By David Daggett
On August 31, 2018, the Court of Special Appeals published another Fourth Amendment case involving a stop based upon excessive window tint. While the good news is that the State won, I’m not exactly sure to what extent that we won.
The appellant, Ronald Baez, was indicted by the Grand Jury for Prince George’s County for possession with intent to distribute marijuana, possession of marijuana, possession of methamphetamine (MDMA), and two counts of possession of drug paraphernalia. On the day of trial, it was agreed by the parties that Baez would proceed upon a not guilty, agreed statement of facts to the charge of simple possession of marijuana. It was the defendant’s desire to litigate an issue regarding the lack of probable cause or reasonable suspicion for the officer to make the initial stop of the vehicle. Before ruling on the suppression motion, the Circuit Court heard the following statement of facts:
On May 29th, 2016, at approximately 2300 hours, officers were on patrol when they saw a black Dodge Charger with window tinting exceeding the Maryland state minimum pass through the intersection of Hybrid Avenue and Marlboro Pike. Officers then initiated a traffic stop and came into contact with the driver of the vehicle who later became known to them as Baez, who is seated to the left of counsel.
As the officer was speaking with the occupants of the vehicle, he could smell the odor of marijuana emanating from inside the vehicle. The officer asked Baez if there was any marijuana in the vehicle and the defendant said there was a legal* amount of about eight grams in the center counsel.
A search of the vehicle was subsequently conducted and the officers found, among other things, a black duffle bag containing approximately 747 grams** of marijuana. It was subsequently tested by the Prince George’s County Drug Lab and did test positive for marijuana. The defendant also had $1,745 on him. All events occurred in Prince George’s County, Maryland.
*Author’s Note: Perhaps Baez meant to say, “decriminalized amount”?
** Author’s Note: I guess it is entirely plausible that 747 grams of ganja could be mistaken for eight grams. Perhaps it had something to do with the conversion to the metric system? 747 grams is about one and 2/3 pounds. It would take Jeff Spicoli a long time to smoke one and 2/3 pounds of marijuana. Still, no doubt an honest mistake on the part of Mr. Baez. As for the cash, he probably rode a hot streak at the MGM National Harbor Casino.
The Court denied the defendant’s motion to suppress and found the defendant guilty and went along with the agreed sentence of one year of incarceration, with 364 days suspended, credit for time served, and eighteen months of unsupervised probation. No fruit basket. No apology.
Appearing before the Court of Special Appeals, the appellant made a very simple argument: That the police do not have the right to stop a vehicle based solely on a vehicle’s window tint unless the vehicle is registered in Maryland. The appellant conceded that the window tint was darker than allowed by Maryland law (see TR §22-406) as the tint on the Charger clearly did not allow a light transmittance through the window of at least 35%. His sole argument was that since the Charger was registered in Virginia and not in Maryland, that the vehicle need not be in compliance with §22-406.
The State countered that it really didn’t matter where the vehicle was registered because that fact did not impact the officer’s reasonable basis to stop the Charger. The State argued that reasonable suspicion existed for the traffic stop because the windows were overly dark and the officer believed them to be in violation of Maryland law.
The CoSA examined the validity of an automobile stop based solely on an officer’s belief that the vehicle’s windows were illegally tinted in violation of §22-406.
The Court began by reiterating what we all know, that is that a police officer may stop a vehicle when there is reasonable articulable suspicion that a motor vehicle violation has occurred. While prosecutors always prefer a stop based upon probable cause, nevertheless, reasonable articulable suspicion that a motor vehicle violation is occurring is all that is required.
In Maryland, a vehicle may lawfully have some degree of tinting on its windows. In the case of a passenger car or station wagon registered under TR §13-912, any after-market tinting must allow a light transmittance through the window of at least 35% and may be affixed to any window. For vehicles registered under TR §13-913 (For hire vehicles); §13-917 (Single unit Class E trucks not exceeding 7,000 lbs.); or §13-937 (Multi-purpose passenger vehicles) after-market tinting may only be affixed to the windows to the immediate right or left of the driver and must allow a light transmittance of at least 35%.
The CoSA also touched on TR §22-101(a)(1)(i) – Driving with improper equipment prohibited – which states that a person may not drive any vehicle that is in such unsafe condition as to endanger any person. More on that later.
The Court determined from the legislative history of the window tint statute that the primary purpose of the bill was to protect law enforcement officers who stop and approach a vehicle and cited United States v. Stanfield, 109 F.3d 976, 981-82 (4th Cir. 1997):
When, during already dangerous traffic stops, officers must approach vehicles whose occupants and interiors are blocked from view by tinted windows, the potential harm to which the officers are exposed increases exponentially, to the point, we believe, of unconscionability. Indeed, we can conceive of almost nothing more dangerous to a law enforcement officer in the context of a traffic stop than approaching an automobile whose passenger compartment is entirely hidden from the officer’s view by darkly tinted windows. As the officer exits his cruiser and proceeds toward the tinted-windowed vehicle, he has no way of knowing whether the vehicle’s driver is fumbling for his driver’s license or reaching for a gun; he does not know whether he is about to encounter a single law-abiding citizen or to be ambushed by a car-full of armed assailants. He literally does not even know whether a weapon has been trained on him from the moment the stop was initiated. As one officer put the obvious: “If the suspect has a weapon, I might not see it until he rolls down the window. He may just shoot me through the window.” If, as the Court has noted, officers face an “inordinate risk” every time they approach even a vehicle whose interior and passengers are fully visible to the officers, Pennsylvania v. Mimms, 434 U.S. at 110, the risk these officers face when they approach a vehicle with heavily tinted windows is, quite simply, intolerable. In fact, it is out of recognition of just such danger that at least twenty-eight states, including Maryland, have now enacted laws either regulating or altogether prohibiting the use of tinted windows on vehicles in their states
The Court noted that, to avoid any conflict with the inter-state commerce provisions of the United States Constitution, the Maryland Legislature limited the application of the window tint law to only those vehicles registered in Maryland.
So far, so good. My confusion stems from the remainder of the opinion, though in full disclosure, I am easily confused.
The Court of Special Appeals held that the stop was reasonable under the totality of the circumstances and that the officer had a right to make an investigatory stop based on the level of tint on Baez’ Charger. The Court stated, “that the vehicle was registered in Virginia did not preclude the police officer from stopping appellant’s vehicle to investigate further and to ascertain where the vehicle was registered.” Slip Opinion at 9
The Court reiterated that law enforcement need only have reasonable suspicion – not necessarily probable cause – to stop a vehicle on the highway in order to investigate further. The CoSA then cited Turkes v. State, 199 Md. App 96 (2011), which held that “a police officer may stop a vehicle when the officer can articulate, based on personal knowledge, a reasonable suspicion that a vehicle’s window tinting violates §22-406.” Id at 116. But Turkes involved a vehicle with Maryland registration.
My confusion stems from the following: If an officer sees an otherwise valid Virginia (or other out-of-state) plate; the tags are up to date; are not reported stolen; do not appear fraudulent or altered; and there is no other traffic violation or suspicion of impaired driving, then what is there for the officer to investigate?
The Court seems to be saying that as long as the officer can testify based upon his or her training, knowledge and experience that the windows on the vehicle exceed Maryland’s legal limits, then the vehicle may be stopped. The officer can then ask to see the registration to confirm that the tags actually belong to that vehicle. If so, then no citations may be issued for a violation of TR §22-406 but any additional observations may lead to further investigation. In Baez, it was the odor of marijuana.
The Court also briefly touched on the other basis for the stop put forth by the State regarding the general safety provision of TR §22-101(a)(1)(i) and cited Tucker v. United States, 708 A. 2d 645 (D.C. 1998). In Tucker, the Court of Appeals for the District of Columbia noted that overly tinted windows constitute a “safety issue for the general public as they can impair a driver’s vision and contribute to accidents of all kinds.” Id at 648. Because the COSA found the Baez stop lawful under the window tint statute, they declined to address the “general safety” issue.
I am also somewhat perplexed by footnote 3 on page five of the opinion. According to footnote 3, the record in this case reflects that the officer also stopped the appellant for speeding. Had the State included the speeding violation as another basis for the stop, I’d most likely be writing about something else.
While I still believe that most prosecutors would prefer to have another basis for a traffic stop rather than only a window tint violation, Baez seems to hold that regardless of the jurisdiction in which the vehicle is purportedly registered, if the officer believes the window tint exceeds that allowed by Maryland law, the vehicle is subject to being stopped and an investigation conducted. This still leaves the door open for at least two possible defense suppression issues: 1.) that the officer lacked the proper training, knowledge and experience to identify a window tint violation; and 2.) if there was no basis to suspect any improprieties with the registration (e.g. expired, fraudulent or stolen tags), then what is there to investigate? When it comes to the second issue, the Court of Special Appeals opinion in Baez is not 100% clear. Or perhaps it just isn’t clear to me.
AS ALWAYS, PLEASE CONSULT WITH YOUR LOCAL STATE’S ATTORNEYS’ OFFICE WITH ANY SPECIFIC QUESTIONS REGARDING THIS SUBJECT.