Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F05173
SIMS, Acting P.J.After the magistrate denied her motion to suppress (Pen. Code, § 1538.5), and the trial court denied her motion to dismiss (§ 995), a jury found defendant Brandy Hernandez guilty of possessing methamphetamine for sale (Health & Saf. Code, § 11378), transporting methamphetamine (id., § 11379, subd. (a)), possessing amphetamine (id., § 11377, subd. (a)), and possessing methylenedioxymethamphetamine (MDMA) (id., § 11377, subd. (a)). Sentenced to five years formal probation, defendant appeals the denial of her suppression motion. We shall affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The facts relevant to defendant’s motion to suppress, which were adduced at the preliminary hearing, are as follows:
At approximately 8:30 p.m., Sacramento County Sheriff’s deputies Robert Tracy and James Walther were patrolling along Auburn Boulevard in Sacramento County, when they saw an SUV in the parking lot of a closed business. When the SUV left the parking lot, the deputies followed and observed a bandana, beads, and a necklace hanging from its rear view mirror. At the time, the deputies were approximately 15 feet behind the SUV, and the objects were clearly visible through the rear window.
Deputy Tracy testified that he believed the bandana and other objects “hanging down off the mirror” constituted “a violation of the Vehicle Code due to the obstruction for the [driver’s] view through the windshield.” He explained that “the bandanna was tied at the two ends, it appeared, like a kerchief. So it was looped down around, hanging down off, and it appeared to be folded. So maybe an inch to an inch and a half wide . . . .”
Photographs of the objects hanging down are appended to the end of this opinion as Exhibits D and E.
Deputy Walther believed that “[n]o objects should be hanging from the rear view mirror.” When he was asked if he was “able to form an opinion as to whether or not it appeared to be obscuring the driver’s view in any way,” defense counsel objected to the question as calling for speculation. The magistrate overruled the objection, stating, “he can describe it.” Deputy Walther then stated: “Yeah, it was approximately about two inches thick of a bandana tied in a knot above the rear view mirror hanging down with numerous necklaces.”
The deputies stopped the vehicle. Deputy Walther contacted defendant, while Deputy Tracy contacted the passenger. After learning there was a warrant for the passenger’s arrest, Deputy Tracy arrested her and “started a search incident to arrest at the passenger’s side of the vehicle.” He found a pouch containing methamphetamine, amphetamine, MDMA, along with a prescription in defendant’s name. He then instructed Deputy Walther to place defendant under arrest, and the entire SUV was searched. Deputies discovered additional methamphetamine, along with a glass pipe, scale, and baggies.
The parties entered into the following stipulations concerning the testimony of defense witnesses:
David Ford, an investigator with the Public Defender’s office, who was formerly employed by the Sacramento Police Department for 27 years, would testify, inter alia, that he “took measurements of the windshield, rear view mirror, bandanna, beads and necklace” and “[t]he total area of the windshield occupied by the bandanna and beads was .18% of the windshield.” He “sat in the [SUV] and looked out through the windshield . . . [and] his clear view was not blocked.” He “also slouched down in the seat to mimic [defendant’s] height. [He] believed that at her height her clear view was not blocked.” “[H]e could see through the gaps between the bandanna and the beads . . . .”
Defendant would testify that “the photographs [defense Exhibits A-E] depict her windshield, rear view mirror, the bandana, beads, and necklace as they appeared hanging from the rear view mirror” at the time of the stop.
Defendant filed a section 1538.5 motion to suppress the evidence found as a result of the search, arguing the vehicle stop was not supported by reasonable suspicion. The motion was heard in conjunction with the preliminary hearing. The magistrate denied the motion and held defendant to answer. The magistrate ruled that the deputies could reasonably conclude a Vehicle Code violation may have occurred based upon the objects hanging from the rear view mirror. Referring specifically to defense Exhibits D and E, the magistrate found that while “this material that is hanging from the defendant’s rear view mirror . . . may not be large in surface area, but it is certainly large in the amount of view that [it] would obstruct. . . . [A]ny movement by this vehicle to the left or to the right would obviously cause both of these items to swing back and forth causing some degree of distracted view.”
Defendant renewed her motion to suppress in her section 995 motion. No new evidence was adduced at the hearing on defendant’s renewed motion. The trial court denied the motion, explaining that “[t]his is not like a St. Christopher medal hanging down and beads by themselves. I saw the pictures, it is reasonable. People may differ on it, but there’s grounds for which he can make that ruling as far as the Court’s concerned.”
DISCUSSION
On appeal, defendant contends the magistrate erroneously denied her motion to suppress the evidence found during the search of the SUV, arguing “[t]here were no objective factors warranting a vehicle stop.” In particular, she asserts that “[t]here was no testimony that the beads hanging from the rear view mirror were swaying to the right or left, impeding [her] visibility.” We disagree.
After defendant’s section 1538.5 suppression motion was denied by a magistrate, she effectively renewed the substance of the suppression motion by seeking to set aside the information under section 995. Under these circumstances, we disregard the trial court’s ruling and review instead the action of the magistrate, deferring to the magistrate’s express and implicit factual determinations. (People v. McDonald (2006) 137 Cal.App.4th 521, 529; see People v. Laiwa (1983) 34 Cal.3d 711, 718, superseded by statute on other grounds as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223.) 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.)
An officer may stop an automobile if the stop is based on an objectively reasonable suspicion that the driver has violated the Vehicle Code. (Whren v. U.S. (1996) 517 U.S. 806 [135 L.Ed.2d 89]; People v. Miranda (1993) 17 Cal.App.4th 917, 926.)
Here, the stop was justified. Both deputies testified that they saw a bandana, beads, and a necklace hanging from defendant’s rear view mirror. Deputy Tracy further testified that he believed the objects obstructed defendant’s view in violation of Vehicle Code section 26708, subdivision (a)(2), which prohibits any person from “driv[ing] any motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon the vehicle which obstructs or reduces the driver’s clear view through the windshield or side windows.” While “[t]here was no testimony that the beads hanging from the rear view mirror were swaying from left to right,” the magistrate’s finding that “any movement by this vehicle to the left or to the right would obviously cause both of these items to swing back and forth causing some degree of distracted view” is supported by substantial evidence. It is clear from the photographs introduced by the defense that each of the objects hung freely. Thus, the magistrate reasonably could have inferred that they would swing back and forth as the SUV moved to the left or right. The photographs, along with the deputies’ testimony, also support the magistrate’s finding that the objects obscured defendant’s view to some degree. Since a picture is said to be worth a thousand words, we have appended defense Exhibits D and E to this opinion.
On this record, we have no trouble concluding that it was objectively reasonable for the deputies to believe that the bandana, beads, and necklace obstructed or reduced defendant’s clear view through the windshield so as to constitute a violation of the Vehicle Code.
People v. White (2003) 107 Cal.App.4th 636 (White), relied upon extensively by defendant, differs materially from this case. In White, an officer observed a tree-shaped air freshener hanging from a car’s rear view mirror. Believing that constituted a Vehicle Code violation, he stopped the car, searched it after smelling marijuana, and found marijuana. (Id. at pp. 640-641.) The defendant moved to suppress on the ground the stop was unlawful. (Id. at pp. 639-640.) “Based on the evidence presented at the hearing, [the court of appeal] conclude[d] it was not reasonable for the officer to believe that the object he observed may have obstructed or reduced the driver’s clear view,” and thus, the stop could not be justified on that basis. (Id. at p. 642.) In doing so, the court noted that “the officer never testified that he believed the air freshener obstructed the driver’s view. . . . [or] to other specific and articulable facts, like hesitant or erratic driving, that might suggest the driver’s clear view was impeded. [¶] The defense, on the other hand, presented evidence from [a] civil engineer . . . that the air freshener covered less than .05 percent of the total surface of the car’s windshield. [The engineer] concluded that based on the relative sizes of the air freshener and windshield, an air freshener hanging from the rearview mirror would not obstruct the vision of a six-foot tall driver. . . . [T]he trial court, itself, . . . stated that it had ‘difficulty accepting’ that such an object would really obstruct a driver’s view.” (Ibid.)
Unlike White, here, there were three objects hanging from the rear view mirror, not one. Moreover, Deputy Tracy testified that he believed the objects obstructed the defendant’s view, and the magistrate found that “any movement by this vehicle to the left or to the right would obviously cause both of these items to swing back and forth causing some degree of distracted view.” The photographs submitted by the defense, and cited by the magistrate, support Deputy Tracy’s testimony and the magistrate’s findings.
Finally, we reject the notion that the reasonableness of an officer’s belief as to whether an object obstructs or reduces a driver’s clear view can be determined simply by comparing the size of the object to the size of the windshield, and we do not read White to so hold. While the relative size of the object(s) is relevant, other factors, such as the location and mobility of the object, must also be considered.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., ROBIE, J.