Court: Police can’t detain window tint car passenger
In reversing a conviction for heroin possession, the Court of Appeals made clear Tuesday that just being around a car with an illegal window tint is not a legal basis to be detained for a field interrogation.
The judges also said they found it “troubling” that prosecutors made the argument that a man’s decision to walk away from officers, and question why they wanted him to stop, was in itself suspicious and grounds for being detained.
According to the decision: Three Milwaukee police officers had just turned onto Chambers Street in November 2015 when they noticed a parked Toyota with heavily tinted windows. They stopped their car in front of it.
Frederick Jennings, 28, was either seen in the passenger seat or standing just outside when he started walking away toward a house.
Officer Jonathan Newport ordered him to stop and grabbed his wrist. After another officer took control of Jennings, Newport went to the Toyota and, he later testified, smelled marijuana and saw a 0.01-gram marijuana stem through the windshield. He then entered the car and found marijuana.
While arresting Jennings for that, officers found heroin in his pocket. Jennings was charged with possession of heroin and sought to have the evidence suppressed as the result of an illegal search.
Newport testified that “every single time he has stopped a car with excessively tinted windows in that district of Milwaukee on a prior occasion, he has found evidence of other illegal conduct.”
He and another officer gave divergent accounts of what else they observed and when, like whether Jennings made a “furtive movement” inside the car once police arrived.
Jennings argued the other officer’s more credible version — that Jennings was already exiting the car when police turned onto the street — didn’t establish reasonable suspicion and that “his is truly a case where zero plus zero plus zero really does equal zero.”
The judge decided it was legal for the officers to detain Jennings because of his “association” with a car possessing window tint that violated a city ordinance.
But the court of appeals noted that might be a reason to stop the operator of such a car, but not Jennings.
“We have considered a vehicle’s darkly tinted windows to be a fact that, under some circumstances and along with other articulated facts, can contribute to reasonable suspicion to extend a lawful stop,” the court wrote.
“However, we have never held that tinted windows alone can justify the detention of a person who is not operating the vehicle in question.”
The District 1 Court of Appeals panel of judges — William Brash, Maxine White and Rachel Graham — found it “troubling” that the state argued it was “suspicious” for Jennings to walk away and ask why police were stopping him.
“If disregarding or questioning an attempted unlawful seizure can make that seizure lawful, then individuals are not, in fact, free from unreasonable seizures at all,” the court wrote.
After losing his motion to suppress, Jennings had pleaded guilty to heroin possession and was sentenced to 21⁄2 years in prison. Now his conviction has been reversed and the case sent back to trial court.