Car air fresheners – scented cardboard, often in tree shapes, with a string to wrap around rear view mirrors – are cheap, efficient, and everywhere. They are at gas station counters, near the registers in grocery and hardware stores, and potentially illegal depending on the state.
The lack of clarity over state and local traffic laws for something so ubiquitous – deemed an “obstruction” in many jurisdictions – has created dozens of cases where police officers use air fresheners as a “pretext” to pull over drivers, regardless of the law, calcifying racial disparities in arrests and within the criminal justice system.
His mother Katie Wright said her son called her to tell her he believed police had stopped him for an air freshener hanging in his rear-view mirror.
Brooklyn Center Police Department chief Tim Gannon told reporters on Monday that police stopped him for expired tags and an outstanding misdemeanour warrant.
More than 50,000 drivers are pulled over in a traffic stop every day in the US, according to the Stanford Open Policing Project.
The project has found that police disproportionately stop Black drivers at a higher rate compared to white drivers, and that Black drivers are 20 per cent more likely to get a ticket than white drivers.
In a peer-reviewed study in 2020 analysing 100 million traffic stops across the US, the project found that Black drivers are 1.5 to 2 times as likely to be searched during the stop, while they were less likely to be carrying drugs, guns or other illegal materials compared to white drivers.
Traffic stops in neighbouring Minneapolis have also revealed stark racial disparities.
From 1 June 2017 to 31 May 2019, 54 per cent of the nearly 7,000 traffic stops in Minneapolis for “equipment violations” involved Black drivers – despite Black residents making up roughly 19 per cent of the city’s population.
White residents, who constitute 65 per cent of the city’s population, accounted for only one third of all stops within that same time frame.
Of the 805 stops that included a search, 75 per cent involved Black drivers.
The ACLU of Minnesota said it has “deep concerns” in Mr Wright’s killing over “dangling air fresheners as an excuse for making a pretextual stop, something police do all too often to target Black people.”
The organisation has called for an immediate, transparent and independent investigation into the killing.
“While we are waiting to learn more, we must reiterate that police violence and killings of people of colour must end, as must the over-policing and racial profiling that are endemic to our white supremacist system of policing,” the ACLU said.
In 1996, the US Supreme Court ruled unanimously that pretextual stops are constitutional, as long as police officers can point to an actual violation of a traffic law – regardless of their motivation for the stop.
But in 2014, the Supreme Court went even further, appearing to undermine the axiom “ignorance of the law is no excuse” in the face of the Fourth Amendment of the US Constitution, which prohibits unreasonable search and seizure and requires law enforcement to issue a search warrant supported by probable cause.
The court determined that any “reasonable mistake” can justify a stop.
In 2009, during a traffic stop for one broken tail light in North Carolina, an officer went on to search the car, finding cocaine. The driver and passenger pleaded guilty to cocaine trafficking, a felony. But state law does not explicitly say that a broken tail light is a crime. Following appeals, the nation’s high court ruled that “the mistake of law was reasonable, there was reasonable suspicion justifying the stop under the Fourth Amendment”.
“While the maxim ‘ignorance of the law is no excuse’ correctly implies that the state cannot impose punishment based on a mistake of law, it does not mean a reasonable mistake of law cannot justify an investigatory stop,” the court said.
But in case after case, air fresheners repeatedly wind up in courts.
In 2010, a federal judge in Arkansas ruled that a police officer had engaged in a pattern of racially profiling Latino drivers by pointing to their history of citing air fresheners in police reports as the basis for the stops.
In 2015, an officer in the Village of East Troy in Wisconsin pulled over a driver for an air freshener the officer believed was illegal. It was not.
A judge even admitted that “there must be a zillion cars driving around” with air fresheners on their rearview mirrors.
“Not very many of them would get stopped by the traffic officer,” the judge said. “They’ve got better things to do.”
Nevertheless, the state Supreme Court ruled that the charges stemming from the marijuana allegedly found in the car during the search were reasonable, despite the circumstances of their discovery.
In 2018, Napoleon Jackson was stopped by an officer while driving in Chicago. A search of the car allegedly discovered a loaded rifle and two handguns. But the officer did not know they were there until he had pulled him over for the “tree-shaped air freshener” on his rearview mirror.
Last year, a three-judge panel on a federal appeals court ruled that although a lower court “couched its analysis in terms of probable cause, all that is required for a traffic stop is reasonable suspicion”.
“Even so, because the officer had an articulable and objective basis for suspecting that the air freshener obstructed Jackson’s clear view in violation of the city municipal code, the stop was lawful,” according to the ruling.
Mr Jackson was sentenced to nine months in prison, and his passenger Kittrell Freeman was sentenced to five years.
Last year, La Paz County Sheriff’s Deputy Eli Max was fired from the Arizona agency after he was filmed during a 2019 traffic stop – after stopping a Black driver for a tree-shaped air freshener.
Mr Max pulled over 22-year-old Phillip Colbert for roughly 40 minutes, which Mr Colbert filmed on his phone.
The video shows Mr Max telling Mr Colbert to get out of the car, asking him eight times whether he smokes marijuana and if he had any cocaine or heroin in the car, and insisting Mr Colbert is being “deceptive”.
Mr Colbert eventually sued the sheriff’s department and settled for $15,000.