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Defense win: officer’s testimony about window tint not enough for reasonable suspicion

State v. Jalen F. Gillie, 2020AP372, 1/20/21, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer stopped Gillie’s car on a “dark night” because of “suspected illegal window tint.” An eventual search of the car turned up a gun and Gillie was convicted of carrying a concealed weapon without a permit. On appeal he renews his argument that there was no reasonable suspicion for the stop. The court of appeals agrees with him on this, and so reverses his conviction (and declines to address his other Fourth Amendment claims connected to the encounter).

The analysis here more or less exactly follows that of State v. Conaway, 2010 WI App 7, 323 Wis. 2d 250, 779 N.W.2d 182, a published window-tint case. Reasonable suspicion of illegal (greater than 35% light obstruction) tint is not terribly hard to establish, but the state and the officer here just didn’t bring out any of the necessary facts:

Our question is quite narrow—whether the State proved that Ofc. Rivera had reasonable suspicion to stop Gillie. We faced a similar situation in Conaway. There, we explained that an officer’s testimony could be adequate to support reasonable suspicion “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.” Id., ¶7. Here, the record made by the State does not satisfy that standard. Ofc. Rivera was not questioned about his observations of the vehicle windows, the window tint ordinances, or why he suspected Gillie’s window tint to be as dark as or darker than the 35% or 50% light passage requirements under the vehicle window tint ordinances. Without the State producing testimony from Ofc. Rivera that fulfills the Conaway standard, the record is devoid of specific articulable facts about that dark evening in November that would support reasonable suspicion for the stop.

(¶20).

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