Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA056179, Michael Kellogg, Judge.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Hollen Baker, appeals the judgment entered following his conviction, by plea of no contest, for possession of a controlled substance with a prior prison term finding (Health & Saf. Code, § 11377; Pen. Code, § 667.5). Baker was sentenced to probation for three years.
The judgment is affirmed.
BACKGROUND
The following facts are taken from the preliminary hearing transcript.
On July 4, 2007, Los Angeles County Deputy Sheriff Stephen Bohnert and his partner were on patrol. They had been asked by their detective bureau to stop in a particular area where there had been a recent spate of burglaries. When they were about a third of a mile from the location, Bohnert saw a Honda leaving the area. It was 5:45 a.m. and still dark, and the Honda was the only vehicle on the road. The Honda’s front windows were tinted in violation of Vehicle Code section 26708.
Bohnert and his partner stopped the Honda for the Vehicle Code violation. Defendant Baker was riding in the passenger seat. When asked if there were anything illegal in the car, both the driver and Baker said no. When the driver gave the officers permission to search the car, both he and Baker were asked to get out. Bohnert pat searched Baker for weapons and asked if he had anything illegal. Baker said he had some speed in his back pocket. Bohnert found three baggies which indeed did contain methamphetamine.
CONTENTION
The drugs were discovered as a result of an illegal patsearch.
DISCUSSION
The patsearch was legal.
Baker contends his conviction must be reversed because the police only discovered the methamphetamine by conducting an illegal patsearch. This claim is meritless.
a. Legal principles.
The seminal case in the area of stop-and-frisk detentions is Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868], which said: “[W]e deal here with an entire rubric of police conduct – necessarily swift action predicated upon the on-the-spot observations of the officer on the beat – which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures. [¶] Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant in this context.... [I]t is necessary ‘first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,’ for there is ‘no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.’ [Citations.] And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.... And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” (Id. at pp. 20-22, fns. omitted.)
Three post-Terry cases applied these principles to automobile stops. Pennsylvania v. Mimms (1977) 434 U.S. 106, 112 [98 S.Ct. 330], held a driver who has been lawfully detained for a traffic violation may be patted down for weapons if the officer reasonably concludes the driver “might be armed and presently dangerous.” Maryland v. Wilson (1997) 519 U.S. 408 [117 S.Ct. 882], applied the Mimms rule to passengers, and Brendlin v. California (2007) 551 U.S. 249 [127 S.Ct. 2400], held a passenger, just like the driver, is seized from the time the vehicle comes to a stop and, therefore, has standing to challenge the constitutionality of the detention.
Terry v. Ohio “upheld ‘stop and frisk’ as constitutionally permissible if two conditions are met. First, the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous. [¶] [I]n a traffic-stop setting, the first Terry condition – a lawful investigatory stop – is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.” (Arizona v. Johnson (2009) 129 S.Ct. 781, 784 [172 L.Ed.2d 694].)
As we recently explained in In re H.M. (2008) 167 Cal.App.4th 136: “ ‘[T]he officer need not be absolutely certain that the individual is armed; the crux of the issue is whether a reasonably prudent person in the totality of the circumstances would be warranted in the belief that his or her safety was in danger.’ [Citations.] Reasonable suspicion must be based on ‘commonsense judgments and inferences about human behavior.’ [Citation.] The determination of reasonableness is ‘inherently case-specific.’ [Citation.] An inchoate and unparticularized suspicion or hunch is not sufficient, nor is the fact the officer acted in good faith. [Citation.] Where specific and articulable facts are absent, the patsearch cannot be upheld. [Citation.] Whether a search is reasonable must be determined based upon the circumstances known to the officer when the search was conducted. [Citation.]” (Id. at pp. 143-144.) “On review of the trial court’s denial of a suppression motion, we defer to the trial court’s express or implied factual findings if supported by substantial evidence, but exercise our independent judgment to determine whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment. [Citations.] Challenges to the admissibility of a search or seizure must be evaluated solely under the Fourth Amendment. [Citation.]” (Id. at p. 142.)
b. Application.
Bohnert testified he stopped the Honda because it was coming from an area where there had been “a high concentration of burglaries,” it was 5:45 a.m. and dark, and the Honda’s front windows were illegally tinted. Bohnert also testified: “It’s customary for me to do a pat-down search if I believe there may be weapons.” (Italics added.) We conclude Bohnert reasonably suspected Baker might be armed and, therefore, Bohnert had a sufficient basis for performing the patsearch.
Both “high crime area” and “darkness” are pertinent factors in determining the reasonableness of a detention. “An area’s reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment.” (People v. Souza (1994) 9 Cal.4th 224, 240.) It is not, however, a particularly strong factor because “ ‘it may be fairly said that our entire nation is a high crime area[.]’ ” (Id. at p. 241.) “[M]ere presence in a highcrime area is not, standing alone, ‘sufficient to justify interference with an otherwise innocent-appearing citizen.... Nevertheless, it would be the height of naivete not to recognize that the frequency and intensity of these sorry conditions are greater in certain quarters than in others. Consequently, we must allow those we hire to maintain our peace as well as to apprehend criminals after the fact, to give appropriate consideration to their surroundings and to draw rational inferences therefrom....” (Ibid.; italics added.) “The time of night is another pertinent factor in assessing the validity of a detention.” (Ibid. [incident occurred at 3:00 a.m.].)
The “high crime area” factor in this case was stronger than the usual static characterization, based on general crime statistics, because Bohnert had been specifically alerted to a wave of burglaries in the area. Moreover, the location and time factors were supplemented by a third factor, the Honda’s tinted windows. These three factors together justified the patsearch.
Baker disagrees, citing People v. Medina (2003) 110 Cal.App.4th 171. In Medina, the defendant was stopped at midnight in a gang neighborhood for driving with a broken taillight, and the officer testified it was “ ‘standard procedure’ to conduct weapons searches in a high gang area late at night.” (Id. at p. 177.) The Court of Appeal ruled the patsearch illegal because “[t]he only reason for restraining Medina’s hands and searching him was the time and location of the stop. Apparently, anyone observed to be driving in that area at night with a citable equipment defect would be stopped and subjected to a patdown search. The Fourth Amendment plainly prohibits the police from employing such a procedure.” (Id. at p. 176.)
But, as the Attorney General points out, “[a] tinted front window of a vehicle (in an area where there was a high concentration of burglaries and given the fact that the vehicle was driving during the early morning hours) is much more suspicious than an innocuous broken taillight.” We agree.
Burglary suspects may be routinely patsearched for weapons. (See People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230 [when defendant found in parked car at 11:20 p.m. in commercial area where all businesses closed, and officer was investigating prowler report, pat-down search for weapons was proper because “reasonably prudent person would fear a possible burglar and burglary suspects frequently carry weapons”]; People v. Myles (1975) 50 Cal.App.3d 423, 430 [where defendant observed carrying television set down street at 8:30 p.m. in area having surge of nighttime burglaries, patsearch justified because a suspected burglar “may be armed with weapons, or tools such as knives and screwdrivers which could be used as weapons”].)
Courts have recognized window tinting as an independent suspicious factor in the Fourth Amendment context. (See United States v. Guerrero-Barajas (5th Cir. 2001) 240 F.3d 428, 433 [although window tinting alone would not justify suspicion of alien smuggling, it was properly considered as one factor among others]; United States v. Zukas (5th Cir. 1988) 843 F.2d 179, 182-183 [tinted window of small plane was one factor warranting detention for suspected drug smuggling]; United States v. Thomas (D. Conn. 2005) 363 F.Supp.2d 84, 91-92 [van’s window tinting was one factor warranting suspicion of drug trafficking, which in turn justified patsearch after passenger was ordered out of the van]; United States v. Galindo-Gonzales (D.N.M. 1996) 4 F.Supp.2d 1016, 1023-1024 [dark tinted windows was one factor justifying suspicion of alien smuggling].)
Here, the observation of a car with tinted windows driving in early morning darkness away from an area experiencing a recent spate of burglaries gave rise to a legitimate suspicion the car’s occupants might be burglars. This meant that, once the car was stopped and the occupants ordered out, Officer Bohnert had a legitimate safety reason for patsearching Baker. Hence, the trial court properly refused to suppress the drug evidence.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.