Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF121738A, Jerold L. Turner, Judge.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Dawson, J.
Appellant, Eric Lavelle Nichols, pled no contest to possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) and admitted allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(e)). On August 19, 2008, the court struck Nichols’s prior conviction and sentenced him to a three-year prison term. On appeal, Nichols contends the court erred when it denied his motion to suppress. We will affirm.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
On December 19, 2007, Nichols was a backseat passenger in a Buick that was stopped by Bakersfield Police Officers Kyle Ursery and Mason Woessner for having tinted windows. Nichols was arrested after the officers determined that he had an active parole warrant. During booking, police officers found.079 milligrams of cocaine base in Nichols’s right shoe.
On January 11, 2008, the district attorney filed an information charging Nichols with possession of cocaine base and two prior prison term enhancements (§ 667.5, subd. (b)). The information also alleged that Nichols had a prior conviction within the meaning of the three strikes law.
On June 30, 2008, Nichols filled a motion to suppress challenging the stop of the Buick. At a hearing on Nichols’s motion, Officer Woessner testified that on December 19, 2007, he was on patrol with Officer Ursery as his passenger. At approximately 10:50 p.m., as they travelled north on L Street, Woessner saw the Buick Nichols was riding in traveling east on Chester toward the intersection of L Street. As Woessner made a left turn at the intersection and drove past the driver’s side of the car, he was unable to see into the Buick’s passenger compartment through the front driver’s door window because it was tinted. Woessner made a U-turn and pulled the Buick over.
Officer Ursery testified that the two front side windows were tinted dark enough to prevent the officers from seeing clearly into the vehicle and from seeing the occupants.
At the conclusion of the hearing, the court denied Nichols’s motion.
DISCUSSION
Nichols contends that the officers’ inability to “see into the passenger compartment” of the Buick was insufficient to justify the detention of the Buick and its passengers. He further contends that since the discovery of the cocaine base in his shoe ultimately resulted from an unlawful detention, the court erred when it denied his motion to suppress the evidence seized from his person. We disagree.
“In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court’s ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence. We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. [Citation.]” (People v. Miranda (1993) 17 Cal.App.4th 917, 922 (Miranda).)
“[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.” (Miranda, supra, 17 Cal.App.4th at p. 926.) Tinted windows are not necessarily unlawful. (Veh. Code, §§ 26708, 26708.5.)
Vehicle Code section 26708 provides, in pertinent part: “(a)(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.… (b) This section does not apply to any of the following: (1) Rearview mirrors.… (4) Side windows that are to the rear of the driver. … (d) Notwithstanding subdivision (a), clear, colorless, and transparent material may be installed, affixed, or applied to the front side windows, located to the immediate left and right of the front seat 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 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. [¶] (3) The material is designed and manufactured to enhance the ability of the existing window glass to block the sun’s harmful ultraviolet A rays. [¶] (4) The driver has in his or her possession, or within the vehicle, a certificate signed by the installing company certifying that the windows with the material installed meet the requirements of this subdivision and identifies the installing company and the material’s manufacturer by full name and street address, or, if the material was installed by the vehicle owner, a certificate signed by the material’s manufacturer certifying that the windows with the material installed according to manufacturer’s instructions meets the requirements of this subdivision and identifies the material’s manufacturer by full name and street address.…”
In People v. Niebauer (1989) 214 Cal.App.3d1278 (Niebauer), the court held that an officer’s testimony that the side windows were darker than normal and only allowed the officer to see the outline of the defendant in the car was sufficient to sustain the defendant’s conviction for violating Vehicle Code section 26078, subdivision (a).
In so holding, the court stated,
“We expect that law enforcement officers enforcing this statute, based upon their training and experience with vehicles in general, will be able to examine a suspect vehicle, look through the windows if possible, and form an opinion as to whether or not the tinting on the windows obscures the light below the 70 percent margin. We don’t call upon the officers to be scientists or carry around and use burdensome equipment to measure light transmittance, nor do we expect them to discuss the sufficiency or insufficiency of the light transmittance as if they were an expert witness on the subject.
“Rather, a commonsense 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 [Vehicle Code] section 26708(a) if the trial court believes the officer; no further evidence or scientific testimony need be presented.” (Niebauer, supra, 214 Cal.App.3dat p. 1292.)
Niebauer did not involve a Fourth Amendment issue. Nevertheless, it follows a fortiori, that if the officer’s observation to which he testified in Niebauer was sufficient to sustain the defendant’s conviction in that case, it would also have been sufficient to justify detaining him on suspicion of violating Vehicle Code section 26708, subdivision (a).
Here, the officers stopped the car in which Nichols was a passenger because the two front side windows were tinted. Officer Woessner testified that he was unable to see into the car’s passenger compartment through the front driver’s side window. Officer Ursery testified that the tint on the two front side windows prevented the officers from seeing clearly into the passenger compartment and from seeing the car occupants. In accord with Niebauer, we conclude that the officers’ observations justified the stop of the Buick in which Nichols was a passenger.
Nichols relies on People v. Butler (1988) 202 Cal.App.3d602 (Butler) to contend that the officers observations did not justify the stop of the Buick. In Butler, a police officer became suspicious when he saw a Cadillac with darkened side and rear windows at 2:00 a m. near a liquor store that was “a prime location for a robbery[.]” The officer stopped the car to see who was in the vehicle because of suspicious conduct and to “‘caution them and to tell them to remove the tinting from the interior of the windows.’” He also thought “the occupants were ‘setting up for a robbery or something, and I also didn’t like the idea of the tinted windows, and so that was why I stopped the car, because of the tinted windows. It was an obvious Vehicle Code violation.’” (Id. at pp. 604-605, italics added.)
In reversing the denial of the defendant’s suppression motion, the Butler court stated,
“We find no facts in this record to suggest that Officer Smith had a reasonable suspicion that the windows in the Cadillac were made of illegally tinted, rather than legally tinted, safety glass. He observed the Cadillac from a distance late at night as he drove by the Highway Liquor Store and again as the car sped past him. In the context of the suspicious conduct that he had observed, Officer Smith simply admitted that he ‘didn't like the idea of the tinted windows.’” (Butler, supra, 202 Cal.App.3dat 606, italics added.)
Butler is easily distinguishable because the officers here testified to specific, articulable facts that supported their belief that the windows were illegally tinted. Thus, we further conclude that the court did not err when it denied Nichols’s motion to suppress.
DISPOSITION
The judgment is affirmed.
“Vehicle Code section 26708.5 provides: “(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) or (c) 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.”