CA5: Air fresheners and odd responses to basic questions were enough for reasonable suspicion

Air fresheners and odd responses to basic questions were reasonable suspicion, and the court declines to get into analysis of the other factors. The initial stop was for going 2 mph over the limit. United States v. Peña-Gonzalez, 2015 U.S. App. LEXIS 12404 (5th Cir. July 16, 2015):

Tamez testified that a number of things he observed and smelled during the course of the stop made him suspicious: the large number of bumper stickers supporting law enforcement, which he contends shows a desire to be viewed as a “good guy” who “can’t do no wrong”; numerous air fresheners placed throughout the vehicle, which experience taught him is an attempt to mask the odor of drugs or drug money; Pancho Villa and St. Jude medallions on the key chain, both of which he characterized as icons commonly used by drug smugglers along Highway 77 as symbols for righteousness and protection; and three rosaries hanging from the rearview mirror, which his experience led him to believe are also used by drug traffickers for protection. Tamez also cited what he perceived as inconsistencies and evasion in Ms. Peña’s answers concerning where they lived, how long they spent in Houston, where they stayed, and what they did at the car auction.

Peña-Gonzalez counters that the stickers, religious symbols, and air fresheners are all consistent with innocent behavior and therefore cannot constitute reasonable suspicion of criminal wrongdoing. He also argues that the answers Ms. Pena gave were not inconsistent and not a basis for further detention.

We do have concerns that classifying pro-law enforcement and anti-drug stickers or certain religious imagery as indicators of criminal activity risks putting drivers “in a classic ‘heads I win, tails you lose’ position.” See United States v. Escamilla, 560 F.2d 1229, 1233 (5th Cir. 1977); see also United States v. Townsend, 305 F.3d 537, 544 (6th Cir. 2002) (holding that, despite the officer’s assertion that “the presence of a Bible in the car was suspicious because drug couriers often display religious symbols to deflect suspicion of illegal activity,” the Bible “is a very weak indicator of criminal activity”); cf. Estep v. Dallas Cnty., Tex., 310 F.3d 353, 358-59 (5th Cir. 2002) (holding that an NRA sticker on a car should not have been considered in assessing the reasonableness of the officer’s suspicion that the driver was dangerous). But we need not decide whether these items alone, or in combination with one another, amount to reasonable suspicion because we find the more suspicious evidence to be the array of air fresheners and inconsistencies in the driver’s responses to the officer’s basic questions.