"Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of [the Fourth Amendment]." Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).
So, when does an officer reasonably suspect that criminal activity may be afoot when a car rolls by with tinted windows?
Michigan's "window tint" statute, MCL § 257.709, states that:
257.709 Windshields and windows; prohibitions; rearview mirrors; exceptions; windshield wipers; exemption; hot air windshield defroster or electrically heated windshield or other device; windshield device; definitions.
(1) A person shall not operate a motor vehicle with any of the following:
(a) A sign, poster, nontransparent material, window application, reflective film, or nonreflective film upon or in the front windshield, the side windows immediately adjacent to the driver or front passenger, or the sidewings adjacent to and forward of the driver or front passenger, except that a tinted film may be used along the top edge of the windshield and the side windows or sidewings immediately adjacent to the driver or front passenger if the material does not extend more than 4 inches from the top of the windshield, or lower than the shade band, whichever is closer to the top of the windshield.
(b) A rear window or side window to the rear of the driver composed of, covered by, or treated with a material that creates a total solar reflectance of 35% or more in the visible light range, including a silver or gold reflective film.
Importantly, the statute states that the window tint provisions do not apply in certain instances:
(3) This section does not apply to any of the following:
. . . .
(d) A vehicle registered in another state, territory, commonwealth of the United States, or another country or province.
(e) A special window treatment or application determined necessary by a physician or optometrist, for the protection of a person who is light sensitive or photosensitive, if the owner or operator of a motor vehicle has in possession a letter signed by a physician or optometrist, indicating that the special window treatment or application is a medical necessity. However, the special window treatment or application shall not interfere with or obstruct the driver's clear vision of the highway or an intersecting highway.
The only published decision regarding the application and scope of MCL 257.709 is People v Pitts, 222 Mich App 260; 564 NW2d 93 (1997). In Pitts, the Court of Appeals held that the statute did not violate equal protection:
The statute prohibiting the application of nonreflective window film to the windows of vehicles was designed to (1) promote the safety of other drivers by preventing any glare off the tinted windows and (2) promote the safety of police officers by allowing them to see into vehicles that have been stopped. Senate Legislative Analysis, HB 4430, June 19, 1980; House Legislative Analysis, HB 4430, July 11, 1979. As such, the classification scheme created by § 709 is rationally related to a legitimate governmental purpose--that of the safety of other drivers and the police. Allowing factory-installed tinted windows (which are regulated by national standards) while forbidding a tinted film to be applied (which might be darker than is allowed by national standards) is not a violation of defendant's equal protection rights. Nor is allowing tinted windows on cars driven by people with doctors' notes or on out-of-state cars a violation of defendant's equal protection rights. Each of these exceptions is rationally related to legitimate governmental purposes--protecting drivers with eye problems and promoting interstate commerce n5--and, thus, does not violate defendant's equal protection rights. Therefore, not allowing tinted window film to be applied is rationally related to a legitimate governmental purpose and defendant's right to equal protection of the law is not violated by § 709 of the Michigan Vehicle Code.
Pitts at 273-274 (citations omitted).
Since Pitts, no court has entertained a direct challenge to MCL 257.709, but several unpublished Court of Appeals decisions reveal that police use the tinted windows statute as an excuse to engage in fishing expeditions for more serious crimes. People v Powell, 2003 Mich. App. LEXIS 2417, (Unpublished Court of Appeals Docket No. 239288 Decided September 23, 2003) [Police attempted to stop vehicle for failure to wear a seatbelt and tinted windows, and a search of the vehicle later revealed cocaine.]; People v Lee, 2001 Mich. App. LEXIS 1559, (Unpublished Court of Appeals Docket No.220788 Decided March 9, 2001) [Police stopped vehicle for tinted windows and found marijuana and a firearm.]; People v Hinton, 1998 Mich. App. LEXIS 2233, (Unpublished Court of Appeals Docket No. 197100 Decided February 10, 1998) [Stop for tinted windows and loud exhaust, although motivated by racial animus, did not require dismissal.]; and, People v. Phillips, 2009 Mich. App. LEXIS 2294 (Unpublished Court of Appeals Docket No. 280631 Decided Nov. 3, 2009) [Out-of-state vehicle stopped by Michigan State Police trooper for air fresheners hanging from the rear view mirror, even though clearly exempt under window tint statute, produced 906 Ecstasy pills.]
The above cases illustrate that the tinted windows statute is being employed to engage in pretext stops. A pretextual traffic stop is lawful so long as the officer actually has a valid reason to stop the motor vehicle. As the 6th Circuit Court of Appeals held in United States v. Freeman, 209 F.3d 464, 467 (6th Cir. 2000):
Although it is true that under Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996) and United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993) (en banc), a police officer may stop a vehicle for a traffic offense when his or her actual motivation is to search for contraband, it is also true that the officer must still have probable cause to make the initial stop, and must not abuse the Whren principle by using it as a subterfuge to justify the recovery of contraband after an illegal stop and search. Indeed, as the Supreme Court opined long ago, an illegal search cannot be justified by the potent evidence that it produces. See Byars v. United States, 273 U.S. 28, 29, 71 L. Ed. 520, 47 S. Ct. 248 (1927).
(Concurring opinion Judge Clay)
See also, United States v. Anderson, 42 F. Supp. 2d 713, 717-19 (E.D. Mich. 1999) (recognizing the potential for abuse under Whren and therefore "closely scrutinizing the government's purported reason for the stop").
The tinted windows statute is routinely used improperly against Michigan motorists as a pretext to conduct a search for criminal activity, whether it is for drunk driving, drug offenses or other serious crimes. MCL 257.683 states that an officer must have reasonable grounds to stop a car for an equipment violation. As that statute states in relevant part that, “A police officer on reasonable grounds shown may stop a motor vehicle and inspect the motor vehicle, and if a defect in equipment is found, the officer may issue the driver a citation for a violation of a provision of sections 683 to 711.” 257.683(2).
The window tint statute exempts 1) factory installed tint, 2) cars driven by people with doctors’ notes, and 3) out-of-state cars with after-market tint. A police officer cannot stop an out-of-state car with tinted windows. But is it readily apparent to a police officer, prior to making a traffic stop, that tint is not factory installed or that the motorist does not have medical reason for the tinted windows?
The equal protection arguments raised in Pitts failed to address when an officer has a reasonable suspicion supported by articulable facts to justify a traffic stop for tinted windows. Since an officer cannot determine, prior to stopping the vehicle, whether the window tint was factory installed and/or whether the driver has “in possession a letter signed by a physician or optometrist, indicating that the special window treatment or application is a medical necessity,” these traffic stops are highly questionable. Traffic stops for tinted windows require more than a mere hunch.
Whether a civil infraction is occurring in the officer’s presence must be readily ascertainable prior to the stop. In the absence of that, the stop is akin to police officer stopping a vehicle merely to ascertain whether the driver has a valid registration or proof of insurance in his or her possession.
In Delaware v. Prouse, 440 U.S. 648 (1979), the U.S. Supreme Court concluded that a police officer on a "roving patrol" aimed at detecting unlicensed drivers made a suspicionless stop of an automobile. The purpose of the stop was to check the driver's license and registration. The officer stopped Prouse's automobile because he "saw the car in the area and wasn't answering any complaints. . . ." Prouse at 440 U.S. at 651, 99 S. Ct. at 1394. When the officer approached the car, he smelled marijuana and thereafter seized the marijuana, which was in plain view on the floor of the car. In concluding that the suspicion less, random stop was unconstitutional, the Prouse court described the balancing test as follows:
The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of a reasonableness' upon the exercise of discretion by government officials, including law enforcement agents, in order to safeguard the privacy and security of individuals against arbitrary invasions. Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interest against its promotion of legitimate governmental interests. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against an objective standard, whether this be probable cause or a less stringent test. In those situations in which the balance of interests precludes insistence upon some quantum of individualized suspicion, other safeguards are generally relied upon to assure that the individual's reasonable expectation of privacy is not subject to the discretion of the official in the field.
Id., 440 U.S. at 653-54, 99 S. Ct. at 1396 (internal citations and quotations omitted). Utilizing that test, the Prouse Court held "that except in those situations in which there is at least 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 otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his license and the registration of the automobile are unreasonable under the Fourth Amendment." Id., 440 U.S. at 663, 99 S. Ct. at 1401.
Fast forward 30 years after the US Supreme Court decided Prouse. In Monroe, Michigan, the window tint statute was used to justify a traffic stop of an Ohio vehicle. As mentioned above, the statutory language clearly exempts out-of-state vehicles. The Monroe County Prosecuting Attorney lost his argument in the Monroe Circuit Court and actually had the gall to appeal that decision. Affirming the lower court, the Court of Appeals revealed that the Monroe County Prosecuting Attorney disagrees with three decades of constitutional law. As the Court of Appeals explained:
The trooper's only reason for stopping defendant's vehicle was his observation that it had two air fresheners hanging from the rear view mirror. While that might suffice under the statute to support the stop of a Michigan vehicle, defendant's vehicle displayed an Ohio license plate. Therefore, the only reasonable conclusion would have been that the out-of-state vehicle was exempt from the ambit of the statute. The prosecution argues that the police had the right to stop the vehicle to see if it was validly registered, analogizing the vehicle stop to the right the police would have to demand identification in a bar to verify that an individual was over twenty-one years old. However, that right is based upon the officer's view of a particular subject and a reasonable suspicion that the person was underage. In this case the officers offered no testimony regarding any irregularity in the appearance of the plate. If anything, the regular appearance of the plate gave rise to reasonable suspicion of validity, and, therefore, the inapplicability of MCL 257.709.
People v. Phillips, supra.
It is the responsibility of the courts to make sure that police officers act appropriately and not abuse the power legally afforded to them by carefully scrutinizing a police officer's testimony as to the purpose of the initial stop. United States v Hill, 195 F3d 258 (6th Cir. 1999). Random traffic stops for tinted windows, which seek to ascertain whether the motorist may be breaking the law, are insufficient and should be rejected by the Courts.