The Atlanta Police Department, in an effort to keep it’s sworn employees informed of Georgia Supreme Court decisions that may impact their work, have researched Ciak v. The State that concerns a Cobb County case in which an officer performed a routine traffic stop for a violation of Title 40-8-73.1, using his experience as a police officer. The following is a summary of that case with the connecting court decision.

1.         This appeal places before the court, a challenge to the constitutionality of OCGA 40-8-73.1 which provides in part that …

“It shall be unlawful for any resident person to operate a

Motor vehicle in this state…which has material and glazing applied…to...the side or door windows, which…reduce light transmission through the window to less than 32% or increase light reflectance to more than 20%…the provisions of…this Code section shall not apply to a vehicle, the windows or windshields of which have been tainted or darkened before factory delivery or any  motor vehicle not registered in the state…”

2.         A police officer stopped Ciak solely because he suspected the windows of the Georgia-registered car she was driving violated OCGA 40-8-73.1. Subsequently, he smelled alcohol and commenced a DUI investigation, ultimately arresting Ciak for DUI. She was not charged at that time for the 40-8-73.1 violation because a test at the arrest site showed the windows were not tinted beyond the 32% limit, but was eventually charged by accusation with that offense.

3.                  Ciak filed a motion to suppress all evidence derived from the traffic stop, contending

OCGA 40-8-73.1 is facially unconstitutional, as it denies equal protection. This motion was denied by the trial court saying the Ciak failed to prove she was similarly situated to those who are treated differently. Concurrently, the court ruled that the statute is rationally related to the purpose of officer safety.

4.         Ciak contends the statute denies equal protection of the law because it applies only to Georgia residents. This was denied by the trial court on two bases: first, that Ciak was not situated to a class being treated differently, and second that the legislature had legitimately applied piecemeal remedies to achieve that statute’s purpose of promoting the safety of law enforcement personnel. The Supreme Court disagrees with both holdings by the trial court.

5.         In their response, the Supreme Court states that the persons affected by the statute comprises the drivers of all motor vehicles which are registered in Georgia and have tinted windows. Within that, the statute distinguishes between residents of this state and non-residents. It is that distinction which Ciak says denies her equal protection of the law.

6.         As several other jurisdictions have noted, the purpose of laws restricting the degree to which vehicle windows may be tinted is to enhance the safety of law enforcement officers approaching vehicles they have stopped. It being self evident that non-residents can be as dangerous to police officers as residents, the court stated they could perceive no rational connection between the residence of the driver of a vehicle and the goal of improving law enforcement officer safety during traffic stops.

Therefore, the distinction drawn by the statute violates the constitutional guarantee of equal protection of the laws because it distinguishes between similarly situated persons, drivers of cars registered in Georgia, on a basis which bears no relation to the purpose of the statute.

7.         The unconstitutionality of the statute does not, however, require the grant of motion to suppress the evidence resulting from the traffic stop. The U.S. Supreme Court poses the question…”whether it can be said that the officer lacked Probable Cause to believe that the conduct he observed…constituted a violation of law simply because he should have known the ordinance was invalid and would be judicially declared unconstitutional. The answer is clearly negative.”

8.         Ciak also contended in the trail court that the traffic stop, based on OCGA 40-8-73.1 could not be valid because it contains too many elements which cannot be determined by an officer merely by observing a vehicle with tinted windows. Specifically, Ciak noted that an officer cannot determine, before stopping the car whether the driver is a resident or non-resident, whether the tint was applied by the manufacturer or as an after-market modification, or whether the tint of a particular window meets the requirements of the statute. It is at this point the Georgia law governing Investigatory stops is taken into account. There must exist, an articulable suspicion of wrongdoing.

“An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This specific, articulable suspicion must be based on the totality of the circumstances—e.g., objective observations, information from police reports, the modes or patterns of certain kinds of lawbreakers, and the inferences drawn and deductions made by a trained law enforcement officer.”

9.         What is undisputed in this case was that the officer conducting the stop observed Ciak’s car, noted that the windows were tinted a dark purple, and believed the tinting to be darker than permitted by OCGA 40-8-73.1. The fact that the officer determined from a field test that a citation for violating OCGA 40-8-73.1 was not warranted does not render the stop improper. The fact that the officer did not charge the defendant with the offense which the stop was based was immaterial.

10.            Concluding, The objective observations of a trained officer were sufficient to support a reasonable suspicion that a violation of 40-8-73.1 was occurring in his presence.

11.      Key Point SUMMARY

This training issue emphasizes the Georgia Supreme Court decision concerning   Ciak  v. THE STATE  in which the court ruled in favor of the officer’s experience being used to determine Probable Cause in stopping Ciak for violation of Title 40-8-73.1.

Although the tinting of the window was ultimately found to be inside State guidelines, the court ruled that it did not necessarily render the stop improper. In applying State v. Wright, supra, 221 Ga. App. At 205, the court concluded that the objective observations of a trained officer were sufficient to support a reasonable suspicion that a violation of 40-8-73.1. was occurring in his presence.  

This court case makes OCGA 40-8-73.1 (window tint) unconstitutional and will not be used for the basis of issuing citations until and unless amended by the Georgia Legislature.

Any questions concerning this topic should be addressed to Officer L. Vinsant at (404) 209.5250.