This сase revisits for a third time, the propriety of a motor vehicle stop predicated solely on the existence of “tinted” windows. Previously, two other trial courts have addressed this issue reaching conflicting results.
In State v. Harrison, 236 N.J.Super. 69,
In Harrison, a New Jersey State Trooper stopped a motor vehicle after having observed “tinted” windows on the vehicle.
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 any nontransparent 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 motor vehicle so constructed, equipped or loaded as to unduly interfere with the driver’s vision to the front and to the side’s.
In Harrison, the court concluded that as a matter of statutory construction, “it is clear that tinted glass does not fall within the proscription of N.J.S.A. 39:3-74,” 236 N.J.Super. at 72,
In light of the court’s holding that “tinted” windows on a motor vehicle did not give rise to an articulable and reasonable suspicion of criminal activity such as to justify a police stop of a vehicle, the Motion to Suppress was granted.
A different result was reached in State v. Oberlton, 262 N.J.Super. 204,
In Oberlton, a Camden County police officer pulled over a white Toyota because it had “tinted” material on the -windshield. Subsequent to the stop, a twenty-two (22) caliber handgun was located below the passenger sеat. The defendants were then arrested for possession of a handgun in violation for N.J.S.A. 2C:39-5b. In denying their Motion to Suppress, the Oberlton court concluded that a motor vehicle stop based upon a police officer’s conclusion that “tinted” windows violate New Jersey law is a valid stop.
I respectfully disagree with the trial court in Oberlton. As referenced by the trial judge in Oberlton when noting its disagreement with the Harrison court, since Oberlton is аn 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 jurisdictions. See State v. Hudes, 128 N.J.Super. 589,
It is well settled that a law enforcement officer may stop a motorist in those situations in which there is at lеast an 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 subject to seizure for violation of the law. Delaware v. Prouse, supra; State v. Murphy, 238 N.J.Super. 546,
A closer look at N.J.A.C. 13:20-33.6, which was current through November 15, 1999, and dealt with “Glazing”, reveals there exists no pеr se violation for having “glazing” or “tinting” on a motor vehicle. In pertinent part, N.J.A.C. 13:20-33.6 reads as follows:
(a) All glazing used on motor vehicles after July 1, 1935, must be approved type which is legible and permanently marked wiih the manufacturer’s name, trademark, DOT number or as to be visible when the glazing is installed in the vehicle. The AS number must also appear and the proper type glazing must be types of glazing are as follows:
1. AS-1: Mandatory in windshields but may be used for any other window in a motor vehicle;
2. AS-2: Anywhere except windshields;
3. AS-3: Rear side windows on buses;
4. AS-4, AS-5, AS-6, and AS-7: Rear windows of convertibles and windows which can be readily removed without the use of tools (not legal for windshields);
5. AS-8 and AS-9: Rear windows of buses;
6. AS-10: Bullet-resistant windshields;
7. AS-11: Bullet-resistant windows except windshields;
8. AS-12 and AS-13: Windows which can be readily removed without the use of tools (not legal for windshields).
. (c) Certification of a vehicle shall not occur if the vehicle has unduly broken, cracked, discolored or deteriorated glazing which causes unsafe visibility for the driver, or if the vehicle has any windows with sharp edges.
. (d) A vehicle shall not be certified which has tinted spray or plastic material added to previously approved glazing in the front windshield or windows, vents or deflectors tо the immediate right or left of the driver because such condition changes the vision and light transmission properties of the glazing in areas where driver visibility shall not be obscured or obstructed .
. . (g) Any vehicle may have the rear window and/or side windows to the rear of the driver tinted or covered in some manner so as to partially obscure the driver’s view.. , provided that the vehicle is equipped with an exterior mirror on each side of the vehicle. If glazing material remains in any of the window openings mentioned abovе, it must be possible to read the approval markings.
... (h) A vehicle shall not bo certified which has mirror-type material on any window.
The facts of the present case reveal that the defendant juvenile, R.M., was operating a 1991 Honda Four (4) Door Accord on Route 9 Northbound in Freehold Township, New Jersey, on May 4, 2000 at approximately 7:47 p.m. with J.M. as a passenger. While stopped at a red light, their vehicle was observed by a patrolman from the Freehold Township Police Department. This officer testified that he observed the vehicle operated by R.M. stopped in trаffic and subsequently pulled him over for the specific purpose of giving him a motor vehicle summons for having “tinted” windows on the automobile.
At a hearing on a Motion to Suppress Evidence, the officer stated that he viewed no other motor vehicle violations prior to the stop, issued no other summonses for any other violation, and made no direct or indirect observation or inspection of the registration status of the vehicle. The officer testified that it was his policy to stop every car he viewed with “tinted” windows and to give the operators of those motor vehicles a summons citing the statute and code number recommended to him by his Municipal Court Judge.
Rather than issuing a motor vehicle summons under N.J.S.A. 39:3-74, as was done in Harrison and Oberlton, the officer from Freehold Township issued a summons under N.J.S.A. 39:3-43, Powers of the Commissioner, and cited directly to N.J.A.C. 13:20-33.6.
N.J.S.A. 39:3-43 reads as follows:
The Commissioner of Motor Vehicles has hereby given authority to pass upon the constructiоn and equipment of any vehicle, motor vehicle or motor-drawn vehicle with a view to its safety for use on a street or a highway and it shall be lawful for the Commissioner to refuse registration to any vehicle that in his estimation is not a proper vehicle to be used upon a highway. The Commissioner is hereby authorized to promulgate regulations, not inconsistent with this chapter, concerning the construction and equipment of any vehicle, motor vehicle or motor-drawn vehicle. The Commissioner may require the approval of any equipment or device*159 and may set up the procedure which shall be followed when any equipment or device is submitted for approval. The Commissioner may revoke or suspend for cause and after hearing any cеrtificate of approval that may be issued under the article. The Commissioner at his discretion is hereby authorized to disapprove any equipment or device.
The Administrative Code cited in the motor vehicle summons dated May 4, 2000, had been superceded by N.J.A.C. 13:20-33.7, as of November 15, 1999. Although this new code section was in effect at the time of the motor vehicle stop, subsection (a) of the new code is substantially the same as N.J.A.C. 13:20-33.6. Other modifications in the subsequent sections of N.J.A.C. 13:20-33.7, although changed in part are substantiаlly similar to the section cited in the motor vehicle summons. For this reason, this court did not dismiss the complaint for the citing of an out-of-date Administrative Code section.
The officer testified that after the stop and as he approached the drivers side оf the vehicle, he detected a strong odor of marijuana. At this time, he asked the driver R.M. to exit the vehicle and the passenger J.M. was asked to remove himself from the passenger seat by a back-up officer. A subsequent search of the interior of thе automobile by a third officer revealed a glass vile containing a burnt marijuana cigarette under the passenger seat and approximately twenty-five (25) bags of marijuana in a pocket behind the driver seat. The Motion to Suppress in question was brоught contesting the legality of the motor vehicle stop based solely on the observation of “tinted” windows.
As previously noted, N.J.A.C. 13:20-33.6 prohibits the use of “tinted” materials “that do not meet certain standards” (emphasis supplied). These standards are sot forth in subsection (a) of that code. As the officer testified, his policy is to stop “every” car with “tinted” windоws and to give those automobiles tickets citing the statute and code number recommended to him by his Municipal Court Judge. At no point during the officer’s testimony did he indicate that he made any examination as to whether or not the “glazing” or “tinted” material that he оbserved on R.M.’s motor vehicle was in violation of the Administrative Code that was cited.
Absent testimony that the officer stоpping the motor vehicle reasonably believed there was a violation of statute and not merely an observation of “tinted” material on the motor vehicle, this court finds that the stop in question was merely a pretext for the officer to stop all motor vehicles so outfitted. It is this court’s opinion that prior to stopping an automobile for a violation of this type there must be an objective belief that the statute or code has been violated. Such was not the case here.
The Oberlton court noted that the Administrative Code specifically prohibits the use of “tinted” materials that, “do not meet certified standards,” not (emphasis supplied) all “tinted” windows. It is clear to this court that the officer in question was not and is not aware of what N.J.A.C. 13:20-33.7 proscribes or prohibits. As he testified, he merely stops every car “tinted” windows and issues them a summons. This court concludes that it is almost as if the police officer in question specifically “profiles” all vehicles with coloring on their windshield or windows to ticket same, with complete disregard for whether or not there is any articulable and reasonable suspicion that the coloring in question violates the statute or Administrative Code.
To allow all motor vehicles to be stopped for having “tinted” materials on the windshield absent any showing of a belief of articulable or reasonable suspicion that said material violates a statute or code would be akin to stopping all motor vehicles for routine license and registration checks, a practice prohibitеd in Delaware v. Prouse, supra, and State v. Carpentieri, 82 N.J. 546,
This court thus finds that the motor vehicle stop in question was impermissible and violative of the juvenile’s Constitutional right against unreasonable search аnd seizure as the motor vehicle stop was not based on any objective articulable and reasonable suspicion that a violation of the law occurred. In light of this finding, all evidenced seized as a result of the motor vehicle stop is suppressed.