Opinion
H031959.
1-29-2009
THE PEOPLE, Plaintiff and Respondent, v. GLEN MICHAEL DIXON, Defendant and Appellant.
Not to be Published in Official Reports
In the court below, defendant Glen Michael Dixon unsuccessfully moved to suppress evidence. Thereafter, he pleaded guilty to possession of a controlled substance. On appeal, he challenges the ruling on his suppression motion. He contends that the evidence implicating him was the product of an unlawful detention. We disagree and affirm the judgment.
SCOPE OF REVIEW
"The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.)
BACKGROUND
At the suppression hearing, Sheriffs Deputy John Shepard testified to the following: he had experience in determining whether automobile windows were tinted and had made traffic stops of cars for having tinted windows; while patrolling in his car around noontime, he saw a vehicle turn onto the street ahead of him that had tinted front windows; he believed that the windows were tinted because "they were darker than a standard, clear, transparent window, and they also had a reflective quality that when you put the tinting on the inside of a window has a different—it is obvious to the eye it looks differently than a windshield would look"; he could see that someone was driving the vehicle but "couldnt see clearly as to details or anything like that"; he could not tell whether the tint "was film, as opposed to just the glass in those windows"; he explained that there was a distinction between manufacturer-installed tinted safety glass approved by the Department of Transportation and after-market film applied to glass by a nonprofessional; he believed that the tinting was illegal tinting and effected a traffic stop for a violation of the Vehicle Code; defendant was the driver of the car; when he conversed with defendant, defendant displayed symptoms of being under the influence of drugs; he conducted a field sobriety test that confirmed this suspicion; he arrested defendant for being under the influence, searched the car, and found methamphetamine and drug paraphernalia.
DISCUSSION
An investigatory detention of an individual in a vehicle is permissible under the Fourth Amendment if supported by reasonable suspicion that the individual has violated the Vehicle Code. (People v. Dolly (2007) 40 Cal.4th 458, 463; see also People v. Saunders (2006) 38 Cal.4th 1129, 1135; People v. Wells (2006) 38 Cal.4th 1078, 1082; People v. Miranda (1993) 17 Cal.App.4th 917, 926.) "`The guiding principle in determining the propriety of an investigatory detention is "the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security."" (People v. Dolly, supra, at p. 463; People v. Wells, supra, at p. 1083.) "`Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause . . . ." (People v. Dolly, supra, at p. 463; People v. Wells, supra, at p. 1083.) To be reasonable, the officers suspicion "must be supported by some specific, articulable facts that are `reasonably "consistent with criminal activity."" (People v. Wells, supra, at p. 1083.) Reasonableness is measured by what the officer knew before he or she decided to detain the vehicle. (People v. Hester (2004) 119 Cal.App.4th 376, 386.) A stop based on mere curiosity, rumor, or hunch is unlawful. (People v. Wells, supra, at p. 1083.) The constitutionality of a traffic stop does not depend on the subjective motivation of the officer, as long as the objective circumstances justify the stop. (Whren v. United States (1996) 517 U.S. 806, 813; Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1044-1045; People v. Gallegos (2002) 96 Cal.App.4th 612, 627; U.S. v. Wallace (9th Cir. 2000) 213 F.3d 1216, 1219 (Wallace ).) While a traffic stop is unlawful if made by an officer who does not know the law and who based the stop on objective facts that cannot constitute a violation, "`[i]f the facts are sufficient to lead an officer to reasonably believe that there was a violation, that will suffice, even if the officer is not certain about exactly what it takes to constitute a violation." (In re Justin K. (2002) 98 Cal.App.4th 695, 700.)
Some, but not all, window tinting is unlawful in California. (See Veh. Code, §§ 26708, 26708.5.) Tinted factory-installed or replacement windshields or front side windows are legal as long as they allow for 70 percent light transmittance. (People v. Niebauer (1989) 214 Cal.App.3d 1278, 1290 (Niebauer); Wallace, supra, 213 F.3d at p. 1217; see Klarfeld v. State of California (1983) 142 Cal.App.3d 541, 550.) After-factory tinted coating of the windshield or front side windows is generally illegal, subject to exceptions not at issue here. (Klarfeld v. State of California, supra, at p. 550; Niebauer, supra, at pp. 1285, 1288-1290.)
It is settled that an officer may stop a motorist based on his or her reasonable suspicion that the vehicles windows are illegally tinted. (See People v. Hanes (1997) 60 Cal.App.4th Supp. 6, 10 [reasonable suspicion to stop where tinting was so dark the officer could not see the vehicles front occupants] (Hanes); Niebauer, supra, 214 Cal.App.3d at p. 1293, fn. 10 [noting, in dicta, that an officer had reasonable suspicion tinting was illegal, justifying traffic stop]; Wallace, supra, 213 F.3d at p. 1217 [where window tinting was twice as dark as legally permissible, officer had reasonable suspicion to stop although he mistakenly believed all window tinting was illegal].)
Here, the trial court did not err by denying defendants suppression motion because the evidence adduced at the suppression hearing was sufficient to establish that Deputy Shepard had a reasonable suspicion supported by specific, articulable facts. Several cases inform our analysis.
In Niebauer, supra, 214 Cal.App.3d 1278, a motorist was convicted of driving with illegally tinted windows. An officer observed defendant Niebauer driving with dark tinting material on the side windows which he believed violated the law. The "windows were darker than normal and [the officer] could only see Niebauers outline through the window." (Id. at p. 1292.) Upon examining the windows after pulling Niebauer over, the officer determined that a film had been placed on the windows. On appeal, Niebauer argued this evidence was insufficient to prove a violation of the law because there was no showing the arresting officer was specially trained in the area of tinted windows, or that he took measurements regarding the light transmittance level through the defendants window. (Id. at p. 1291.) The court rejected these contentions, explaining that "law enforcement officers enforcing this statute, based upon their training and experience with vehicles in general, will be able to examine a suspect vehicle, look through the windows if possible, and form an opinion as to whether or not the tinting on the windows obscures the light below the 70 percent margin. We dont call upon the officers to be scientists or carry around and use burdensome equipment to measure light transmittance, nor do we expect them to discuss the sufficiency or insufficiency of the light transmittance as if they were an expert witness on the subject." (Id. at p. 1292.) Instead, a "commonsense approach to the enforcement of [Vehicle Code section 26708] was envisioned by the Legislature. If an officer forms an opinion in a commonsense examination of a vehicle that there is a film placed upon the vehicles windows in an unauthorized place or that light is obstructed in the fashion contemplated by the statute, such evidence will be sufficient to support conviction under [Vehicle Code] section 26708[, subdivision] (a) if the trial court believes the officer; no further evidence or scientific testimony need be presented." (Ibid.) Although the officer had no training or expertise regarding light transmittance, and did not take light transmittance measurements, he testified that his vision was obstructed when he looked through the defendants windows from outside the truck. (Id. at pp. 1292-1293.) The officer had stopped other motorists with the same type of tinting, and those motorists had to roll down their windows at night to see where they were turning. Niebauer noted, in dicta, that this evidence was also sufficient to justify the traffic stop in the first instance. (Id. at p. 1293, fn. 10.)
Niebauers reasoning and its dicta concerning the validity of the search have since been applied to uphold the legality of police stops for window tint violations in both Wallace, supra, 213 F.3d 1216 and Hanes, supra, 60 Cal.App.4th Supp. 6. In Wallace, the officer mistakenly believed that any car window tinting was illegal, but also testified that the tinting on defendants car windows was "`a heavy tint where the occupant inside was at a harder degree to look [sic] into the vehicle." Relying on Niebauer, the court said the officers "mistaken impression that all front-window tint is illegal is beside the point. [The officer] was not taking the bar exam. The issue is not how well [the officer] understood Californias window tinting laws, but whether he had objective, probable cause to believe that these windows were, in fact, in violation." (Wallace, supra, at p. 1220.) In Hanes, the officer, a three-year veteran of the highway patrol, stopped a car because he believed the window tinting violated Vehicle Code section 26708, and ended up arresting the driver for drunken driving. The defendant challenged the validity of the stop, claiming that the officer lacked reasonable suspicion. The officer testified that he had stopped cars for the same violation some 400 times, that the front window was "`so black that it kind of matched the color of the car" (Hanes, supra, at p. Supp. 8), and that he could not see its occupants. Relying on Niebauer, the Hanes court held that the officers experience and observations were enough to give rise to reasonable suspicion. (Id. at pp. Supp. 8-10.)
Applying those principles here, we hold that Deputy Shepard had reasonable suspicion to believe a window tint violation had occurred. Deputy Shepard stopped defendants car because the window tinting was so dark that he could not see details of the driver. (See Niebauer, supra, 214 Cal.App.3d at p. 1293 [investigative stop would have been justified where windows were darker than normal and officer could see only drivers outline through window].) An inability to see inside a passenger compartment supports a reasonable suspicion that window tinting is illegal because such dark tinting reduces the drivers view from the window. Deputy Shepards belief was also based on his experience. As in Wallace and Hanes, these objective facts gave Deputy Shepard ample reason to suspect a window-tint violation.
Defendants reliance on People v. Butler (1988) 202 Cal.App.3d 602, is erroneous. The arresting officer in that case stopped the defendants car because he thought the occupants "were `setting up for a robbery or something, and I also didnt like the idea of the tinted windows," which he believed were "`an obvious Vehicle Code violation." (Id. at p. 605.) We held that seeing someone lawfully driving with tinted windows, standing alone, did not justify an investigative stop. (Id. at p. 607.) That is certainly not the case here, and Butler was distinguished for the same reasons in Niebauer, supra, 214 Cal.App.3d at page 1293, footnote 10, and in Hanes, supra, 60 Cal.App.4th at pages Supp. 8-10. Moreover, in Butler, the officer observed the vehicle late at night, from a distance, as it sped past. Here, Deputy Shepard observed defendants car during daylight, turning onto the same road, and going in the same direction. The record does not disclose the speed of the vehicles, but it is a reasonable inference that, because both vehicles were traveling in the same direction and Deputy Shepard did not indicate that defendant was speeding, Deputy Shepard had a much better opportunity to view defendants car than did the officer in Butler. Further, in this case there were additional facts presented, beyond the mere conclusory testimony in Butler that the windows were an obvious Vehicle Code violation. As we have discussed, here Deputy Shepard described exactly how much he could see through the window, and contrasted the suspected reflective tint on defendants windows with legal factory-installed tint. Butler, therefore, is distinguishable.
We also reject defendants suggestion that Deputy Shepard failed to articulate a sufficient quality of experience in stopping motorists for having tinted windows. Deputy Shepard testified that he was experienced and had made stops for such violations. He testified that some safety glass tint was legal but some after-market film was illegal. This testimony was sufficient to provide substantial evidence that Deputy Shepard was adequately trained to make a determination whether the cars windows were illegally tinted. Defendant cites no authority holding to the contrary. He was free to argue that Deputy Shepard was inadequately trained or experienced. That Deputy Shepard did not know whether the window tint was illegal is immaterial. Deputy Shepard "was not taking the bar exam. The issue is not how well [the officer] understood Californias window tinting laws, but whether he had objective, [reasonable suspicion] to believe that these windows were, in fact, in violation." (Wallace, supra, 213 F.3d at p. 1220.)
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Rushing, P.J.
Elia, J. --------------- Notes: Vehicle Code section 26708 provides, in pertinent part: "(a)(1) A person shall not drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied upon the windshield or side or rear windows. [¶] (2) A person shall not drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle that obstructs or reduces the drivers clear view through the windshield or side windows. [¶] . . . [¶] (d) Notwithstanding subdivision (a), clear, colorless, and transparent material may be installed, affixed, or applied to the front side windows, located to the immediate left and right of the front seat if the following conditions are met: [¶] (1) The material has a minimum visible light transmittance of 88 percent. [¶] (2) The window glazing with the material applied meets all requirements of Federal Motor Vehicle Safety Standard No. 205 (49 C.F.R. 571.205), including the specified minimum light transmittance of 70 percent and the abrasion resistance of AS-14 glazing, as specified in that federal standard. [¶] (3) The material is designed and manufactured to enhance the ability of the existing window glass to block the suns harmful ultraviolet A rays. [¶] (4) The driver has in his or her possession, or within the vehicle, a certificate signed by the installing company certifying that the windows with the material installed meet the requirements of this subdivision and identifies the installing company and the materials manufacturer by full name and street address, or, if the material was installed by the vehicle owner, a certificate signed by the materials manufacturer certifying that the windows with the material installed according to manufacturers instructions meets the requirements of this subdivision and identifies the materials manufacturer by full name and street address. [¶] (5) If the material described in this subdivision tears or bubbles, or is otherwise worn to prohibit clear vision, it shall be removed or replaced." Subdivisions (b) and (c) contain exceptions not relevant here. Vehicle Code section 26708.5 provides: "(a) No person shall place, install, affix, or apply any transparent material upon the windshield, or side or rear windows, of any motor vehicle if the material alters the color or reduces the light transmittance of the windshield or side or rear windows, except as provided in subdivision (b), (c), or (d) of Section 26708. [¶] (b) Tinted safety glass may be installed in a vehicle if (1) the glass complies with motor vehicle safety standards of the United States Department of Transportation for safety glazing materials, and (2) the glass is installed in a location permitted by those standards for the particular type of glass used."