I write this opinion in order to express my respectful disagreement with the opinion of another trial court in State v. Harrison, 236 N.J. Super. 69, 564 A.2d 128 (Law Div.1989) and therefore hold that tinted windows on a motor vehicle do give rise to an articulable and reasonable suspicion of a motor vehicle violation and therefore justify a police stop of the vehicle.
These are the facts. On March 1, 1992 a Camden City Police Officer pulled over a white Toyota occupied by the defendants because it had tinted material on the windshield. Neither the driver nor the passenger were able to produce a drivers license upon request. In addition, the last name of the registered owner was different from that of the driver and passenger.
The defendants were instructed to exit the car and were placed in the back of the patrol car while the officer was attempting to sort out the facts such as ownership of the vehicle and whether the unlicensed driver and passenger had a right to be in the vehicle. At the same time, the driver, Anthony Oberlton, was asked for permission to search the vehicle and was specifically advised of the fact that he need not consent to the search. Consent was obtained, and a subsequent search revealed a loaded .22 caliber handgun located below the passenger seat. The defendants were then arrested for possession of a handgun in violation of N.J.S.A. 2C:39-5(b) and have filed this motion to suppress.
Defendants rely upon State v. Harrison, supra in support of their contention that N.J.S.A. 39:3-74 does not expressly or
impliedly prohibit materials that are non-transparent or that restrict the ability to see into the vehicle. That statute 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."
It is true that the Harrison court held that that statute does not expressly or impliedly prohibit materials that are transparent or that restrict the ability to see into the vehicle and that that court held that tinted windows are not a nontransparent material within the dictionary definition of the term. Initially, since Harrison is an opinion of a trial court I am not required to follow it because I am not bound by a decision of a court of coordinate jurisdiction. See State v. Hudes, 128 N.J. Super. 589, 321 A.2d 275 (Cty.Ct. 1974) and State v. Mundy, 113 N.J. Super. 308, 273 A.2d 620 (Cty.Ct. 1970), aff'd 113 N.J. Super. 301, 273 A.2d 617 (App.Div.1971). More importantly, I respectfully disagree with the reasoning set forth in Harrison. While it is arguable that the statute does not apply to tinted windows, the Harrison court did not at all consider the applicability of the Administrative Code, specifically N.J.A.C. 13:20-33.6 which specifically prohibits the use of tinted materials that do not meet certain standards. That provision of the Administrative Code has been in effect since 1985, and applies to the material affixed to the windshields in this case.
Harrison, supra, also refers to the fact that the Federal Government has enacted regulations governing the use of tinted windows on motor vehicles, 49 C.F.R. 571.205, and that 15 U.S.C.A. § 1392(d) expressly provides for federal pre-emption of a conflicting state motor vehicle regulation. However, that section goes on to provide that "nothing in this section shall be construed as preventing any state from enforcing any safety standards which are identical to a Federal Safety Standard."
New Jersey standards do not conflict with the federal standards. In fact, they are virtually identical. Accordingly, it is my opinion that a motor vehicle stop based upon a police officer's Conclusion that the ...