Defense to cite 2006 air freshener case for Kittanning woman
A Pennsylvania Superior Court ruling that having an air freshener hanging from a car's rearview mirror isn't cause for police to make a stop could allow a Kittanning woman to escape marijuana charges.
Sarah Nicole Booher, 24, claims her arrest for possessing a quarter-pound of marijuana flies in the face of that ruling and her attorney is seeking to have the charge dismissed.
A state trooper stopped Booher along Route 28 in Harmar because he saw a "yellow tree air freshener" hung on her car's rearview mirror. During the stop, the trooper smelled marijuana and found it in the car.
The Superior Court ruled the presence of three air fresheners on a rearview mirror wasn't enough to pull Harry A. Anthony Sr. over along Route 28 near Clearview Pike in Armstrong County in 2006.
After the car was stopped, police charged Anthony with using drugs and alcohol.
On July 17, the Superior Court threw out Anthony's conviction because the arresting officer didn't say in court that the air fresheners blocked the driver's vision.
That, the court ruled, wasn't sufficient "reasonable suspicion" to pull over his car.
Bernard M. Tully, who represents Booher, believes the Anthony decision should be enough to dismiss Booher's drug and driving charges.
"That case involved three air fresheners. This only has one," Tully argued.
Booher's case will seek to weigh the "reasonable suspicion" police need to stop a driver versus the driver's constitutional right against unreasonable search.
Reasonable suspicion is "more than a mere hunch, but less than the higher legal standard of probable cause" required for police to file charges, explained Duquesne Law professor Bruce Antkowiak.
He said the distinction is critical to protecting an individual's Fourth Amendment rights.
Pitt law professor John Burkoff said the rules dictating why police may pull someone over are some of the things that set apart American law — with the presumption of innocence — from laws in other countries.
While Tully and other defense attorneys hail the decision as a victory for Fourth Amendment rights, district attorneys say hanging items from the mirror is still against the law.
According to the state motor vehicle code, it's illegal to hang anything — other than official items like a handicap tag — on rearview mirrors of any vehicle, if those items obstruct driver vision.
Police may still make traffic stops involving fresheners or other things but the officer or trooper must be able to testify the item clearly blocked the driver's windshield view.
Armstrong County District Attorney Scott Andreassi said the obstructed view provision was upheld in a recent Armstrong case.
"In the Anthony case that was prosecuted in Armstrong County, the trooper couldn't offer an opinion if the air fresheners impaired the driver's vision." Andreassi said.
Andreassi said he is contacting state and local police to advise them they can pull vehicles over for windshield obstruction, provided the officers state in reports and court that the object is impaired the driver's vision and posed a danger.
Andreassi said he has advised police and troopers about the issue so they understand the full impact of Anthony.
Pennsylvania District Attorney's Association President Richard Long said the Anthony case doesn't a ban police from pulling over drivers with items on their mirror.
"There is now a two-part standard of identifying it as a violation and being able to testify that it impairs the ability of someone to drive safely," Long said.
Booher was held for trial following a recent preliminary hearing. No date for her trial has been set.
Additional Information:
What does the law say?
According to the Motor Vehicle Code, 'No person shall drive any motor vehicle with any sign, poster or other nontransparent material upon the front windshield which materially obstructs, obscures or impairs the driver's clear view of the highway or any intersecting highway except an inspection certificate, sticker identification sign on a mass transit vehicle or other officially required sticker....' Person with disability parking placards are allowed.
Source: State Motor Vehicle Code
