Opinion
F084697
06-23-2023
THE PEOPLE, Plaintiff and Respondent, v. DEXTER DUPRI BRAZEAL, Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs and Chelsea Zaragoza, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F22903544 . Alvin M. Harrell III, Judge.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs and Chelsea Zaragoza, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PENA, Acting P. J.
In this appeal, Dexter Dupri Brazeal (defendant) challenges the legality of a vehicle stop that led to him being convicted of unlawful firearm possession. The detaining officer testified to suspecting that the vehicle's windows were illegally tinted. Crediting the officer's testimony, the trial court found the stop was justified by reasonable suspicion of a Vehicle Code violation. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2021, defendant was subjected to a traffic stop that resulted in a parole search of the car he was driving. Police found a loaded handgun. Defendant was arrested and charged with unlawful firearm possession based on a prior violent felony conviction (Pen. Code, § 29900; count 1); possession of a firearm by a convicted felon (id., § 29800; count 2); unlawful possession of ammunition (id., § 30305; count 3); and driving a vehicle with material affixed to a side window (Veh. Code, § 26708, subd. (a)(1); count 4). Defendant was further alleged to have suffered two qualifying convictions under the "Three Strikes" law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.)
A preliminary hearing was conducted in April 2022. Defendant was held to answer, but the subsequently filed information was untimely. (See Pen. Code, § 1382, subd. (a)(1).) In May 2022, the untimely information was dismissed and the criminal complaint was refiled. Defendant stipulated to having the refiled complaint deemed an information, and he waived the right to a preliminary hearing and formal arraignment. Defendant later filed a motion to suppress evidence under section 1538.5. The motion was heard on July 14, 2022, at which time Officer Arthur Barragan of the Fresno Police Department testified to the following events.
On the night in question, sometime around 12:00 a.m., Officer Barragan assisted with an unrelated traffic stop in the parking lot of an apartment complex. Afterward, while leaving the scene in a patrol car, he saw a Toyota Camry with tinted windows enter the same parking lot. From a distance of less than 15 feet, Officer Barragan "glanced at the [Camry] and had a hard time seeing through the tint." As the Camry moved closer and almost parallel to his vehicle, Officer Barragan "used [his] spotlight and aimed it towards the front driver side window."
The prosecutor asked Officer Barragan if he was able to see through the driver side window with the aid of his spotlight. He testified, "I could see the silhouette. I couldn't make out who it was. I couldn't see clearly, no." Based on those circumstances, he had believed "the window tint was too dark" for purposes of Vehicle Code section 26708. Accordingly, he "made a U-turn and activated [his] lights and sirens to initiate a traffic stop." Further investigation revealed defendant was the person driving the Camry.
Defense counsel introduced body camera footage recorded by other officers who assisted in the arrest and parole search. Marked as exhibits 1 and 2, the videos showed Officer Barragan being asked, "Did you even see who was driving?" He answered "no," but added that when he "shined the light straight into [the car]," he saw the driver's eyes open wide. The statement was accompanied by a gesture suggesting it was a look of surprise or concern.
On cross-examination, Officer Barragan attempted to explain what the defense alleged was an inconsistency between his court testimony and statements at the scene. He testified, "My answer was no to him because I could not see through the window. I was able to make out his eyes when I spotlit the window, yes, but I could not see who it was or anything like that." In response to follow-up questions, including by the prosecutor on redirect, Officer Barragan maintained that the window tinting had obscured his view of the driver.
The defense also proffered exhibit 8, which was a still image taken from video captured by another officer's body camera. The image showed the officer shining a flashlight directly into the front passenger side window at close range, illuminating an area near the gear shift and steering wheel. According to that officer's testimony, the outline of defendant's body (sitting in the driver's seat) could be seen in the shadows just beyond the illuminated area.
The trial court was not persuaded by the defense efforts to attack Officer Barragan's credibility. The court prefaced its ruling by noting Officer Barragan had "always asserted" that the reason for the stop "was that the vehicle had tint that was illegal insomuch as it obscured the view from someone outside the car looking in." The judge continued:
"Now, it does not seem to me, I don't care how dark tint can be, if you take a flashlight, like the one I think on Exhibit 8, right up against the car like that, you are going to be able to see in. But from an angle, as [Officer Barragan] testified he was traveling, the test is whether or not the officer can see in as to whether or not that tinting is legal or not. I don't see anything in the officer's testimony that would make this a pretext stop to where the initial reason for the stop was not a legitimate reason. Here, he articulated the Vehicle Code, the dark tint of the window, and the Court believes the evidence lines up with that. For those reasons, the Court is going to respectfully deny the motion."
On July 20, 2022, defendant pled no contest to count 2 and admitted the strike allegations in exchange for dismissal of the other charges and a maximum prison sentence of 32 months. He was sentenced immediately following the change of plea, and the trial court exercised its discretion to dismiss one of the strike allegations. The court imposed the lower term of 16 months, which was doubled to 32 months because of the remaining prior strike.
On July 25, 2022, defendant filed a notice of appeal.
DISCUSSION
The issue presented is whether the motion to suppress was erroneously denied.
"A traffic stop is a seizure subject to the protections of the Fourth Amendment of the United States Constitution. [Citation.] We evaluate the legality of the traffic stop under the rubric of federal constitutional law [citation], which requires 'only reasonable suspicion in the context of investigative traffic stops.'" (People v. Nice (2016) 247 Cal.App.4th 928, 937.) Reasonable suspicion exists "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.) "Although an officer's reliance on a mere '"hunch"' is insufficient to justify a stop, [citation], the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." (United States v. Arvizu (2002) 534 U.S. 266, 274.)
Simply stated, "an officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law." (People v. Wells (2006) 38 Cal.4th 1078, 1082.) Suspected violations of the Vehicle Code are included in this standard. (People v. Nice, supra, 247 Cal.App.4th at p. 938.) "A traffic stop is lawful at its inception if it is based on a reasonable suspicion that any traffic violation has occurred, even if it is ultimately determined that no violation did occur." (Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 510.)
At the trial court level, it is the People's burden to demonstrate the legality of the stop. (See People v. Williams (1999) 20 Cal.4th 119, 127-128.) On appeal, in reviewing the denial of a Penal Code section 1538.5 motion to suppress, we "defer to the trial court's factual findings, express or implied, where supported by substantial evidence." (People v. Glaser (1995) 11 Cal.4th 354, 362.) We also give deference to its "power to judge the credibility of the witnesses [and] resolve any conflicts in the testimony . . .." (People v. Woods (1999) 21 Cal.4th 668, 673.) The legal question of whether, "on the facts so found, the search or seizure was reasonable under the Fourth Amendment" is reviewed de novo. (Glaser, at p. 362.)
The pretextual nature of a traffic stop does not establish a Fourth Amendment violation. (Whren v. United States (1996) 517 U.S. 806, 812-813.) "We consider whether a search or seizure was reasonable under an objective standard, based on the facts and circumstances known to the officer but without regard to the officer's subjective state of mind." (People v. Flores (2019) 38 Cal.App.5th 617, 626.) "If there is a legitimate reason for the stop, the subjective motivation of the officers is irrelevant." (People v. Lomax (2010) 49 Cal.4th 530, 564.)
Officer Barragan testified to reasons for suspecting a violation of Vehicle Code section 26708. Subdivision (a)(1) of the statute declares, "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." Subdivision (a)(2) prohibits driving "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, the statute provides for exceptions generally allowing tinted front windows that have a minimum visible light transmittance of 70 percent. (See id., subd. (d).)
The actual tinting material must have "a minimum visible light transmittance of 88 percent." (Veh. Code, § 26708, subd. (d)(1).) However, the statute recognizes that federal regulations allow car windows to be manufactured with "minimum light transmittance of 70 percent." (Id., subd. (d)(2).) When read together, these provisions explain that after application of tinting material to a front window, the visible light transmittance cannot be less than 70 percent. (See Sen. Com. on Transportation, Rep. on Assem. Bill No. 2320 (1997-1998 Reg. Sess.) as amended Feb. 19, 1998.) Anything darker violates the statute. An exception exists for medically necessary sun screening devices, but such devices cannot be used at night. (Veh. Code, § 26708, subd. (b)(10).)
There are relatively few published opinions addressing traffic stops based on the window tinting statute. In People v. Butler (1988) 202 Cal.App.3d 602 (Butler), the Sixth Appellate District rejected the argument "that seeing someone lawfully driving with tinted glass raises a reasonable suspicion of illegality such that a reasonable inquiry is justified." (Id. at p. 607.) According to Butler, "[w]ithout 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." (Ibid.)
The Butler case is frequently distinguished on its facts. There, the detaining officer admitted he simply "'didn't like the idea of the tinted windows'" on the appellant's vehicle. (Butler, supra, 202 Cal.App.3d at p. 605.) The officer claimed the tinting was "'an obvious Vehicle Code violation,'" but he failed to provide a factual basis for his conclusion. (Ibid.)
In People v. Carter (2010) 182 Cal.App.4th 522 (Carter), the detaining officer testified his "attention was initially drawn to the [appellant's vehicle] because it had tinted front windows." (Id. at p. 529.) Despite the tint, the officer could see the appellant well enough to determine he was "a Black male in his late teens or early 20's, wearing blue jeans" and a white shirt, which partially matched the description of a robbery suspect. (Ibid., italics added.) Despite no further indication the car's windows were illegally tinted, the testimony was deemed sufficient to justify a traffic stop. Citing to People v. Niebauer (1989) 214 Cal.App.3d 1278 (Niebauer), the Carter court said, "When 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 Vehicle Code section 26708, subdivision (a)." (Carter, at p. 529.)
In general, appellate courts have been reluctant to adopt the Carter holding in its full breadth. But the case relied upon by Carter, i.e., Niebauer, has arguably become the leading authority on this subject. The relevant issue in Niebauer was the sufficiency of evidence to support a conviction under Vehicle Code section 26708, subdivision (a). (Niebauer, supra, 214 Cal.App.3d at pp. 1291-1293.)
A California Highway Patrol officer testified to having observed appellant Robert Niebauer driving a truck with "dark tinting" on its side windows. (Niebauer, supra, 214 Cal.App.3d at p. 1282.) The officer stopped the truck "because the windows were darker than normal and he could only see Niebauer's outline through the window." (Id. at p. 1292.) "After pulling him over, [the officer] inspected the windows and determined the tinting was a film that had been permanently affixed to the windows. While he admitted he had no training or expertise regarding light transmittance and did not take any light transmittance measurements from inside Niebauer's truck, he stated that looking through the windows from where he stood outside the vehicle, his vision was obstructed." (Id. at pp. 1292-1293.)
The officer's testimony in Niebauer was held sufficient to support a conviction under Vehicle Code section 26708. (Niebauer, supra, 214 Cal.App.3d at p. 1293.) The rationale was as follows: "[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 [a] conviction under section 26708[, subdivision] (a) if the trial court believes the officer; no further evidence or scientific testimony need be presented." (Id. at p. 1292.)
It seems the Niebauer holding was driven by information presented to the appellate panel at oral argument, and confirmed by legislative history materials, indicating that "most manufactured vehicle glass will be somewhere in the neighborhood of the 70 percent light transmission area." (Niebauer, supra, 214 Cal.App.3d at p. 1292.) According to Niebauer, "The Legislature has recognized that this standard, regulated manufactured window will likely have a reduced light transmission when any film is applied to the surface, i.e., after-market tinting." (Ibid., italics added.) In other words, most after-market tinting of a vehicle's front driver side and/or passenger side windows will not meet the exemption requirements of Vehicle Code section 26708, subdivision (d). (See fn. 1, ante.) The point is generally illustrated by United States v. Wallace (9th Cir. 2000) 213 F.3d 1216, where an "expert on window tinting" explained that the "'70% light transmittance addressed in [Section 26708(d)(2) of the California Vehicle Code] would still provide a clear, unobstructed view of the driver's compartment of the vehicle.'" (Wallace, at p. 1220.) The Ninth Circuit concluded "the fact that [the arresting officer] observed a 'heavy tint' and that 'the occupant inside was at a harder degree to look into the vehicle' establishes that the tinting on [the defendant's] windows probably allowed less than 70% light transmittance, which in turn establishes probable cause to believe that the vehicle was in violation of California law." (Ibid.)
In a footnote, the Niebauer court said, "Although Niebauer does not make a Fourth Amendment challenge to the investigative stop by [the detaining officer], the facts presented would also justify such a stop in this case." (People v. Niebauer, supra, 214 Cal.App.3d at p. 1293, fn. 10.) It then distinguished the Butler case based on the officer's testimony regarding his inability to clearly see into Niebauer's vehicle. (Ibid., citing Butler, supra, 202 Cal.App.3d at p. 607.) While technically dictum, the conclusion is irrefutable. If officer testimony that front windows appeared "darker than normal" such that he or she could "only see [the driver's] outline through the window" is sufficient to meet the beyond-a-reasonable-doubt standard (Niebauer, at pp. 1292-1293), the same evidence necessarily satisfies the much lower standard of reasonable suspicion.
In People v. Roberts (2010) 184 Cal.App.4th 1149, an officer testified to believing a vehicle 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.) This was held "sufficient to establish probable cause for [a traffic] stop." (Id. at p. 1191.) The distinguishing circumstance here is Officer Barragan's testimony that tinting obscured his view through the exterior side of a front window. Although defendant does not rely on Roberts, his argument for reversal is based on this distinction.
Relying on his own interpretation of the statute, defendant argues Vehicle Code section 26708 exclusively pertains to a driver's ability to see out of the windows and not the ability of others (e.g., police officers) to see into the vehicle. From this premise he reasons that facts concerning an officer's ability to see through a tinted window from the outside are insufficient, as a matter of law, to establish reasonable suspicion the statute has been violated. The argument is unfounded.
As discussed above, "the driver's clear view through the windshield or side windows" is an issue specific to Vehicle Code section 26708, subdivision (a)(2). Subdivision (a)(1) of the statute-the provision under which defendant was charged- forbids the placement of "any object or material ... upon the windshield or side or rear windows." (Italics added.) The exception provided for in subdivision (d) turns on the objective question of light transmittance.
Reasonable suspicion is a "commonsense, nontechnical" standard involving "'"the factual and practical considerations of everyday life on which reasonable and prudent [people], not legal technicians, act."'" (Ornelas v. United States (1996) 517 U.S. 690, 695; see Illinois v. Wardlow (2000) 528 U.S. 119, 125 ["the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior"].) "And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Terry v. Ohio (1968) 392 U.S. 1, 21, italics added.) As a matter of common sense and life experience, an officer's inability to clearly see through a tinted window from the outside is probative of both the overall light transmittance and the driver's visibility from the inside. That proposition fully comports with the reasonable suspicion standard. (E.g., United States v. Lopez (N.D.Cal., Nov. 3, 2008, No. C08-00342 SI) [2008 U.S. Dist. LEXIS 117240, *5-*7; 2008 WL 4820753, *2].)
Defendant's own evidence supports the above rationale and the trial court's implied credibility determination. Exhibit 1 contains video footage captured during the vehicle search. The camera angle shows the interior of the open driver's side door, and the tinted window is partially lowered. This allowed the trial court to compare and contrast a clear view through the window frame (i.e., the portion above the lowered window) with an interior view of the tinting. The tint is objectively characterized as dark, proving Officer Barragan did not lie about the obvious presence of tinting. And to the extent exhibit 8 is even relevant (it shows the passenger side window, not the driver's side window), that image confirms the tint obscured a clear view through the entire window even with the aid of a concentrated light source.
Officer Barragan's testimony addressed the "dark tinted windows," his difficulty "seeing through the tint," and details regarding the silhouetted appearance of the driver. Those articulable facts distinguish this case from Butler and are more than sufficient to establish the legality of the stop under Carter. The trial court's denial of the motion to suppress further accords with the Niebauer opinion. We conclude the motion was properly denied.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SMITH, J. DE SANTOS, J.