Metropolitan News-Enterprise


Wednesday, December 12, 2007


Page 1


Court Upholds Traffic Stop For Hanging Air Freshener


By STEVEN M. ELLIS, Staff Writer


A police officer’s personal experience hanging a similarly sized object from his rearview mirror gave him an objective basis to believe that an air freshener hanging from another driver’s mirror obstructed the driver’s view in violation of state law, the Sixth District Court of Appeal ruled yesterday.

Holding that the officer’s belief that Mark A. Colbert’s view was blocked by the air freshener was objectively reasonable based on personal experience, the court upheld the admission into evidence against Colbert of 11 methadone pills and a misappropriated credit card discovered in the car during a subsequent search.

Agent Scott McCrossin of the Los Altos Police Department stopped Colbert after observing a flat, tree-shaped air freshener hanging from Colbert’s rearview window.  McCrossin thought that the object, which was 4.75 inches tall and 2.75 inches wide at its widest point, was wide enough to obstruct Colbert’s vision in violation of Vehicle Code Sec. 26708. 

He later testified that he knew an air freshener of this size could obstruct a driver’s view, because he had hung a similar-sized object from the rearview mirror in his personal vehicle which had obstructed his view, and that he was aware of an accident that had been caused by something hanging from a rear view mirror.  McCrossin said that this led him to the conclusion that air fresheners in close proximity to a driver’s face, even small ones, obstructed the driver’s view of objects such as vehicles or pedestrians.

McCrossin stopped Colbert, who was accompanied by his nephew.  Colbert was on parole, so McCrossin conducted a search and found a credit card bearing a woman’s name and a plastic bag containing 11 methadone pills, which Colbert said were “vitamin pills.” 

Colbert and his nephew denied knowing the woman listed on the card, which had been reported lost two days earlier, so McCrossin arrested Colbert and soon observed that he appeared to be under the influence of a controlled substance. 

Colbert was charged with possession of methadone, misdemeanor appropriation of lost property, and being under the influence of a controlled substance.  He moved to suppress the evidence from the traffic stop, claiming that no air freshener was hanging from his mirror, and that, even had it been, the officer’s belief that Colbert’s view was obstructed was not objectively reasonable. 

Colbert relied on People v. White (2003) 107 Cal.App.4th 636, where the court of appeal held that a police officer who stopped a car under similar circumstances did not have an objectively reasonable belief of obstruction because the officer neither testified to such a belief, nor identified any specific or articulable facts to support it. 

However, a magistrate distinguished the case, concluding that McCrossin’s testimony established that he had an objectively reasonable basis to believe that Colbert had violated the law and upholding the search, and Santa Clara Superior Court Judge Rise Jones Pichon upheld the magistrate’s decision.

Colbert pled guilty to the three counts, and was sentenced to two years in prison.  He then appealed, renewing his challenge to the denial of his suppression motion. 

However, the Court of Appeal agreed with Pichon and the magistrate, and affirmed Colbert’s convictions.

Writing for the court, Justice Nathan D. Mihara rejected Colbert’s argument that White controlled.

“The evidence before the magistrate in this case contained precisely what was missing in White and did not include any of the evidence that supported the defense argument in White,” he said.

Mihara wrote that McCrossin’s testimony about his personal experience, unlike the testimony of the officer in White, provided specific and articulable facts that supported an objectively reasonable conclusion that the hanging air freshener violated the law.

He also noted that, in White, the defendant presented testimony from a civil engineer that the air freshener covered less than .05 percent of the windshield and would not obstruct the vision of a 6-foot-tall driver, and testified himself that the air freshener was not an obstruction.

“[U]nlike in White,” he said, “there was no evidence presented by the defense that the air freshener did not obstruct the driver’s view.”

Colbert’s attorney did not return a call seeking comment.

A spokesperson for the attorney general said that the court had “concluded properly.”

Mihara was joined in his opinion by Justices Richard J. McAdams and Wendy Clark Duffy.

The case is People v. Colbert, H031479


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