[00:00:00] Speaker 04: Case number 23-3044, United States of America versus Ronald Williams appellant, Ms. [00:00:07] Speaker 04: Schnoor for the appellant, Mr. Andrews for the appellee. [00:00:13] Speaker 05: Good morning, Ms. [00:00:13] Speaker 05: Schnoor. [00:00:14] Speaker 03: Good morning, Your Honors. [00:00:15] Speaker 03: May it please the court, Mary Schnoor representing defendant appellant, Ronald Williams. [00:00:20] Speaker 03: In denying Mr. Williams' suppression motion, the District Court invented a novel and misguided exception to the Fourth Amendment, allowing a search of a vehicle's passenger compartment during any traffic stop where the vehicle's windows appear to be darkly tinted. [00:00:34] Speaker 02: And you say it's any traffic stop, not just one where you're approaching and it's going to be tenant windows. [00:00:39] Speaker 02: And so you perhaps like to see in as the officer and any traffic stop where the vehicles windows appear to be darkly tinted, your honor. [00:00:46] Speaker 03: Yes, that's correct. [00:00:47] Speaker 02: So it is narrowed. [00:00:48] Speaker 03: It's not just any traffic, not any traffic stop, any traffic stop where the vehicles windows appear to be darkly tinted at the time. [00:00:54] Speaker 03: Mr. Williams was ordered to roll all of his windows all the way down the officers who began the traffic stop. [00:01:00] Speaker 03: had found him to be totally compliant, had done nothing to suggest that they feared for their safety. [00:01:06] Speaker 03: And indeed, Sergeant Knisely testified that Mr. Williams had done nothing suspicious beyond the tint issue. [00:01:12] Speaker 03: The district court's decision runs contrary to Michigan versus Long, where the Supreme Court made clear that a protective search of a car's interior is permissible only if based on reasonable suspicion that the vehicle's occupant is armed or dangerous. [00:01:27] Speaker 04: So Michigan versus Long. [00:01:28] Speaker 04: That was a different type of search that was they went into the car. [00:01:32] Speaker 04: This is just visual inspection outside and. [00:01:36] Speaker 04: Speaking of Michigan versus long under that case couldn't they have done a protective search of this car based on reasonable suspicion that there was danger. [00:01:45] Speaker 03: So it's true that in Michigan versus long the officers did go inside the car, however. [00:01:50] Speaker 03: That does not mean that this was not a search. [00:01:54] Speaker 03: And under Katz, there was a reasonable expectation of privacy in the interior of the car, as the Supreme Court has said in Klass and reaffirmed in Bird. [00:02:03] Speaker 04: Klass was also a case where they went into the car. [00:02:06] Speaker 04: I think there is some support for the idea that you don't have a reasonable expectation of privacy of visual inspection into a car. [00:02:15] Speaker 04: Because when a lot of these cases were decided, [00:02:19] Speaker 04: cars weren't tented generally it was like an unusual thing to have 10 and the general rule is if you can just see something that you don't have a reasonable expectation of privacy in it. [00:02:31] Speaker 04: But it just seems to me that you do agree that the officer could ask the driver to roll down the front window during a traffic stop. [00:02:40] Speaker 03: So we agree that the officer could ask the driver to roll down the window as necessary to facilitate communication and passing the license and registration. [00:02:50] Speaker 04: But isn't that a really de minimis next step to roll down all the windows because all the windows are tinted? [00:02:56] Speaker 04: Because once you agree that one window can come down, [00:02:59] Speaker 04: The incremental difference between one and all seems pretty small. [00:03:04] Speaker 03: I don't think so, Your Honor. [00:03:05] Speaker 03: I think there is a big difference between ordering all of the windows rolled all the way down and just ordering them to stay down so that the police can shine their flashlights in. [00:03:13] Speaker 06: What's the big difference in legal terms? [00:03:15] Speaker 06: What test are you applying to suggest there's a big difference? [00:03:20] Speaker 03: So I think the intrusion is greater into the privacy interests. [00:03:27] Speaker 06: So you're not intruding any more [00:03:29] Speaker 06: than you would already be able to view, because the windows were not illegally tinted? [00:03:35] Speaker 03: I don't think that's correct, Your Honor. [00:03:37] Speaker 03: On this record, the district court did not make a finding. [00:03:40] Speaker 03: So DC law allows rear windows to be tinted up to 50%. [00:03:44] Speaker 03: And at night, 50% is quite a dark tint. [00:03:48] Speaker 03: I don't think the police would have been able to see the gun in plain view had the car's windows been legally tinted. [00:03:55] Speaker 04: And here, moreover- But is that the standard we should be looking at, like, what you can legally tint? [00:04:00] Speaker 04: I mean, that's just not a fact in this case. [00:04:02] Speaker 04: And you're assuming that everybody should have whatever protection they would have if their windows were 50% tinted. [00:04:10] Speaker 04: But what we have here is a different analysis if you look at MIMS and Maryland versus Wilson, which is you look at [00:04:19] Speaker 04: The government interest, which is the safety of the police officers and you weigh that against the degree of intrusion, which is minimal in more minimal than what we had in Mims and in Maryland versus Wilson. [00:04:32] Speaker 04: So it seems to me that the district court just applied that framework. [00:04:35] Speaker 04: that analysis and this case was easier than Maryland versus Williams or Mims because the intrusion was so minimal because it's just rolling down three more windows when you could roll down one. [00:04:49] Speaker 04: And the danger was greater because all of the cases that talk about danger and traffic stops, they don't involve tinted windows, which heightens the danger. [00:04:58] Speaker 03: So I would disagree, Your Honor, with the idea that the intrusion in Mims and Wilson [00:05:05] Speaker 03: is greater than the intrusion here. [00:05:07] Speaker 03: I think it's a different type of intrusion. [00:05:09] Speaker 03: And so Mims and Wilson, that just concerns a seizure. [00:05:12] Speaker 03: And the incremental additional intrusion is just whether you're sitting in the car during a traffic stop versus being asked to step out of the car. [00:05:19] Speaker 04: But that involves opening the car door, which gives you a view into the car, and then having people step out of the car. [00:05:24] Speaker 04: You think that is less intrusive than having people roll down additional windows when one is already rolled down? [00:05:31] Speaker 03: I think so, Your Honor. [00:05:33] Speaker 03: So the brief, it's true that someone has to open the door to step out of the car, but they can do so briefly. [00:05:38] Speaker 03: They can shut it behind them. [00:05:39] Speaker 04: And here when it's open, you can look into it. [00:05:41] Speaker 03: That's true. [00:05:42] Speaker 03: That's true. [00:05:42] Speaker 03: But the police did not do that here. [00:05:44] Speaker 03: And the order here was to order all the windows down to expose the entire passenger compartment. [00:05:51] Speaker 02: But I would like you to be careful about what you're asking for, because this is what comes to my mind. [00:05:56] Speaker 02: Unfortunately, there's a lot of issues with police and persons of color. [00:06:06] Speaker 02: You ask a person of color to get out of the car, but before they're taught to put their hands on the steering wheel, [00:06:16] Speaker 02: and then you ask them to get out of the car and you relieve their hands and then they're trying to get out of the car, potentially there could be a furtive movement just because they're nervous at that point and then they could get out of the car and then you don't know what else they're going to do. [00:06:32] Speaker 02: And I mentioned this because we had a case in South Carolina where the officer asked the gentleman at a gas station, go get your driver's license. [00:06:40] Speaker 02: That's what he did and the officer shot him five times. [00:06:43] Speaker 02: And so I just would think you'd be a little careful about whether or not you want to push the law and be on the side of asking the person to get out, like that be the thing you request all the time. [00:06:58] Speaker 02: When you have the issue of somebody could be moving a little bit, the officer now has a heightened degree of safety. [00:07:06] Speaker 02: and that you're asking that to be the standard that the officer should always ask the person to get out of the car and then they could be moving and then cause another whole issue. [00:07:14] Speaker 03: So I think it's true that traffic stops are always dangerous. [00:07:19] Speaker 03: They're dangerous for the officer. [00:07:21] Speaker 03: They may be very dangerous for the driver as well. [00:07:23] Speaker 03: There can be misunderstandings, and tragedy can result. [00:07:27] Speaker 03: But I don't think that that means that the police should always, whenever a window is starkly tinted, be allowed to order the windows rolled down. [00:07:37] Speaker 03: Now, if they had reasonable and articulable suspicion that an occupant of the car was dangerous, [00:07:43] Speaker 03: Then, of course, yes, they can search the passenger compartment. [00:07:46] Speaker 03: That's clear, and we don't dispute that. [00:07:49] Speaker 02: So you're agreeing to let it just be lowered just enough to, what, hand over a license, or just to see the person? [00:07:55] Speaker 03: Yes, and that's sort of, so if you look at the facts of this case here, when the traffic stop began, Officer Laurie tapped on the window. [00:08:03] Speaker 03: Mr. Williams rolled his window down partially, and the traffic stopped again, and he was getting his license and registration. [00:08:11] Speaker 03: It was not until the order to roll all the windows all the way down, including the back windows, that the officers were able to see inside and see the firearm. [00:08:22] Speaker 03: So that sort of supports that it was not possible for the police to see the gun here just because of that initial incremental window drop. [00:08:35] Speaker 04: So when Officer Laurie tapped on the window, the driver just rolled down the window a little bit. [00:08:44] Speaker 04: I watched the video of this, and the car is completely darkly tinted. [00:08:49] Speaker 04: And they weren't asking to roll down the window so they could search for evidence. [00:08:56] Speaker 04: It was an officer safety issue. [00:08:57] Speaker 04: They don't know how many people are in the car. [00:08:59] Speaker 04: It's night. [00:09:00] Speaker 04: The windows are darkly tinted. [00:09:01] Speaker 04: They're illegally tinted, so you can't see inside them. [00:09:04] Speaker 04: And it seems to me that the district court just was addressing the officer safety issue and Mims and Maryland versus Wilson support the idea that if you have a strong officer safety interest, [00:09:17] Speaker 04: Reasonable suspicion isn't part of this analysis, because it's not reasonable suspicion to investigate the crime, to look for evidence. [00:09:23] Speaker 04: It's just to make sure the officers are safe. [00:09:26] Speaker 04: And it just seems to me that the logic of MIMS and Maryland versus Wilson applies very cleanly here. [00:09:33] Speaker 04: And this is a lesser intrusion and a greater risk to the officer in this situation. [00:09:38] Speaker 03: So I think in Maryland versus Wilson and in MIMS, [00:09:43] Speaker 03: There, the court was only addressing the incremental intrusion on the driver's personal liberty interest from remaining in the car during the traffic stop to stepping out. [00:09:54] Speaker 03: And Mims and Wilson did not at all address the privacy interest in the interior of the car. [00:10:01] Speaker 03: And we think that interest is substantial. [00:10:03] Speaker 03: It's different than the interest at issue in Mims and Wilson. [00:10:11] Speaker 03: So the district court did not, it's true that there is an officer safety justification, but you also have to look at the privacy side of the balance. [00:10:20] Speaker 04: So why isn't this another way of looking at this is during a tarry stop or traffic stop. [00:10:25] Speaker 04: First of all, the officers are allowed to take complete control of the situation. [00:10:28] Speaker 04: That's in the case law. [00:10:30] Speaker 04: And also during such a stop, lots of things happen. [00:10:34] Speaker 04: Like Supreme Court has said, the officers could have a drug sniffing dog come sniff your car. [00:10:39] Speaker 04: as long as it doesn't extend the stop. [00:10:42] Speaker 04: You can ask for a license and registration. [00:10:44] Speaker 04: Obviously you can have them step out of the car. [00:10:46] Speaker 04: You can ask about things that are unrelated to the traffic stop. [00:10:49] Speaker 04: Do you have any guns or drugs in this car? [00:10:50] Speaker 04: You can do all kinds of things. [00:10:52] Speaker 04: Why isn't, please roll down all your windows, just another thing you can do during a traffic stop. [00:10:56] Speaker 03: I think because it is a search and I'm not aware of any other case law holding that the police can do [00:11:05] Speaker 03: a search of the interior of the car. [00:11:07] Speaker 04: Well, there's the Texas v. Brown case that says you don't have a reasonable expectation of privacy in the passenger compartment of your car, or the visual inspection of the passenger compartment of your car, which means it wouldn't be a search. [00:11:18] Speaker 03: It's a plurality. [00:11:20] Speaker 03: Yes. [00:11:21] Speaker 03: So if you can see something in plain view, you don't have a privacy interest in it. [00:11:25] Speaker 03: But the court has said you do have a reasonable expectation of privacy in the interior of your car to the extent something is not visible to the public. [00:11:33] Speaker 03: And given that. [00:11:35] Speaker 04: So that kind of raises a whole different issue, which is interesting to me. [00:11:38] Speaker 04: It seems like a lot of these cases assume that you can look into a passenger compartment of the car. [00:11:44] Speaker 04: They travel the streets. [00:11:45] Speaker 04: Everybody can look in and see who's driving usually, that kind of thing. [00:11:49] Speaker 04: And they kind of assume not tinted windows, that passenger compartments of cars are normally visibly open to the outside world. [00:11:59] Speaker 04: And in that world, it would seem that there would be a strong argument that this is not a search, because you have no expectation of privacy in a visual inspection of the inside of your car that you can see through your windows. [00:12:11] Speaker 03: So we cited multiple cases in our brief where other courts, and also this court actually in Brown, treated opening the door of a car with directly tinted windows as a search. [00:12:21] Speaker 03: And I think that's because you have a privacy interest in the interior of your car. [00:12:26] Speaker 03: And that's true. [00:12:27] Speaker 04: And that's going in. [00:12:28] Speaker 03: No, no. [00:12:29] Speaker 03: In Brown, the officer did not cross the plane of the vehicle. [00:12:32] Speaker 03: And that's true in Stanfield, too. [00:12:34] Speaker 03: The officer did not lean into the vehicle. [00:12:36] Speaker 03: And they upheld that. [00:12:37] Speaker 03: They said opening the door to look in was in Brown. [00:12:40] Speaker 03: They said it was upheld. [00:12:42] Speaker 03: In Brown and in Stanfield, it was upheld. [00:12:44] Speaker 03: But it was upheld only after the court concluded that there was reasonable suspicion to support that search. [00:12:50] Speaker 04: Well, Stanfield said that a bright line rule was appropriate and also did that other analysis. [00:12:56] Speaker 04: But I did ask you, do you think that a protective frisk of this car would have been appropriate? [00:13:01] Speaker 03: In this case, on this record, no. [00:13:04] Speaker 03: I don't think there was reasonable suspicion to support a protective frisk of the car. [00:13:09] Speaker 04: So just officers come up. [00:13:12] Speaker 04: They're not feeling safe. [00:13:14] Speaker 04: All the windows are dark. [00:13:15] Speaker 04: When they ask to converse with the driver, he only opens his window a crack. [00:13:23] Speaker 03: So Michigan versus Long, it seems like. [00:13:26] Speaker 03: The record here is not that the officers did not feel safe. [00:13:29] Speaker 03: And to the contrary, Sergeant Knisely testified that Mr. Williams had done nothing suspicious beyond the tint issue. [00:13:36] Speaker 04: Well, it's an objective standard. [00:13:37] Speaker 04: It doesn't matter if they subjectively felt safe or not. [00:13:40] Speaker 04: But if you're approaching a car, you don't know who is in it, how many people, whether there's a gun in there or not. [00:13:46] Speaker 04: All the windows are darkly tinted. [00:13:47] Speaker 04: And when you try to converse with the driver, he only opens the window a crack. [00:13:51] Speaker 02: And then there was when the reasonable suspicion supposedly was created. [00:13:56] Speaker 03: So it's true that it's an objective standard, but I would submit that the experienced officer's subjective understanding is pretty probative of what the objective reasonable police officer would have observed or believed under the circumstances. [00:14:10] Speaker 03: And then, moreover, as we argue in our reply brief, the government has. [00:14:15] Speaker 03: But if there were reasonable suspicion, they could frisk that car. [00:14:18] Speaker 03: If there were reasonable suspicion, yes. [00:14:21] Speaker 04: they can require them to get out, and then they could go into the car and look around. [00:14:25] Speaker 03: Well, they could ask them to get out regardless, even without reasonable suspicion. [00:14:29] Speaker 03: But yes, yes, we agree that if there were reasonable suspicion, they could order the windows rolled down and inspect the car and do a protective risk. [00:14:37] Speaker 02: That's correct. [00:14:37] Speaker 02: I guess, are we ruling on that just requiring them to, when approaching a car, because of the issue with respect to the dark tent, [00:14:49] Speaker 02: and you can't see, and that just having them roll down the window, that that in and of itself is not the search. [00:14:57] Speaker 02: That's not the viably invasiveness into their privacy interests, just rolling down the window. [00:15:04] Speaker 02: Or are you saying that it went a step further because then you're looking? [00:15:08] Speaker 02: I'm trying to figure out where you think the breach is. [00:15:10] Speaker 03: We think the order to roll all the windows down was a search. [00:15:15] Speaker 02: Okay, and why is that a search, just rolling down a window? [00:15:19] Speaker 03: Because it is an inch seems to me that there has to be some further activity So your honor we believe it's a search because it's an it intrudes into a space where there is a reasonable expectation of privacy So would you be here if they had not? [00:15:36] Speaker 02: Looked in and saw the gun like you would just say you can't do that If they hadn't seen the gun, then I don't believe there would be a motion to suppress. [00:15:43] Speaker 03: So no, I don't think we would be here [00:15:45] Speaker 02: No, but I'm just saying, I'm just trying to figure out that broader interest. [00:15:48] Speaker 02: Are you protecting against an officer not being able to ask that question, period, so that you never get to the next step? [00:15:57] Speaker 02: Or are you here just because they did get to the next step? [00:16:00] Speaker 03: Just absent reasonable suspicion, we don't believe that the officer should be able to order the windows rolled down. [00:16:06] Speaker 03: And that's because there's a reasonable expectation of privacy. [00:16:09] Speaker 02: And given that- At all, not even for the crack. [00:16:11] Speaker 02: to just hand over the driver's license and to see who's in the car. [00:16:15] Speaker 02: Not even that. [00:16:16] Speaker 03: Here the order was to roll all the windows all the way down. [00:16:18] Speaker 03: We're saying that's a search. [00:16:19] Speaker 03: If just the crack, no. [00:16:22] Speaker 03: That's correct. [00:16:23] Speaker 04: If they only rolled it down a crack and then the officer said roll it all the way down, would that be? [00:16:29] Speaker 04: A violation? [00:16:30] Speaker 03: Ordered just the driver's window rolled all the way down? [00:16:33] Speaker 03: I think that would be a different case. [00:16:36] Speaker 03: That's not what we have here where it was to order. [00:16:38] Speaker 03: I know that's a different case. [00:16:39] Speaker 02: That's a hypothetical. [00:16:40] Speaker 02: Were the windows ever rolled all the way down? [00:16:43] Speaker 03: Sorry? [00:16:44] Speaker 03: They were not because the officers saw the gun before the rear windows had been rolled all the way down. [00:16:51] Speaker 02: I think that's what I'm getting at. [00:16:53] Speaker 02: I'm trying to figure out where you're thinking the breach is because you're telling me asking to roll them all the way down is what you hear about. [00:17:01] Speaker 02: But yet they were never rolled all the way down. [00:17:03] Speaker 02: It was a crack. [00:17:04] Speaker 02: And that's when they saw it. [00:17:05] Speaker 02: So even at the crack, they saw it there. [00:17:08] Speaker 03: Well, he was rolling down his rear windows only because he'd received that order. [00:17:12] Speaker 03: And I think going back to your question, Judge Pan, I think that would be [00:17:19] Speaker 03: I'm not sure that we would be arguing that if it was just the driver's window that that would be a search because the driver's window, at least in DC, it would depend on the totality of the circumstances, but in DC, since the driver's window is not allowed to be as darkly tinted as the rear window, I think it's just a different analysis, but it would be under the totality of the circumstances. [00:17:39] Speaker 04: I think the problem with your argument is you just don't grapple with officer safety at all. [00:17:44] Speaker 04: You're talking past what the government and the district court did because [00:17:48] Speaker 04: They were focused on officer safety. [00:17:50] Speaker 04: Officers can take reasonable steps to make sure that they're safe. [00:17:53] Speaker 04: And you are focused only on the acquisition of evidence or the investigation of crime, which is what reasonable articulable suspicion addresses. [00:17:59] Speaker 03: No, I think, Your Honor, we take the officer safety justification very seriously. [00:18:04] Speaker 03: And I don't want to minimize the officer. [00:18:05] Speaker 04: All right, then how does that come into your analysis? [00:18:07] Speaker 03: So I guess on the officer safety side of the equation, if this court were to endorse the district court's rule, it would make a difference only in those cases. [00:18:16] Speaker 03: where there's no reasonable and articulable suspicion. [00:18:19] Speaker 03: No, no. [00:18:19] Speaker 04: I'm just saying if we adopt your rule, your rule doesn't consider officer safety at all. [00:18:24] Speaker 03: Well, it does in the sense that under MIMS and under Wilson and under Long, police have tried and true options for protecting themselves during a traffic stop. [00:18:34] Speaker 03: And so we're just saying. [00:18:36] Speaker 04: That doesn't include rolling down windows. [00:18:39] Speaker 03: It includes rolling down the windows if there's a reasonable suspicion, which is, again, a low bar, as the government says in their brief. [00:18:45] Speaker 04: I'll just try to put this more clearly. [00:18:47] Speaker 04: Your rule says we should always look to reasonable or takeable suspicion, that that is the load star. [00:18:52] Speaker 04: And that takes no account of officer safety. [00:18:55] Speaker 03: So we are arguing that under long reasonable suspicion is required. [00:19:00] Speaker 03: But even if you disagree with that, and you think there should be a balancing of the interests of the public safety interests versus the privacy interests. [00:19:11] Speaker 03: But you agree that your analysis takes no account of officer safety. [00:19:14] Speaker 03: We think that the privacy interest outweighs the public safety interest in this narrow case. [00:19:21] Speaker 03: But that's not a reasonable articulable suspicion standard, just to be clear. [00:19:25] Speaker 03: That would be if you disagree. [00:19:28] Speaker 03: We agree, or we believe that reasonable suspicion should be required. [00:19:31] Speaker 03: But even if you disagree with that, we think that the privacy interest outweighs the public safety. [00:19:38] Speaker 02: But a partial roll down, when you've been asked to roll down, why isn't that [00:19:43] Speaker 02: then lead itself to reasonable suspicion that, OK, you only took it halfway down. [00:19:50] Speaker 03: Well, he was complying with the order. [00:19:53] Speaker 03: I think the question is whether the order here was a search or not. [00:19:57] Speaker 03: And he was complying with the order. [00:19:58] Speaker 03: And it's true that the police saw the gun before the window was rolled all the way down. [00:20:02] Speaker 02: OK, so then why isn't? [00:20:06] Speaker 02: But that goes back to earlier. [00:20:07] Speaker 02: I think you said rolling it down a little bit was OK. [00:20:12] Speaker 03: I think what I said was that when there's a traffic stop, we acknowledge that the driver's window would need to be rolled down partially to facilitate communication and passing of the license and registration. [00:20:24] Speaker 02: And when it was rolled down partially, they saw the gun? [00:20:27] Speaker 03: No, Your Honor. [00:20:28] Speaker 03: The driver's window, I was talking about the driver's window before, but what allowed the gun to be seen was the rear window being pulled down. [00:20:38] Speaker 02: And if they had seen the gun through the partial roll down of a driver's window that was open on the command of the police, is that a different case? [00:20:48] Speaker 03: Yes, I think then that would be plain view. [00:20:50] Speaker 03: Okay. [00:20:52] Speaker 03: If the court has no further questions, we'd ask that the denial of Mr. Williams suppression motion be reversed. [00:21:00] Speaker 05: Thank you. [00:21:02] Speaker 05: Here from Mr. Andrews. [00:21:19] Speaker 01: Good morning, and may it please the court, Peter Andrews for the United States. [00:21:23] Speaker 01: The officer's order here to roll down the blacked out illegally tinted windows of Mr. Williams' car was a reasonable safety precaution that did not violate the Fourth Amendment. [00:21:34] Speaker 01: As this court has discussed with my colleague, traffic stops are dangerous. [00:21:39] Speaker 01: And the case has established that police officers are allowed to take reasonable safety precautions and need to take command of the situation [00:21:47] Speaker 02: Okay, so the driver rose down the window partially. [00:21:50] Speaker 02: Police don't see anything at that time. [00:21:52] Speaker 02: Driver has submitted to your command, so then why go further? [00:21:55] Speaker 02: Because at that time, at least there's no testimony about officer safety. [00:22:00] Speaker 01: Your Honor, the police officers in that instance are not able to see anything in the car other than what they can see through the crack in the driver's side. [00:22:08] Speaker 02: And it's the driver who you're after, because the driver is driving the tentative car. [00:22:13] Speaker 01: But the police officer, I think, does not know whether there is anyone in the backseat. [00:22:18] Speaker 01: It turns out, of course, this is why this is important. [00:22:21] Speaker 01: It turns out there is a person in the backseat they're not aware of, and that person has a loaded gun at their feet. [00:22:27] Speaker 01: And so the police officer. [00:22:29] Speaker 02: But we're trying to get at what you should do immediately, not what it turns out to be, and then back into the story. [00:22:36] Speaker 01: Yeah. [00:22:37] Speaker 01: The video makes this all does happen very fast. [00:22:40] Speaker 01: And I think when the officer approached the window, the windows rolled down just to crack. [00:22:46] Speaker 01: I think a reasonable way of looking at the video is he is not sure what's in that car, right? [00:22:53] Speaker 01: All you can see is the kind of sheet, apologies. [00:22:57] Speaker 01: All you can see is the little crack of Mr. Williams' face. [00:23:01] Speaker 01: He's rolled down the window just a tiny bit. [00:23:02] Speaker 01: And otherwise, the side windows are completely blacked out. [00:23:05] Speaker 02: Sunroof was open, right? [00:23:08] Speaker 01: I'm not sure about the sunroof. [00:23:10] Speaker 01: I can't see into the sunroof of a car when I'm just standing there. [00:23:14] Speaker 01: I don't think the officers could. [00:23:16] Speaker 01: So the officers in that situation are faced with the question of how to take control of the situation. [00:23:21] Speaker 01: And it's reasonable under the Fourth Amendment to order the windows rolled down so they can see what's in the car. [00:23:28] Speaker 01: The analysis here is exactly what the Supreme Court proved in MIMS where we are balancing the danger to the officers against the privacy interest. [00:23:42] Speaker 01: The danger to the officers is apparent in traffic stops. [00:23:47] Speaker 01: Both the officers and Judge Child's question about people of color earlier, I think it's dangerous to civilians too when police officers don't know what's in the car, civilians don't know how police officers are gonna react to them. [00:24:00] Speaker 01: So there is a serious danger issue when approaching a blacked out tinted window car. [00:24:05] Speaker 06: Can I ask you about that? [00:24:08] Speaker 06: Are you aware of statistical evidence that the ratios of fatal police shootings per arrests or stops differs between racial groups? [00:24:21] Speaker 01: I am not aware of any statistical evidence on that point about racial groups, Your Honor. [00:24:26] Speaker 01: What we're relying on for the dangerousness of traffic stops is the statistics that are cited in cases from this circuit and from cases like Stanfield that talk about the danger of traffic stops generally. [00:24:42] Speaker 01: As to racial groups, I was specifically trying to acknowledge Judge Howard's question, but I don't have any statistical evidence about different [00:24:50] Speaker 01: about different impact on racial groups. [00:24:53] Speaker 06: From the Department of Justice's perspective, you do not have the impression that ratios of fatal police shootings per arrests or stops differs between racial groups. [00:25:07] Speaker 01: I don't have statistics on that either way, Judge Walker. [00:25:11] Speaker 04: How should we think about the degree of the tent on the car [00:25:15] Speaker 04: It seems to me, in this case, it's a little easier. [00:25:18] Speaker 04: It's a legally tinted, very dark car. [00:25:20] Speaker 04: What if it was just a legal amount of tint, but the officers still couldn't see? [00:25:24] Speaker 04: Could they still order the windows to go down? [00:25:29] Speaker 01: That is a more difficult question. [00:25:32] Speaker 01: I think you're right. [00:25:33] Speaker 01: I think the threshold question is, do the officers have probable cause in that circumstance to begin a window tint stop? [00:25:41] Speaker 01: So the officers have a [00:25:44] Speaker 04: In that circumstance, if the officers have- But what if they're stopping them for a different reason? [00:25:48] Speaker 04: It's the parking violation in this case, too. [00:25:50] Speaker 01: So if it's a situation where the officers can't see into the car, then there is a very elevated safety interest. [00:26:00] Speaker 01: There may be a greater privacy interest, because if a person is compliant with DC's regulations about how to see into the car, there is a stronger argument that they have a reasonable expectation of privacy. [00:26:14] Speaker 04: What if there's no tint on the carpet, there's a glare so they can't see in the car because something's shining off the window. [00:26:20] Speaker 04: Can they make them lower the windows? [00:26:23] Speaker 01: So I think glare is a more difficult question because I think the police can take steps to mitigate glare. [00:26:29] Speaker 01: I do think that this is a this is a this is a fact intensive question, not. [00:26:38] Speaker 01: Now, Mr. Williams has kind of framed this as the district court has adopted a bright line. [00:26:42] Speaker 04: We don't read it as a bright line rule and this court doesn't need your position be that police officers can take reasonable steps to protect their safety. [00:26:49] Speaker 04: And if they can't see in the window, whether it's because it's minimally tinted, but it's dark or there's a glare, they should be allowed to do that. [00:26:57] Speaker 01: I think that that is right. [00:26:59] Speaker 01: The officers need to take steps to protect their safety in circumstances where [00:27:05] Speaker 01: In the automobile context, drivers have a lessened reasonable expectation of privacy in the visible passenger interior of their car. [00:27:13] Speaker 01: So in almost every circumstance, when you weigh the officer safety interest versus the privacy interest, it's going to come out in favor of the officers. [00:27:23] Speaker 02: And I had earlier asked, [00:27:26] Speaker 02: your opposing counsel about essentially how far do we take this? [00:27:29] Speaker 02: Is this a window tent case, or is this for any police traffic stop that you could allow a person to roll down their windows? [00:27:40] Speaker 01: So I think Judge Pan articulated it well. [00:27:42] Speaker 01: It's a situation in which the police are unable to see what's in the passenger compartment, where they're unable to determine whether or not [00:27:52] Speaker 01: who is in the car and whether or not who's in the car presents a danger to them because that's specifically what we're focusing on here is do these people present it are to do these people exist at all and do they present any danger to. [00:28:05] Speaker 04: But we can decide that question as a bright line rule like in VIMS and Maryland versus Wilson or we can just say under the circumstances of this case, it was reasonable for them to order the windows to go down. [00:28:17] Speaker 04: So should we do [00:28:18] Speaker 04: a bright line rule like in Mims and Wilson, or should we just say, Oh, in the facts of the case like this, that was reasonable. [00:28:28] Speaker 01: So we've in our brief argued that you can rule on this simply as the under the facts of the case. [00:28:33] Speaker 01: This is reasonable. [00:28:34] Speaker 01: I think a bright line rule would look very similar to a rule that in [00:28:42] Speaker 01: most reasonable circumstances when police approach a car that they are allowed to order. [00:28:47] Speaker 01: It's rolled down. [00:28:48] Speaker 01: So I don't think there's anything inconsistent with adopting a bright line rule as the Fourth Circuit was talking about in Stanfield. [00:28:55] Speaker 01: The Fourth Circuit absolutely reached the conclusion that a bright line rule would be appropriate. [00:28:59] Speaker 01: But you can also write an opinion that says under these circumstances, it was a reasonable safety precaution. [00:29:04] Speaker 04: So the reasons. [00:29:06] Speaker 04: Bright line rules are generally disfavored, but the reasons to do a bright line rule is they provide [00:29:11] Speaker 04: certainty for police officers engaged in the competitive enterprise of ferreting out crime so that they know that I can do this without thinking about it, overthinking it in the moment. [00:29:22] Speaker 04: And is that a factor that weighs in favor of a bright line rule in this situation? [00:29:28] Speaker 01: Certainly from a law enforcement perspective, more clarity about what law enforcement can do in any situation is welcomed. [00:29:35] Speaker 01: But as you indicate, there's also case law illustrating or indicating that Brightline rules are generally disfavored. [00:29:43] Speaker 01: So either of those rulings are consistent with the logic that we put forward in our brief and that we think is supported by the Supreme Court's case law in this area. [00:29:54] Speaker 06: One of our cases mentions that every year 6000 officers are assaulted during car stops. [00:30:03] Speaker 06: Should that be a factor in whether we do a bright line rule or whether we do this as a case by case made the officers think hard about it and double check twice thought their eyes tease was certainly the officer safety interest in these cases is very significant as these cases and [00:30:18] Speaker 01: And so a bright line rule does have benefits in terms of allowing officers to understand very clearly when they approach a car what they are and are not allowed to do. [00:30:26] Speaker 06: Was this a search? [00:30:27] Speaker 06: I mean, I know once they reached into the car, but the order to roll down the windows, was that a search? [00:30:35] Speaker 06: No. [00:30:35] Speaker 06: And what's your argument for that? [00:30:37] Speaker 01: So it's not a search for a few reasons. [00:30:40] Speaker 01: One is that, as we've talked about, Mims and its progeny talk about these kinds of [00:30:47] Speaker 01: protective measures as interactions with a person's privacy that don't require reasonable suspicion, like a search typically does. [00:30:56] Speaker 04: But beyond that, but the definition of a search is an invasion of a reasonable expectation of privacy. [00:31:02] Speaker 04: So for this not to be a search, you would have to say there is no reasonable expectation of privacy. [00:31:06] Speaker 04: So it's not past or compartment of the car for a visual inspection. [00:31:09] Speaker 01: That's right, Judge Pan, but so our position is not that there's no reasonable expectation of privacy, but there is a substantially lessened reasonable expectation of privacy in the passenger compartment. [00:31:21] Speaker 04: The case is a case that says if there's a lesser interest, there's no search. [00:31:26] Speaker 04: I thought you had to have no reasonable expectation of privacy for there to be no search. [00:31:31] Speaker 01: So if you look at class, my reading of class is that class does not, ultimately they bless the search in class without, they call it a search, but then they say reasonable suspicion wasn't required because the VIN is required to be in a place that's in public view and because of the lessened reasonable expectation of privacy in the VIN because of its placement within the passenger department. [00:31:57] Speaker 01: The way to think about this is in the reasonable, in the safety precautions context, we're balancing officer safety with expectation of privacy. [00:32:08] Speaker 04: There's a substantially lessened expectation of privacy in the interior of a car because it's supposed to be something that under- Well, class said that there is an expectation of privacy in the interior of the car, but under the facts of that case, because the VIN was obscured and it's intended to be visible from the outside, [00:32:26] Speaker 04: It was okay for the police officers to go in and move some papers to unobsture them in. [00:32:30] Speaker 04: That's very different, but they did say that there is an expectation of privacy in the passenger compartment of the car. [00:32:37] Speaker 01: There is some expectation of privacy. [00:32:39] Speaker 01: It's how to read class and it's progeny and cases like Texas v. Brown, it says. [00:32:43] Speaker 04: And if there is some expectation of privacy, it's a search. [00:32:47] Speaker 01: So I would say it's not a search because we're in [00:32:55] Speaker 01: reasonable safety precaution land, but if it is a search because we're in reasonable safety, it doesn't analytical framework. [00:33:01] Speaker 01: Sure. [00:33:02] Speaker 04: Something is a search is different from this balancing test. [00:33:04] Speaker 01: So. [00:33:06] Speaker 01: Judge Pan, whether it's a search or not, our position is that reasonable suspicion is not required to. [00:33:15] Speaker 01: If there are any further questions. [00:33:18] Speaker 01: We'd ask that Mr Williams conviction and sense be [00:33:25] Speaker 01: Thank you. [00:33:27] Speaker 06: Ms. [00:33:27] Speaker 06: Knorr will do two minutes of rebuttal. [00:33:32] Speaker 03: Thank you, Your Honor. [00:33:33] Speaker 03: First, going to judge pan your question to the government, I would like to emphasize that the rule here affects the privacy interests of people who are driving legally tinted cars. [00:33:46] Speaker 03: The government has just confirmed that. [00:33:49] Speaker 03: And that's because the search would be allowed so long as the officer was not believed that the windows were darkly tinted and was having difficulty seeing in. [00:34:00] Speaker 03: And that could very well be the case with legally tinted. [00:34:02] Speaker 04: So my question on that, though, is does it matter whether it's legal or illegally tinted if the officer can't see? [00:34:08] Speaker 04: Because if the interest that we're trying to promote or protect here is officer safety, [00:34:15] Speaker 04: If they can't see, they can't see. [00:34:17] Speaker 04: It doesn't matter if this is a legal tent or a legal tent. [00:34:19] Speaker 04: It's dark. [00:34:20] Speaker 04: They can't see. [00:34:21] Speaker 04: Should they not be allowed to lower the windows? [00:34:24] Speaker 03: I think you're right that the officer safety interest is the same there, as you said. [00:34:29] Speaker 03: If they can't see in, they can't see in. [00:34:32] Speaker 03: But the point is that this is not just about people who are violating the window tent regulations. [00:34:37] Speaker 03: It's also about people [00:34:38] Speaker 03: whose cars are perfectly legal, who have a reasonable expectation in their rear seat being somewhat shielded from public view. [00:34:46] Speaker 03: Not entirely, but maybe enough for them to feel comfortable, for example. [00:34:50] Speaker 03: changing clothes, breastfeeding a baby, carrying something that they might not want exposed to public view. [00:34:55] Speaker 03: And so this rule would allow the police, regardless of any suspicion, to order them to roll all those windows down. [00:35:03] Speaker 03: Second, going to Judge Child's, your question about the partial roll down, I would just like to note that courts have recognized that merely withholding consent to a search does not create reasonable suspicion. [00:35:14] Speaker 03: We cite cases at page 20 to 21 of our brief, so to the extent [00:35:17] Speaker 03: Mr. Williams rolled his window down partially and not entirely. [00:35:20] Speaker 03: That would not create reasonable suspicion. [00:35:23] Speaker 03: And I would also note that in the record here, the police could see through the untinted windshield and through the sunroof. [00:35:31] Speaker 03: And so the record is that Sergeant Knisely could see that there was a passenger in the back seat before the windows were rolled down. [00:35:38] Speaker 03: So it wasn't that it was entirely impossible for them to see inside the car. [00:35:41] Speaker 06: If the officers had ordered everyone out of the car, [00:35:47] Speaker 06: That would have been legal, correct? [00:35:50] Speaker 03: Yes, Your Honor. [00:35:51] Speaker 06: So if you can order everyone out of the car, why can't you order the windows to be rolled down when, number one, it seems less invasive to roll down your windows as opposed to come out of the car, and number two, to judge child's question, it seems safer, both to the officers and to the passengers. [00:36:17] Speaker 03: Excuse me, sorry. [00:36:19] Speaker 03: So we think it's differently invasive, again, because... So it's more invasive? [00:36:25] Speaker 03: I think it's just different interests, as the Ninth Circuit said in New Mezzi. [00:36:29] Speaker 06: I get that it's different, but something can be different because it's less invasive, and something can be different because it's more invasive. [00:36:36] Speaker 06: And I suppose something can be different in an equally invasive way. [00:36:41] Speaker 06: Which of those do you think it is? [00:36:42] Speaker 03: I think it really probably depends on the precise circumstances. [00:36:47] Speaker 03: And for someone who might have difficulty getting out of the car, like an elderly person who was having difficulty moving, it might be more invasive to ask them to step out of the car. [00:36:56] Speaker 03: But if you have something in the backseat that you don't want everyone on the street to see, it might be more invasive to have the windows rolled down than to simply step out of the car. [00:37:07] Speaker 03: So I think it really depends on the circumstances, and they're just different interests. [00:37:10] Speaker 03: It's a liberty interest versus a privacy interest. [00:37:15] Speaker 06: I'm thinking about your backseat example. [00:37:17] Speaker 06: I mean, under MIMS, can you order someone to get out of the car and leave their door open after they get out? [00:37:25] Speaker 03: I don't believe a court has held that. [00:37:27] Speaker 03: I think if someone chose to leave the door open, then there would still be plain view. [00:37:31] Speaker 06: I mean, not when they get out of the car. [00:37:32] Speaker 06: They're being detained. [00:37:35] Speaker 06: It's not a full arrest. [00:37:37] Speaker 06: I get that. [00:37:38] Speaker 06: But they're being detained. [00:37:39] Speaker 06: So it seems a little odd to say that while you're being detained, you're free to close your car door if you want to. [00:37:46] Speaker 03: I think you are free to close the car door because MIMS is only about asking someone to step out. [00:37:55] Speaker 03: So police cannot search the car just because they can order someone out of the car. [00:38:00] Speaker 03: Maybe so. [00:38:01] Speaker 06: Thanks for helping me think through questions. [00:38:02] Speaker 06: I know I took up some of your rebuttal. [00:38:04] Speaker 06: If you want to take another 10 or 15 seconds. [00:38:07] Speaker 03: Well, I would just, to sum up, allowing discretionary searches of a vehicle's passenger compartment during any traffic stop where a vehicle's windows appear to be darkly tinted would inappropriately extend MIMS and intrude substantially on individual privacy interests. [00:38:23] Speaker 03: So we would therefore ask this court to reverse the denial of Mr. Williams' suppression motion.