STOPPED BY COP IN EASTPOINTE MICHIGAN FOR AIR FRESHENER IN REAR VIEW MIRROR- CAN A POLICE OFFICER PULL YOU OVER FOR OBSTRUCTED VISION & Speeding TRAFFIC TICKET FOR A LITTLE AIR FRESHENER?

Comments

1. Peter A. Torrice on June 3, 2010 at 4:08 pm said:

   This is not the first time the lawyers at Canu Torrice Law have had complaints from clients for getting pulled over by Eastpointe police for some minor traffic violation as a pretext for a search of a person and their vehicle. Thankfully there are legal remedies for this time of police misconduct that can result in a dismissal of your case even if something illegal like drugs are found.

   Without writing a 20 page brief on the protections of the 4th Ammendment and the case law addressing warrantless searches and seizures of automobiles, generally a police office may NOT perform a search of your person or vehicle as part of a normal traffic stop like for for speeding, rolling through a stop sign, running a red light, obtructed vision for having an air freshener in your rear view mirror (which is about the weakest traffic ticket I can imagine), or any other mere civil infraction. Rather, a police office must have a reasonable suspicion or probable cause to believe that a crime was committed, or it must be a search incident to your actual arrest for a crime – and even then such a seach is subject to many limitations. Violations of the 4th Ammendment generally require the supression of all evidence obtained by the court, which usually means a dismissal of the case.

   Although we do not have a police report to review in this situation (and many times with a traffic ticket alone there is never a police report generated), based on your version of the facts in this case, the Eastpointe police did not appear to have a reason to search your or your vehicle because merely having an air freshener in your rear view mirror is not a crime (and arguably is not “obstructed vision” either – but they write tickets for this all the time). So unless you consented to the search of your person or your vehicle (meaning the cop asked if he could search you or the car and you said “yes”), this seems like an illegal search and seizure without a doubt. The question then becomes what is the remedy in your case?

   Can you sue for a civil rights violation? Perhaps, but there are really no damages in your case unless your car was trashed or destroyed, and there also exists the protections of governmental immunity where police officers and other agents of the government are “immune” and protected for being sued for actions performed in the scope of their employment – even negligent acts. In fact, now government agents can only be sued for “gross negligence” which is defined bystatute as conduct so reckless as to demonstrate a substantial lack of concern whether injury would result. What does that mean? Yeah, good question – that’s for a judge or jury to decide.

   Regarding the traffic ticket that was issued to you, since there is no subsequent criminal offense that you are being charged with aside from the traffic ticket for obstructed vision itself, there is really no way to have the charged dismissed because of the illegal search. For example, if the Eastpointe police discovered marijuana, heroin, cocaine, or an illegal firearm in your vehicle as a result of the alleged unlawful search, then the remedy would be to supress the evidence discovered if the search was found to be illegal and your case would be dismissed. This is not the case in your situation, so although the search was unnesessary, unjustified and illegal, it will still not require the initial civil infraction for obstructed vision to be dismissed. That must be challenged at a formal hearing in the 38th Judicial Court in Eastpointe. The People (prosecutor/city attorney) must prove at a hearing by a preponderance of the evidence that you were “responsible” for this civil infraction. The burden of proof is NOT “beyond a reasonable doubt” as it is in criminal cases, so therefore proving your responsibility for a traffic ticket is much easier for the prosecution.

   The good news is Judge Carl Gerds is one of the best District Court Judges in the State of Michigan, and is extremely fair and open minded. The attorneys at Canu Torrice Law supported Judge Gerds in his campaign when he was elected, and we are happy we did. He has always treated our law firm and our clients fairly, and if there is a defense to your case, he will entertain it, unlike other Judges who simply find everyone responsible of a traffic offense if the officer appears in court.

   The other good news is we have a extremely strong professional relationship with all the city attonneys and prosecutors in Eastpointe, and if the case is weak, we may be able to have the citation dismissed without the need to even have a formal hearing.

   If you would like to discuss this matter further, or retain our office to challenge this citation, contact us anytime for a free consultation at (586) 285-1700.

   Thanks for your question to http://www.AllLegalMatters.com.

   PETER A. TORRICE
   Canu Torrice Law
   (586) 285-1700
   http://www.AllLegalMatters.com

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