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Filed 6/28/24 P. v. Sturgis CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
LARENCE LEONARD STURGIS,

Defendant and Appellant. C098617 (Super. Ct. No. 21FE010736)

After his motion to suppress was denied, d efendan t Larence Leonard Sturgis ple d guilty to being a felon in possession of a firearm. The trial court sentenced him to two years eight months in prison. On appeal, Sturgis argues the gun and ammunition found in his pocket should be suppressed because both the traffic stop and subsequent frisk were not supported by reasonable suspicion

. We conclude the record does not contain
sufficient articulable facts to support reasonable suspicion for the traffic stop and will

reverse.2 BACKGROUND
The information alleged Sturgis was a felon in possession of a firearm and
ammunition. (Pen. Code, § § 29800, subd. (a) (1) , 30305, subd. (a)(1). ) It also alleged Sturgis had a prior strike conviction. ( Id. , §§ 667, subd s . (b)

- (i), 1170.12.)
Pursuant to Penal Code section 1538.5, Sturgis moved to suppress the gun and
ammunition officers found in his pocket

. At the suppression hearing held in conjunction with the preliminary hearing , Officer Conner Mills testified he had worked for the Sacramento Police Department for five and a ha lf years and was assigned to the north gang enforcement team. Officer Mills reported he encountered many firearms in his job and there had been a recent trend of people carrying firearms in cross

- body style satchels. On the date of this arrest, Officer Mi lls , Officer Derek Goetting, and Sergeant
Zach Eaton were on a routine patrol in the north area of Sacramento at about 1:30 p.m. Officer Mills noticed three people ( a woman , Sturgis , and a man ( H. B

. ) ) standing in front of a tire shop that was next to a nearby liquor store. H

. B

. was wearing a cross

- body style
satchel. Officer Mills testified, “ As we drove past, it appeared they became fixated on our presence and kind of started walking in different di rections.”
The man wearing the cross

- body style satchel ( H.B. ) went into the liquor store.
Officer Mills was not sure if the satchel was zipped up when H .B. went in, but when he came out it was unzipped. Sergeant Eaton went into the liquor store to look around but
there is no evidence in the record that anything was found

. The three people got into a car. The woman was in the driver seat. Sturgis was in
the front passenger seat , and H.B. was in the back passenger seat. As O fficers Mills and Goetting walked up to the car, the car drove off. Because the officers were not sure that the three people in the car saw them approach, t he officers could not tell if they were just trying to drive away or drive away from them

. The officers go t into their pat r ol car , followed the car, and made an enforcement stop. Officer Mills testified he effected a traffic stop on the car because it “had window3

tint affixed to the front driver window and passenger window.” When asked, “And what’s wrong wit h having window tint affixed to those two windows that you mentioned,” Officer Mills responded, “It makes it difficult to see inside the vehicle, not only for other people, but also for the driver. It obscures their vision looking out the windows, especia lly at certain times

— at night.” On cross

- examination the officer testified it was his opinion that having tint on your front windows is illegal under state
la w

. Officer Mills contacted the female driver. While he did so, he saw a beer can in
the back s eat . W hen it was handed to him, he noted it was about one

- third full and
smelled like alcohol. Officer Goetting conducted a records check and determined the driver had a suspended license and Sturgis had a history of firearm

- related charges.
O fficer Mills decided to have the driver step out of the car to conduct a probable cause
search of the car based on the open container of alcohol

. Officer Goetting searched
H

. B

. ’s satchel and found no firearms inside of it. Officer Goetting also asked Sturgis t o step out of the car and during a brief patdown search discovered a loaded handgun that
had three bullets in the magazine

. Sturgis said he found the handgun somewhere in the
N orth Sacramento area.
A brief 24

- second body camera video of the patdown was s ubmitted into evidence. Despite that the video shows there were three officers involved, each with a body cam era , this was the only footage the People introduced at the hearing. During the colloquy with counsel, the trial court said it had reviewed the v ideo of the stop that showed the front
passenger window rolled down with only “1 to 2 inches, or so, protruding from the door. ”
The trial court described that window as tinted and later described the windows as appearing “ to be somewhat darker than clear but they’re not black. ” We have viewed the
video as well. It shows the front passenger window almost all the way down with only a little over an inch showing above the doorsill. We can see through the window.4

Af ter briefing and oral argument, the trial court summarized the issue as follows : “The officers testified they observed the vehicle traveling with dark film attached or tinting to the f

r ont driver and passenger side window s in violation of Vehicle Code Section 26708. The prosecution claimed that for this reason the officers lawfully effectuated a traffic stop of the vehicle and detained the occupants within while the officers investigated the violation. [¶] The defense c ontends the stop was unlawful because there was insufficient evidence of window tinting or the nature of the tinting to justify [the] stop.” The trial court stated it did not appear any Court of Appeal has published an opinion under the current statu t es a s to whether a n officer can stop a vehicle that has a front driver and passenger window that is not clear, not colorless , or not transparent. T he trial court found the fact that this window was not clear, not colorless, and not transparent was a legal bas is for the officers to stop the car and denied the motion

to suppress

. 1 On January 26, 2022, Sturgis filed a motion to dismiss the information under Penal Code sections 995 and 1538.5, subdivision (i). On June 16, 2022, the trial court
denied that motion . Sturgis then pled no contest to being a felon in possession of a firearm and admitted his prior strike conviction. On May 17, 2023, the trial court sentenced him to two years eight months in prison. Sturgis timely appealed.
DISCUSSION Sturgis argues the traffic stop based on tinted windows was not supported by reasonable suspicion and as a result the evidence of the gun must be suppressed. We
agree.

1 The trial court also discussed the legality of the patdown search, but as this case turns on the propriety of the stop, we will not discuss that finding.5

A. Standard of Review “In ruling on a motion to suppress, the trial court must find the histori cal facts, select the rule of law, and apply it to the facts to determine whether the law as applied has
been violated

. [Citation.] We review the court ’ s resolution of the factual inquiry under the deferential substantial evidence standard.” ( People v. Ramos (2004) 34 Cal.4th 494, 505.) “ ‘We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment.’ ” ( People v. Silveria and Travis (2020) 10 Cal.5th 195, 232.)
B. Analysis “A traffic stop is a seizure subject to the protections of the Fourth Amendment of the United States Constitution.” ( People v. Nice (2016) 247 Cal.App.4th 928, 937.) The police may conduct a traffic stop if the circumstances show “ ‘at least reasonable suspicion that the driver has violated the Vehicle Code or some other law.’ ” ( People v. Durazo (2004) 124 Cal.App.4th 728, 734

- 735.) Reasonable suspicion exists “when the detaining officer can point to specific articulable facts that, c onsidered 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.) 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, 128.) “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 l evel 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.) If the stop does not meet this test, any resulting search or seizure violates th e detainee ’ s Fourth Amendment rights and a motion to suppress any evidence obtained pursuant thereto must be granted. ( People v. McWilliams (2023) 14 Cal.5th 429, 4346

[“As a general rule, evidence seized as a result of an unlawful search or seizure is
ina dmissible against the defendant in a subsequent prosecution”].) Sturgis argues that the windows appearing darkened was by itself insufficient to amount to reasonable suspicion of illegal tinting. The People counter arguing the window tint was not clear, colorless, and transparent thus, the affixed tint described by
the officer is a violation of the Vehicle Code

. We conclude Sturgis is correct. The People argue that “the affixed tint is the issue at bar, and not the tint of the ‘windows themselves.’ ” However, the blanket assertion that having any tint “affixed” to
a car window is a violation of the Vehicle Code is in accurate

. To the contrary, the statutory scheme is centered, in large part, on the actual degree of tint be cause n ot all tints are illegal, as windows tinted with certain light transmittance are permitted. Vehicle
Code 2 s ection 26708 , subdivision (d)(1) and (2) appear to provide that having tinted material applied or affixed is only impermissible if the visib le light transmission is less
than 88 or 70 percent , respectively . (See Sen. Com. on Transportation, Rep. on Assem. Bill No. 2320 (1997

- 1998 Reg. Sess.) as amended Feb. 19, 1998.) Officer Mills did not provide any articulable facts indicating that the ti nt affixed was darker than permitted by

statute

. Contrary to the trial court’s description, O fficer Mills did not testify the car had a
dark film or tinting on the window ; he did not testify at all about the coloring or shading

. Instead, the officer testified he stop ped the car Sturgis was a passenger in because “[i]t had window tint affixed to the front driver window and passenger window.” When asked why having window tinting was a problem, the officer responded broadly: “It ma kes it difficult to see inside the vehicle, not only for other people, but also for the driver. It obscures their vision looking out the windows, especially at certain times

-- at night.” The nature of the question, the fact that the windows were mostly rolled down, and

2 Undesignated statutory references are to the Vehicle Code.7

Officer Mills’ s response make it ambiguous at best as to whether the officer was talking
about car windows with tinting in general or this particular car ’s windows

. B ecause the
window visible in th is record was almost all the way down , it is not possible any tinting
made see ing into this car difficult. There were no specific articulable facts testified to as to whether Officer Mills’s ability to see into the car was obscured in any way, nor any facts provided about the degree of tint on the windows. With no specificity about the degree of tint, it is inaccurate to b lanket ly assert that window tint that is not clear, colorless, and transparent, violates the Vehicle Code and the officer was incorrect that having tinted windows is a per se v iolation of the Vehicle Code.
S ection 26708, subdivision (a)(1) states: “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.” Additionally, s ection 26708, 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 wi ndows.” But the Vehicle Code provides for exceptions generally , as noted above, allowing “clear, colorless, and transparent material” designed “to block the sun ’ s harmful ultraviolet A rays” may be affixed to the front side windows if the “material has a minimum visible light transmittance of 88 percent” and the “window glazing with the material applied meets [the federal]

. . . specified minimum light transmittance of 70 percent

. . . . ” (§ 26708, subd. (d)(1)

- (3); People v. Niebauer (1989) 214 Cal.App.3 d 1278, 1291

- 1292.) Thus, having tint on windows is not per se illegal, and does not by itself support a traffic stop. Relying on the fact of tint alone to provide reasonable suspicion, without testimony about the degree of tint, would improperly shift the burden to the defendant to prove the officer lacked reasonable suspicion. Instead, t he officer must provide something more to demonstrate the tint is of the type prohibited by the Vehicle Code and the officer here did no such thing.8

A ppellate courts have held that an officer ’ s testimony that window tint is illegal, without more, is insufficient to support a stop. For ex ample, in People v. Butler (1988)
202 Cal.App.3d 602, 604 , the officer who conducted a traffic stop saw that the “side and rear windows [of the defendant ’ s vehicle] were darkened.” The trial court denied the
defendant ’ s motion to suppress based on the tes timony regarding the window tint. ( Id . at
pp. 605, 607 .) On appeal, the appellate court “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 in quiry 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 simple fact
the car’s windows were darkened did not suggest that the officer “had a reasonable suspicion that the windows in the [vehicle] were made of illegally tinted, rather than legally tinted, safety glass.” ( Id. at p. 606.)
In People v. Niebauer

, supra, 214 Cal.App.3d 1278, an officer testified that he initiated the traffic stop because “the windows were darker than normal and he could only see [the defendant’s] outline through the window.” ( Id. at p. 1292.) The officer further testified that “ he had stopped other drivers with the same type of tinting material on their vehicle windows and those drivers had to roll down their windows at night in order to see where they were turning.” ( Id. at p. 1293.) On appeal, the Court of Appeal noted in dic ta that “the facts presented would also justify

. . . a stop in this case. [The officer] testified to additional facts giving him reasonable suspicion [the defendant] was driving with illegally tinted windows other than merely the bare statement [the defe ndant ’ s] truck had tinted windows.” ( I

bid. , fn. 10.) More recently, in People v. Roberts (2010) 184 Cal.App.4th 1149, the appellate

court upheld the constitutionality of a stop based on tinted windows where the officer
testified he “ could not see throug h the driver ’ s tinted side window from the open passenger side window,” and “believed the view from the windows was obstructed by the9

tint in violation of Vehicle Code section 26708.5, subdivision (a).” ( Id. at p. 1190.) In so holding, the court found th at “the underlying facts for the stop were specific and reliable.” ( Id. at p. 1191.) Likewise, in People v. Hanes (1997) 60 Cal.App.4th Supp. 6, 8, the arresting
officer , who had conducted 400 traffic stops based on suspicion of illegal window tin t ing, testified that the front right window of the defendant ’ s black car was “ ‘so black that it kind of matched the color of the car.’ He also testified that he was unable to see the occupants of the vehicle.” On that basis, the trial court denied the mo tion to suppress. ( I bid

. ) On appeal, the appellate department of the superior court concluded that the arresting officer ’ s testimony provided the kind of additional articulable facts required by
the court in Butler

. ( Id. at pp. 9

- 10.) Here, the People p resented no additional articulable facts suggesting the tinted glass was illegal here. T he solitary observation presented to the trial court of the vehicle Sturgis was in prior to initiation of the traffic stop was that the windows were tinted.
Officer M ills did not testify as to any specific articulable facts suggesting that the tint was illegal, such as that he had difficulty seeing through the window , or that the window was demonstrably dark

. This is all the more true here given that at the time he stopped the car, the front passenger window was rolled down almost completely. Officer Mills’ s generalized comment that tint s ma ke looking inside a car difficult could not have

r eference d this car as th e only window shown in the record was rolled down almost all the way, such that it would not have affected any view into the car

. Accordingly, the record does not support the trial court ’ s finding that the officer had reasonable suspicion to stop Sturgis

. We acknowledge that in Pe ople v. Carter (2010) 182 Cal.App.4th 522, the Second District held that “[w]hen 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).” ( Id. at p. 529.) That court included no analysis to10

support this holding , but merely cited N i ebauer , even though Carter contradicts the holding in Butler

. As we have already noted, Niebauer ’ s analysis relied on the existence
of additional facts beyond the windows merely having been tinted

. Accordingly, we
decline to follow Carter and instead follow Butler and Niebauer

. Because the record contains no specific articulable facts suggesting that the tinted glass was illegal, th is st op violated Sturgis ’ s Fourth Amendment rights. Accordingly, all evidence obtained pursuant to the stop must be suppressed. 3
DISPOSITION The judgment is reversed, and the matter is remanded. On remand, the trial court shall vacate its June 16, 2022 order denying Sturgis’s motion to suppress and enter a new order granting that motion, and shall conduct further proceedings consistent with this opinion

.

/s/ BOULWARE EURIE, J.

I concur:

/s/ ROBIE, Acting P. J.

3 Given our conclusion the traffic stop was not supported by reasonable suspicion, we decline to address Sturgis ’s arguments concerning the propriety of the officer’s protective f risk of Sturgis

.1

RENNER, J., Dissenting.

The majority suggests having tint affixed to a front driver and passenger window may not violate the Vehicle Code because “section 26708, subdivision (d)(1) and (2)
appear to provide that having tinted material applied or affixed is only impermissible if the visible light transmission is less than 88 or 70 percent, respectively.” (Maj. Opn.

ante , at p. 6.) This is a misstatement of the law. Vehicle Code section 26708, sub division (d) allows only a “clear, colorless, and transparent material” to be affixed to the windows at issue and only if the material also meets each the following additional conditions: “(1) The material has a minimum visible light transmittance of 88 p ercent. “(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
g lazing, 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.” (Veh. Code, § 26708, subd. (d).) It has long been settled that tint that is affixed to a window cannot satisfy these requirements. (

People v. Niebauer (1989) 214 Cal.App.3d 1278, 1292.) At a minimum, a tint that is affixed to the window as opposed to a safety glass and/or glaze cannot meet the applicabl e federal standards. ( Id. at p. 1291 & fn. 8.) The majority has failed to acknowledge their departure from settled law on this point. (See id. at p. 1292 [“If an officer forms an opinion in a commonsense examination of a vehicle that there is a film pla ced upon the vehicle’s windows in an unauthorized place

. . . such evidence will be sufficient to support conviction under [Vehicle Code] section 26708[, subdivision ](a) if the trial court believes the officer; no further evidence or scientific testimony need be presented”].)2

The majority relies on People v. Butler (1988) 202 Cal.App.3d 602, which noted that tinted windows are not necessarily unlawful if the windows are “made of the type of tinted glass meeting the requirements of subdivision (b) of Vehi cle Code section 26708.5.” (

Id. at p. 606.) (Maj. Opn. ante , at p. 8.) There, the court found no facts in the record to suggest that the officer “had a reasonable suspicion that the windows in the Cadillac were made of illegally tinted, rather than lega lly tinted, safety glass.” ( Butler,

supra, at p. 606.) Butler is distinguishable because here it is undisputed the tint was affixed, which would preclude the possibility that what the officer saw was tinted safety glass in compliance with Vehicle Code se ction 26708.5, subdivision (b). The majority’s analysis misses the distinction between tinted safety glass and affixed tint. (E.g., Maj. Opn. ante , at p. 9 [“Here, the People presented no additional articulable facts suggesting the tinted glass was illeg al here”].) For this reason, I dissent.

/s/ RENNER, J.