State v. Williams

Annotate this Case

Download PDF

State v. Williams, No. 39, September Term 2007. Opinion by Wilner, J. A TRAFFIC STOP FOR A TINTING VIOLATION WILL BE UPHELD IF AN OFFICER S VISUAL OBSERVATIONS SUFFICE TO GIVE A REASONABLE ARTICULABLE SUSPICION THAT ONE OR MORE WINDOWS ARE IN COMPLIANCE WITH THE STATUTORY AND REGULATORY REQUIREMENTS AND THE OBSERVATIONS WERE IN THE CONTEXT OF WHAT A PROPERLY TINTED WINDOW WOULD LOOK LIKE. IN THE COURT OF A PPEALS OF MARYLAND No. 39 September Term, 2007 _______________________________________ STATE OF MARYLAND v. ARVEL D. WILLIAMS _______________________________________ Bell, C .J. Raker Harrell Battaglia Greene Wilner, Alan M. (Retired , Spe cially Assigned) Cathell, D ale R. (Retire d, Specially Assigned), JJ. ______________________________________ Opinion by Wilner, J. Harrell, Ba ttaglia and C athell, JJ., Dissen t. _______________________________________ Filed: October 19, 2007 1 In this prosecution of appellee for violations of the controlled dangerous substance laws, the Circuit Court for Harford County entered an order suppressing as evidence suspected cocaine an d marijuan a seized fro m appelle e s car follow ing a pretex tual traffic stop. The order was based on a finding that the seizure violated appellee s rights under the Fourth Amendment to the U.S. Constitution. Acting under Maryland Code, § 12302(c) of the Cts. & Jud. Proc. Article, the State appealed that decision. We granted certiorari before proceedings in the Court of Special Appeals and, on September 12, 2007, filed an Orde r affirming the order of the Circuit C ourt. We n ow exp lain the basis for our Order. BACKGROUND The facts regarding the stop came entirely from evidence presented at the hearing on appelle e s motion to suppress . We take th at evidence , and the infe rences fairly deducible from it, in a light mo st favorable to appellee, w ho prevailed on the m otion. In determining the ultimate question of whether the seizure of appellee effected by the stop and the su bsequen t search of h is car violated his rights und er the Fou rth Ame ndment, however, we must make our own independent constitutional appraisal by reviewing the law an d applyin g it to the facts of the case . Riddick v. S tate, 319 Md. 180, 183, 571 A.2d 1239, 12 40 (1990 ); Dashiell v. S tate, 374 Md. 85, 93 -94, 821 A.2d 3 72, 377 (2003). The stop was made by Harford County Deputy Sheriff Wood at about 12:40 a.m. on M ay 8, 200 6. Wh ile at the p recinct s tation pr ior to his comin g on du ty an hou r earlier, Deputy W ood wa s advised to be on the lo okout fo r a black M ercury Gran d Marq uis with a specific lice nse plate nu mber bec ause the ve hicle poss ibly was carrying C DS, an d to stop the car if he observe d a violation. The basis of th at suspicion is not in the record before us, but the State has not argued that it sufficed to provide any independent ground to justify a s top. While driving south o n I-95, W ood no ticed the car so d escribe d in fro nt of him . The driver, appellee, was not apparently violating any traffic laws. Wood followed the car for a half mile or so, and, when it exited the highway at the ramp to Md. Route 152, Wood stayed behind it. Just prior to exiting the highway, Wood radioed his dispatcher that he had the suspect car in sight. He received a response from a K-9 officer who was monitoring the communication. Appellee stopped at the end of the ramp for a red light, at which p oint Woo d s car wa s about ten to twelve fe et behind a ppellee s. A t that point, Wood informed the K-9 officer that he intended to stop the car, and, shortly after appellee made his turn when the light turned green, he did so. It does not appear from the record that Deputy Wood believed that he had any legitimate reason to stop the car until they approached the end of the exit ramp, at the traffic light. The intersection, Wood said, was well lit. At that point, he concluded that the rear window of appellee s car was darker than normal. He came to that conclusion because, based on his training and experience with the Sheriff s Office and traffic stops [he had] made, he should have been able to see into the car with the area so well lit, but -3- that he was unable to do so. His testimony in that regard was: Q. So norma lly, in a norm al vehicle, you would be able to see through the rear window, is that what you re saying? A. Yes. Q. So in this case, when you looked at the rear window, could you see through? A. No , I could not. (Emphasis add ed). Wood stated that the vehicle appeared to have tint that was after-market, i.e., that had been app lied after the car was ma nufactured and so ld. Wood kne w of a statutory requireme nt, discussed below, tha t after-mark et tinting mus t allow at least 3 5% of light to be transmitted through the window and stated that he had previously issued about twelve repair orders for tinting violations, but he acknowledged that he had never received any specific training with respect to tinting. Ra ther, he claimed that [i]f the off icer feels it s too dark, they can stop the car and issue a repair order. That, he said, w as the standard he applied: if the officer in their own opinion feels it s too dark, then you can stop the vehicle. Deputy Wood noted that there were instrum ents tint meters that could m easure whether a tint exceeds the statutory limit, but he was never trained in their use, did not know how to use them, and did not have one. He concluded that the rear window of appellee s car had excessive tinting for no reason other than it appeared dark to me. -4- Confirming his direct testimony, he acknowledged on cross-examination that he did not purport to determine whether the window appeared to be illegally tinted, but only whether it was other than what normal windows would appear, a car that did not have any kind of after-market tinting. (Emphasis added). He emphasized that standard several times: Q. Ok ay, but my point is: W hen you say ap peared da rk, is that in relationship to other tints, in other words, or just appeared dark, period? A. Appeared darker than a normal window, sir, without tinting. Q. Okay, and so let me get this straight. Your reason for stopping was not that it may have been the tint may have been illegal, but the window appeared darker than A. I knew there was tint on the window, sir. That s why I stopped th e vehicle. (Emphasis add ed). Wood also stated that he did not observe any kind of tags or inspection stickers on the window at that time. He explained that, when a person is issued a repair order for window tint and has it checked for compliance, a sticker is usually placed on the window saying that, you know, the certification was done or the test was done. Wood acknowledged that such a sticker would be attached after a repair order is issued. Upon stopping the car, Wood advised appellee that the stop was for a tint violation and that he would be issued a repair order. Wood returned to his car to do a license and warrant check. When the check revealed a valid license and no warrants, Wood prepared -5- an equipment repair order. At that point, the K-9 officer arrived, and, when the dog alerted for CDS, appellee s vehicle was searched. Suspected cocaine and marijuana was found, and appellee was arrested. Four days later, faced with the equipment repair order, appellee took the car to the State Police Autom otive Safe ty Enforcem ent Division , which fo und that the window s did allow 35% light transmittance and were therefore legal and would pass Maryland inspection laws. A certificate to that effect was placed in evidence. Appellee testified, without contradiction, that the windows were in the same condition at the time of inspection as they were at the time of the stop. On this evidence, and after hearing argument, the suppression court drew a distinction between suppressing the repair order and suppressing the CDS. As to the former, the court declared that [i]f you put after-market tinting on, the officer can make him go have it checked out. In essence, the court accepted the notion that it s his [the officer s] judgment and he can make him go to State Police. With respect to the CDS, however, the court regarded the issue as one of public policy, namely, that [w]hen you can t find anything else to stop the car for, [you should not] be able to stop him because the win dow tin ting app ears to b e too da rk, wh en, in fact, it s not too dark . (Emph asis added). The court explained: To me, it comes down to a matter of, you take your chances if you use that basis and it turns out you re not right. The evidence you seized gets suppressed. And then it takes away the incentive to use that line of reasoning. Seems to me as a -6- matter of public policy that if you re going to use window tinting as a basis to make a stop, and to do a K-9 scan, that you hav e to be rig ht on. On that ba sis, the court gr anted the m otion to sup press, and th e State filed th is appea l. DISCUSSION Tinting Req uirements The ultimate Fourth Amendment issue presented hinges largely on the Maryland law governing the tinting of vehicle windows, and that requires some explanation. There are Federal reg ulations ado pted by the N ational Hig hway Traf fic Admin istration of the U.S. De partment o f Transp ortation gov erning glaz ing materials (windows) used in motor vehicles. The Federal regulations adopt American National Standard Z26, which, in pertinent part, requires that windshields and front side windows installed in passenger cars by automobile manufacturers transmit at least 70% of the light striking them.1 See 49 C.F.R. § 571.205 and ANS Z26. The Federal regulation applies only to the win dows ins talled by the ma nufacture r, not to post-m anufactu re tinting, and it does n ot apply to rear w indow s of pa ssenge r cars. The post-manufacture tinting of motor vehicle windows, which is normally done through a plastic film or metallic lamin ate applied to the interior side of the win dow, is 1 The tec hnical te rm use d in the r egulatio n is visu al light tra nsmiss ion. -7- regulated largely at the State level, and the standard s vary from State to State. In Maryland, post-manufacture tinting is governed by statutes found in titles 22 and 23 of the Transportation Article of the Maryland Code, which deal with vehicle equipment and inspection, and regulations adopted jointly by the Motor Vehicle Administration (MVA) and the A utomotive Safety Enf orcemen t Division o f the State P olice (AS ED). W ith exceptions not relevant here, § 22-101 of the Transp. Article prohibits a person from driving on any h ighwa y a vehicle that is eq uipped in any ma nner in violatio n of title 2 2. Violatio n of § 2 2-101 constitu tes a mis deme anor. See Transp . Article, § 27-10 1(a). Subtitle 4 of title 22 establish es the require ments for certain kind s of vehicle equipme nt. Of spe cial relevanc e here is § 22 -406, wh ich govern s glazing m aterial in motor v ehicles. T he first p art of th at sectio n conc erns sh atter-pro of safe ty glass. Subsection (i) deals specifically with tinting. With an exception not relevant here, § 22406(i)(1)(i) prohibits a person from operating a passenger vehicle on a highway of the State if there is affixed to any window of the vehicle any tinting materials added to the window after manufacture of the vehicle that do not allow a light transmittance through the window of at least 35%. Section 22-406(i)(2) provides: If a police o fficer obse rves that a ve hicle is being operated in violation of paragraph (1) of this subsection, the officer may stop the driver of the vehicle and, in addition to a citation charging the driver w ith the offense, issue to the driver a safety equipment repair order in accordance with the provisio ns of § 23-10 5 of this article. -8- Two other statutes are pertinent, both in title 23, which deals with the inspection of vehicles. Section 23-104(a) provides, in relevant part, that every vehicle driven on the highways in this State must have glazing equipment meeting or exceeding the standards established jointly by the [MVA] and the [AS ED]. Section 23-104(b)(2) requires those agencies to adopt regulations consistent with Federal law for that kind of equipment, and they have done so. Section 23-105(a)(1), mirroring § 22-406(i)(2), provides that, [i]f a police officer observes that a vehicle registered in this State is being operated with any equipm ent that a pparen tly does no t meet th e stand ards esta blished under t his sub title . . . the officer s hall stop the d river of the v ehicle and is sue to him a safety equipm ent repair order. Such an order requires the owner of the vehicle to have the equipment corrected as necessary within 10 days. Section 22-406(i) establishing the 35% transmittance requirement was enacted in 1995. Four years earlier, MVA and ASED had jointly adopted a regulation dealing with po st-man ufactu re tinting . See 18:2 Md. Register 184, 186 (Jan. 25, 1991); 18:6 Md. Register 686 (Mar. 22, 1991). That regulation, in substantially the same form, remains in effe ct. See COMAR 11.14.02.14.2 The regu lation, which relates to the v ehicle 2 The bill enacting § 22-406(i) was the subject of considerable debate. Legislation dealing with po st-man ufactu re tinting had be en bef ore the G eneral A ssemb ly in 1994 . The 1995 bill initially would have prohibited post-manufacture tinting altogether. It was amended first to allow for tinting that would permit only 30% transmittance but ultimately was amended to impose a 35% transmittance requirement. As noted, the requirements in other States vary widely, some requiring, for rear passenger car windows, a 50% transm ittance, o thers pe rmitting a total blo ckage of light. -9- inspection program, is set forth in two columns, one entitled Procedures and the other entitled Reject Vehicle If. The Pro cedures c olumn d irects inspecto rs to inspect all g lass for tinting that is not incorporated into the glazing and states that, for passenger cars, [t]his type of added tinting is only acceptable if it meets six requirements: (1) it is not reflective; (2) it is not red, yellow, or amber in color; (3) when used in conjunction with the safety glazing the light transmittance is at least 35 percent ; (4) a label provided by the tinting material manufacturer ½ x 1-½ inches containing the manufacturer s name and the percentage of light transmittance is permanently installed in the . . . lower left of rear windows when viewed from the outside ; (5) the label is installed between the tinting and glazing materials ; and (6) the vehicle is equipped with an outside rearview mirror on each side. Con sistently, the Reje ct Vehicle I f colum n directs the in spector to reje ct a vehicle if [t]inting is not incorporated into the glazing except as noted in the procedures and as p ermitted by feder al law. The am algam of these statutes a nd the M VA-A SED re gulation is tha t (1) postmanufacture tinting is permissible provided that it allows at least 35% light transmittance and the other conditions set forth in the regulation, including the requirement that a label stating the percentage of light transmittance be permanently attached to the window between the glass and the tinting material, are satisfied, but (2) if a police officer observes a vehicle being driven on a highway that is not in compliance with those requirements, -10- the officer may stop the vehicle and issue both a citation for the traffic offense and a vehicle equipmen t repair order. The Appropriate Standard The stop at issue here was what is commonly referred to as a Whren stop. It is clear, and not really disputed, that Deputy Wood used what he believed to be a tinting violation as a pretext to stop the car in order to allow a backup K-9 officer time to arrive and scan the car for suspected CDS. In Whren v. United States, 517 U.S . 806, 116 S . Ct. 1769, 13 5 L. Ed. 2d 89 (1996 ), the Suprem e Court fo und no C onstitutional im pedimen t to such a pre textual stop, p rovided the officer ha s sufficient c ause to belie ve that the traf fic violatio n upon which the stop is, in fac t, based has occ urred. Citing Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979), the Whren Court acknowledged that even the temporary detention of an individual during the stop of an automobile constitutes a seizure of the person for Fourth Amendment purposes and that an automobile stop is therefore subject to the requirement that it not be unreasonable under the circumstances. The Court also confirme d that [a]s a general m atter, the decisio n to stop an automob ile is reasonab le where the police have probable cause to believe that a traffic violation has occurred. Whren, 517 U.S. at 809-810, 116 S. Ct. at 1772, 135 L. Ed. 2d at 95. When such probable cause exists, any ulterior motive of the officer is largely irrelevant: [s]ubjective -11- intentions play no role in ordinary, probable cause Fourth Amendment analysis. Id. at 813, 11 6 S. Ct. a t 1774, 1 35 L. E d. 2d at 9 8. See also Devenpeck v. Alford, 543 U.S. 146, 153, 125 S. Ct. 588, 594, 160 L. Ed. 2d 537, 545 (2004) (an officer s subjective reason for makin g the arrest ne ed not be th e criminal of fense as to which the known facts provide probable ca use ). In holding that, in a Whren pretextual stop, the police must have more than probable cause but must, instead, be proven right in their judgment that a traffic violation has occurred that you have to be right on or you lose your evidence as a result the suppression court created and enforced a Fourth Amendment standard wholly inconsistent with Whren, with both p re-and-po st Whren Fourth A mendm ent jurisprud ence, and with common sense. It is inconsistent with pre-Whren jurisprudence, in particular Delaware v. Prouse, supra, which co nfirmed th at probable cause (or a t least reasona ble articulable suspicio n, see infra) was the sta ndard of reasonab leness for a traffic stop. It is inconsistent with Whren, which b oth confirm ed that prob able cause would su ffice to justify any traffic stop, including a pretextual one, and made clear that the subjective motivation of the off icer was irrele vant. If a hig her standar d than pro bable cau se is imposed in a pretextual stop, the subjective motivation of the officer would not only be relevan t, but con trolling. The stand ard impos ed by the sup pression co urt defies log ic for two r easons: first, it judges the conduct of the officer based not on what was reasonably apparent at the time of -12- the stop but on facts that may not come to light until later, of which the officer could not have bee n aware; a nd secon d, it effectively ho lds the offic er to having proof of guilt beyond a rea sonable d oubt, wh ich has nev er been req uired to justify ev en a form al arrest, much less a tempora ry traffic stop. Fo r largely these rea sons, post-Whren decisions have uniformly rejected the notion that the validity of a Whren stop must be judged by whether the off icer s pe rception s are ultim ately prov ed corr ect. See Ciak v. State, 597 S.E.2d 392, 395-96 (G a. 2004); State v. Cohen, 790 A.2d 202 , 205 (N.J. Super. Ct. A pp. Div. 2002); United States v. Weaver, 145 Fed. Appx. 639 (11th Cir. 2005). Although it is clear that the standard employed by the suppression court, of absolute correctness, is not a valid one, there seems to be some imprecision as to what will justify a traffic stop wheth er the office r needs pro bable cau se to believe that a traffic offense has been committed or only a Terry v. O hio reasonab le articulable suspicion that such is the case. Courts, including the Supreme Court and this Court, have mentioned both of those standards in the context of traffic stops. The prevailing view among courts that have resolved that issue, and the view that we shall adopt, is that the appropriate minimum standard is reasonable articulable suspicion. In Delaware v. Prouse, supra, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660, the Court con sidered w hether a po lice officer v iolates the Fo urth Am endmen t by randomly stopping a car for the sole purpose of checking the operator s driver s license and the vehicle registration where there is neither probable cause to believe nor reasonab le -13- suspicion that the car is being driven contrary to the laws governing the operation of motor vehicles or that either the car or any of its occupants is subject to seizure or detention in connection with the violation of any other applicable law. Id. at 650, 99 S. Ct. at 13 94, 59 L . Ed. 2d at 665 ( Emph asis add ed). Throughout the Opinion, the Prouse Court m entioned b oth standar ds, although it seemed to accept the le sser reason able articulab le suspicion standard as the applicab le minimum. It observed at one point that the permissibility of a law enforcement technique is judged b y balancing its in trusion on F ourth Am endmen t rights agains t legitimate governmental interests an d that, when so imp lemented, the reasona bleness standard usually requires , at a minimu m, that the fa cts upon w hich an intru sion is based be capab le of measurem ent against an objective standa rd, whether this be probable cause or a less stringent test. Id. at 654, 99 S. Ct. at 1396 , 59 L. Ed. 2d at 668 (Emphasis add ed). It noted that reasonable suspicion was the test applicable to roving patrol stops by Border Patrol agen ts. Still later, it conclud ed that [w ]here there is n ot probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered, there was no legitimate basis upon which the officer could decide whether stopping a particular driver for a spot check would be any more p roduct ive than stoppin g any oth er drive r. Id. at 661, 99 S. Ct. at 1400, 59 L. Ed. 2d at 672 ( Emph asis add ed). -14- The ultimate holding of the Prouse Court w as that exc ept in those s ituations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an au tomobile is n ot registered, o r that either the v ehicle or an occupan t is otherwise subject to seizure for violation of law, stopping the vehicle merely to do a license o r registra tion che ck is un reason able un der the F ourth A mend ment. Id. at 663, 99 S. Ct. at 1401, 59 L. E d. 2d at 673 (Em phasis added). The language used b y the Court suggests tha t the lesser articu lable suspicio n standard is to be applie d to routine tra ffic stops althou gh, becau se the Cou rt ultimately foun d neither pro bable cau se nor articula ble suspicio n, it was unnec essary to re solve th at issue. Whren, though relying heavily on Delaware v. Prouse, spoke only in terms of probable cause. As noted, after confirming that even a temporary detention during a traffic stop constitutes a seizure for Fourth Amendment purposes and thus must be reasonable, the Court iterated that, [a]s a general matter, the decision to stop an automob ile is reasonab le where th e police hav e probab le cause to b elieve that a traf fic violation has occurred. Whren, 517 U .S. at 810 , 116 S. Ct. at 17 72, 135 L. Ed. 2 d at 95. That reference to probable cause, and others in the Whren Opinion, may be taken as mere truisms rather than the fixing of probable cause as a m inimum standard that where probable cause exists, the search or seizure is ordinarily regarded as reasonable especially since it w as conced ed that the o fficer had probable c ause to belie ve that a traffic violation had occurred and the issue was whether something more than that was -15- require d. Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998), decided two years after Whren, lends support to the notion that a routine traffic stop may be based on reas onable articulab le suspic ion. In th at case, th e offic er stopp ed a ca r for spe eding. Under Iowa law, the officer could have arrested the driver, but instead he merely issued a citation. As a search incident to the citation, however, he proceeded to search the car and discover CDS. It was admitted that there was no probable cause for the search; the only question was whether the Iowa law that permitted such a search as incident to the citation w as valid under t he Fou rth Am endm ent. A u nanim ous C ourt he ld that it w as not. In reaching that result, the C ourt noted th at the search incident to arr est exception to the warrant requirement rested, in part, on concerns for officer safety but that the threat to officer safety from issuing a traffic citation was much less than that arising from a formal arrest. In that regard, quoting in part from Berkem er v. McC arty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317, 334 (1984), the Court concluded that [a] routine traffic stop, on the othe r hand, is a relatively brief encounter and is m ore analogous to a so-called Terry stop . . . than to a formal arrest. Knowles, 525 U.S. at 117, 119 S. Ct. at 488, 142 L. Ed. 2d at 498. The Court quickly added the caveat that concern for office r safety was not entirely absent in a traffic stop, and tha t, under Terry principles, the officer could order the driver and passengers out of the car, perform a patdown of a driver and any passengers upon reasonable suspicion that they may be -16- armed and dangerous, and conduct a Terry patdown of the passenger compartment of a vehicle up on reason able suspic ion that an o ccupant is d angerou s and ma y gain immediate control of a weapon. Id. at 117-18, 119 S. Ct. at 488, 142 L. Ed. 2d at 498. This Court has mentioned both standards in terms of traffic stops. In Ferris v. State, 355 Md. 356, 369, 735 A.2d 491, 497-98 (1999), citing Whren, we conc luded that a traffic stop does not in itially violate the fed eral Cons titution if the po lice have pr obable cause to believe that the driver has committed a traffic violation. We iterated that standard in State v. Green, 375 Md. 595, 609, 826 A.2d 486, 494 (2003) ( when a police officer has probable cause to believe that a driver has broken a traffic law, the officer may detain the driver temporarily ). In Rowe v . State, 363 Md. 424, 433, 769 A.2d 879, 884 (2001), however, though repeating that precept, we added that [a] traffic stop may also be constitutionally permissible where the officer has a reasonable belief that criminal activity is afoot, citing Terry. Immediately following that statement, we cited Delaware v. Prouse for the proposition that the Fourth Amendment is violated when there is neither probable cause nor reasonable suspi cion to be lieve that t he ca r is be ing d riven unlawfully. Most of the courts that have chosen, or been required, to determine which of those standards applies to a routine traffic stop, including a Whren stop, have h eld that prob able cause is not ordinarily require d and that a stop is justified u nder the F ourth Am endmen t if the off icer had a reaso nable a rticulab le suspic ion that a traffic la w has been v iolated. See United States v. Callarman, 273 F.3d 1284, 1287 (10th Cir. 2001) ( While e ither probab le -17- cause or reasonable suspicion is sufficient to justify a traffic stop, only the lesser requireme nt of reaso nable susp icion is nece ssary ); United States v. Sanchez-Pena, 336 F.3d 431 (5 th Cir. 2003) ; United Sta tes v. Hill, 195 F.3d 258, 26 4 (6 th Cir. 1999) ; United States v. Navarette-Barron, 192 F.3d 786, 79 0 (8 th Cir. 1999) ; United States v. LopezSoto, 205 F.3d 1101 (9 th Cir. 2000) ; United States v. Chanthasouxat, 342 F.3d 1271 (11th Cir. 2003) ; State v. Chavez, 668 N.W .2d 89 (S.D . 2003); State v. Bohannon, 74 P.3d 980 (Haw. 2003); and cf. State v. Crawford, 67 P.3d 115 (K an. 2003). We believe that is the appropriate test for an initial traffic stop, including a Whren stop. The re ferences to probable c ause in som e of the Su preme C ourt cases a nd this Court s cases, we think, are in the context of simply noting the obvious that if the officer has probable c ause, the stop is reasonab le and no t as an indica tion that prob able cause is the minimum standard for such a stop. This Case The question, then, is whether, based on the evidence presented at the suppression hearing, Deputy Wood had a reasonable articulable suspicion that the rear window of appellee s car exceeded the level of tinting permitted by Transp. Art. § 22-406(i), as supplemented by COMAR 11.14.02.14, and thus also violated Transp. Art. § 22-101. We have recounted that evidence, and we conclude that it did not suffice to g ive Depu ty Wood that level of reasonable suspicion. -18- The State cites a number of out-of-State cases in which stops for tinting violations were upheld based on the officer s visual observations, without the benefit of tint meter field tes ts. See United States v. Weaver, supra, 145 Fed. Appx. 639 (11th Cir. 2005); United States v. Wallace, 213 F.3d 1216 (9 th Cir. 200 0), cert. denied, 531 U.S. 974, 121 S. Ct. 418, 148 L. Ed. 2d 323 (2000); Ciak v. State, supra, 597 S.E.2 d 392 (G a. 2004); State v. Moore, 791 So. 2d 124 6 (Fla. Dist. Ct. App. 200 1) Although those cases are distinguishable on their facts, we do not disagree that an officer s observations may be the basis for su ch a stop, if th ose observ ations truly suffic e to give a re asonable a rticulable suspicion that one or more windows are not in compliance with the statutory and regulato ry require ments. The problem here is not just the absence of any objective measurement of the tinting, which, under current technology, may well be unfeasible prior to a stop. It is, rather, that, in no ting that app ellee s rear w indow w as darker th an norm al, Depu ty Wood was com paring the d arkness of the rear win dow to a window without any tinting. Obviously, a tinted window is going to appear darker than a window without any tinting, especially at night; that is the natural effect of tinting. The law permits a substantial tinting, h owev er sub stantial e nough to block out 65% of the lig ht strikin g the w indow . The test urged by the State, and applied by Deputy Wood, would allow police officers to stop any car with any tinted window, simply because it appears darker than an untinted w indow, an d that cann ot be the test f or Fourth A mendm ent purpo ses, for it -19- would effectively strip away Fourth Amendment protection for any person driving or owning a car with tinted windows. If an officer chooses to stop a car for a tinting violation based solely on the officer s visual observation of the window, that observation has to be in the context of what a properly tinted window, compliant with the 35% requirement, wou ld look like. If the officer can cred ibly articulate that difference, a court could find reasonable articulable suspicion, but not otherwise.3 Chief Ju dge Bell a nd Judge Greene c oncur ge nerally in this Op inion but w ould 3 There are two other aspects no t argued in th is case but w hich may be relevant to stops for tinting violations. First, the issue here is only the validity of the pretextual stop, not the equ ipment rep air order or th e indictmen t for the CD S violations . As presen ted in both the Circuit Court and this Court, the validity of the stop depends on the application of Fourth Amendment jurisprudence, and, as to that, we have concluded that the proper standard is reasonable articulable suspicion. Appellee has not argued that some higher standard is re quired un der Ma ryland law. W e do note, h oweve r, that, to justify actually charging a person with a motor vehicle violation, Maryland law requires that the officer have p robabl e cause to believ e that the person has com mitted th e violatio n. See Maryland Code , § 26-2 01(a) o f the T ransp. A rticle. Second, as noted, COMAR 11.14.02.14 requires, for post-manufacture tinting, that a label, ½ x 1-½ inches, denoting, among other things, the percentage of light transmittable, be permanently attached to the window, between the glass and the tinting film or lam inate. If an of ficer stops a c ar based so lely on a conclu sion, derived from his or her visual observations of the darkness of the window, that a tinted window is noncompliant with the 35% light transmission requirement, one easy preliminary step, before proceeding further, is to check the window to see if such a label is present, for if it is and (1) it shows that the window is compliant with the 35% requirement, and (2) there is no reason to suspect that the label is not genuine, any suspicion that arose from the visual observatio n would likely disappear . In that even t, the officer w ould be ob liged to apologize to the motorist and allow him or her to leave without further detention. On the other hand, if there is no label or the label appears not to be genuine, that alone may justify a citation under § 22-101 or § 23-105(a), a repair order, and some further investigation. -20- hold that, w hen cond ucting a pre textual Whren stop, the officer must have probable cause, rather than mere reasonable articulable suspicion, to believe that the violation offered as the basis for the stop exists. -21- IN THE COURT OF APPEALS OF MARYLAND No. 39 September Term, 2007 STATE OF MARYLAND v. ARVEL D. WILLIAMS Bell, C.J. Raker Harrell Battaglia Greene Wilner, Alan M. (Retired, Specially Assigned) Cathell, Dale R. (Retired, Specially Assigned), JJ. Dissen ting Op inion b y Battaglia , J., which Harrell and Cathell, JJ., join. Filed: October 19, 2007 I respectfully diss ent. While I ag ree with the majority that reaso nable articulable suspicion would suppo rt a traffic stop as well as a Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) pretextual stop,1 I disagree tha t the traffic stop at iss ue w as no t sup ported by a reasonable articulable suspicion. The evidence adduced at the suppression hearing was that after midnight on May 8, 2006, Deputy Wood, while patrolling Interstate 95 in Harford County, observed Williams vehicle. Deputy Wood followed Williams car as Williams proceeded to exit I-95 onto the Route 152 ramp. At the end of the exit ram p, Depu ty Wood stopped his police car 10 or 12 feet behind Williams car; Deputy Wood described the well lit intersection as almost like daytime because o f the illumina tion provided by the street lam ps. At that po int, Deputy Wood noticed that the back window of Williams car appeared dark, and that he could not see through the rear w indow into the car: [STAT E]: Did you notice anything about the windows of the vehicle at that time? [DEPUTY WOOD]: At that time I noticed the back window of the vehicle a ppeared to be a little darke r than norm al. [STATE]: Why did that draw your attention? [DEPUTY WOOD ]: Just based on my training and experience with the Sheriff s Office and traffic stops I ve made, I noticed that the vehicle appeared to have tint tha t wasn t -- it appeared to be after-m arket. [STAT E]: Usually when you observe the vehicle from the rear, 1 From the transcript, it appears that the suppression court did not conclude that the stop itself was pretextual, but found on the basis of public policy that the controlled dangerous substances seized should be suppressed because any officer is going to say Looks a little dark to me, and pull the vehicle over and search it. in terms of whethe r you can see through the w indow, wha t s been your experience as far as what you can see? [DEPUTY WOOD]: Due to the fact that that intersection is very well lit, there s multiple street lamps in that area, just due to my training, knowledge, and experience, I ve been able to see into the vehicle. A t that point in tim e, I could no t. [STAT E]: So norm ally, in a normal v ehicle, you w ould be ab le to see through the rear window, is that what you re saying? [DEPUT Y WOO D]: Yes. [STAT E]: So in this case, when you looked at the rear window, could you see through? [DEP UTY WOO D]: No, I c ould not. Deputy Wood also noticed that there were no stickers or labels on Williams rear window indicating that the window was compliant with Maryland law:2 [STAT E]: Did you observe any kind of tags or inspection stickers on the window at that time? [DEP UTY WOO D]: No, I c ould not. [STAT E]: When you say insp ection s tickers, are inspection stickers issued for window tinting? [DEPUTY WOO D]: Wh en a subjec t is issued a rep air order for their window tint and they hav e it checked out by the State Police and the MVA, a sticker is usually placed on the window saying that, you know, the certification was done or the test was done. [STAT E]: So th at no rmally happens after a repa ir order is issued? [DEPUT Y WOO D]: Yes. [STAT E]: But you didn t see a sticker on the window at that time? [DEP UTY WOO D]: No, I d id not. Deputy Wood then stopped Williams car to issue an equipment repair order for the window 2 See State v. Williams, __ Md. __, __ A.2d __ (2007), slip. op. at 18 n.3 ( COMAR 11.14.02.14 requires, for post-manfacture tinting, that a label, ½ x 1-½ inches, containing, among other things, the percentage of light transmittable, be permanently attached to the window, between the glass and the tinting film or laminate. ). -2- tinting and subsequently seized controlled dangerous substances. Based upon the suppression hearing testim ony, the circuit co urt granted W illiams motio n to suppress. The majority states because Deputy Wood testified that th e windo w was d arker than n ormal, rather than darker than that allowed by law, that the Deputy s testimony did not establish reasonable articulable suspicion. Other courts face d with the s ame testim ony that a vehicle s window tinting w as dark and the officer could not see into the vehicle found grounds for a stop sufficient to satisfy even a higher standard, that of probable cause. In United States v. Wallace, 213 F.3d 1216, 1220 (9th Cir. 2000), the United States Court of Appeals for the Ninth Circuit concluded that an officer had probable cause to stop a car based upon his testimony that [t]he window tinting on the front two windows, even during the daylight hours, was a heavy tint where the occupant inside was at a harder degree to look [sic] into the vehicle. Although the officer misstated the applicable law regarding window tinting and failed to mention the 70 percent light transmission requirement of the California Vehicle Code,3 the Court ruled that the 3 The California Vehicle Code Section 26708 (d) (1998), provided in part: [A] clear, colorless, and transparent material may be installed, affixed, or applied to the front side windows, located to the immediate left and right of the front seat if the following conditions are met *** (2) The window glazing with the material applied meets all requirements of Federal Motor Vehicle Safety Standard No. 205 (49 C.F.R. 571.205), including the specified minimum light -3- officer s observations established that there existed objective, probable cause to believe that [the] windo ws w ere, in fa ct, in viol ation. Id. at 1220. See also Unite d States v. H arrell, 268 F.3d 141, 149 (2d Cir. 2001) (stating that police of ficer s testimo ny that he cou ld not see into the back of th e car becau se its side and rear wind ows w ere tinted pro vided pro bable cause to support the traffic stop a nd noting that despite the officer s testimony that he did not observe a traffic violation, the testimony would have led an objectively reasonable police officer to suspect that the w indows we re in violation of the law). Further, in People v. Hanes, 72 Cal. Rptr. 2d 212 (C al. App. 1997), the cou rt concluded that an officer had reasonable articulable suspicion to stop a black car based upon his testimony that the front right window was so black that it kind of matched the color of the car and that he was unable to see th e occu pants o f the ve hicle. Id. at 213-14.4 See also State v. Wy att, 775 So.2 d 481, 483 (La. Ct. App. 2000) (noting that a traffic stop was justified based upon a police officer s testimony that a car s w indows were tinted so darkly that it was impossible to see inside the car ); State v. Taylor, 683 N.E.2d 367, 369-70 (Ohio App. 1996) (co ncluding th at officer s te stimony that w indow tin ting appea red exce ptionally transmittance of 70 percent and the abrasion resistance of AS-14 glazing, as specified in that federal standard. 4 The California Vehicle Code Section 26708 (a) (1996), stated in part that with certain exceptions, [n]o person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied upon the windshield or side or rear windows and that [n]o person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle which obstructs or reduces the driver s clear view through the windshield or side windows. -4- dark, such that he could not see into the vehicle even w ith the police c ruiser head lights shining directly on the vehicle, provided reasonable articulable suspicion to conduct the traffic stop). Moreover, the majority fails to discuss the fact that Deputy Wood testified at the suppression hearing that he did not see any sticker or label on Williams rear window. The majority recognizes that COMAR 11.14.02.14 requires, for post-manufacture tinting, that a label, ½ x 1-½ inches, containing, among other things, the percentage of light transmittable, be permanently attached to the window, betwe en the g lass and the tintin g film o r lamina te. State v. Williams, __ Md. __, __ A.2d __ (2007), slip. op. at 18 n.3. If an officer does not observe such a label or sticker, that alone c ould ju stify a traff ic stop. State v. Williams, __ Md. __, __ A.2d __ (2007), slip. op. at 18 n.3. The record in this case only supports the Deputy s testimony that the label was not on the car at the time of the stop: Deputy Wood testified that he did not see any sticker on Williams rear window at the time of the stop; Williams took the stand a nd did not offer an y testimony regarding the window sticker. Deputy Wood had reaso nable articulable suspicion to justify his traffic stop. By holding as it does, the majority imperm issibly restricts the po lice s ability to conduct a traffic stop based upon tinting violations. I disagree and would reverse the order of the Circuit Cou rt for Ha rfor d Co unty. Judges Harrell and Cathell have authorized me to state that they join in the views expres sed in th is dissen ting op inion. -5-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.