IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
v. § I.D. No. 1608006943
ISAIAH MOORE, §
Defendant. §
OPINION

Date Submitted: March 10, 2017
Date Decided: March 16, 2017

Upon Defena'ant’s Motion to Suppress: DENIED.

Phillip M. Casale, Deputy Attorney General, Delaware Depar“cment of Justice, 820
North French Street, Wilmington, Delaware, Attorney for the State.

Kevin J. O’Connell, Esquire, 820 North French Street, Wilmington, Delaware,
Attorney for Defendant.

JURDEN, P.J.

I. INTRODUCTION

Defendant Isaiah Moore was driving a motor vehicle in Wilmington when
the police stopped his vehicle for a suspected window tint violation. Defendant
moves to suppress a firearm the police discovered after a search of the vehicle, as
well as all statements made by Defendant as a result of the search.l For the reasons
set forth below, Defendant’s Motion to Suppress is DENIED.

II. FACTS

On August 10, 2016, at around 1:30 a.m., Wilmington Police Off`icers
Wiggins and Moses were patrolling in the northern section of Wilmington when
they observed a vehicle with heavily tinted windows pass them as it was heading in
the opposite direction. The police were unable to see inside the vehicle or
determine how many occupants were in the vehicle due to the dark tint. Before
stopping the vehicle for a suspected window tint violation, the police checked
DELJIS to see if the vehicle had a medical tint waiver. lt did not. The police
made a U-tum and conducted a traffic stop.

At the time of the stop, Offlcer Wiggins believed that any window tint
without a medical waiver constituted a violation of 21 Del. C. § 4313. At the
suppression hearing, Officer Wiggins conceded that his understanding of

21 Del. C. § 4313 at the time of the stop was inaccurate, but testified that he would

 

lD.I. 11.

have stopped the vehicle had he known the correct standard (“the 70 percent light
rule”)2 because he “couldn’t see through the window at all. It was heavily tinted.”

The police discovered two occupants in the vehicle: the driver, Defendant
Isaiah Moore, and the passenger, Kevin White. Mr. White had an outstanding
capias for his arrest, and the police immediately took him into custody. After
determining that Defendant did not have a valid license and was unable to produce
a registration card for the vehicle, the police removed him from the vehicle.
Officer Wiggins testified he asked Defendant for consent to search the vehicle, and
Defendant consented. Defendant denies Officer Wiggins requested consent to
search and denies he consented. During the search, the police discovered a 9 mm
firearm under the third row seat. The police transported Defendant, Mr. White,
and the vehicle back to the Wilmington Police Department.

As a result of the traffic stop and subsequent search of the vehicle,
Defendant was charged with Possession, Purchase, Ownership, or Control of a
Firearm by a Person Prohibited (2 counts), Carrying a Concealed Deadly Weapon,
Receiving a Stolen Firearm, Driving Without a License, Driving Without a Valid

Registration Plate, and Aftermarket Window Tint Without Certificate.

 

2 See infra pp. 6-7.

III. PARTIES’ CONTENTIONS

Defendant argues that because Officer Wiggins mistakenly thought that any
window tint, without a medical waiver, violated 21 Del. C. § 4313, he did not have
a reasonable basis to conclude that Defendant violated the traffic code. Defendant
further argues that because the stop took place at night, the officers could not see
inside the vehicle regardless of the degree of window tint, and therefore, they could
not reasonably suspect a tint violation based on their inability to see inside.
Defendant asserts that the firearm, as well as all statements made by Defendant,
must be suppressed because the illegality of the stop taints any consent to search
the vehicle.3 Finally, Defendant maintains that he did not consent to the search,4

The State argues that although Ofticer Wiggins’ “subjective impression of
21 Del. C. § 4313” was inaccurate at the time of the stop, there were “objective
facts available and known to” Officer Wiggins that established a reasonable
suspicion that Defendant’s vehicle violated 21De1. C. §4313.5 With regard to
consent to search, the State relies on Officer Wiggins’ testimony that Defendant

gave his consent.

 

3 See Lopez- Vazquez v. State, 956 A.2d 1280, 1291 (Del. 2008) (“If consent is given after an
illegal seizure, that prior illegality taints the consent to search.” (quoting United States v.
Richardson, 949 F.2d 851, 858 (6th Cir. 1991))).

4 Defendant argued at the suppression hearing that he did not consent to the search. Defendant
did not argue lack of consent in his Motion to Suppress. D.I. ll 1[ 5. The State objected to the
lack of notice of this argument, but, after discussion with defense counsel and the Court, decided
not to request a continuance. The Court allowed Defendant to argue lack of consent at the
hearing, and Defendant testified he never consented to a search of the vehicle.

5 D.i. 15 11 17.

IV. STANDARD OF REVIEW

A police officer may detain an individual if he or she has reasonable
articulable suspicion of criminal activity.6 Reasonable articulable suspicion exists
when a police officer can “point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant the
intrusion.”7 Reasonable articulable suspicion “must be evaluated in the context of
the totality of the circumstances as viewed through the eyes of a reasonable,
trained police officer in the same or similar circumstances, combining objective
facts with such an officer’s subjective interpretation of those facts.”8 Reasonable
articulable suspicion “is a less demanding standard than probable cause and
requires a showing considerably less than preponderance of the evidence . . . .”9

Pursuant to 21 Del. C. § 2144(a), a police officer may “upon reasonable cause,”

stop a vehicle to investigate a possible equipment defect.

 

6 Terry v. Ohio, 392 U.S. 1, 21_22 (l968)§ The holding in Terry is codified in Delaware law at
ll Del. C. § l902(a). Pursuant to § l902(a) a police officer “may stop any person abroad, or in a
public place, who the officer has reasonable ground to suspect is committing, has committed or
is about to commit a crime, and may demand the person’s name, address, business abroad and
destination.”

7 Jones v. State, 745 A.2d 856, 861 (Del. 1999) (quoting Coleman v. State, 562 A.2d 1171, 1174
(Del. 1989)).

8 Id.

9 Woody v. State, 765 A.2d 1257, 1263 (Del. 2001) (quoting Illinois v. Wardlow, 528 U.S. 119,
123 (2000)).

V. DISCUSSION
A. Vehicle Window Tint
The window tint law in Delaware is not straightforward and requires some
hopscotch. Chapter 21, Section 4313(a) of the Delaware Code provides:
No person shall operate any motor vehicle on any public highway,
road or street with the front windshield, the side windows to the
immediate right and left of the driver and/or side wings forward of

and to the left and right of the driver that do not meet the requirements
of Federal Motor Vehicle Safety Standard 205 in effect at the time of

its manufacture
Federal Motor Vehicle Safety Standard 205 is set forth in 49 C.F.R. § 571.205. As
stated in § 571.205, the purpose of Federal Motor Vehicle Safety Standard 205 is
“to reduce injuries resulting from impact to glazing surfaces, to ensure a necessary
degree of transparency in motor vehicle windows for driver visibility, and to
minimize the possibility of occupants being thrown through the vehicle windows in
collisions.” Section 571.205 requires glazing materials for usc in motor vehicles to
“conform to ANSI/SAE Z26.1-1996 . . . unless this standard provides

otherwise.”10 As noted by the Court in State v. Wilson, “[t]he federal regulation on

 

‘° 49 c.F.R. § 571.205 ss.i. seonon 571 .205 incorporates ANsi/sAE z26.i_i996 by reference
in 49 C.F.R. § 571.5. Section 571.5 defines ANSI/SAE Z26.1_1 996 as the “American National
Standard for Safety Glazing Materials for Glazing Motor Vehicles and Motor Vehicle Equipment
Operating on Land Highways-Safety Standard” published by the American National Standards
Institute.

which the state regulation is based is virtually incomprehensible,” and “it is almost
impossible to identify the point at which after-market tinting becomes excessive.”ll
Recognizing the unwieldiness of § 4313’s incorporation of Federal Motor
Vehicle Safety Standard 205, the Delaware Department of Transportation
(“DelDOT”) promulgated 2 Del. Aa'min. C. § 2277.12 Section 2277 explains that
the regulation is necessary to provide DelDOT “a more definitive method in which
to determine which products or materials are acceptable at the time of the vehicle
safety inspection” and “to assist police officers in enforcing the law.”13
Section 2277 assists police officers in enforcing the law by clarifying that window
tint “must provide [] light transmission of not less than 70 percent” (“the 70
percent light rule”).14 Section 4313 provides an exception for those in possession
of “a statement signed by a licensed practitioner of medicine and surgery or
osteopathic medicine or optometry verifying that tinted windows are medically
necessary for the owner or usual operator.”15
B. Reasonable Articulable Suspicion
Defendant contends that because Officer Wiggins was mistaken about the

degree of tint prohibited by Delaware law, his suspicion was not (and could not) be

objectively reasonable. In support of this argument, Defendant relies on State v.

 

11 2013 WL 2423093, et *2(De1. super Mer. 12, 2013).

12 DelDOT adopted § 2277 pursuant to its authority under 21 Del. C. § 302.
13 2 net Arzmm. C. § 2277-2.0.

14 Id. § 2277-3.1.2.

15 2iDe1. C. § 4313(d).

Coursey.16 ln Coursey, a police officer observed a vehicle traveling parallel to his

7 The vehicle made an abrupt turn into a

patrol car with dark tinted windows.l
parking lot, whereupon the officer followed the vehicle into the parking lot and
activated his lights.18 Coursey submitted to the stop by parking in a handicapped
parking spot.19 As a result of the stop, Coursey was charged with multiple
offenses, including a window tint violation.20 Coursey moved to suppress evidence
seized as a result of the traffic stop, and at the suppression hearing, the officer
testified the basis for the stop was his observation that the tinted windows
concealed all the occupants in the vehicle.21 When the Court asked the State to
identify the standards that apply to the enforcement of § 4313(a), the Court found
the State’s response incomplete and inaccurate, noting it raised “a question of
candor.”22 The Court was similarly unimpressed by the State’s assertion that
parking in a handicapped parking space constituted an additional basis for the stop
because Coursey pulled into the handicapped parking spot in order to submit to a

police vehicle with activated lights.23 The Court specifically found as fact that

Coursey pulled into the handicapped parking spot only after the officer activated

 

16 906 A.2d 845 (Del. super 2006).
11 Id. at 846.

111 Id.

19 Id.

211 ld.

21 Id.

22 ld. et 847 n.3.

13 1a at 847.

his lights, “thereby eliminating the parking location as a basis for the stop.”24

Further, the officer who stopped Coursey did not fare well under a withering cross
examination by defense counsel, thus eroding his credibility with the Court.25 The
Court suppressed the evidence, concluding, “[f]ailure to understand the law by a
person charged with enforcing it is not objectively reasonable . . . I find that the
officer did not have reasonable articulable suspicion based on fact and law.”26

Delaware courts have twice discussed the holding in Coursey, first in State
v. Trower27 and again in Stevens v. Sta),‘e.28 ln Trower, a police officer on patrol
noticed a vehicle with dark tinted windows that prevented the officer from seeing
the occupants inside.29 He stopped the vehicle for a suspected window tint
violation.30 The defendant moved to suppress evidence seized as a result of the
stop, arguing that reasonable articulable suspicion of a window tint violation must
be based on an observation from inside the vehicle looking out.31 The defendant

argued that, depending on lighting conditions inside or outside the vehicle, there

could be a very significant difference in one’s ability to see into the vehicle versus

 

24 Id.

25 Id. 31848.

25 Id.

27 931 A.2d 456 (Del. Super. 2007). The Court is unable to find any instance in which the
holding of Coursey has been followed by this Court.

211 970 A.2d 257, 2009 wL 756513 (Del. 2009) (TABLE).

29 931 A.2d at 457.

50 ld.

511d. at458.

one’s ability to see out.32 Therefore, according to the defendant in Trower, a
window tint violation is unenforceable except as a secondary offense (whereby the
officer could examine the windows from inside after a traffic stop based on a
different offense) because inability to see through the windows from the outside
does not provide a reasonable basis to believe the window tint statute is being
violated. 33 The Court in Trower rejected all of the defendant’s arguments, stating:

lt is true that the defendant could see out of the windows, because he
was able to operate the vehicle on the roadway without running off the
road. The defendant’s contentions, however, are based upon an undue
emphasis on the purpose of the federal standard, as opposed to the
standard itself. The fact that the driver can see out of tinted windows
does not establish that they allow 70% or more of light transmission,
or rule out a reasonable suspicion that they do not.

The contention that the officer must look at the windows from inside
the vehicle before he can be reasonably suspicious that they violate
the standard is unpersuasive “Reasonable suspicion” is not a
demanding standard. lt is less than probable cause and considerably
less than preponderance of the evidence The State’s contention, that
a reasonable suspicion of a violation arises where an officer cannot
see the occupants in the vehicle, is more persuasive34

The Court in Trower held that, “window tint which is so dark that one cannot see

the occupants inside the vehicle creates a reasonable suspicion that it violates the

 

52 Id.

33 ln making these arguments, the defendant in Trower relied upon Federal Motor Vehicle Safety
Standard 205, specifically the “Purpose” section, which provides that, inter alia, the Standard is
intended to ensure a necessary degree of transparency in windows for driver visibility Id. at
458-59; see 49 C.F.R. § 571.205 SZ.

5‘1 Trower, 931 A.2d at 459.

10

standard.”35 With regard to Coursey, former President Judge (now Justice)
Vaughn found the facts in Trower distinguishable but stated, “[t]o the extent that
Coursey is not distinguishable . . . 1 respeetfnlly decline to follow it.”56

ln Sievens v. State,37 the police stopped a vehicle for playing loud music.38
At the suppression hearing, the police officer who stopped the vehicle could not
explain precisely what was prohibited by the applicable ordinance39 The
defendant relied upon Coursey to conclude_due to a “mistake of law”_the police
stopped his vehicle without reasonable articulable suspicion.40 The Delaware
Supreme Court rejected the defendant’s argument, finding Stevens distinguishable
from Coursey because the police officer “could objectively apply the Ordinance.”41
However, the Delaware Supreme Court pointed out that the Superior Court, in
Trower, questioned Coursey.42

ln addition to Coursey, Defendant relies on McDonald v. State in support of

his argument that Officer Wiggins’ misunderstanding of the requirements of

 

55 ld.; State v. Frtend, 2008 wL 9004456, at *3 (Del. super Nov. 26, 2008) (“Window tint that
prohibits an officer from seeing a vehicle’s occupants is enough to suspect the tint exceeds the
limits.” (citing Trower, 931 A.2d at 459)).

55 Trowar, 931 A.2d at 459 n.10.

51 970 A2d 257, 2009 wL 756513 (Del. 2009) (TABLE).

55 rd. at *l.

59 Id. at *2.

40 Id. (“Moreover, another Superior Court judge has questioned Coursey in a more recent
decision, State v. Trower.”).

411d.

42 ld.

ll

§'4313 renders the traffic stop illegal.43 In McDonald, police observed a vehicle
lawfully parked in a private parking lot.44 The police ran the vehicle’s registration

5

number, but the officer inadvertently transposed some of the digits.4 Due to the

officer’s mistake, the system reported the vehicle as unregistered46 The police
continued to observe the vehicle, and noticed when it exited the parking lot by
turning onto the public roadway that the driver did not use a turn signal.47
Believing the failure to use a turn signal constituted a traffic violation, the police
stopped the vehicle48 The Delaware Supreme Court found that the alleged turn
signal violation was the sole reason for the stop.49 Because Delaware law does not
require the use of a turn signal when entering a public roadway from private
property, the Delaware Supreme Court held that the stop based upon the officer’s
mistaken understanding of 21 Del. C. § 4155 violated the defendant’s Fourth
Amendment rights.50 On this point, Defendant further highlights a concurring
portion of Vice Chancellor Noble’s dissent:
[A]s the majority properly determines, the right turn from the parking

lot without the use of a blinker was not a violation of Delaware law
and thus could not justify a warrantless stop. A police officer’s good

 

45 947 A.2d 1073 (Del. 2008).

44 ld. at 1075.

45 ld.

45 Id.

41 Id.

45 Id.

49 Id. at 1080. ln dissent, Justice Berger and Vice Chancellor Noble disagreed that the turn signal
violation was the only basis for the stop. Id. at 1080-86.

55 1a at 1079-80 (disoussing 21 Del. C. § 4155).

12

faith mistake of law, even one that is reasonable, does not survive

scrutiny under the United States Constitution as the basis for a

warrantless stop.51
Based on the foregoing language, Defendant concludes suppression is required in
this case because Officer Wiggins was mistaken regarding the degree of tint
permissible under Delaware law.

McDonald is distinguishable ln McDonala’, the police did not have
reasonable articulable suspicion that a turn signal violation occurred because the
facts known to the police unambiguously did not constitute a violation of § 4155.
Stated differently, because the alleged turn signal violation was the sole reason for
the stop, the police would not have stopped the vehicle had they known the correct
standard.

Here, Officer Wiggins credibly testified that he stopped Defendant’s vehicle
because the window tint was so dark he could not see the occupants in the vehicle,
that he verified the vehicle did not have a medical waiver before stopping the
vehicle, and that he still would have stopped the vehicle for a suspected tint
violation had he known the exact percentage of light transmission required. As to
Defendant’s argument that no one would have been able to see inside the vehicle

because it was nighttime and, therefore, the inability to see inside was not a

reasonable basis for the stop, the Court does not find this argument persuasive in

 

51 Id. at 1083 (Noble, Vice Chancellor, dissenting).
1 3

light of Officer Wiggins’ credible testimony that the degree of window tint (not the
ambient lighting) prevented him from seeing the occupants inside the vehicle
Considering the totality of the circumstances, as viewed through the eyes of a
reasonable trained police officer, and combining objective facts with Officer
Wiggins’ subjective interpretation of those facts, the Court finds Officer Wiggins
had reasonable articulable suspicion of a window tint violation. Under Trower, his
inability to see the occupants of the vehicle due to the dark tint, coupled with the
absence of a medical waiver, are sufficient to justify a stop to investigate a possible
window tint violation.
C. Consent to Search

Defendant argues that he did not consent to a search of the vehicle ln
support of this argument, Defendant testified that Officer Wiggins never requested
Defendant’s consent to search the vehicle, and Defendant never gave Officer
Wiggins consent to search the vehicle At the time of the stop, Officer Wiggins
was wearing a body camera, but the camera failed to record. Officer Wiggins
testified that he believed the body camera was working, he requested consent to
search from Defendant, and he received consent. The Court finds Officer

Wiggins’ testimony credible, and that the Defendant consented to the search,52

 

52 Because the Court finds that the Defendant consented to the search, it need not address the
parties’ arguments regarding the inevitable discovery doctrine

14

VI. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Suppress is DENIED.

IT IS SO ORDERED.

 

 

 

. Jresident Judge \

15

