Air Freshener

[jdh428]

Several weeks ago I was going through our small community several different times in the same evening, all of them with the cop riding on my bumber. After the 3rd time, I flicked him off. Later that evening, he rode my bumber again, this time pulling me over. Officer Frank asked for my license and registration, and came back to my car and told me to "have a good night". He then asked why I flicked him off, I told him that he rode my bumber 3 different times. He said "thats no reason to flick me off..give me back your stuff". I gave him back my license & reg and now I have a ticket for an Obstruction as I had an air freshener hanging from my rear view mirror.

I had the hearing today in front of the magistrate, and he found me guilty. Is this worth appealing?

 

[Theresagail]

I wouldnt think so -- Some cops are like gangs w/ legal weapons -- why stir the pot? this cop could make a life out of harrassing the hell out of you for years to come-- I dont think it would be worth it.

 

[CdwJava]

On what grounds would you appeal? Does your un-named state allow an appeal simply because you did not like the verdict? I suspect not. That means you will need to find grounds for the appeal.

- Carl

 

[jdh428]

He did not mention the air freshener to me until we discussed me giving hin the finger, which leads me to believe that was not the original reason he pulled me over, otherwise he had no reason to pull me over.

Can the air freshener really be considered an "obstruction".. it's a freakin pine tree!

 

[CdwJava]

What state are you in, and what code section were you cited for?

It sounds as if he may have used that as the official cause to pull you over, considered cutting you a break, then changed his mind and decided to cite you. if so, it's a little touchy, but it sounds legal.

Since you were found guilty, apparently the court agreed that the elements of the cited section were met. If you wanted to challenge the reasonable suspicion for the original detention, you should have done so at court. Unless your state has special rules for traffic citation appeals (and that is possible), an appeal is based upon what is on the record, not on NEW information not presented at the original trial. So, again I ask, what would the grounds for the appeal be? What error by the court do you believe occurred that will give you the cause for an appeal?

- Carl

 

[jdh428]

Pennsylvania. Title 75 §4524 (c) Other obstruction.--No person shall drive any motor vehicle with any object or material hung from
the inside rearview mirror or otherwise hung, placed or attached in such a position as to materially obstruct, obscure or impair the driver's vision through the front windshield or any manner as to constitute a safety hazard.

The appeal is a trial de novo -- which is basically a "new trial" is it not?

The officer stated in his testimony that he pulled me over outside of the borough, which there is no agreedment with the neighboring township that allows him to pursue me there unless as PA law reads he was in "hot pursuit" which he did not put his lights on and attempt to pull me over until we got out of his limits.

The officer also failed to justify as why this is an obstruction. He did not measure, take a photo, or take it as evidence. How is his word the final say in what makes an obstruction, an obstruction as this is not defined in our code.

 

[jdh428]

People v COLBERT

"On appeal from a motion to suppress evidence, all presumptions are in favor of the trial court's factual findings, whether express or implied, where supported by substantial evidence, and we review de novo the facts most favorable to the People to determine whether the officer's conduct in performing the traffic stop was reasonable under the Fourth Amendment." (White, supra, 107 Cal.App.4th 636, 641-642.) "A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.)

McCrossin testified that he believed that the hanging air freshener obstructed the driver's view in violation of Vehicle Code section 26708, subdivision (a)(2). "No person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle which obstructs or reduces the driver's clear view through the windshield or side windows." (Veh. Code, § 26708, subd. (a)(2).) Defendant claims that McCrossin's belief that the hanging air freshener violated Vehicle Code section 26708, subdivision (a)(2) was not supported by specific and articulable facts.

Defendant relies exclusively on White. In White, a police officer observed that a car had no front license plate and had a tree-shaped air freshener hanging from the rear view mirror. (White, supra, 107 Cal.App.4th at p. 640.) The officer believed that the lack of a front license plate and the hanging air freshener were Vehicle Code violations, and he detained the vehicle and found narcotics. (White, at p. 640.) The defendant moved to suppress the evidence on the ground that the detention was unlawful. The trial court concluded that the hanging air freshener justified the detention under Vehicle Code section 26708, subdivision (a)(2), and it denied the suppression motion. The First District Court of Appeal reversed.

The First District posed the issue as "whether it was objectively reasonable for [the officer] to believe that the air freshener obstructed or reduced [the driver's] clear view through the windshield so as to constitute a possible violation of the Vehicle Code." (White, supra, 107 Cal.App.4th at p. 642.) The evidence that was before the trial court on the suppression motion was very limited. The First District noted that the officer "never testified that he believed the air freshener obstructed the driver's view" or identified any "other specific and articulable facts, like hesitant or erratic driving, that might suggest the driver's clear view was impeded." (White, at p. 642.) The defense, on the other hand, presented testimony by a civil engineer who had performed an experiment and concluded "that the air freshener covered less than .05 percent of the total surface of the car's windshield" and that the hanging air freshener "would not obstruct the vision of a six-foot-tall driver." The driver testified that the air freshener had not obstructed his vision when he was driving the car. (White, at p. 642.) The trial court had itself "stated that it had 'difficulty accepting' that such an object would really obstruct a driver's view." On the evidence that was before the trial court, the First District concluded that the detention had not been supported by specific and articulable facts that supported the officer's belief that the driver's view was obstructed. (White, at p. 642.)

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. McCrossin explicitly testified that the air freshener was "large enough to obstruct [the driver's] view through the front windshield." He described the precise dimensions of the air freshener and related how he had personally experienced the view obstruction that an object of that size could pose when he hung a similar-sized object from the rear view mirror of his personal vehicle. McCrossin explained that the proximity to the driver's face of an object hanging from the rear view mirror resulted in the object "actually obstruct[ing] the view of larger objects such as vehicles or pedestrians" despite the hanging object's small size.

In White, the officer did not testify that the air freshener obstructed the driver's view and did not identify any "specific and articulable facts" that suggested that the driver's view was impeded. Here, McCrossin testified that the air freshener obstructed defendant's view through the windshield, and he explained how he had personally experienced that an object of similar size obstructed a driver's view of vehicles and pedestrians through the windshield. McCrossin's testimony, unlike the testimony of the officer in White, provided specific and articulable facts that supported an objectively reasonable conclusion that the hanging air freshener in defendant's vehicle violated Vehicle Code section 26708, subdivision (a)(2). And, unlike in White, there was no evidence presented by the defense that the air freshener did not obstruct the driver's view. The magistrate did not err in denying defendant's suppression motion, nor did the trial court err in denying his Penal Code section 995 motion.

 

[CdwJava]

Pennsylvania. Title 75 §4524 (c) Other obstruction.--No person shall drive any motor vehicle with any object or material hung from
the inside rearview mirror or otherwise hung, placed or attached in such a position as to materially obstruct, obscure or impair the driver's vision through the front windshield or any manner as to constitute a safety hazard.

Did the officer testify as to his opinion that the air freshener obstructed your view?

Also note that the case you cited has NOTHING to do with Pennsylvania law, it is a California specific case dealing with the elements of a CA Vehicle Code section.

The appeal is a trial de novo -- which is basically a "new trial" is it not?

Does PA offer a trial de novo if you lose? I doubt it.

California offers a trial de novo if you lose a trial by written declaration, but does PA allow a second trial if you lose? That would seem incredibly wasteful.

The officer stated in his testimony that he pulled me over outside of the borough, which there is no agreedment with the neighboring township that allows him to pursue me there unless as PA law reads he was in "hot pursuit" which he did not put his lights on and attempt to pull me over until we got out of his limits.

But, did he observe the violation within his town? If so, that's likely "hot pursuit".

The officer also failed to justify as why this is an obstruction. He did not measure, take a photo, or take it as evidence. How is his word the final say in what makes an obstruction, an obstruction as this is not defined in our code.

His testimony IS evidence. If the court chooses to take that on its face, then it can do so. You could also have taken photos and measurements in your defense to try and counteract his claim.

- Carl

 

[jdh428]

Did the officer testify as to his opinion that the air freshener obstructed your view?

No

Also note that the case you cited has NOTHING to do with Pennsylvania law, it is a California specific case dealing with the elements of a CA Vehicle Code section.

True

Does PA offer a trial de novo if you lose? I doubt it.

Yes. How can you expect an elected official "the magistrate" to be able to accuraetly judge when they aren't required to have any legal training what-so-ever?
RULE 462. TRIAL DE NOVO.
(A) When a defendant appeals after conviction by an issuing authority in any summary
proceeding, upon the filing of the transcript and other papers by the issuing authority,
the case shall be heard de novo by the judge of the court of common pleas sitting
without a jury.

California offers a trial de novo if you lose a trial by written declaration, but does PA allow a second trial if you lose? That would seem incredibly wasteful.


But, did he observe the violation within his town? If so, that's likely "hot pursuit".


His testimony IS evidence. If the court chooses to take that on its face, then it can do so. You could also have taken photos and measurements in your defense to try and counteract his claim.

- Carl

Maybe I should just drop it..but its such a petty offense to let go!

 

[CdwJava]

I'm not saying you should drop it, just that you need grounds to appeal. I am not familiar with the rules for appealing traffic offenses in PA so you will have to look in to what options you have.

If the officer articulated that the position of the air freshener obstructed your vision, then he may well have met the burden of proof necessary. As such, the time to counter that would have been at trial. And since most appeals involve the record, you may have to show that something improper occurred in order to justify an appeal. But, it is always possible that PA traffic law allows for an appeal on lesser issues, I just do not know.

- Carl