Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F2669
NICHOLSON, J.
Defendant Rodolfo Gabriel Gonzalez appeals from a judgment entered after his motion to suppress evidence was denied. Pursuant to a negotiated plea agreement, defendant pled guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and forgery of an official seal (Pen. Code, § 472). In exchange for his plea, the People agreed that an additional charge of sale or transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) would be dismissed, and that defendant would receive a stipulated sentence of two years eight months in state prison. In accordance with the plea agreement, the trial court sentenced defendant to two years eight months in state prison and imposed other orders.
On appeal, defendant asserts that the trial court erred by not suppressing evidence secured after he was detained for a violation of the Vehicle Code because the sheriff’s deputy who conducted the traffic stop did not possess a reasonable suspicion that the window tinting on defendant’s vehicle constituted a violation of the Vehicle Code. We disagree and affirm the judgment.
FACTUAL BACKGROUND
The facts are taken from the evidence presented at the hearing on defendant’s motion to suppress. On a clear and sunny day in March of 2008, Shasta County Sheriff’s Deputy John Patrick Kropholler, a 15-year veteran who had stopped vehicles on suspicion of illegally tinted windows several hundred times, was on duty in his patrol vehicle in the Factory Outlets parking lot in Anderson, California. Deputy Kropholler followed defendant’s Nissan Altima out of the parking lot. As the Altima merged southbound onto Highway 273, Deputy Kropholler was able to see that the driver’s side window was “tinted to the point where [he] wasn’t able to see inside the passenger compartment.” As Deputy Kropholler explained at the suppression hearing: “It was obviously too tinted. I wasn’t able to see into the passenger compartment of the car.”
Believing the window tinting to be a violation of Vehicle Code section 26708, subdivision (a), Deputy Kropholler initiated a traffic stop. It was not until Deputy Kropholler approached the Altima on foot that he was able to see inside the vehicle. When Deputy Kropholler informed defendant of the reason for the stop, defendant explained that he knew the tinting was illegal, that he previously received a similar ticket for illegal tinting on another vehicle he owns, and that he had yet to remove the tinting from the Altima.
At the time of defendant’s arrest, Vehicle Code section 26708, subdivision (a), provided in relevant part: “(1) No person shall drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied upon the windshield or side or rear windows. [¶] (2) No person shall drive 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.” (Stats. 1998, ch. 476, § 1.) This provision includes window tinting affixed to the front side windows. (People v. Niebauer (1989) 214 Cal.App.3d 1278, 1292.) However, subdivision (d) of Vehicle Code section 26708 provides in relevant part: “Notwithstanding subdivision (a), clear, colorless, and transparent material may be installed, affixed, or applied to the front side windows... if the following conditions are met: [¶] (1) The material has a minimum visible light transmittance of 88 percent. [¶] (2) The window glazing with the material applied meets [federal vehicle safety standards], including the specified minimum light transmittance of 70 percent....”
Defendant did not present any witness testimony at the hearing, but did produce five photographs of his vehicle taken by his investigator at the impound yard. The parties stipulated that the photographs accurately depicted the condition of the vehicle at the time it was stopped by Deputy Kropholler.
After reviewing the photographs and entertaining argument on the motion, the trial court ruled as follows: “All right. Well, [the windows] don’t look clear and colorless to me, nor do they, on this last photo that is taken close up, the reflection is such that it is pretty difficult to see inside of there. And that’s the only testimony I have is from the officer that testified he couldn’t see in to determine how many people were in there. So the motion to suppress is denied.”
DISCUSSION
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. United States (1996) 517 U.S. 806 [135 L.Ed.2d 89]; People v. Miranda (1993) 17 Cal.App.4th 917, 926; People v. Durazo (2004) 124 Cal.App.4th 728, 731.)
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. 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.]” (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Lindsey (2007) 148 Cal.App.4th 1390, 1395; People v. Coulombe (2000) 86 Cal.App.4th 52, 55-56.) “The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case. [Citations.]” (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
Defendant contends that “Deputy Kropholler’s traffic stop was illegal because he lacked reasonable suspicion to believe that [defendant’s] car windows were improperly tinted.” He relies on People v. Butler (1988) 202 Cal.App.3d 602 (Butler), attempts to distinguish People v. Niebauer (1989) 214 Cal.App.3d 1278 (Niebauer) and People v. Hanes (1997) 60 Cal.App.4th Supp. 6 (Hanes), and asserts that the pictures taken of his vehicle at the impound yard conclusively demonstrate that Deputy Kropholler’s subjective belief that his Altima was in violation of the Vehicle Code was objectively unreasonable.
In Butler, an officer observed a Cadillac being driven in a suspicious manner outside a liquor store just prior to 2:00 a.m. The officer thought the occupants of the vehicle might have been setting up a robbery. He stopped the car because he believed the tinted windows were an “‘obvious Vehicle Code violation.’” (Butler, supra,202 Cal.App.3d at pp. 604-605.) The Court of Appeal found no facts in the record indicating that the officer had a “reasonable suspicion that the windows in the Cadillac were made of illegally tinted, rather than legally tinted, safety glass.” (Id. at p. 606.) As the court explained: “We disagree 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.) Accordingly, the mere fact that a vehicle has tinted windows will not justify a traffic stop; there must be additional articulable facts suggesting that the tinted windows are in violation of the Vehicle Code.
Niebauer and Hanes illustrate what additional facts will justify such a traffic stop. In Niebauer, the Court of Appeal held that believable testimony based on an officer’s general training and experience can be sufficient to justify not just a traffic stop but conviction under Vehicle Code section 26708, subdivision (a): “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 the 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.” (Niebauer, supra, 214 Cal.App.3d at p. 1292.) There, the officer testified that he stopped Niebauer because “the windows were darker than normal and he could only see Niebauer’s outline through the window.” (Ibid.) Although Niebauer did not involve a Fourth Amendment challenge, the court observed that the facts presented would also justify an investigative stop because the officer “testified to additional facts giving him reasonable suspicion Niebauer was driving with illegally tinted windows other than merely the bare statement Niebauer’s truck had tinted windows.” (Id. at p. 1293, fn. 10.)
In Hanes, the Appellate Department of the Ventura County Superior Court followed this dictum in Niebauer as “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, supra, 60 Cal.App.4th Supp. at p. 9.) There, the officer who stopped Hanes was a three-year veteran who had stopped vehicles on suspicion of illegally tinted windows roughly four hundred times. (Id. at p. 8.) He testified that on the night in question, Hanes passed through a lighted intersection directly in front of him, and that the tinting was so dark that “he was unable to see the occupants of the vehicle.” (Ibid.)
We also follow the Niebauer dictum as consistent with Fourth Amendment jurisprudence. Indeed, it would be absurd if evidence sufficient to support a conviction for violation of Vehicle Code section 26708, subdivision (a), was not also sufficient to justify an officer’s reasonable suspicion that such a violation exists. In this case, Deputy Kropholler, a 15-year veteran who had stopped vehicles on suspicion of illegally tinted windows several hundred times, testified that he pulled over defendant’s Altima because the driver’s side window was so tinted that he was unable to see inside the passenger compartment until he reached the vehicle on foot. An officer who is unable to see inside the passenger compartment of a vehicle will certainly have a reasonable suspicion that the window tinting “reduces the driver’s clear view through the windshield or side windows.” (Veh. Code, § 26708, subd. (a)(2).)
The photographs proffered by defendant do not conclusively establish that Deputy Kropholler’s suspicion was objectively unreasonable. Nor do they in any way contradict Deputy Kropholler’s testimony. As the trial court observed: “Well, [the windows] don’t look clear and colorless to me, nor do they, on this last photo that is taken close up, the reflection is such that it is pretty difficult to see inside of there.” We agree with the trial court’s assessment of the photographs. The tint on the front windows is not “clear, colorless, and transparent,” nor can we conclude from the photographs that the “material has a minimum visible light transmittance of 88 percent” and “meets [federal vehicle safety standards], including the specified minimum light transmittance of 70 percent....” (Veh. Code, § 26708, subd. (d).)
Because Deputy Kropholler’s testimony at the suppression hearing established an objectively reasonable suspicion that defendant’s Altima was in violation of section 26708, subdivision (a) of the Vehicle Code, and because the photographs taken of the vehicle at the impound yard in no way negate the reasonableness of such suspicion, we must affirm the trial court’s decision to deny the motion to suppress.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P. J., BUTZ, J.