Tinted Windows and Automobile Stops

State v. Smith, 251 N.J. 244 (2022). Here is how Justice Solomon began his opinion for a unanimous Court in this case today:

“N.J.S.A. 39:3-74 prohibits operation of a vehicle with any ‘non-transparent material’ on the front windshield or front side windows. Although the statute predates automotive window tinting, it commonly serves as the statutory basis for tinted window citations. See State v. Cohen, 347 N.J. Super. 375, 379-81 (App. Div. 2002). In this appeal, the Court considers whether a purported violation of N.J.S.A. 39:3-74 based on tinted windows justified an investigatory stop of a motor vehicle.

“Trenton detectives stopped defendant David Smith’s motor vehicle for a purported tinted windows violation after the detectives observed dark tinting on defendant’s rear windshield. Despite the rear windshield’s tint, the detectives were able to see that defendant was alone in the car and was making a furtive ‘shoving’ motion, raising suspicions that he was trying to conceal a weapon. When the detectives searched the vehicle, they found a firearm. The detectives cited defendant for a tinted windows violation and charged him with various weapons offenses. Defendant moved to suppress the firearm, arguing that the motor vehicle stop was unlawful because the detectives could not have had a reasonable and articulable suspicion that the tinting on defendant’s rear windshield violated N.J.S.A. 39:3-74.

“The trial court denied defendant’s motion, concluding that the car stop was supported by a reasonable suspicion of a tinted windows violation pursuant to adjacent statute N.J.S.A. 39:3-75. Defendant subsequently pled guilty to second-degree unlawful possession of a handgun pursuant to a plea agreement with the State and was sentenced in accordance with the State’s recommendation. The Appellate Division later affirmed the denial of defendant’s motion to suppress.”

Defendant obtained Supreme Court review, and today the Court reversed the ruling on his suppression motion. The Court held that “reasonable and articulable suspicion of a tinted windows violation arises only when a vehicle’s front windshield or front side windows are so darkly tinted that police cannot clearly see people or articles within the car.”

N.J.S.A. 39:3-74 provides that “[n]o 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.” As Justice Solomon observed, the evidence here “establishe[d] only that the arresting officers observed window tint on the rear windshield of defendant’s vehicle. Under the statute’s plain language, the tint on defendant’s rear windshield could not constitute a violation of N.J.S.A. 39:3-74. It did not give rise to the reasonable and articulable suspicion necessary to justify this motor vehicle stop.”

Justice Solomon then turned to N.J.S.A. 39:3-75, on which both the Law Division and the Appellate Division had relied. “Entitled ‘Safety glass,’ N.J.S.A. 39:3-75 prohibits the use of ‘safety glazing material which causes undue or unsafe distortion of visibility or . . . unduly fractured, discolored or deteriorated safety glazing material’ on any of a vehicle’s windows. The provision expressly refers to ‘safety glazing material,’ which is defined as (1) ‘glass so treated or combined with other materials as to reduce . . . the likelihood of injury to persons by objects from exterior sources or by glass when the glass is cracked or broken,’ or (2) ‘other glazing materials, such as plastics, produced for the purpose of safety in glazing; or a combination of safety glass and other safety glazing material.’” This plain language “indicates that it is concerned solely with the quality and maintenance of such safety glazing material, not aftermarket tinted window film.” Indeed, the State conceded that section 75 was inapplicable.

Nor did any regulation apply here. “N.J.A.C. 13:20-33.7 contains two paragraphs — (d) and (g) — that set forth standards for tinted windows, but neither justifies the stop here. N.J.A.C. 13:20-33.7(d) prohibits the addition of any tint only to front windows, front windshields, and other areas not relevant here. N.J.A.C. 13:20-33.7(g), meanwhile, addresses rear windows and windshields — but the statute authorizes the application of tint to those surfaces so long as the car has an exterior wing mirror on each side and vision through the windows and windshields is only partially obscured.” Moreover, ever since a 2013 amendment, Justice Solomon said, “N.J.A.C. 13:20-33.7’s safety requirements have not applied to passenger vehicles like defendant’s.” For those reasons, the Court “depart[ed] from Cohen to the extent that it ties violations of N.J.S.A. 39:3-74 to the standards set forth in N.J.A.C. 13:20-33.7.”

Finally, Justice Solomon addressed the issue of whether N.J.S.A. 39:3-74 was unconstitutionally vague. Noting that every statute receives “a strong presumption of validity,” the Court stated that a statute is unconstitutionally vague only if it “give[s] fair notice of conduct that is forbidden” so that persons of common intelligence need not “guess at its meaning and differ as to its application.”

Justice Solomon focused on “non-transparent” and the dictionary definition of “transparent,” which is “fine or sheer enough to be seen through.” There was nothing impermissibly vague about “non-transparent,” which the Court saw as meaning that “reasonable suspicion of a tinted windows violation arises when a vehicle’s front windshield or front side windows are so darkly tinted that police cannot clearly see people or articles within the car.”

A final note. The Court might have considered this case moot and declined to decide it. After the Court granted defendant’s petition for certification, the State moved for a limited remand to vacate defendant’s conviction and dismiss the charges against him. Justice Solomon said that “[d]espite the stipulation of dismissal, we decided to maintain the appeal because the issue presented is ‘of sufficient public importance, likely to surface again, to warrant our deciding it, even in the absence of an actual controversy between the litigants.’ State v. Kovack, 91 N.J. 476, 486 (1982).”