State v. Williams, 39, September Term, 2007.

CourtCourt of Special Appeals of Maryland
Writing for the CourtAlan M. Wilner, Judge
Citation934 A.2d 38,401 Md. 676
PartiesSTATE of Maryland v. Arvel D. WILLIAMS.
Docket NumberNo. 39, September Term, 2007.,39, September Term, 2007.
Decision Date19 October 2007
934 A.2d 38
401 Md. 676
STATE of Maryland
No. 39, September Term, 2007.
Court of Appeals of Maryland.
October 19, 2007.

[934 A.2d 39]

Steven L. Holcomb, Asst. Atty. General (Douglas F. Gansler, Atty. General, Baltimore) on brief, for Appellant.

Lisa J. Sansone (Law Office of Lisa J. Sansone, Baltimore; Warren A. Brown, Warren A. Brown, P.A., Baltimore) on brief, for Appellee.

Argued before BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER, (Retired, Specially Assigned), and DALE R. CATHELL, (Retired, Specially Assigned), JJ.

ALAN M. WILNER, Judge, Retired, Specially Assigned.

In this prosecution of appellee for violations of the controlled dangerous substance laws, the Circuit Court for Harford County entered an order suppressing as evidence suspected cocaine and marijuana seized from appellee's car following a pretextual traffic stop. The order was based on a finding that the seizure violated appellee's rights under the Fourth Amendment to the U.S. Constitution. Acting under Maryland Code, § 12-302(c) of the Cts. & Jud. Proc. Article, the State appealed that decision. We granted certiorari before proceedings in the Court of Special Appeals and, on September 12, 2007, filed an Order affirming the order of the Circuit Court. We now explain the basis for our Order.

934 A.2d 40

The facts regarding the stop came entirely from evidence presented at the hearing on appellee's motion to suppress. We take that evidence, and the inferences fairly deducible from it, in a light most favorable to appellee, who prevailed on the motion. In determining the ultimate question of whether the seizure of appellee effected by the stop and the subsequent search of his car violated his rights under the Fourth Amendment, however, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240 (1990); Dashiell v. State, 374 Md. 85, 93-94, 821 A.2d 372, 377 (2003).

The stop was made by Harford County Deputy Sheriff Wood at about 12:40 a.m. on May 8, 2006. While at the precinct station prior to his coming on duty an hour earlier, Deputy Wood was advised to be on the lookout for a black Mercury Grand Marquis with a specific license plate number because the vehicle "possibly was carrying CDS," and to stop the car if he observed a violation. The basis of that suspicion is not in the record before us, but the State has not argued that it sufficed to provide any independent ground to justify a stop.

While driving south on I-95, Wood noticed the car so described in front of him. The driver, appellee, was not apparently violating any traffic laws. Wood followed the car for a half mile or so, and, when it exited the highway at the ramp to Md. Route 152, Wood stayed behind it. Just prior to exiting the highway, Wood radioed his dispatcher that he had the suspect car in sight. He received a response from a K-9 officer who was monitoring the communication. Appellee stopped at the end of the ramp for a red light, at which point Wood's car was about ten to twelve feet behind appellee's. At that point, Wood informed the K-9 officer that he intended to stop the car, and, shortly after appellee made his turn when the light turned green, he did so.

It does not appear from the record that Deputy Wood believed that he had any legitimate reason to stop the car until they approached the end of the exit ramp, at the traffic light. The intersection, Wood said, was well lit. At that point, he concluded that the rear window of appellee's car was darker than "normal." He came to that conclusion because, based on his "training and experience with the Sheriff's Office and traffic stops [he had] made," he should have been able to see into the car with the area so well lit, but that he was unable to do so. His testimony in that regard was:

"Q. So normally, in a normal vehicle, you would be able to see through the rear window, is that what you're saying?

A. Yes.

Q. So in this case, when you looked at the rear window, could you see through?

A. No, I could not."

(Emphasis added).

Wood stated that the vehicle "appeared to have tint" that was "after-market," i.e., that had been applied after the car was manufactured and sold. Wood knew of a statutory requirement, discussed below, that after-market tinting must allow at least 35% of light to be transmitted through the window and stated that he had previously issued about twelve repair orders for tinting violations, but he acknowledged that he had never received any specific training with respect to tinting. Rather, he claimed that "[i]f the officer feels it's too dark, they can stop the car and issue a repair order." That, he said, was the standard he applied: "if the officer

934 A.2d 41

in their own opinion feels it's too dark, then you can stop the vehicle."

Deputy Wood noted that there were instruments — tint meters — that could measure whether a tint exceeds the statutory limit, but he was never trained in their use, did not know how to use them, and did not have one. He concluded that the rear window of appellee's car had excessive tinting for no reason other than it "appeared dark to me." Confirming his direct testimony, he acknowledged on cross-examination that he did not purport to determine whether the window appeared to be illegally tinted, but only whether it was "other than what normal windows would appear, a car that did not have any kind of after-market tinting." (Emphasis added). He emphasized that standard several times:

"Q. Okay, but my point is: When you say appeared dark, is that in relationship to other tints, in other words, or just appeared dark, period?

A. Appeared darker than a normal window, sir, without tinting.

Q. Okay, and so let me get this straight. Your reason for stopping was not that it may have been — the tint may have been illegal, but the window appeared darker than —

A. I knew there was tint on the window, sir. That's why I stopped the vehicle."

(Emphasis added).

Wood also stated that he did not observe "any kind of tags or inspection stickers" on the window at that time. He explained that, when a person is issued a repair order for window tint and has it checked for compliance, "a sticker is usually placed on the window saying that, you know, the certification was done or the test was done." Wood acknowledged that such a sticker would be attached after a repair order is issued.

Upon stopping the car, Wood advised appellee that the stop was for a tint violation and that he would be issued a repair order. Wood returned to his car to do a license and warrant check. When the check revealed a valid license and no warrants, Wood prepared an equipment repair order. At that point, the K-9 officer arrived, and, when the dog alerted for CDS, appellee's vehicle was searched. Suspected cocaine and marijuana was found, and appellee was arrested.

Four days later, faced with the equipment repair order, appellee took the car to the State Police Automotive Safety Enforcement Division, which found that the windows did allow 35% light transmittance and were therefore legal and would pass Maryland inspection laws. A certificate to that effect was placed in evidence. Appellee testified, without contradiction, that the windows were in the same condition at the time of inspection as they were at the time of the stop.

On this evidence, and after hearing argument, the suppression court drew a distinction between suppressing the repair order and suppressing the CDS. As to the former, the court declared that "[i]f you put after-market tinting on, the officer can make him go have it checked out." In essence, the court accepted the notion that "it's his [the officer's] judgment and he can make him go to State Police." With respect to the CDS, however, the court regarded the issue as one of "public policy," namely, that "[w]hen you can't find anything else to stop the car for, [you should not] be able to stop him because the window tinting appears to be too dark, when, in fact, it's not too dark." (Emphasis added). The court explained:

"To me, it comes down to a matter of, you take your chances if you use that basis and it turns out you're not right.

934 A.2d 42

The evidence you seized gets suppressed. And then it takes away the incentive to use that line of reasoning. Seems to me as a matter of public policy that if you're going to use window tinting as a basis to make a stop, and to do a K-9 scan, that you have to be right on."

On that basis, the court granted the motion to suppress, and the State filed this appeal.

Tinting Requirements

The ultimate Fourth Amendment issue presented hinges largely on the Maryland law governing the tinting of vehicle windows, and that requires some explanation.

There are Federal regulations adopted by the National Highway Traffic Administration of the U.S. Department of Transportation governing glazing materials (windows) used in motor vehicles. The Federal regulations adopt American National Standard Z26, which, in pertinent part, requires that windshields and front side windows installed in passenger cars by automobile manufacturers transmit at least 70% of the light striking them.1 See 49 C.F.R. § 571.205 and ANS Z26. The Federal regulation applies only to the windows installed by the manufacturer, not to post-manufacture tinting, and it does not apply to rear windows of passenger cars.

The post-manufacture tinting of motor vehicle windows, which is normally done through a plastic film or metallic laminate applied to the interior side of the window, is regulated largely at the State level, and the standards vary from State to State. In Maryland, post-manufacture tinting is governed by statutes found in titles 22 and 23 of the Transportation Article of the Maryland Code, which deal with vehicle equipment and inspection, and regulations adopted jointly by the Motor...

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