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Tinted window not grounds for detention

Tinted windows are not grounds for stopping a vehicle, unless the officer can demonstrate the ability to differentiate between legally and illegally tinted glass.

A Dec. 23 opinion by the Wisconsin Court of Appeals affirms a lower court’s suppression of heroin discovered after the stop of a vehicle with tinted rear windows.

Wis. Admin. Code Trans 305.32(5)(b) permits tinted car windows, but only if the tinting is part of the original manufacturing process, or if it permits at least 35 percent of the light to pass through.

Phillip Conaway and Craig Griffin were pulled over while exiting Interstate 90, based on a police officer’s observation that the rear windows were tinted. Conaway and Griffin moved to suppress heroin and drug paraphernalia discovered during the stop, arguing that the officer lacked reasonable suspicion for the stop.

Rock County Circuit Court Judge Michael J. Byron granted the motions, and the Court of Appeals affirmed, in an opinion by Judge Paul Lundsten.

The court acknowledged that no officer can tell with certainty whether any given tinted window violates the regulation. But the court disagreed that this is sufficient to create reasonable suspicion that a tinted window is unlawful.

The state offered several reasons why reasonable suspicion was present:

The officer had more than thirteen years of experience as a state trooper, which included training on use of a tint meter, a device that measures how much light passes through a window; he was aware of the 35 percent requirement; he had stopped between ten and one hundred vehicles for illegal window tint; and the defendants’ rear window “appeared to [have] dark window tint.”

However, the court found that none of the assertions supplied reasonable suspicion.

The court noted that the officer admitted that he could not differentiate between legally and illegally tinted glass.

The court concluded, “the fact that the officer had stopped numerous other vehicles for suspected window tint violations adds nothing. The officer did not testify whether his prior suspicions were ever verified by subsequent testing. So far as this record discloses, the officer might have a very poor track record.”

However, the court included the following guidance for courts in future cases as to what would constitute reasonable suspicion:

“[T]he officer need only reasonably suspect that the window violates the regulation. Focusing solely on the 35%-light-pass-through requirement, it would be enough, for example, if an officer testifies that he or she is familiar with how dark a minimally complying window appears and that the suspect window appeared similarly dark or darker, taking into account the circumstances of the viewing. Assuming, as we suggest above, that officers cannot tell by observation alone whether a window is precisely at the 35% standard, it follows that, if a window appears to be at about that standard, there is reasonable suspicion that it falls below the standard.”

In an interview, attorney Michael S. Murphy, who represented Griffin, said it is common for officers to use tinted windows as a pretense to search vehicles. Murphy said that the officer testified at the suppression hearing that he had no way to tell whether a window allowed 20 or 80 percent passage of light.

Murphy also noted that the officer in the case did not have a tintmeter on his person, with allows an on-site test of light passage to be conducted. Instead, Murphy said the practice in Rock County is that a citation is issued and the defendant has to go to the station for testing to prove the tinting is legal “until he gets pulled over again.”

Case analysis

The opinion is particularly significant in light of a recent published opinion from the Court of Appeals that upheld a traffic stop based on suspicion of illegally tinted windows. (State v. Bailey, 2009 WI App 140,773 N.W.2d 488.)

The defendant in Bailey raised a number of arguments against the legality of the stop, including that “no police officer could ever have a reasonable suspicion, based on observations with the naked eye, that tinted glass allows a prohibited percentage of light to pass through.”

However, the Court of Appeals in Bailey said the argument was conclusory and underdeveloped, and thus declined to review it.

In light of the opinion in the case at bar, though, defendants have a ready-made argument and precedent that a stop based on tinted windows is not supported by reasonable suspicion.

Had the court ruled otherwise, the effect would be that any tinted windows are presumptively illegal, and any officer could stop any vehicle with tinted windows.

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