Does having an air freshener hanging from your rear view mirror give the police probable cause to stop the vehicle?

We have all seen it – and probably done it. Hung an air freshener, or some sort of other object, from a rear view mirror. But, is hanging an object from the rear view mirror a violation of law which gives the police the right to make a motor vehicle stop? The answer is maybe, but probably yes.

The controlling statute is NY VTL § 375(30), which states:

“It shall be unlawful for any person to operate a motor vehicle with any object placed or hung in or upon the vehicle, except required or permitted equipment of the vehicle, in such a matter as to obstruct or interfere with the view of the operator through the windshield, or to prevent him from having a clear and full view of the road and conditions of traffic behind such vehicle.” 

Sounds clear enough, but what does it mean to “obstruct?” For that analysis, we look to case law. In People v. O’Hare, 73 A.D.3d 812 (2nd Dept. 2010), the court found that an air freshener hung from the dashboard did not obstruct because the air freshener was hanging at the dashboard level. In O’Hare defendant called and expert witness, an ophthalmologist, who testified that the air freshener’s string alone does not obstruct vision.

Contrast in People v. Singleton, 135 A.D.3d 1165 (3rd Dept. 2016), the court found that a hanging air freshener did obstruct the driver’s vision and therefore did give the police probable cause to stop the vehicle. However, In Singleton there was no mention as to how low the air freshener hung.

In People v. Harrington, 30 A.D.3d 1084 (4th Dept. 2006) the court held that probable cause for the stop for hanging air fresheners was justified because the state proved that the hanging air fresheners did in fact obstruct the view of the driver. See also, United States v. Smith, 80 F.3d 215 (US Court of Appeals, 7th Circuit, Illinois, 1996), holding that stopping a vehicle for a hanging air freshener, even as a pretextual stop, does not violate the US Constitution.

In Matter of Deveines v. NYS DMV, 136 A.D.3d 1383 (4th Dept. 2016) the court rejected the movant’s argument that there was no probable cause for the motor vehicle stop because:

“the officer had probable cause to believe that petitioner was violating Vehicle and Traffic Law § 375 (30) inasmuch as the officer testified that he observed objects measuring approximately four inches wide — later identified as air fresheners — hanging three or four inches below the rearview mirror, and that those objects may have obstructed petitioner’s view through the windshield.”

While only a minor equipment violation, it is important for a traffic ticket defense attorney to have a high legal and technical degree of knowledge as to what constitutes the violation of obstructed windshield, because the violation is usually the predicate for the stop and, when a vehicle is legally stopped any other evidence of a crime which is observed or developed is legally obtained and can form the basis for other, more serious charges. Should the initial stop based on obstructed windshield be deemed lacking probable cause, then all of the evidence so developed must be suppressed as fruit of the poisonous tree and the charges based on that evidence dismissed. It appears, when synthesizing these cases, that an object hanging from a rear-view mirror violates the statue if it can be proven that the object actually obstructed the diver’s vision.

If you or someone you know has been charged with a speeding ticket, moving violation, or automobile crime, I am sure that you have questions and concerns. I this is the case, don’t delay give us a call. Talking to people and answering their questions about their situation is what we do all day, every day, and we’d love to answer any questions that you may have!