State v. Joseph Paul Morello, 2024AP931-CR, 2/6/25, District IV (one-judge decision; ineligible for publication); case activity
COA affirms circuit court’s order denying Joseph Morello’s motion to suppress the fruits of his traffic stop. Although COA did not address circuit court’s conclusion that police had reasonable suspicion that Morello’s vehicle was connected to reports of gunshots, it affirmed on alternative ground that there was reasonable suspicion Morello’s vehicle’s windows were excessively tinted.
Around midnight, Beloit police received reports of gunshots from two locations minutes apart. A witness reported a black Chevy Avalanche leaving the area from where the second shots were fired and an officer recovered casings nearby. Another officer saw the Chevy Avalanche driving near where the casings were found, pursued the vehicle, and saw that its front side windows were tinted — which he suspected exceeded the legal limit for window tint. The officer did not have a tint meter to confirm his suspicion, although he testified at the evidentiary hearing to his training and experience with identifying illegally tinted windows. (¶¶ 3-4).
The officer stopped the Chevy Avalanche and approached Morello, who smelled of alcohol, had bloodshot eyes, and slurred speech. Morello failed field sobriety tests and submitted to a blood draw, which later showed his blood alcohol content was .125. Morello was charged with operating a vehicle while intoxicated as a second offense. (¶ 5).
Morello moved to suppress the fruits of the traffic stop because police did not have reasonable suspicion to initiate the stop. The circuit court determined there was reasonable suspicion to believe that Morello’s vehicle was connected to the reported gunshots. (¶ 8).
On appeal, Morello renewed his argument that the stop was not supported by reasonable suspicion because there was not sufficient evidence to connect his vehicle to the gunshots and because the officer did not develop enough evidence to conclude the tinted windows exceeded the legal limit.
The Court of Appeals affirmed the order denying Morello’s motion to suppress because the officer had reasonable suspicion to initiate the stop based on the tinted windows.
The Court noted its 2010 decision in Conaway does not require police to know with certainty whether a tinted window violates Wis. Admin. Code § 305.32(4)(b)2 – which requires front windows to permit at least 50 percent of visible light to pass through, but only that police reasonably suspect that the window violates the regulation. (¶ 17). The Court found the officer’s testimony sufficient to establish reasonable suspicion in light of: 1) the officer’s training and experience using tint meters; 2) as a result of his training, the officer had experience in visually determining whether a window may exceed legal levels of tinting; and 3) Morello’s tinting made it difficult to distinguish the driver. (¶ 19).
The Court rejected Morello’s argument that Conaway required testimony regarding the percentage of time the tint meter confirmed the officer’s suspicions regarding an illegal tint. The Court concluded Conaway did not establish a bright-line rule, but only reasonable suspicion, which is satisfied if the officer testifies he or she is familiar with how dark a minimally complying window appears and the suspect window appeared similarly dark or darker: “Here . . . [the officer’s] testimony established that his training and experience had provided him with an ability to identify a window tint that exceeded the legal limit.” (¶ 20).
Although neither the officer’s report nor the criminal complaint stated that Morello was stopped for tinted windows, the Court noted that reasonable suspicion is an objective test and is not determined by the officer’s subjective motivations. (¶ 21). And although the circuit court did not rely on the tinted windows to uphold the stop and did not make an explicit credibility determination regarding the officer’s testimony, the Court considered that the circuit court’s determination regarding reasonable suspicion depended on the officer’s credibility. (¶ 22).
This decision has transformed a hunch into a reasonable suspicion. Once again the court transforms the police officer into the all knowing expert by virtue of “training and experience.”