One of the most difficult concepts to convey to clients in my practice is “what constitutes probable cause” for a traffic stop. Black’s law dictionary defines probable cause as “the term given to the strong suspicion that will convince a person that there are grounds for a person being guilty.” In the practical sense, probable cause is the reason a police officer has for pulling you over and making an arrest.

Probable cause comes in many forms. For a driver of an automobile, it takes little to create probable cause. One of my clients was shocked when the probable cause for their arrest was the Christmas Tree car air freshener they had hanging from their rearview mirror of their SUV. An object that may obstruct the driver’s view out the front window of an automobile, including anything that may be hanging from a rearview mirror: graduation tassels, air fresheners, crystals, garters, dice, rosaries, and necklaces, just to name a few, are probable cause for just that: reason for a police officer to stop your car.

In my client’s case, the dangling Christmas Tree air freshener allowed the police officer probable cause to stop his SUV. Once stopped, the officer approached his vehicle and requested my client’s driver’s license. On approach, the officer smelled the “strong odor of marijuana” emanating from inside the vehicle. The “strong odor of marijuana” granted the officer probable cause for a search of the vehicle and nearly 200 pounds of marijuana was found in plastic-wrapped bricks in duffle bags in the back of the SUV.

My client was arrested on suspicion of delivering or with intent to deliver marijuana. At the preliminary hearing, the probable cause for the initial stop by the dangling Christmas Tree air freshener was challenged. The Court found the Christmas Tree air freshener constituted probable cause and bound the case to District Court. In District Court at a motion to suppress hearing, the probable cause of the dangling Christmas Tree air freshener was challenged again, and the Court upheld the stop and found the air freshener was probable cause for the stop. It makes you think twice about what mementos one keeps close at hand in the sanctuary of their automobile.

Darik J. Von Loh
Hernandez Frantz, Von Loh