freshener from your rear view mirror. Create a public service announcement presenting the argument that it obstructs your view while driving.

    From the protests, I hear hints calling for more enforcement, but different enforcers. More of the same, rules against them and not me. This is just a vacillation not a solution.

    1. The police should have the equivalent of medical malpractice insurance as part of the employment package. Lawyers go for the big money which is the city. Hence these multi million dollar settlements. The police officer generally does not have a lot in personal assets.

  16. The mirror air freshener is a bit of a red herring. He was pulled over for expired plates, then it was discovered he had an arrest warrant. Totally legit stop.

  17. The stop was for an expired registration and so legit.

    Having something hanging from the mirror shouldn’t be a crime. Having a wreck might be a crime. Something hanging from the mirror should be as evidence to determine blame and culpability for the accident.

    Just like driving under the influence shouldn’t be a crime. Having a wreck while you are driving under the influence would be a crime and your intoxication level should be a factor in considering blame and culpability.

    Simple enough. There are too many things that shouldn’t be illegal.

    CB

  18. Oh c’mon. The cops don’t pull over suburban soccer mom in her SUV for an expired tag, let alone an air freshener hanging from the rear view.

    Why do we need those yearly stickers in the first place? That is a libertarian question right there.

  19. It’s a ridiculous law, but why do people need air freshener in their cars? I don’t think I have ever been in vehicle that had one.

  20. The whole “driving is a privilege, not a right” mantra has morphed from requiring that motorists maintain a valid driver’s license to permitting any and all manner of infringement of due process and forfeiture of rights while under way. That doctrine was never meant to do that.

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