Opinion
C095720
02-23-2023
THE PEOPLE, Plaintiff and Respondent, v. JAMAR DONTE MCCLAIN, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 20FE013802
Duarte, Acting P. J.
Defendant Jamar Donte McClain moved to suppress evidence discovered in his car after a police officer pulled him over for what the officer believed were illegally tinted windows. The trial court denied defendant's motion, concluding, in effect, that the officer had the requisite reasonable suspicion to perform the traffic stop. Defendant subsequently pleaded no contest to being a felon in possession of a firearm and the trial court placed him on two years of formal probation. On appeal from the judgment, defendant argues the denial of his motion was in error. We will affirm.
BACKGROUND
Defendant was charged with being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)) and misdemeanor driving without a valid driver's license (Veh. Code, § 12500, subd. (a)). He filed a motion to suppress evidence. (Pen. Code, § 1538.5.)
Undesignated statutory references are to the Vehicle Code.
At the suppression hearing, Officer Del Dotto, a gang enforcement officer, testified that, on August 13, 2020, at around 10:32 p.m., he saw a vehicle with "a very dark front window tint on the driver's side window." He believed the car's tint was in violation of section 26708, subdivision (a)(1), based on his years of experience identifying over 100 tinted window violations. He could see the car's window "[v]ery well" because the intersection was well lit. But the window was so dark he could not see who was driving the car. He watched the car for about 30 seconds before stopping it.
Officer Del Dotto then ran a records check on the driver and learned it was defendant, who had a suspended driver's license. He also noticed a strong odor of burning cannabis when he first approached the car and saw a cannabis cigarette in the car's center console. Del Dotto believed defendant was in violation of the Vehicle Code for the lit cannabis cigarette, so he searched the car for additional cannabis and found a loaded Glock handgun between the driver's seat and center console.
On cross-examination, defense counsel asked Del Dotto whether he "testified previously at preliminary hearing that no amount of tint is allowable in the front driver's side." He responded, "Yes." After confirming Del Dotto did not use any equipment to test the visibility of the windows, defense counsel asked, "And in your experience, any tint on the front driver's side window is not permissible, is that correct?" He responded, "A tint of that type, yes."
The trial court denied defendant's motion to suppress. The court found Del Dotto credible in his assertion that the tint was dark enough that he could not see the driver. The court also clarified that, though Del Dotto originally agreed no amount of tint is permissible, he later confirmed "any tint of that type is not allowed." (Italics added.) The court concluded that, "when the tinting is so dark that the occupant of the vehicle cannot be easily viewed, then there is probable cause to believe that the tinting obscures more light than allowed by the law." Thus, the court found Del Dotto had "articulated specific facts to establish probable cause for the vehicle stop . . . based upon a potential violation of [section] 26708(a)." The court also found that the "remaining facts support the progressive detention and ultimately the search of the cabin of the vehicle by the officer."
Defendant subsequently pleaded no contest to both charges; the trial court suspended imposition of sentence and granted him two years of formal probation. Although defendant did not timely appeal from his plea and sentencing, we granted his request to file his (late) notice of appeal under the constructive filing doctrine and deemed it timely filed. After delays for record preparation as well as briefing continuances, the case was fully briefed on November 29, 2022, and assigned to this panel in December 2022. The parties waived argument and the case was submitted on February 15, 2023.
DISCUSSION
Defendant contends the trial court erred in denying his motion to suppress because tinted windows cannot justify a traffic stop. He argues Officer Del Dotto was wrong to conclude that no amount of window tinting is permissible, and therefore he could not properly detain defendant on this basis. We find no error.
Under the federal Constitution's Fourth Amendment, an arrest of a person "must be supported by an arrest warrant or by probable cause. [Citation.] Probable cause exists when the facts known to the arresting officer would persuade someone of 'reasonable caution' that the person to be arrested has committed a crime." (People v. Celis (2004) 33 Cal.4th 667, 673.) "But 'not all seizures of the person must be justified by probable cause to arrest for a crime.' . . . [A]n officer who lacks probable cause to arrest can conduct a brief investigative detention when there is' "some objective manifestation" that criminal activity is afoot and that the person to be stopped is engaged in that activity.'" (Id. at p. 674.) Thus, "[a] detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.) The reasonable suspicion standard is" 'obviously less demanding than that for probable cause,' . . . 'not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.'" (Id. at pp. 230-231.)
The trial court found the officer "articulated specific facts to establish probable cause" because, "when the tinting is so dark that the occupant of the vehicle cannot be easily viewed, then there is probable cause to believe that the tinting obscures more light than allowed by the law." Although this analysis conflates the probable cause and reasonable suspicion standards, as defendant challenges only the initial traffic stop rather than the later search and arrest, we will review the trial court's order to discern whether Officer Del Dotto had a reasonable suspicion, supported by specific articulable facts, that defendant was involved in criminal activity at the time of the traffic stop. (People v. Bennett (2011) 197 Cal.App.4th 907, 913 [" 'a police officer may conduct an investigatory traffic stop if the officer has "reasonable suspicion" that a particular person "has committed, is committing, or is about to commit a crime"' "].)
"In reviewing a trial court's ruling on a motion to suppress evidence, we defer to that court's factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment." (People v. Lenart (2004) 32 Cal.4th 1107, 1119.)
Defendant does not disagree that under section 26708, subdivision (a)(1), it is illegal to "drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied upon the windshield or side or rear windows." But not all tints are illegal, as windows tinted with a certain visible light transmittance are permissible. (§ 26708, subd. (d).) Because of this, defendant argues Officer Del Dotto was legally mistaken when he testified no amount of tinting is permissible under California law.
Defendant misunderstands Del Dotto's testimony. As the trial court described, although the officer did confirm to defense counsel that he had initially testified no amount of tint is allowable, he later clarified a "tint of that type" is not permissible. Del Dotto also testified his ability to see the car's driver was obscured by the tint.
Window tint that obscures the occupants of a car is a specific, articulable fact sufficient to establish a possible violation of section 26708. In People v. Roberts (2010) 184 Cal.App.4th 1149, the appellate court upheld the denial of a suppression motion where the officer believed a driver had illegally tinted windows because "he could not see through the driver's tinted side window from the open passenger side window." (Id. at p. 1190.) In People v. Carter (2010) 182 Cal.App.4th 522, the officer was initially drawn to the car "because it had tinted front windows, a Vehicle Code violation." (Id. at p. 529.) The officer, however, could still see the driver, who partially matched the description of a robbery suspect. Nonetheless, the appellate court found substantial evidence for a reasonable suspicion supported the traffic stop, stating "[w]hen a police officer sees a vehicle with tinted front and side windows, the officer may stop the car and cite the driver for a violation of [section] 26708, subdivision (a)." (Ibid.) The court in Carter cited to People v. Niebauer (1989) 214 Cal.App.3d 1278 as authority for this rule. (Carter, at p. 529.)
Niebauer involved a conviction under section 26708 based entirely on an officer's observation "the windows were darker than normal and he could only see [the defendant's] outline through the window." (People v. Niebauer, supra, 214 Cal.App.3d at p. 1292.) The appellate court found the officer's testimony sufficient to support the conviction because "a common sense approach to the enforcement of this statute was envisioned by the Legislature. If an officer forms an opinion in a common sense examination of a vehicle that there is a film placed upon the vehicle's 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 section 26708(a) if the trial court believes the officer; no further evidence or scientific testimony need be presented." (Ibid.)
Other courts have found "[t]his Niebauer dictum is consistent with logic and settled Fourth Amendment case law, which gives considerable weight to officer experience and permits detention based on articulable suspicious facts even though not necessarily inconsistent with innocent activity." (People v. Hanes (1997) 60 Cal.App.4th Supp. 6, 9.) One such case is United States v. Wallace (9th Cir. 2000) 213 F.3d 1216, where the officer mistakenly believed all tinting was illegal and performed a traffic stop on a car having "a heavy tint where the occupant inside was at a harder degree to look [sic] into the vehicle." (Id. at p. 1220.) The Ninth Circuit cited to Niebauer to support finding "[t]he issue is not how well [the officer] understood California's window tinting laws, but whether he had objective, probable cause to believe that these windows were, in fact, in violation." (Ibid.) The court also relied on an expert opinion that concluded a window tinted at the legal limit would still permit" 'a clear, unobstructed view of the driver's compartment of the vehicle.'" (Ibid.)
The Ninth Circuit applied the probable cause standard in Wallace because the district court had applied this standard. (U.S. v. Wallace, supra, 213 F.3d at pp. 1217-1218.) On appeal, the government "argue[d] that reasonable suspicion is sufficient to support a pretextual traffic stop," but the court declined to resolve the issue because it found "the stop in this case was supported by probable cause." (Id. at p. 1219, fn. 3.)
Although these cases may appear to stand for the proposition that any tint could justify a search, we need not reach that question. On this record, there was a tint that obscured the driver, and it is clear from the cases we have discussed that this degree of tint is sufficient to support an officer's reasonable suspicion and subsequent traffic stop.
Defendant does not persuade us to depart from the analyses in these cases. Indeed, the case upon which defendant relies supports the cases we have already set forth. In People v. Butler (1988) 202 Cal.App.3d 602, the officer pulled someone over for tinted glass. At the suppression hearing the officer testified he" 'didn't like the idea of the tinted windows'" (id. at p. 605) but failed to supply any "additional articulable facts suggesting that the tinted glass [was] illegal" (id. at p. 607.) Here, Officer Del Dotto testified he could not see the car's driver, which supplied the requisite facts (missing in Butler) to suggest the tint was illegal.
Although defendant makes broad policy arguments against permitting law enforcement officers to stop motorists for minor infractions, claiming pretext, he provides no legal analysis necessitating a reversal here. Under the applicable law, we find no error in the trial court's determination that Officer Del Dotto had sufficient reasonable suspicion to perform the traffic stop. Consequently, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
We concur: Krause, J., Earl, J.