by Anthony W. Accurso

The Supreme Court of New Jersey ruled that police lacked reasonable suspicion of a window tint violation justifying a traffic stop in which a loaded handgun was recovered where police could see through the tinted rear windshield sufficiently to determine there was a single occupant attempting to conceal an item, and thus, the evidence obtained during the traffic stop must be suppressed.

Just after 10:20 p.m. on one evening in November 2018, four detectives in the Trenton Street Crimes Unit were patrolling in an area characterized as a “high drug area” and a “high weapons-related offenses area.” They pulled up behind a Ford Taurus and initiated a traffic stop because the rear windshield was darkly tinted, yet it was transparent enough for at least one detective to allege that he observed the driver appear to conceal something between the driver seat and the center console.

Using his flashlight while approaching the vehicle on foot from behind, Detective Brieer Doggett could see a single occupant who was “shoving an object in between the driver’s seat and the center console.” Doggett approached the driver’s side window with his firearm drawn and ordered the defendant out of the vehicle. A search of the center console revealed a .38 caliber revolver loaded with hollow point cartridges.

In addition to being charged with several weapons-related charges, the driver, David L. Smith, was given a motor vehicle summons for a tinted windows violation.

Smith entered a motion to suppress the firearm arguing that N.J.S.A. 39:3-74 permits some tinting of a vehicle’s windows, meaning the detectives lacked the reasonable suspicion required to initiate a traffic stop. The motion was denied by the trial court, which read the statute as prohibiting any tinting.

Smith then entered a plea deal and filed an appeal on the suppression issue. The Appellate Division affirmed the denial of his suppression motion, ruling that an actual violation of N.J.S.A. 39:3-74 is not necessary as long as the officer believed there to be a violation. The state Supreme Court then certified the case for review.

Once the case was certified, the State requested a limited remand to allow the trial court to vacate Smith’s convictions and allow the charges to be dismissed. The Court permitted the remand but nevertheless proceeded to rule on the issue raised because it was “of sufficient public importance, likely to surface again, to warrant our deciding it, even in the absence of an actual controversy between the litigants.” Quoting State v. Kovack, 453 A.2d 521 (N.J. 1982).

The parties acknowledged that the detectives lacked a warrant to seize Smith (i.e., the traffic stop) and search his vehicle, and they further acknowledged that under both the U.S. and New Jersey Constitutions a traffic stop constitutes a seizure of the person, regardless of how brief or limited the stop may be. State v. Scriven, 140 A.3d 535 (N.J. 2016). In order to justify such a seizure without a warrant, “a police officer must have a reasonable and articulable suspicion that the driver of a vehicle, or its occupants, is committing a motor vehicle violation or a criminal or disorderly person’s offense.” Id. Such suspicion must be “particularized” and “may not be based on arbitrary police practices, the officer’s subjective good faith, or a mere hunch.” State v. Coles, 95 A.3d 136 (N.J. 2014).

The Court stated that determining reasonable suspicion requires a court to “assess whether the facts available to the officer at the moment of the seizure … warrant[ed] a [person] of reasonable caution in the belief that the action taken was appropriate.” State v Alessi, 223 A.3d 184 (N.J. 2020). If police lacked reasonable suspicion when initiating a traffic stop, the seizure is unlawful and evidence obtained as a result of “is subject to the exclusionary rule.” State v. Chisum, 200 A.3d 1279 (N.J. 2019).

Since the issue of whether police had reasonable suspicion to stop a vehicle based on an alleged window tinting violation depends on the governing statute, the Court examined the language of N.J.S.A. 39:3-74. If the language of the statute is clear and unambiguous, “then our interpretation process is over,” advised the Court. State v. Rodriguez, 207 A.3d 1269 (N.J. 2019).

N.J.S.A. 39:3-74 provides in pertinent part: “[n]o person shall drive any motor vehicle with any sign, poster, or other sticker or other non-transparent material upon the front windshield, wings, deflectors, side shields, corner lights adjoining windshield or front side windows of such vehicle other than a certificate or other article required to be so displayed by statute or by regulations of the commissioner. No person shall drive any vehicle so constructed, equipped or loaded as to unduly interfere with the driver’s vision to the front and to the sides.”

The Court noted that the law was first enacted in 1921 and last amended in 1937, so it predates the technology of window tinting. Yet it “has been consistently cited as the statutory basis for tinted window stops,” the Court stated. State v. Cohen, 790 A.2d 202 (N.J. Super. Ct. App. Div. 2002) (“N.J.S.A. 39:3-74 prohibits the use of tinted windows which fail to meet the applicable standard now set forth in N.J.A.C. 13:20-33.7,” which, at the time [but no longer applies to non-commercial vehicles], established inspection requirements for passenger vehicles.).

Turning to the present case, the Court referred to Doggett’s testimony at the suppression hearing that the only window he personally observed to be tinted at the time he initiated the traffic stop was the rear windshield. Because N.J.S.A. 39:3-74 applies only to non-transparent material on the front windshield and front side windows, tinting on the rear windshield could not possibly have supported a finding that Smith had violated N.J.S.A. 39:3-74 and thus couldn’t serve as the basis for a reasonable and articulable suspicion required to justify a traffic stop of Smith’s vehicle, the Court stated.

The State argued that other statutes could justify the traffic stop at issue, but after reviewing each statute proffered by the State, the Court rejected them all, concluding “no statute supports the stop at issue.” The Court similarly rejected the various administrative regulations put forth by the State as justifying the traffic stop. Thus, the Court held that “the initial stop of defendant’s vehicle was unconstitutional because no statutory or regulatory provision forms the basis for a reasonable and articulable suspicion that defendant committed a tinted windows violation.”

The Court rejected Smith’s challenge to the statute as unconstitutional for being impermissibly vague. In an effort to provide future guidance regarding N.J.S.A. 39:3-74, the Court held that the term “non-transparent” in the statute “means that reasonable suspicion of a tinted window violation arises when a vehicle’s front windshield or front side windows are so darkly tinted that police cannot clearly see people or articles within the car.”

The Court then explained that the facts of the current case do not meet the newly announced definition because Doggett testified that he was able to see through the rear windshield sufficiently to identify a single occupant who was attempting to conceal something.

Accordingly, the Court reversed the judgment of the Appellate Division. See: State v. Smith, 276 A.3d 1114 (N.J. 2002). 

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