On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 66-2000.
Before Judges Stern, Lintner and Parker.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 4, 2001
On December 29, 1999, at approximately 3:06 a.m., East Brunswick Police Officer Christopher J. Soke, while on patrol, observed defendant, operating a black Mitsubishi 2000, cross his lane of travel after making a left turn onto Tice's Lane. Soke noticed that the driver-side window was tinted black, preventing him from seeing inside the vehicle. Considering the tint to constitute a significant obstruction, Soke stopped the vehicle and then observed that the passenger-side window had the same extremely dark-black tint as did the driver-side window. From his observation of the windows, Soke's concluded that the tint which was applied to the windows was an after-market product. In response to a question by Soke, defendant acknowledged that he was aware that tinted driver and passenger-side windows were illegal. Soke also ascertained that defendant was under the influence, and issued summonses for driving while intoxicated (DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; and obstruction of windows, N.J.S.A. 39:3-74. *fn1
Defendant moved to suppress the evidence, contending that the stop was not legal. The municipal court judge denied defendant's motion, after which defendant entered a conditional plea of guilty to the DWI charge. Defendant was fined $250 and his driver's license was suspended for a period of six months. On a trial de novo appeal, a Law Division judge denied defendant's motion to suppress, finding that the stop was justified based upon the officer's reasonable belief that the tinted windows constituted a violation of a motor vehicle statute. Defendant raises the following point on appeal:
THE TINTED WINDOW ON DEFENDANT'S CAR DID NOT PROVIDE A REASONABLY OBJECTIVE BASIS UNDER5
THE FOURTH AMENDMENT FOR STOPPING DEFENDANT.
A. SINCE TINTED WINDOWS DO NOT VIOLATE NEW JERSEY LAW, THERE WAS NO OBJECTIVELY REASONABLE BASIS TO STOP DEFENDANT.
B. BECAUSE OFFICER SOKE DID NOT CHECK TO SEE IF DEFENDANT'S VEHICLE HAD A NEW JERSEY LICENSE PLATE, THERE WAS NO OBJECTIVELY REASONABLE BASIS TO STOP DEFENDANT.
Both the Fourth Amendment of the United States Constitution and Article I, paragraph 7, of the New Jersey Constitution protect citizens "against unreasonable searches and seizures . . . ." U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Reasonableness is the touchstone of the Fourth Amendment. State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 194 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Investigatory stops of automobiles are justified by a reduced expectation of privacy of an occupant of an automobile. United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S. Ct. 3074, 3084-85, 49 L. Ed. 2d 116, 1150 (1976). Generally, a police officer may stop a motor vehicle where there is a reasonable or articulable suspicion that a motor vehicle violation has occurred. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); State v. Carter, 235 N.J. Super. 232, 237 (App. Div. 1989); State v. Nugent, 125 N.J. Super. 528, 534 (App. Div. 1973); State v. Griffin, 84 N.J. Super. 508, 516 (App. Div. 1964).
The "community caretaking function" may also be implicated where something abnormal is observed concerning the operation of a motor vehicle. State v. Martinez, 260 N.J. Super. 75, 78 (App. Div. 1992). In Martinez, a motorist was observed traveling at less than ten miles per hour in a twenty-five mile an hour zone at 4:00 a.m. We observed in Martinez that such abnormal conduct suggests a number of objectively reasonable concerns: (a) something might be wrong with the car; (b) something might be wrong with its driver; (c) a traffic safety hazard is presented to drivers approaching from the rear when an abnormally slow moving vehicle is operated at night on a roadway, without flashers; (d) there is some risk that the residential neighborhood is being "cased" for targets of opportunity. Ibid. We also recognized that the first three concerns triggered the "community caretaking function," while the fourth implicated the "common-law right to inquire" based upon a founded suspicion that criminal activity might be afoot. Ibid.
Defendant points out that there is a split of authority in two published Law Division opinions, State v. Harrison, 236 N.J. Super. 69 (Law Div. 1989) and State v. Oberlton, 262 N.J. Super. 204 (Law Div. 1992), concerning whether N.J.S.A. 39:3-74, the amended charge for which defendant was initially stopped, prohibits the use of tinted windows and can form the basis for a proper stop. He contends that tinted windows are not a ...