This case presents an important and long-standing issue of whether a motor vehicle is subject to a police stop under the Fourth and Fourteenth Amendments when the stop is predicated solely upon "tinted" windows.
On January 27, 1986, at 10:30 a.m., a New Jersey state trooper observed a 1973 Buick, bearing New York tags, traveling east on Route 40 in Carneys Point Township, Salem County. The trooper observed tinted windows on the vehicle, so he stopped it at milepost 1. While explaining to the driver and sole occupant, defendant Larry Harrison, that the only reason for the stop was the tinted windows, and demanded his credentials, the trooper observed a black bag in the rear passenger compartment with the butt of a revolver protruding from it. Harrison was ordered to exit the vehicle. The trooper then entered it and removed a .38 caliber revolver from the bag. The driver was charged with violating N.J.S.A. 2C:39-5b for having in his possession a handgun without first having obtained a permit to carry the same. He was also issued a motor vehicle warning for tinted windows in violation of N.J.S.A. 39:3-74. Defendant moves to suppress the evidence seized on the ground that the initial stop of the vehicle was illegal, because it violated the standards in Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), for allowable motor vehicle stops.
The United States Supreme Court has held that:
except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. Id., 440 U.S. at 663, 99 S. Ct. at 1401, 59 L. Ed. 2d at 673.
The sole issue to be determined at the suppression hearing is whether tinted windows on a motor vehicle constitute an articulable and reasonable suspicion that the vehicle is
subject to seizure for violation of the law. This court finds that it does not.
N.J.S.A. 39:3-74 provides, in pertinent part, as follows:
No person shall drive any motor vehicle with any sign, poster, 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 plain meaning of N.J.S.A. 39:3-74 is to prohibit the operation of motor vehicles which have non-transparent material attached to window glass that would interfere with the driver's vision. The statute, in pertinent part, prohibits one from driving a vehicle that has attached to its window signs, posters, stickers or other non-transparent material. The statute does not expressly or impliedly prohibit materials that are transparent or that restrict the ability to see into the vehicle. It only prohibits the use of non-transparent material when it interferes with the driver's vision out of the vehicle. The term "transparent" means having the quality of transmitting light without appreciable scattering so that bodies lying beyond are entirely visible. Webster's Collegiate Dictionary (7 ed). Conversely, non-transparent means lacking the quality of transmitting light so that bodies lying beyond are either invisible or unrecognizable. Tinted windows are not a non-transparent material within the dictionary definition of the term.
N.J.S.A. 39:3-74 was enacted in 1921, and has not been amended since 1937. Since tinted window technology was not developed until some years thereafter, the Legislature could have simply amended N.J.S.A. 39:3-74 to specifically include tinted windows within the proscription of the statute if it was the intention of the Legislature to prohibit tinted windows. Before penal sanctions can apply, the proscribed conduct must be clearly within the purview of the statute. Any doubts ...