NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0875-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE M. ARIAS-MADE,
Defendant-Appellant. _______________________
Argued July 19, 2022 – Decided August 12, 2022
Before Judges Sabatino, Gilson and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 17-10-1417.
Kevin S. Finckenaur, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Kevin S. Finckenaur, of counsel and on the briefs).
Ian C. Kennedy, Assistant Prosecutor, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney; Ian C. Kennedy, of counsel and on the brief).
PER CURIAM Defendant appeals from his jury trial conviction for possession of a
handgun without a permit, N.J.S.A. 2C:39-5(b). Police found the gun in the
trunk of his car following a motor vehicle stop for an alleged tinted windows
violation. After carefully reviewing the record in light of the arguments of the
parties and governing legal principles, we reverse and vacate defendant's
conviction because the State at the suppression hearing failed to meet its burden
to establish reasonable and articulable suspicion to justify the motor vehicle
stop.
I.
We discern the facts pertinent to this appeal from the evidence presented
by the State at the suppression hearing. See State v. Gibson, 318 N.J. Super. 1,
9 (App. Div. 1999) ("We take this opportunity to remind the parties that on
appeal 'we may only consider whether the motion to suppress was properly
decided based on the evidence presented at that time.'" (quoting State v. Jordan,
115 N.J. Super. 73, 76 (App. Div. 1971))).
On May 27, 2017, at approximately 4:15 a.m., Englewood Cliffs Police
Officer Kyle Ust initiated a motor vehicle stop of defendant's car. The encounter
was recorded by the officer's mobile video recorder (MVR), and the dashcam
A-0875-19 2 recording was played at the suppression hearing. 1 Ust testified that he "observed
a red Audi four door sedan with excessive tinted windows on all four windows."
Ust pulled out onto the roadway, followed defendant's vehicle for a brief time,
and initiated a motor vehicle stop. Ust did not observe any motor vehicle
violations other than the suspected tinted windows infraction.
Two other officers responded to the scene. Ust approached the detained
vehicle from the passenger side and instructed defendant, the sole occupant, to
roll down the passenger side front window. Ust "immediately detected a strong
odor of marijuana." He also observed two cut straws and white powder in the
backseat.
When Ust mentioned that he smelled marijuana, defendant replied that he
had been smoking it earlier in the day. Ust ordered defendant out of the car and
proceeded to ask him questions about his itinerary.
Ust testified that he told defendant he had been stopped for tinted windows
and asked defendant, "are you aware that tinted safety glass in the State of New
Jersey is illegal?" Defendant acknowledged that "he did understand that."
During the questioning, Ust asked defendant if he could "check him for
1 We have been furnished with the video and have reviewed it as part of our consideration of the appeal. A-0875-19 3 weapons." Defendant replied "yeah," whereupon Ust conducted a pat down frisk
of defendant's outer clothing. 2 The protective frisk was "[n]egative for
weapons," but the officer felt a bulge in one of defendant's pockets. Defendant
agreed to allow Ust to remove the object, which turned out to be approximately
$400 in cash.
Ust explained that he suspected defendant was a drug dealer and asked
defendant to consent to a search of the vehicle. Defendant initially refused but
eventually relented and signed a consent form after Ust repeated the request and
advised defendant that they were going to conduct a "probable cause search" of
the vehicle even if defendant refused to give consent.
The officers first searched the passenger cabin but did not find the source
of the raw marijuana odor or any other evidence of illegal activity. Ust testified
that there was "an abundant amount of odor of marijuana emanating from the
backseat." The officers then proceeded to search the trunk where they
discovered a loaded .45 caliber handgun wrapped in a blanket and a sock with
shotgun shells in it.
In October 2017, defendant was charged by indictment with second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and third-degree
2 Defendant does not challenge the lawfulness of the "consent" frisk. A-0875-19 4 receiving stolen property, N.J.S.A. 2C:20-7. Defendant filed a motion to
suppress the physical evidence seized during the warrantless search of his car,
arguing that the motor vehicle stop was unlawful and that the ensuing search of
the trunk was also unlawful.
On February 1, 2019, the trial judge convened an evidentiary hearing at
which Officer Ust was the sole witness. The court heard oral argument on the
motion on February 6, 2019. On March 12, 2019, the trial court rendered an
oral decision, denying defendant's suppression motion. The court rejected
defendant's contention that the motor vehicle stop was unlawfully initiated. The
court also held that the search of the trunk was lawful because defendant had
knowingly and voluntarily consented to the search. The judge also ruled, in the
alternative, that the search of the trunk was lawful under the automobile
exception to the warrant requirement. The judge entered a written order denying
defendant's suppression motion on March 13, 2019.
Defendant was tried before a jury over the course of three consecutive
days in June 2019. The jury acquitted defendant of receiving stolen property
but convicted him of unlawful possession of the firearm.
A-0875-19 5 On September 6, 2019, the trial court sentenced defendant to seven years
in state prison. The court imposed a forty-two month period of parole
ineligibility as required under N.J.S.A. 2C:43-6(c).
This appeal followed. Defendant raises the following contentions for our
consideration in his appeal brief:
POINT I
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE HANDGUN BECAUSE THE EVIDENCE AT THE HEARING DID NOT ESTABLISH A BASIS FOR A LAWFUL STOP, THE OFFICERS LACKED PROBABLE CAUSE FOR SEARCHING THE TRUNK OF THE CAR, AND THE CONSENT OBTAINED BY [DEFENDANT] WAS NOT VOLUNTARILY GIVEN.
A. THE EVIDENCE ADDUCED AT THE HEARING FAILED TO ESTABLISH THAT OFFICER UST HAD A REASONABLE BASIS FOR BELIEVING THAT THE TINT OF [DEFENDANT'S] WINDOWS WAS IN VIOLATION OF THE LAW.
B. EVEN IF THE INITIAL STOP OF THE CAR WAS LAWFUL, THE OFFICERS NONETHELESS LACKED PROBABLE CAUSE TO SEARCH THE TRUNK OF THE CAR.
C. [DEFENDANT] DID NOT PROVIDE VOLUNTARY, UNEQUIVOCAL CONSENT TO THE SEARCH OF THE TRUNK.
A-0875-19 6 POINT II
THE STATE'S RELIANCE ON AN INFERENCE THAT [DEFENDANT] WAS GUILTY OF POSSESSING THE HANDGUN, AND THE ACCOMPANYING INSTRUCTION TO THE JURY THAT IT COULD FIND HE POSSESSED THE HANDGUN ON A "MORE PROBABLE THAN NOT" STANDARD, VIOLATED [DEFENDANT'S] CONSTITUTIONAL RIGHTS. (Not Raised Below)
A. THE STATUTORY INFERENCES OF N.J.S.A. 2C:39-2 UNCONSTITUTIONALLY ABRIDGE THE STATE'S BURDEN OF PROOF AND THE RIGHT OF A JURY FACTFINDER.
B. REGARDLESS OF THE CONSTITUTIONALITY OF N.J.S.A. 2C:39-2, THE JUDGE'S INSTRUCTIONS UNCONSTITUTIONALLY DILUTED THE STATE'S BURDEN OF PROOF ON AN ESSENTIAL ELEMENT OF THE OFFENSE AND PREVENTED THE JURY FROM PROPERLY CONSIDERING [DEFENDANT'S] DEFENSE.
POINT III
THE TRIAL COURT IMPROPERLY RENDERED AN EXCESSIVE SENTENCE BASED ON AN ERRONEOUS ANALYSIS OF THE AGGRAVATING AND MITIGATING FACTORS.
Defendant raises the following contentions in his reply brief:
A-0875-19 7 POINT I
OFFICER UST'S CLAIM THAT HE SAW "EXCESSIVE TINT" ON "ALL FOUR WINDOWS" WAS BELIED BY THE FOOTAGE, IT DOES NOT MATTER WHETHER ALL FOUR WINDOWS OF [DEFENDANT'S] VEHICLE WERE TINTED BECAUSE OFFICER UST ADMITTED IN THE FOOTAGE TO PULLING [DEFENDANT] OVER ONLY FOR TINT ON THE REAR WINDOWS, AND OFFICER UST’S STOP BASED ON CONDUCT WHICH WAS NOT AN OFFENSE WAS UNCONSTITUTIONAL.
Defendant also submitted a letter pursuant to Rule 2:6-11(d) calling our
attention to N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. __, 142 S. Ct.
2111 (2022), a case decided by the United States Supreme Court on June 23,
2022. Defendant argues that Bruen invalidates New Jersey's statutory
framework governing the issuance of handgun "carry" permits, N.J.S.A. 2C:58 -
4(c), and "by extension," invalidates the unlawful possession statute for which
he was convicted, N.J.S.A. 2C:39-5(b). Defendant contends, "[a]ccordingly, in
addition to the arguments made in [his] appellant and reply brief, he further
submits that his conviction must be reversed because it is premised on a facially
unconstitutional statute."
A-0875-19 8 II.
A.
We focus our attention on defendant's contention that the motor vehicle
stop was unlawful. We begin our analysis by acknowledging the legal principles
governing this appeal. The "standard of review on a motion to suppress is
deferential . . . ." State v. Nyema, 249 N.J. 509, 526 (2022); accord State v.
Sims, 250 N.J. 189, 210 (2022). "[A]n appellate court reviewing a motion to
suppress must uphold the factual findings underlying the trial court's decision
so long as those findings are supported by sufficient credible evidence in the
record." State v. Ahmad, 246 N.J. 592, 609 (2021) (alteration in original)
(quoting State v. Elders, 192 N.J. 224, 243 (2007)); State v. S.S., 229 N.J. 360,
374 (2017). We "defer[] to those findings in recognition of the trial court's
'opportunity to hear and see the witnesses and to have the "feel" of the case,
which a reviewing court cannot enjoy.'" Nyema, 249 N.J. at 526 (quoting Elders,
192 N.J. at 244). However, "[a] trial court's legal conclusions . . . and its view
of 'the consequences that flow from established facts,' are reviewed de novo."
Id. at 526–27 (quoting State v. Hubbard, 222 N.J. 249, 263 (2015)); State v.
Gamble, 218 N.J. 412, 425 (2014); State v. Gandhi, 201 N.J. 161, 176 (2010).
A-0875-19 9 Turning to substantive legal principles, "[t]he Fourth Amendment and
Article I, Paragraph 7 of the State Constitution guarantee individuals the right
to be free from unreasonable searches and seizures." State v. Carter, 247 N.J.
488, 524 (2021). "When police stop a motor vehicle, the stop constitutes a
seizure of persons, no matter how brief or limited." Nyema, 249 N.J. at 527.
In Delaware v. Prouse, the United States Supreme Court held that police
may stop a vehicle only if they have a reasonable and articulable suspicion that
a motor vehicle offense has been committed. 440 U.S. 648, 663 (1979). Such
offenses include minor motor vehicle equipment violations. See State v.
Bernokeits, 423 N.J. Super. 365, 370 (App. Div. 2011) ("A motor vehicle
violation, no matter how minor, justifies a stop without any reasonable suspicion
that the motorist has committed a crime or other unlawful act." (citing Prouse,
440 U.S. at 663)).
In State v. Bacome, the New Jersey Supreme Court reaffirmed that "[t]o
be lawful, an automobile stop 'must be based on reasonable and articulable
suspicion that an offense, including a minor traffic offense, has been or is being
committed.'" 228 N.J. 94, 103 (2017) (quoting State v. Carty, 170 N.J. 632,
639–40 (2002)). Importantly, the State bears the burden at a motion to suppress
to prove that a motor vehicle stop is supported by a reasonable and articulable
A-0875-19 10 suspicion. See State v. Atwood, 232 N.J. 433, 444 (2018) (quoting State v.
Maryland, 167 N.J. 471, 489 (2001)).
Our Supreme Court has stressed that "raw, inchoate suspicion grounded
in speculation cannot be the basis for a valid stop." State v. Scriven, 226 N.J.
20, 34 (2016). Rather, the reasonable suspicion standard requires "some
minimal level of objective justification for making the stop." State v. Nishina,
175 N.J. 502, 511 (2003) (emphasis added) (quoting United States v. Sokolow,
490 U.S. 1, 7 (1989)); cf. State v. Puzio, 379 N.J. Super. 378, 382–84 (App. Div.
2005) (reversing the defendant's drunk driving conviction because the officer
conducting the motor vehicle stop did not have an objectively reasonable basis
for believing that defendant had committed a motor vehicle offense).
Importantly, "the State is not required to prove that the suspected motor-
vehicle violation occurred." State v. Locurto, 157 N.J. 463, 470 (1999). Rather,
"[c]onstitutional precedent requires only reasonableness on the part of the
police, not legal perfection. Therefore, the State need prove only that the police
lawfully stopped the car, not that it could convict the driver of the motor -vehicle
offense." State v. Williamson, 138 N.J. 302, 304 (1994); see also State v.
Sutherland, 231 N.J. 429, 439 (2018).
But as the Court recently stressed in Nyema,
A-0875-19 11 [a]lthough reasonable suspicion is a less demanding standard than probable cause, "[n]either 'inarticulate hunches' nor an arresting officer's subjective good faith can justify infringement of a citizen's constitutionally guaranteed rights." State v. Stovall, 170 N.J. 346, 372 (2002) (Coleman, J., concurring in part and dissenting in part) (quoting State v. Arthur, 149 N.J. 1, 7–8 (1997)); accord State v. Alessi, 240 N.J. 501, 518 (2020). Determining whether reasonable and articulable suspicion exists for an investigatory stop is a highly fact-intensive inquiry that demands evaluation of "the totality of circumstances surrounding the police- citizen encounter, balancing the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions." State v. Privott, 203 N.J. 16, 25–26 (2010) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).
[Nyema, 249 at 527–28.]
We emphasize, moreover, that when a motor vehicle stop is based solely
on an alleged equipment violation, the reasonable and articulable suspicion for
that violation must be developed before the stop is initiated. Just as a search is
not made good by what it turns up, 3 a motor vehicle stop based solely on an
equipment violation cannot be validated post hoc by what the officer learns upon
closer inspection of the vehicle during the course of the investigative detention.
3 See Wong Sun v. United States, 371 U.S. 471, 484 (1963) (rejecting the proposition "that a search unlawful at its inception may be validated by what it turns up.") A-0875-19 12 Rather, the stop is lawful or not at the moment the Fourth Amendment seizure
is initiated.
Furthermore, reasonable suspicion analysis takes into account "the
officers' background and training and permits them 'to draw on their own
experience and specialized training to make inferences from and deductions
about the cumulative information available to them that "might well elude an
untrained person."'" State v. Nelson, 237 N.J. 540, 555 (quoting United States
v. Arvizu, 534 U.S. 266, 273 (2002)); Stovall, 170 N.J. at 363 ("It is fundamental
to a totality of the circumstances analysis of whether reasonable suspicion exists
that courts may consider the experience and knowledge of law enforcement
officers."). Correspondingly, an officer's lack of training and experience may
be relevant in assessing the inferences, deductions, and conclusions he or she
draws.
Turning specifically to the law regarding tinted windows, in State v.
Cohen, we held that the darkly tinted windows on Cohen's vehicle provided a
lawful basis to initiate a motor vehicle stop. 347 N.J. Super. 375, 380–81 (App.
Div. 2002). We noted that the officer's reasonable suspicion was "based upon
his initial observation that the [defendant's] windows were so darkly tinted as to
obstruct vision . . . ." Id. at 380 (emphasis added).
A-0875-19 13 In State v. Smith, our Supreme Court recently provided further guidance
on when police may stop a vehicle based solely on tinted windows. 251 N.J.
244 (2022).4 In that case, detectives stopped behind a vehicle at a red light. Id.
at 253. After the light turned green, the detectives activated their emergency
lights and sirens because the vehicle in front of them had a tinted rear
windshield. Ibid. Despite the tinting, the detectives were able to determine that
the only individual in the car was the driver—the defendant. Ibid.
Our Supreme Court examined the various statutes pertaining to motor
vehicle glazing. The Court first determined that N.J.S.A. 39:3-75—a statute that
we had relied upon in Cohen—does not provide a basis upon which to stop a
vehicle. Id. at 260–61. That statute provides in relevant part:
No person shall drive any motor vehicle manufactured on or after July first, nineteen hundred and thirty-five and registered in this State unless such vehicle is equipped with approved safety glazing material wherever glazing is used in doors, windows and windshields. The term "windshield" shall be construed to include wings, deflectors and side shields; also front corner lights adjoining windshields.
Every section of safety glazing material shall be legibly and permanently marked with the manufacturers' distinctive designations, under which the safety glazing
4 We have considered supplemental letters from counsel addressing Smith. See R. 2:6-11(d). A-0875-19 14 material was approved, so as to be visible when installed.
No person shall drive any motor vehicle equipped with safety glazing material which causes undue or unsafe distortion of visibility or equipped with unduly fractured, discolored or deteriorated safety glazing material, and the director may revoke the registration of any such vehicle.
[N.J.S.A. 39:3-75 (emphasis added).]
The Court determined that "[t]he plain language of section 75 indicates
that it is concerned solely with the quality and maintenance of such safety
glazing material, not aftermarket tinted window film." Smith, 251 N.J. at 261.
As a result, and as the State conceded, that statute had "no bearing" in resolving
the Fourth Amendment matter before it. Ibid.5
The Court next focused on N.J.S.A. 39:3-74. That statute provides:
Every motor vehicle having a windshield shall be equipped with at least one device in good working order for cleaning rain, snow or other moisture from the windshield so as to provide clear vision for the driver, and all such devices shall be so constructed and installed as to be operated or controlled by the driver.
5 The Court also determined that other statutory provisions addressing moto r vehicle window tinting are inapplicable. Specifically, the Court concluded that N.J.S.A. 39:3-75.1 and 39:3-75.2 did not support the stop in that case. Smith, 251 N.J. at 261. Moreover, the Court departed from Cohen, "to the extent that it ties violations of N.J.S.A. 39:3-74 to the standards set forth in N.J.A.C. 13:20- 33.7." Id. at 262. The Court noted that N.J.A.C. 13:20-33.7 does not apply to non-commercial vehicles. Ibid. A-0875-19 15 No person shall drive any motor vehicle with any sign, poster, sticker or other non-transparent 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 vehicle so constructed, equipped or loaded as to unduly interfere with the driver's vision to the front and to the sides.
[N.J.S.A. 39:3-74.]
The Court ultimately ruled that under N.J.S.A. 39:3-74, "reasonable and
articulable suspicion of a tinted windows violation arises only when a vehicle's
front windshield or front side windows are so darkly tinted that police cannot
clearly see people or articles within the car." Smith, 251 N.J. at 253. The Court
later in its opinion expounded that "[i]n order to establish a reasonable suspicion
of a tinted windows violation under N.J.S.A. 39:3-74, the State will . . . need to
present evidence that tinting on the front windshield or front side windows
inhibited officers' ability to clearly see the vehicle's occupants or articles
inside." Id. at 266.6
6 The State contends that Smith announced a new rule that the Court intended should only be applied prospectively. Defendant argues that Smith merely clarified a misunderstanding concerning the applicability of various statutory
A-0875-19 16 Applying that principle to the record in the matter before it, the Court
concluded that the detectives did not have a reasonable and articulable suspicion
to believe N.J.S.A. 39:3-74 was being violated because the testimony at the
suppression hearing only established that the rear windshield of Smith's vehicle
had tinted windows. Id. at 260. "Under the statute's plain language, the tint on
[the defendant's] rear windshield could not constitute a violation of N.J.S.A.
39:3-74." Ibid. The Court ultimately concluded that, "[u]nlike the dark tinted
front driver- and passenger-side windows that prompted the investigatory stop
in Cohen, [the defendant's] tinted rear windshield could not be considered a
'significant obstruction' of the driver's vision . . . ." Id. at 262.
B.
We next apply the governing legal principles to the facts presented in this
case. The trial court found that Officer Ust testified credibly that he initiated a
motor vehicle stop because "all four windows had excessive tinting in violation
provisions addressing motor vehicle window tinting, including N.J.S.A. 39:3 - 75. We reiterate that the State in Smith conceded that section 75 had no bearing in that case. Smith, 251 N.J. at 261. We need not address the State's retroactivity argument because we are satisfied that the State failed at the suppression hearing to present evidence concerning obstructed/inhibited vision—a circumstance explicitly addressed in both Smith and Cohen.
A-0875-19 17 of [N.J.S.A.] 39:3-75."7 The trial court further found, that "defendant admitted
that his windows were tinted and that he was aware it was a violation of New
Jersey law." 8
The trial court concluded:
In this case, based on the totality of the facts and circumstances of the case, including Officer Ust's credible testimony, the MVRs and the defendant's own admission, the Court finds the State established by a preponderance of the evidence that Officer Ust possessed sufficient information to form a reasonable suspicion that a motor vehicle violation had been . . . committed when he stopped the defendant's vehicle.
Although we defer to a trial court's credibility assessments, in this
instance, the critical inquiry is not whether Officer Ust was truthful in
recounting the circumstances of the encounter. Rather, the key issue before us
is whether his testimony at the suppression hearing provided sufficiently
7 The State on appeal does not dispute that New Jersey law does not regulate tinting on rear side windows. And as we have noted, the Court in Smith made clear that N.J.S.A. 39:3-75 is inapplicable when determining whether an officer has a reasonable and articulable suspicion to stop a motor vehicle for tinted windows. 251 N.J. at 261. Accordingly, we now know that the trial court's citation to that provision was misplaced. 8 We deem defendant's purported roadside "admission" to a tinted windows violation to be irrelevant to whether there was reasonable suspicion to justify the stop. It is not disputed that the windows were tinted. Officer Ust's le ading question may have misled defendant to believe that window tinting was prohibited per se. A-0875-19 18 detailed information regarding the tinted windows to establish an objectively
reasonable basis for a Fourth Amendment seizure.
In addressing that foundational question, we reject defendant's contention
that the stop was unlawful because Ust testified that "all four" windows were
tinted, thus revealing the officer's miscomprehension of the relevant statute,
which applies only to the front windshield and front side windows. See Smith,
251 N.J. at 253, 266; see also supra note 7. Ust's testimony that all four windows
were tinted necessarily encompasses the front side windows. This is not a
situation as in Smith where the detectives' testimony pertained only to the rear
windshield, which is not regulated under the tinted windows statute. 251 N.J.
at 252. Ust's testimony relating to the rear side windows, therefore, is essentially
surplusage that we deem to be irrelevant except to the extent it reveals the
officer's lack of training and experience regarding enforcement of the tinted
windows statute.
After carefully reviewing the record, we conclude that Ust's testimony
pertaining to the front driver's side window failed to establish reasonable and
articulable suspicion of a tinted windows violation. Notably, Ust never testified
A-0875-19 19 at the suppression hearing that the tinted front side window actually inhibited
his ability to see the driver as defendant's vehicle passed by.9
Furthermore, the record does not show that Ust received training
regarding tinted windows and as to what constitutes a statutory violation. Nor
did Ust testify that he had personal experience in enforcing the tinted windows
provision. Cf. State v. Smith, 155 N.J. 83, 99 (1998) (finding that there was no
suggestion the officer actually used his experience to infer that a suspect was
selling drugs, and therefore his experience did not contribute to a finding of
probable cause). In these circumstances, we conclude that Ust had neither the
specialized training nor personal experience, see Nelson, 237 N.J. at 555, to
provide an objective benchmark to support his opinion that the tinting on the
windows of defendant's car was "excessive." See Nishina, 175 N.J. at 510–11
(The reasonable articulable suspicion standard requires "some minimal
objective justification for making the stop."). We thus conclude that the officer's
9 We note that the MVR recording played at the suppression hearing shows that Ust commented to a backup officer that the vehicle's "windows were blacked out." Ust did not use that description in his testimony at the suppression hearing. But even accepting that the statement Ust made to a backup officer is part of the totality of the circumstances presented by the State at the suppression hearing, we deem the phrase "blacked out" to be a colloquial—if not exaggerated— description tantamount to Ust's testimony that the windows were "excessively tinted." A-0875-19 20 characterization of the windows as being "excessive[ly]" tinted is simply too
subjective to justify a Fourth Amendment liberty intrusion. We decline in this
case to "fill in gaps in the record to supply the requisite proofs required of the
State under constitutional standards." State v. Wilson, 178 N.J. 7, 17 (2003);
see Smith, 251 N.J. at 266 (holding the State bears the burden "to present
evidence that tinting on the front windshield or front side windows inhibited
officers' ability to clearly see the vehicle's occupants or articles inside."
(emphasis added)).
We acknowledge that the State presented a video recording at the
suppression hearing that shows defendant's vehicle as it passed by the stationary
police vehicle. It is well-established that a trial court's factual determination
based on its review of a video recording is subject to a deferential standard of
appellate review. See S.S., 229 N.J. at 365. In this instance, however, although
the trial court briefly mentioned that the MVR recording was considered as part
of the totality of the circumstances, the court did not make a specific finding
that the video showed obstructed vision. Rather, the trial court merely found
that "[t]he MVR confirms the vehicle had tinting on all four windows." The
trial court, in other words, made no specific finding that the front window tinting
A-0875-19 21 inhibited Officer Ust from seeing the driver who otherwise would have been
clearly visible.
Our own review of the video shows that only a small portion of the front
driver's side window is visible. Considering the pre-dawn lighting conditions,
the distance between the stationary police car and defendant's moving vehicle,
and the angle at which defendant's Audi passed by the parked police car, the
video does not establish—even to the mere reasonable-suspicion standard of
proof—that the window tinting would inhibit an officer from clearly seeing the
driver in the unlit passenger compartment. Indeed, given these conditions, it is
doubtful the officer could have clearly seen the driver even if the front side
window was not tinted at all. Any inhibition in clearly observing the driver, in
other words, was not attributable to the window tinting, but rather to other
conditions and circumstances beyond defendant's control. See Smith, 251 N.J.
at 266 (The State must present evidence "that tinting . . . inhibited officers'
ability to clearly see the vehicle's occupants or articles inside." (emphasis
added)). The present situation is thus distinguishable from Cohen, where we
noted that the officer's reasonable suspicion was "based upon his initial
observation that the windows were so darkly tinted as to obstruct vision." 347
N.J. Super. at 380 (emphasis added).
A-0875-19 22 In sum, the video recording does not change our analysis. We thus
conclude the State failed to meet its burden at the suppression hearing, and that
the gun found in the trunk must be suppressed as a fruit of the unlawful motor
vehicle stop. See Wong Sun, 371 U.S. at 484–88 (holding the exclusionary rule
extends to direct and indirect products of unlawful police conduct).
Accordingly, we need not address defendant's remaining Fourth Amendment
contentions that the trial judge erred in ruling that: (1) defendant knowingly and
voluntarily consented to the search of the trunk; and (2) even if the consent -to-
search was invalid, the warrantless search of the trunk was authorized under the
New Jersey automobile exception, State v. Witt, 223 N.J. 409 (2015).
Relatedly, because defendant's trial conviction must be vacated, we need
not address defendant's sentencing contention or his novel arguments that: (1)
the statutory permissive inferences established in N.J.S.A. 2C:39-2 are
unconstitutional; and (2) the crime of possessing a handgun without a permit
codified in N.J.S.A. 2C:39-5(b) violates the Second Amendment. See Comm.
to Recall Robert Menendez from the Off. of U.S. Senator v. Wells, 204 N.J. 79,
95 (2010) (As a general principle, courts "strive to avoid reaching constitutional
questions unless required to do so."); Randolph Town Center, L.P. v. Cnty. of
Morris, 186 N.J. 78, 80 (2006) ("Courts should not reach a constitutional
A-0875-19 23 question unless its resolution is imperative to the disposition of litigation"
(citing In re N.J. Am. Water Co., 169 N.J. 181, 197 (2001))).
We reverse, vacate defendant's conviction and sentence, and remand for
the trial court to arrange for defendant's release if he is still confined. We do
not retain jurisdiction.
A-0875-19 24