Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR246326
RIVERA, J.
Siaad Hamaudi Baltrip appeals from a judgment of conviction entered on his no contest plea to transportation of a controlled substance (Health and Saf. Code, § 11360, subd. (a)). He contends the lower court erred in denying his motion to suppress evidence. We affirm.
I. FACTUAL BACKGROUND
On March 2, 2007, at 10:18 p.m., Officer Tony Detomasi of the Fairfield Police Department, who had been a police officer for eight years, was parked in a parking lot. From approximately 50 feet away, he saw a car with “extremely dark tint” on the front driver’s side window go by at about 30 to 35 miles per hour. The area was lit with street lights, but Detomasi could not see inside the vehicle through the driver’s side window. Believing the windows were illegally tinted, Detomasi pulled behind the vehicle and conducted a traffic enforcement stop. Defendant was driving the vehicle.
All further statutory references are to the Vehicle Code.
During the stop, Detomasi noticed a strong odor of unburnt marijuana. A search revealed nine Ziploc bags of marijuana on defendant’s person, as well as $618 in varying denominations. In defendant’s car, another officer found 96 more small Ziploc bags of marijuana and a gram scale.
Defendant moved to suppress the evidence obtained as a result of the stop, including the marijuana, scale, and money, on the ground that Detomasi did not have a reasonable suspicion to initiate the traffic stop. The trial court denied the motion. Defendant renewed the motion to suppress (Pen. Code, § 1538.5, subd. (i)),) and the trial court denied the motion.
II. DISCUSSION
Defendant contends that the lower court erred in denying his motion to suppress evidence obtained as a result of a vehicle detention. He argues Detomasi lacked reasonable suspicion to detain him, and the traffic stop and subsequent search were, therefore, invalid under the Fourth Amendment to the federal Constitution (Fourth Amendment).
When a motion to suppress is submitted to the trial court on the transcript of the preliminary hearing, the appellate court disregards the findings of the trial court and reviews the determination of the magistrate, upholding the magistrate’s express or implied findings if supported by substantial evidence. (People v. Nonnette (1990) 221 Cal.App.3d 659, 664; People v. Ramsey (1988) 203 Cal.App.3d 671, 679.) “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 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 law.” (People v. Dolly (2007) 40 Cal.4th 458, 463.) “Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause....” (People v. Wells (2006) 38 Cal.4th 1078, 1083.) But the officer must have specific, articulable facts, and the investigative stop cannot be predicated on mere curiosity, rumor or hunch. (Ibid.) “[A] police officer can legally stop a motorist only if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law.” (People v. Miranda (1993) 17 Cal.App.4th 917, 926.)
An officer may stop a motorist based on a reasonable suspicion that the vehicle’s windows are illegally tinted. (§§ 26708, subd. (a), 26708.5; People v. Hanes (1997) 60 Cal.App.4th Supp. 6, 9-10 (Hanes); see also U.S. v. Wallace (9th Cir. 2000) 213 F.3d 1216, 1220 (Wallace).) People v. Niebauer (1989) 214 Cal.App.3d 1278 (Niebauer) is instructive. The court there held that an officer’s testimony the side windows of a vehicle were darker than normal and only allowed the officer to see the outline of the defendant was sufficient to sustain the defendant’s conviction for violating section 26708, subdivision (a). (Niebauer, at pp. 1292-1293.) In Niebauer, a police officer observed the defendant driving with dark tinted side windows and, believing they were in violation of section 26708, subdivision (a), waved the defendant over. (Niebauer, at p. 1282.) The officer testified that he had seen other drivers with that type of tinted windows roll down their windows and look outside in order to see where they were going. (Id. at p. 1283.) The defendant challenged the sufficiency of the evidence, arguing there was no evidence to show that the officer was specially trained in the area of tinted windows, or that he took light transmittance measurements. (Id. at p. 1291.) The court affirmed the judgment, holding that “[i]f an officer forms an opinion in a commonsense 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[, subdivision] (a).” (Id. at pp. 1292 1293.)
Although the defendant in Niebauer did not make a Fourth Amendment challenge to the stop, the court in dictum observed that the facts presented would also justify an investigative stop. (Niebauer, supra, 214 Cal.App.3d at p. 1293, fn. 10.) In doing so, the Court of Appeal distinguished People v. Butler (1988) 202 Cal.App.3d 602, 607 (Butler), on which defendant here relies. In Butler, a police officer noticed a vehicle parked across the street from a liquor store. Soon after, the vehicle sped past him. The officer followed the car and noticed the vehicle’s side and rear windows were darkened. The officer later testified that the reason he stopped the vehicle was that he believed the vehicle’s occupants were “ ‘setting up for a robbery or something,’ ” and he “ ‘didn’t like the idea of the tinted windows.’ ” (Id. at pp. 604-605.) The court concluded that the officer did not have a reasonable suspicion the vehicle’s windows were illegally tinted, and held that “additional articulable facts suggesting that the tinted glass is illegal” are needed for an investigative stop. (Id. at p. 607.)
The Ninth Circuit Court of Appeals followed Butler in U.S. v. Caseres (9th Cir. 2008) 533 F.3d 1064, 1069, concluding that a stop was unjustified where, among other things, an officer had no way of knowing that the tinted glass on the defendant’s car was not factory-installed, legally tinted safety glass. As we will discuss, the record here does disclose such reasons.
In contrast, in Niebauer the officer testified to additional facts giving rise to a reasonable suspicion that the defendant was driving with illegally tinted windows, rather than “merely the bare statement Niebauer’s truck had tinted windows.” (Niebauer, supra, 214 Cal.App.3d at p. 1293, fn. 10.) In particular, as we have noted, the windshield in Niebauer was darker than normal, the officer could only see the defendant’s outline through the windows, and he had previously seen drivers with that type of tinting roll down their windows in order to see. (Id. at pp. 1283, 1292-1293.)
Similarly, in Hanes, an officer stopped the defendant because he thought that the defendant’s car windows were illegally tinted. The defendant’s car had dark tinted windows that almost matched the color of the black car, and the officer could not see the occupants of the vehicle. Relying on Butler, the defendant argued his tinted windows did not raise enough suspicion of illegality to justify an inquiry. (Hanes, supra, 60 Cal.App.4th at pp. Supp. 7-8.) The reviewing court rejected this argument and concluded that the officer’s experience—along with the facts that the tinting was so dark as to appear black and prevented the officer from seeing the occupants, that the car passed relatively slowly in front of the officer in a lighted intersection, and that there was no evidence the stop was a pretext—provided additional evidence the detention was reasonable. (Id. at p. Supp. 10.) In doing so, it concluded that the dictum in Niebauer was “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.” (Hanes, at p. Supp. 9.)
The Ninth Circuit Court of Appeals reached a similar result in Wallace. There,a police officer saw the defendant’s car drive past him, and noticed that the vehicle’s passenger’s side front and rear windows were tinted. The officer pulled the vehicle over, believing that all tinted windows were illegal in California. The defendant consented to a search of his vehicle, which revealed 130 pounds of marijuana. Later testing showed that the level of tinting violated California law. The defendant moved to suppress the evidence, arguing that the officer lacked probable cause to make the stop. (Wallace, supra, 213 F.3d at pp. 1217, 1220.) The Ninth Circuit rejected this argument, concluding the stop was proper because—although the officer incorrectly believed that all front-window tinting was illegal—his observations correctly caused him to believe that the tinting on the defendant’s windows violated California law. (Id. at pp. 1220-1221.)
Here, as in Niebauer and Hanes, there were “additional articulable facts suggesting that the tinted glass [was] illegal.” (Butler, supra, 202 Cal.App.3d at p. 607.) Detomasi saw defendant’s car driving relatively slowly in front of his vehicle in an area lit with street lights. He saw that the tinting on the car windows was “extremely dark,” and he could not see inside the vehicle. On this record, we conclude that Detomasi had a reasonable suspicion the windows were illegally tinted, and that the traffic stop was lawful. Accordingly, the motion to suppress was properly denied.
III. DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.
Some, but not all, window tinting is illegal in California. Section 26708, subdivision (a) provides in part: “(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 driver’s clear view through the windshield or side windows.”
However, a driver may install, affix, or apply clear, colorless, and transparent material to the front side windows if it meets certain light transmittance requirements, i.e., “[t]he material has a minimum visible light transmittance of 88 percent,” and “[t]he 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.” (§ 26708, subd. (d)(1), (2).) Furthermore, “(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.” (§ 26708.5, subds. (a) & (b).)