court of appeals decision; for Conaway: Philip J. Brehm; for Griffin: Michael S. Murphy
Reasonable Suspicion for Traffic Stop, Excessive Window Tint, Generally
¶3 The window tint regulation at issue here is easily summarized. Rear window tinting is permitted only if the window allows at least 35% of light to pass through, except that the limitation does not apply to tinting done during the original manufacture of a vehicle. Thus, for tinted rear windows, the regulation creates two factual issues: whether the 35%-light-pass-through requirement is met and whether the window is original equipment. A vehicle window might fail to meet the 35% requirement, but still comply with the statute if it is original equipment.
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¶7 It is true, of course, that the officer in this case did not need to be able to ascertain with certainty that there was a window tint violation. Officers need not, and likely cannot, distinguish with the naked eye small variations in the amount of light that passes through suspect windows. Reasonable suspicion does not require such precision. Rather, the officer need only reasonably suspect that the window violates the regulation. Focusing solely on the 35%-light-pass-through requirement, it would be enough, for example, if an officer testifies that he or she is familiar with how dark a minimally complying window appears and that the suspect window appeared similarly dark or darker, taking into account the circumstances of the viewing. Assuming, as we suggest above, that officers cannot tell by observation alone whether a window is precisely at the 35% standard, it follows that, if a window appears to be at about that standard, there is reasonable suspicion that it falls below the standard.
Reasonable Suspicion for Traffic Stop, Excessive Window Tint, Unsupported on Facts
Traffic stop premised on excessive window tint wasn’t supported by reasonable suspicion the window failed the “35%-light-pass-through requirement,” where “nothing in the officer’s testimony provides a basis for a finding that the officer had the ability to judge whether a tinted rear window came close to or failed to meet the 35%-light-pass-through requirement,” ¶¶8-13.
The officer had had training on use of a tine meter and significant experience performing excessive-tint stops—while this background is relevant, it wasn’t sufficient because “the officer made no connection between his longevity or his tint meter training and his ability to differentiate between legally and illegally tinted glass. He did not, for example, say that he had experience in correctly identifying windows that failed the tinting limitation. Although the prosecutor repeatedly asked questions geared toward giving the officer an opportunity to state that he had some level of expertise in gauging window tint violation, the officer consistently denied having any such ability,” ¶9.
State v. Dennis E. Bailey, 2009 WI App 140, distinguished because, although Bailey raised similar argument, “it was conclusory and undeveloped” and thus court didn’t actually reach it, ¶13 n. 3.
