The law of Rambo and air fresheners

Opinion Zone,David Horrigan

Our column two weeks ago about the Fourth Amendment has generated some discussion about just what will negate your Fourth Amendment protections and allow the cops to haul your posterior end to jail.  As a public service to help our readers remain free from bondage, we will, from time to time, present our Case of the Week: Fourth Amendment Follies edition.

This week’s helpful hint: Don’t use too much air freshener.

Druggies from Charlotte

Robert Little was traveling through the pleasant North Carolina hamlet of Thomasville early one August morning in 2008.  It might not have been any big deal, but it was 4:03 in the morning, and Mr. Little was driving an old Buick with a malfunctioning headlight.

Bonus reader helpful hint!  If you’re carrying contraband, don’t drive through a small Southern town at 4:03 in the morning in an old Buick with a busted headlight.  Bad things will happen.  At least wait until 5:00 when the first batch of doughnuts comes off the conveyor belt at the local Krispy Kreme.

Because Mr. Little didn’t get the memo on suspicious vehicles lurking through the Bible Belt during the wee hours of the morning, he got to meet Officer Adam Kallfelz of the Thomasville Police Dept.

Officer Kallfelz observed three things that made him decide it was time for back-up.

First was Mr. Little’s "nervous and agitated” demeanor.  Second, Mr. Little said he was traveling from Charlotte.  Finally, Mr. Little had approximately 10 “tree air fresheners” hanging from the rearview mirror.

Before we get to those pesky air fresheners, please allow us to defend the good people of Charlotte, North Carolina.  You’re a fine city with an economy built on good barbecue and Bank of America overdraft fees, and—unlike Office Kallfetz—we don’t think you’re a bunch of druggies.  We don’t think people should be stopped by the cops just because they’re coming from Charlotte.

But, back to those tree air fresheners.

Rambo Raid

A nervous dude driving from Charlotte with 10 air fresheners made Officer Kallfelz realize he needed a crime deterrent.

It was time for Rambo.

At 4:07 AM, Officer Kallfelz called Officer Christopher Leonard, asking him to bring his partner, Rambo.

Not unlike Sylvester Stallone searching swamps for sadistic Viet Kong alumni, Rambo, a drug dog, went over that old Buick like a frat boy going through sofa cushions looking for that last, lost joint.

Rambo signaled for the presence of narcotics in the Buick’s door, and Mr. Little was arrested for being a felon in possession of a firearm.

Mr. Little moved to suppress the evidence, arguing the search was illegal, but a trial court denied the motion, holding that the stop and the search were lawful.  Mr. Little appealed.

Air freshener jurisprudence

In his appeal to the North Carolina Court of Appeals, the Tar Heel State’s intermediate appellate court, Mr. Little argued in State v. Little that the search was improper because the cornucopia of air fresheners did not provide reasonable suspicion for extending the stop until Rambo arrived.

Unfortunately for Mr. Little, North Carolina has a proud tradition of air freshener jurisprudence.  They even go after Santa Claus if there’s air freshener involved.

In State v. Hernandez, the North Carolina Court of Appeals held a stop was proper when it was based, at least in part, on Christmas tree air fresheners.

In Hernandez, Trooper Jonathan Whitley of the North Carolina Highway Patrol stopped a vehicle when driver Jose Hernandez removed his seatbelt while still operating his vehicle.  Not unlike with Mr. Little’s arrest, air fresheners would help lead to Mr. Hernandez’s undoing.

“I noticed there were several of these Christmas trees, air fresheners in the vehicle. I noticed a strong odor coming from the vehicle,” Trooper Whitley testified in defending his actions.

Christmas tree air fresheners as a basis for detaining a motorist?  Well, the court upheld the stop, and the court in Little followed the court in Hernandez.

“Facts giving rise to a reasonable suspicion include nervousness, sweating, failing to make eye contact, conflicting statements, and strong odor of air freshener,” Judge Martha Geer wrote for the court in Little.

And, if you think North Carolina is the only state fighting the war on air freshener, you would be wrong.

In Commonwealth v. Watts, the Massachusetts Appeals Court held reasonable suspicion could be based, in part, on the presence of fabric softener drier sheets.

The federal courts have joined this attack on pleasant aromas as well.  In United States v. West, the Tenth Circuit proclaimed, “The Tenth Circuit has consistently held that the scent of air freshener is properly considered as a factor in the probable cause analysis,” and in the Eleventh Circuit held in United States v. Wright that evidence of a drug conspiracy existed “based partially on the fact that two persons ‘entered the Winn-Dixie together to purchase carpet freshener and fabric softener; materials known to be used to mask the odor of cocaine.’”

Many other federal circuits, including the Third, Fifth, Seventh, Eighth, and Ninth, have upheld convictions based, in part, on the presence of fabric softener, and in United States v. Edmonds, the Third Circuit upheld a trial court’s refusal to believe a drug mule was a mere unsuspecting courier.  Why?  She brought along a box of Bounce fabric softener sheets.

So, the lesson from this week’s Case of the Week: With a Mountain Fresh scent filling the air, your dorm hall monitor in college didn’t believe you then, and the cops don’t believe you now.  If you have contraband and notice Rambo sniffing your car, ditch the fabric softener…Bounce can get you busted.

David Horrigan is a Washington, DC, attorney, analyst at The 451 Group, editorial director at, and former staff reporter and assistant editor at The National Law Journal.  His articles have appeared also in Law Technology News, The American Lawyer, The New York Law Journal, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail:

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