Police Pulled Over Two Black Men For Having An Air Freshener In Their Car. A Court Ruled The Stop Was Legitimate.

WASHINGTON — In September 2018, Napoleon Jackson was driving a car in the South Side of Chicago. Kittrell Freeman sat in the front passenger seat. A police officer pulled Jackson over, and a later search of the car revealed a loaded rifle and two handguns.

But the officer didn’t know there were guns in the car when she stopped Jackson. She did know that the car wasn’t stolen; she’d run a license plate check after Jackson first passed her on the street. Why did she pull him over? She’d seen a tree-shaped air freshener dangling from the rearview mirror.

Jackson and Freeman faced federal gun charges — they each had previous felony convictions that made it illegal for them to possess guns. They argued their cases should be tossed out because the air freshener–based stop was unlawful. Jackson was sentenced to nine months in prison. Freeman is serving five years. On Wednesday, a federal appeals court ruled the presence of the air freshener alone was enough to justify the stop. Chicago’s municipal code prohibits objects that obstruct the windshield, and the officer had “reasonable suspicion” to think Jackson’s air freshener violated that law, the court found.

Laws that allow police to stop people for relatively minor infractions — especially when the people disproportionately affected are Black — are under scrutiny again after George Floyd was killed in police custody in Minneapolis last month. Police officers had arrested Floyd, a Black man, after he was accused of trying to use a counterfeit $20 bill at a store. Floyd was initially compliant, resisted being handcuffed, and then was compliant again, according to the criminal complaint filed against the police officer who used a knee chokehold to hold Floyd on the ground for nearly nine minutes.

The 7th Circuit’s decision was the latest in a long line of cases involving police stops and air fresheners. Laws that prohibit anything that obstructs the view of a driver, similar to the one in Chicago, are common across the United States. Defendants like Jackson and Freeman who ended up facing far more serious criminal charges after being stopped because of an air freshener have raised challenges to these police encounters in state and federal courts, with mixed success.

Research by the Stanford Open Policing Project found that Black and Latino drivers nationwide are stopped by police and have their cars searched at higher rates than white drivers. A study released by the ACLU of Illinois in 2019 found that Black and Latino drivers who were stopped were asked to consent to searches at higher rates than white drivers, even though data showed they weren’t any more likely to have contraband in their cars. Other studies have found racial disparities specifically in traffic stops for minor, “non-moving” violations, a category that would likely include windshield obstructions.

Courts previously have accepted arguments that police used the presence of air fresheners as a pretext to stop Black and Latino drivers — in 2010, a federal judge in Arkansas ruled that a police officer had engaged in a pattern of racially profiling Latino drivers, and noted instances when the officer cited dangling air fresheners as a reason for making traffic stops.

A Minnesota appeals court in 1994 upheld a judge’s order dismissing a case where a police officer said he’d stopped a Black man driving a car at 3 a.m. because of a hanging air freshener. There was no evidence the air freshener was blocking the man’s view, the appeals court found.

“The trial court could legitimately find that in the absence of an objective legal reason, the officer used the mere presence of the air freshener as a pretext to stop Hardy because he was an African-American driving around shopping centers in the middle of the night,” a Minnesota appeals judge wrote at the time.

Jackson and Freeman, who are Black, according to federal Bureau of Prison records, didn’t raise arguments about racial disparities in traffic stops as part of their case. But Sarah Seo, a law professor and expert on road policing at the University of Iowa College of Law, told BuzzFeed News she was “troubled” by Wednesday’s ruling from the US Court of Appeals for the 7th Circuit because there was a history of police using minor traffic violations — broken tail lights and turning without signaling, for instance — as a way to justify stopping drivers based on race.

“It gives individual officers a lot of discretion to decide which drivers to pull over,” Seo said of Wednesday’s decision. “And that opens the door not only for arbitrary decisions for deciding who to pull over, but discriminatory reasons for deciding who to pull over. It definitely contributes to the racial disparities that we see in who gets stopped by race.”

Lawyers for Jackson and Freeman declined to comment on Wednesday’s decision. According to briefs filed in the case, officers asked Jackson to step out of the car soon after making the stop. When one officer opened the front passenger door, they saw a gun in between the seat and the door. Freeman then allegedly tried to climb into the driver’s seat, according to the government, and he was arrested. That’s when police searched the car and found the two other guns.

The three-judge appeals panel found that the evidence showed the officer had “reasonable suspicion” to think the air freshener was blocking Jackson’s view in violation of the Chicago code. The officer testified the air freshener was “hanging by his face” and “shaking.”

The 7th Circuit had considered air fresheners and police stops before. In a case decided in 2011, an Illinois state trooper stopped a minivan after observing a pink Christmas tree–shaped air freshener hanging from the rearview mirror. The trooper said he didn’t pull over every car with an air freshener, but flagged this minivan because it was traveling at a slow speed and the driver appeared “stiff” and “nervous.”

During the stop, the trooper learned the defendant was in the United States illegally. The man was arrested and charged with illegal reentry. On appeal, the 7th Circuit rejected the defendant’s challenge to the traffic stop, finding that the air freshener could obstruct the view of the windshield and, as a result, the trooper could reasonably think the driver was violating state law.

In 2015, the Supreme Court of Vermont ruled against a man who was charged with drunk driving after a police officer pulled him over because he had a tree-shaped air freshener hanging from the rearview mirror. The officer didn’t believe the air freshener actually blocked the defendant’s ability to see, but was under the mistaken belief that state law prohibited any object hanging on the mirror.

The state court ruled that even though the officer was wrong about the law, the mistake was “objectively reasonable” and not grounds to suppress evidence and toss the drunk driving charge.

In a 2010 decision from a state appeals court in California, the judges ruled that it was reasonable for an officer to make a traffic stop based on an air freshener, noting that the officer believed it was obstructing the driver’s view because it was “swinging back and forth.” The defendant was arrested after the officer learned he was wanted and armed, and later discovered a pistol in the car; the appeals court rejected the defendant’s challenge to the initial stop.

These cases have forced judges to engage in detailed analysis about the nuances of air freshener design and shape.

In a 2008 decision from an Illinois state appeals court, the judges considered an air freshener that looked like a “life-size pair of plastic cherries, red and green in color.” Based on a photograph of the air freshener, and the fact that the officer only had a “fleeting view” in the dark before making the stop, the court held that the officer’s belief that the air freshener obstructed the driver’s view was “not justifiable.” The appeals court agreed with the trial judge that drug evidence found in the car should be tossed out.

A Florida state appeals court in 2005 granted a motion to suppress drug evidence after sheriff’s deputies stopped a car that had two air fresheners shaped like “miniature evergreen trees” hanging from the rearview mirror. One of the deputies testified at a hearing that he’d stopped hundreds of drivers for “similar violations,” according to the court’s summary of the case. The court ruled that the dangling air fresheners didn’t violate state law, which only prohibited people from driving a car with something actually attached to the windshield.

The 7th Circuit concluded its decision on Wednesday in Jackson and Freeman’s case by noting that it wasn’t the case that every object hanging from a rearview mirror would automatically violate Chicago’s driver obstruction law. But the judges found the officer acted reasonably with respect to the “tree-shaped” air freshener measuring “approximately 4.7 inches by 2.75 inches” that was hanging in Jackson’s car.