Opinion
2d Crim. No. B229570
01-04-2012
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY ADAM O'NEILL, Defendant and Appellant.
Christina Alvarez, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 2009032258)
(Ventura County)
Timothy Adam O'Neill appeals the judgment entered after a jury convicted him of transporting and being under the influence of a controlled substance (Health & Saf. Code, §§ 11352, subd. (a), 11550, subd. (a)). The trial court suspended imposition of sentence and placed him on 36 months formal probation, with terms and conditions including that he serve 180 days in jail. He contends the court erred in denying his motion to suppress under Penal Code section 1538.5. We affirm.
STATEMENT OF FACTS
Because appellant's sole contention on appeal challenges the denial of his suppression motion, the relevant facts are derived from the hearing on that motion. On the night of September 2, 2009, Simi Valley Police Officer Kevin Van Fleet and his partner Christopher Lam were on patrol when a Honda Civic turned left through a well-lit intersection and drove past them in the opposite direction. From his vantage point, Officer Van Fleet "was able to see that the windows had some sort of dark film affixed to at least the driver's door window." The film was dark enough to obscure the officers' view of the driver. Based on this observation, the officers decided to conduct a traffic stop to determine whether the Civic's windows were illegally tinted. (Veh. Code, §§ 26708(a)(1), 26708.5(a).)
All further undesignated statutory references are to the Vehicle Code. We also omit reference to the word "subdivision" when referring to statutory subparts.
Officer Van Fleet made a u-turn to follow the Civic. As he did so, the Civic rapidly accelerated to a speed of 60 or 65 miles per hour, well in excess of the posted speed limit of 45 miles per hour. Officer Van Fleet activated his emergency lights and siren and followed the Civic into an apartment complex. After the Civic stopped in front of a garage door, Officer Van Fleet pulled up behind the vehicle and illuminated its interior with the patrol car's spotlight. The officer could see the driver pushing something on the sun visor. Officer Van Fleet exited his vehicle and ordered the driver of the Civic to step out of the car. There was no response.
Officer Van Fleet approached the driver's door of the Civic. Through the open sunroof, the officer saw the driver, subsequently identified as appellant, pushing what appeared to be a remote garage door opener. Officer Van Fleet ordered appellant to turn off the car and open his door. Appellant did not comply. Officer Van Fleet opened the door and repeatedly asked appellant to exit the vehicle. Appellant continued to ignore the officer. Officer Van Fleet took control of appellant's arms, pulled him out of the vehicle, and placed him in handcuffs. Appellant exhibited signs of being under the influence of a controlled substance and was placed under arrest.
When appellant was searched at the police station incident to his arrest, Officer Lam found a plastic baggie with seven pills later identified as the opiate medication roxycodone. Appellant told the officer that he had a prescription for the medication and occasionally sold it to make extra money. A urine sample subsequently indicated that appellant was under the influence of amphetamine, methamphetamine, and opiates at the time of his arrest.
DISCUSSION
Prior to trial, appellant moved to suppress the evidence obtained after his arrest as the fruit of an unlawful traffic stop. The court denied the motion on its finding that the officers had reasonable cause to believe that a tinted material was affixed to appellant's driver's side window, in violation of the Vehicle Code. Appellant contends this ruling was in error. We conclude otherwise.
"'A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in the light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.' [Citations.] In other words, any reasonable police officer in a like position, drawing on his or her training and experience, would suspect the same criminal activity and involvement by the person in question. [Citations.]" (People v. Roberts (2010) 184 Cal.App.4th 1149, 1189.) "The standard of review for the denial of a motion to suppress is well settled. 'We defer to the trial court's 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. [Citations.]' [Citation.]" (Ibid.)
A traffic stop is reasonable under the Fourth Amendment when "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.) Section 26708(a) provides in pertinent part that "[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." Section 26708.5(a) similarly states that "[n]o 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 . . . ." Section 26708.5(b) further provides that "[t]inted 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."
Officer Van Fleet testified that he was unable to see who was driving appellant's vehicle because it "had some sort of dark film affixed to at least the driver's door window." The officer made this observation while the vehicle was travelling past him through a well-lit intersection. These articulable facts gave the officer reasonable cause to believe that appellant was driving in violation of either section 26708(a) or section 26708.5(a). (People v. Niebauer (1989) 214 Cal.App.3d 1278, 1292 ["If 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(a) if the trial court believes the officer; no further evidence or scientific testimony need be presented"].)
People v. Butler (1988) 202 Cal.App.3d 602 (Butler), does not compel a different result. The police officer in that case also initiated a traffic stop of a vehicle that had tinted windows, yet did not testify to any observations that would give him reasonable cause to believe it was not tinted safety glass lawfully installed in compliance with section 26708.5(b). Instead, the officer merely offered that he "didn't like the idea of the tinted windows." (Id. at p. 605.) In reversing the trial court's denial of the defendant's motion to suppress the drugs found in his vehicle pursuant to the stop, the Court of Appeal "disagree[d] with the People's suggestion that seeing someone lawfully driving with tinted glass raises a reasonable suspicion of illegality such that a reasonable inquiry is justified. Without additional articulable facts suggesting that the tinted glass is illegal, the detention rests upon the type of speculation which may not properly support an investigative stop." (Id. at p. 607.) The court also noted that the officer testified he had "observed the [vehicle] from a distance late at night as he drove by [a liquor store] and again as the car sped past him." (Id. at p. 606.)
Here, the officer who conducted the stop did not merely offer that he had observed tinted windows. Instead, he testified to seeing "some sort of dark film affixed to at least the driver's door window." (Italics added.) Unlike the officer in Butler, Officer Van Fleet also testified to conditions from which the court could find that the officer had a sufficient opportunity to make the observation. This is precisely the sort of evidence that renders a traffic stop lawful in this context. (People v. Niebauer, supra, 214 Cal.App.3d at pp. 1292-1293 & fn. 10 [distinguishing Butler]; see also People v. Hanes (1997) 60 Cal.App.4th Supp. 6, 10 [distinguishing Butler where "[a]ppellant's vehicle passed relatively slowly and directly in front of the officer at a lighted intersection" and "[t]he tinting was so dark as to appear black and prevent the officer from seeing the occupants of the front seats"].) Appellant's motion to suppress was thus properly denied.
In light of our conclusion, we need not address the People's contention that appellant was lawfully stopped for driving in excess of the posted speed limit.
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The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
YEGAN, Acting P.J.
COFFEE, J.
Rebecca S. Riley, Judge
Superior Court County of Ventura
Christina Alvarez, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.