IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

JESUS RAMIRO MORENO,

Appellant.

No. 2 CA-CR 2013-0339

Filed December 30, 2014

Appeal from the Superior Court in Cochise County

No. CR2012200176

The Honorable James L. Conlogue, Judge

AFFIRMED

COUNSEL

Thomas C. Horne, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Amy Pignatella Cain, Assistant Attorney General, Tucson

Counsel for Appellee

Law Offices of Christopher L. Scileppi, P.L.L.C.

By Christopher L. Scileppi, Tucson

Counsel for Appellant
STATE v. MORENO

Opinion of the Court

2

OPINION

Judge Espinosa authored the opinion of the Court, in which 

Presiding Judge Miller and Chief Judge Eckerstrom concurred.

E S P I N O S A, Judge:

¶1 After a vehicle was stopped for a window tint violation 

and a load of marijuana discovered within, a jury convicted Jesus 

Moreno of conspiracy to commit transportation of marijuana for 

sale, transportation of marijuana for sale, possession of marijuana 

for sale, possession of drug paraphernalia, and misconduct 

involving weapons. The trial court dismissed the charge of

possession of marijuana as a lesser-included offense and imposed 

concurrent, presumptive prison terms totaling 7.5 years on all 

remaining charges. On appeal, Moreno contends the court erred in 

denying his motion to suppress evidence, challenging the basis for 

the traffic stop leading to his arrest. For the following reasons, we 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In reviewing a trial court’s denial of a motion to 

suppress, we view the facts in the light most favorable to upholding 

its ruling, considering only the evidence presented at the 

suppression hearing. State v. Teagle, 217 Ariz. 17, ¶ 2, 170 P.3d 266, 

269 (App. 2007). On March 7, 2012, Detective Paul Barco of the 

Douglas Police Department was in an unmarked truck on State 

Route 80 near Douglas when he saw two vehicles that appeared to 

be traveling in tandem. He observed a white Chrysler Concord, 

following “[n]ot even three seconds” behind a black Nissan SUV.1

This “caught [his] attention” because the traffic on State Route 80 in 

that area is normally “really light” and he “hardly saw any traffic” 

 

1The detective acknowledged a three second distance was 

legal at the rate of speed the Concord and the Nissan were traveling.
STATE v. MORENO

Opinion of the Court

3

while he was on duty that day. The detective followed the vehicles 

for several miles and observed behavior he found suspicious. The 

Nissan appeared to gain speed while the Concord slowed down, as 

if “they were separating from each other,” consistent with a heat 

vehicle “lead[ing] p[ro]spective law enforcement off the trial of [a] 

load vehicle.”

¶3 The detective “lost sight of the black Nissan,” but

eventually observed it parked on the side of the road with its hood 

up as he passed the Concord. He continued eastbound until he 

stopped to speak with a United States Border Patrol agent to advise 

him of the vehicles traveling in tandem. During that time, the 

Concord passed the detective’s location and he “noticed that [its

window] tint appeared to be illegal.” The detective drove back onto 

the highway and “pulled up really close” to the Concord and 

noticed “an object hanging from the rearview mirror” that he 

believed “obstruct[ed] the driver’s view,” but he could not identify 

it.2 He then stopped the Concord, and a search ultimately revealed 

172 pounds of marijuana. The driver and the passenger, Moreno, 

were arrested, and the Concord was taken to the Douglas Police 

Department, where a tint meter reading revealed the front window 

tint actually was within legal limits.

¶4 Before trial, Moreno filed a motion to suppress

evidence, arguing the detective “had no reasonable suspicion to 

effectuate the traffic stop.” Specifically, Moreno contended he was 

only stopped “for being in a vehicle that had a perfectly legal 

window tint and for having a rosary that was hanging from the rear 

view mirror,” and neither constituted a traffic violation. The state 

responded that the detective had considered several factors which, 

when taken together, were a sufficient basis for reasonable suspicion

of criminal activity, including the in-tandem driving and the 

detective’s experience in the area, and that his good-faith mistake of 

fact regarding the tint did not otherwise invalidate the stop. 

 

2The detective later learned the object was a rosary, measuring 

approximately a foot in length, which hung “down below the top of 

the dash.”
STATE v. MORENO

Opinion of the Court

4

Following a hearing, the trial court denied the motion, and Moreno 

was found guilty at trial on all counts.

DISCUSSION

¶5 When reviewing a ruling on a suppression motion, “‘we 

defer to the trial court’s factual findings, including findings on 

credibility and the reasonableness of the inferences drawn by the 

officer.’” State v. Moran, 232 Ariz. 528, ¶ 5, 307 P.3d 95, 98 (App. 

2013), quoting Teagle, 217 Ariz. 17, ¶ 19, 170 P.3d at 271. We review 

mixed questions of fact and law de novo, considering whether the 

totality of the circumstances gave rise to reasonable suspicion to 

support an investigative detention. State v. Sweeney, 224 Ariz. 107, 

¶ 12, 227 P.3d 868, 872 (App. 2010). We will uphold the court’s 

ruling if legally correct for any reason supported by the record. State 

v. Childress, 222 Ariz. 334, ¶ 9, 214 P.3d 422, 426 (App. 2009).

¶6 At the conclusion of the suppression hearing, the trial 

court found the detective’s mistake regarding the window tint to be 

one of fact, and concluded that his “actions were reasonable and in 

good faith, and the objective facts established reasonable suspicion 

for an actual violation of the law.” When Moreno sought 

clarification as to whether the court was denying his motion solely 

on the basis of the tint, the court stated:

No. Now, the other factors there are 

certainly not as strong as the window tint. 

I am hanging my hat on the window tint, 

but certainly all those other factors were 

something that the Officer had in mind, but 

the ruling is based on the window tint.

Mistaken Belief as to Window Tint

¶7 Moreno contends the trial court erred in classifying the 

detective’s incorrect belief that the window tint was illegal as a 

mistake of fact, which has been held a sufficient basis for founded 

suspicion if the mistake was made in good faith and reasonable. See, 

e.g., Illinois v. Rodriguez, 497 U.S. 177, 183-86 (1990) (“what is 

generally demanded of the many factual determinations that must 
STATE v. MORENO

Opinion of the Court

5

regularly be made by agents of the government . . . is not that they 

always be correct, but that they always be reasonable”). Moreno 

argues the detective made a mistake of law and, therefore, it could 

not constitute a valid basis for the stop, citing federal cases from the 

Ninth Circuit Court of Appeals for that proposition.

3 We note, 

however, that the federal circuit courts have been split on the issue. 

Compare United States v. Chanthasouxat, 342 F.3d 1271, 1277 (11th Cir. 

2003) (officer’s mistake of law cannot provide objective grounds for 

reasonable suspicion), and United States v. McDonald, 453 F.3d 958, 

961-62 (7th Cir. 2006) (same), with United States v. Delfin-Colina, 464 

F.3d 392, 399-400 (3rd Cir. 2006) (traffic stops based on mistake of 

law valid if mistake is objectively reasonable), and United States v. 

Smart, 393 F.3d 767, 770 (8th Cir. 2005) (“in mistake cases the 

question is simply whether the mistake, whether of law or of fact, 

was an objectively reasonable one”).

¶8 During the suppression hearing, the detective testified 

that his understanding of Arizona law with respect to legality of 

window tint was that “[i]t’s 33 [percent] plus or minus three percent 

. . . [m]eaning it can be 36 percent, or it could be 30 percent . . . [o]f 

the transmission of light going through the window.” This is an 

accurate recitation of Arizona’s window tint statute.4 The tint meter 

reading ultimately established that the Concord’s front windows 

had a light transmission of thirty-six percent, legal under Arizona 

law.

 

3United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000)

(“[A] belief based on a mistaken understanding of the law cannot 

constitute the reasonable suspicion required for a constitutional 

traffic stop.”); United States v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 

2000) (officer violated Fourth Amendment by stopping vehicle based 

on mistaken view of the law).

4Under A.R.S. § 28-959.01(A)(1), window tint on the front-side 

windows is permitted so long as “[f]ront side wing vents and 

windows . . . have a substance or material in conjunction with 

glazing material that has a light transmission of thirty-three per cent 

plus or minus three per cent and a luminous reflectance of thirtyfive per cent plus or minus three per cent.”
STATE v. MORENO

Opinion of the Court

6

¶9 Moreno acknowledges the detective accurately related 

the law; however, he contends that by initially determining the 

Concord’s window tint allowed for transmission of less than the 

permitted amount of light, the detective “erroneously conclud[ed]

the legal effects of believed facts.” In other words, because the 

detective observed legal tint, but perceived it to be illegal, he 

misapprehended the law. We find this argument unpersuasive and 

illogical. Under this reasoning, a stop based on a tint violation 

where the tint later proved to be within legal limits would always 

constitute a mistake of law. The detective’s mistake, however, was 

not a result of misapplication or misunderstanding of the law.

Instead, he incorrectly estimated the opacity of the tint on the 

Concord’s windows; had the opacity been as the detective believed, 

it would have violated A.R.S. § 28-959.01(A)(1). Thus, the trial court 

correctly found that the detective made a mistake of fact regarding 

the window tint.5

¶10 The distinction between a mistake of law and one of 

fact, however, may now have lost much of its significance. 

Arizona’s courts have not directly addressed the issue in the context 

of founded suspicion for a traffic stop, but the United States 

Supreme Court recently has done so. In Heien v. North Carolina, No. 

13-604, 2014 WL 7010684 (2014), the Court resolved the split in the 

federal circuits by holding that reasonable suspicion can rest on a 

reasonable mistake of law. In so holding, the Court reasoned that 

“mistakes [of law] are no less compatible with the concept of 

reasonable suspicion,” with the critical inquiry being whether the 

mistake—either of fact or of law—was an objectively reasonable one. 

Id. at 5, 8.

¶11 We therefore need only consider whether the detective’s 

mistaken belief that the Concord’s window had illegal tint was 

reasonable. See id. at 8 (Fourth Amendment tolerates only 

objectively reasonable mistakes); cf. State v. Livingston, 206 Ariz. 145, 

 

5The detective would have made a mistake of law, for 

example, had he accurately estimated that a window allowed for 

forty percent light transmission, but incorrectly believed it violated 

§ 28-959.01(A)(1).
STATE v. MORENO

Opinion of the Court

7

¶ 9, 75 P.3d 1103, 1105 (App. 2003) (“traffic stops based on facts that 

neither constitute a violation of the law nor constitute reasonable 

grounds to suspect the driver has committed an offense . . . run afoul 

of the Fourth Amendment”). If the facts, as believed by the 

detective, gave rise to reasonable suspicion that the Concord’s tint 

was illegal, the traffic stop may be upheld on that basis alone. See 

United States v. Mariscal, 285 F.3d 1127, 1130 (9th Cir. 2002) (Fourth 

Amendment requires only reasonable suspicion in context of traffic 

stops); cf. Chanthasouxat, 342 F.3d at 1277 (propriety of traffic stop 

depends not on whether defendant actually committed traffic 

offense, but whether it was reasonable for officer to believe an 

offense had been committed), citing United States v. Cashman, 216 

F.3d 582, 587 (7th Cir. 2000).

¶12 We assess the totality of the circumstances from the 

perspective of “an objectively reasonable police officer” in 

evaluating the validity of the stop. Ornelas v. United States, 517 U.S. 

690, 696 (1996). And that assessment requires us to consider both 

“objective factors” and “surrounding circumstances,” “taking into 

account the officer’s relevant experience, training, and knowledge.”

State v. Fornof, 218 Ariz. 74, ¶ 6, 179 P.3d 954, 956 (App. 2008).

¶13 Moreno argues the detective lacked a particularized and 

objective basis to support his suspicion that the window tint was 

illegal. At the hearing, Moreno analogized a stop based on a 

window tint violation to one based on speeding to clarify his view of 

“objective basis”:

Q. Let me clarify what I mean by 

objective basis. You don’t pull somebody 

over, for example, for speeding and cite 

them and give them a ticket, unless you 

either pace them, you gun them with radar, 

or gun them with a laser, correct?

A. Correct.

Q. And those, pacing, the laser or 

the radar, are objective bases for which to 

stop somebody under the law, correct?
STATE v. MORENO

Opinion of the Court

8

A. Yes.

. . . .

Q. [The legislature has set up 

parameters] so you don’t have a basis just 

to pull anybody [o]ver because you think 

that they are speeding, you have to have 

some objective basis, correct?

A. Well, not necessarily. If I am 

stopped on an intersection and I see a car 

coming up, and I know that the speed limit 

is 25, I can estimate that the car is traveling 

35 or more, or 45 or more, I still, I believe, 

have the right to pull over the car.

Q. That’s a good point. . . . 

[A]ssume for the sake of this hypothetical, 

that a car is going down the road and [the] 

speed limit is 25 miles per hour, okay?

A. Okay.

Q. And the car is going 26 miles per 

hour, or 27 miles per hour, you are not 

going to pull that car over because you 

cannot sit here and tell this Court that you 

can make a determination that the car is 

going one to two miles above the speed 

limit, correct?

A. Correct.

Q. Similarly in this situation, it 

turned out—you didn’t have any objective 

basis to determine that that tint was illegal, 

correct?

A. Just on my observation.
STATE v. MORENO

Opinion of the Court

9

In applying this rationale to his case, Moreno contends that, in order 

for a stop based on a tint violation to be reasonable, an officer must 

allow “leeway to ensure his conclusions are correct.” He also 

maintains that the reasonable and prudent man only “springs to 

action” when “something is so clearly excessive . . . so as to be 

undeniably . . . true.” Moreno, however, cites no authority for either 

proposition and we are aware of none.6

¶14 Moreno is correct that an officer must have an objective 

and particularized basis for conducting a traffic stop based on a 

suspected window tint violation. See Livingston, 206 Ariz. 145, ¶ 9, 

75 P.3d at 1106. We disagree, however, with his characterization of 

“objective basis” as requiring some measurable proof of a violation 

before conducting a traffic stop.

¶15 Subjectivity may often factor into establishing 

reasonable suspicion that a window is too dark under § 28-

959.01(A)(1). Unlike a speeding violation, which can be objectively 

estimated by radar gun or pacing before making a traffic stop, 

Detective Barco’s testimony and the exhibits introduced at the 

hearing suggested a window tint violation cannot be confirmed until 

a vehicle is stopped and a tint meter is deployed. See State v. 

Williams, 934 A.2d 38, 47 (Md. 2007) (objective measurement of tint, 

under current technology, may be unfeasible prior to stop). An 

officer’s visual observation of a vehicle’s glass may be the only 

feasible way to establish reasonable suspicion to stop a moving 

vehicle for a suspected window tint violation. And the 

reasonableness of the officer’s observation will often depend upon 

his training and experience in enforcing window tint violations. See 

State v. Gonzalez-Gutierrez, 187 Ariz. 116, 119, 927 P.2d 776, 779 (1996)

(totality of circumstances analysis includes “evaluat[ing] subjective 

 

6To the contrary, Fourth Amendment jurisprudence allows 

officer leeway in the other direction. See Heien, No. 13-604, 2014 WL 

701068474, 5 (“To be reasonable is not to be perfect, and so the 

Fourth Amendment allows for some mistakes on the part of 

government officials, giving them ‘fair leeway for enforcing the law 

in the community’s protection.’”), quoting Brinegar v. United States, 

338 U.S. 160, 176 (1949).
STATE v. MORENO

Opinion of the Court

10

elements, such as the agent’s training and experience”). Thus, that 

the window cannot be objectively measured before stopping the 

vehicle does not mean the stop cannot be objectively reasonable. See 

State v. Nevarez, 235 Ariz. 129, ¶ 7, 329 P.3d 233, 237 (App. 2014)

(officer need not determine if actual traffic violation occurred before 

stopping vehicle for further investigation); see also State v. Conaway, 

779 N.W.2d 182, 184 (Wis. Ct. App. 2009) (officer need not ascertain 

window tint violation with certainty to establish reasonable 

suspicion). The law does not require an officer to leave himself 

“leeway” to ensure the conclusions he reached based on “subjective 

facts” are correct. See Nevarez, 235 Ariz. 129, ¶ 7, 329 P.3d at 237.

Indeed, were that the case, it would effectively impose a standard of 

“beyond a reasonable doubt” for determining whether a violation 

actually occurred. An officer is not required to make such a 

showing to justify a stop. Cf. Livingston, 206 Ariz. 145, ¶ 9, 75 P.3d at 

147.

¶16 Nor do we agree with Moreno that the “particularized” 

requirement was not met because the detective failed to “mention or 

describe in detail” the factors that caused him to suspect the window 

tint was illegal. A suspicion must “be particularized such that it 

does more than simply describe large numbers of others who are 

also driving on the highways in that vicinity and at that time.”

Gonzalez-Gutierrez, 187 Ariz. at 120, 927 P.2d at 780. But reasonable 

suspicion does not require police to rule out every possibility of 

innocent conduct. State v. Ramsey, 223 Ariz. 480, ¶ 23, 224 P.3d 977, 

982 (App. 2010).

¶17 Here, the detective had a reasonable and good-faith 

suspicion that the Concord’s front-side windows were in violation of 

§ 28-959.01(A)(1). He observed the window tint on a “sunny” day, 

and determined that it “appeared to be illegal” because it was “too 

dark.” He also had accurate knowledge of Arizona’s law on 

window tint, and testified that over the course of his career he had 

stopped “several hundreds” of vehicles based on suspected tint 

violations, and had been correct “99 percent” of the time. He 

explained he was able to estimate his accuracy because he “always 

test[s] the window with [a] tint meter” after making a traffic stop 

based on a tint violation. Notably, the Concord window was near 
STATE v. MORENO

Opinion of the Court

11

the darkest legal limit, and the detective was only off in his visual 

assessment by a few degrees of light transmission.

¶18 When all the above factors are considered together, 

particularly in light of the detective’s substantial experience with tint 

violations, we cannot say the trial court erred in finding the 

detective had a good-faith, reasonable basis for suspecting the 

Concord’s window tint was illegal.

7 See King, 244 F.3d at 738-39; cf. 

State v. Olquin, 216 Ariz. 250, ¶ 10, 165 P.3d 228, 230 (App. 2007)

(trial court in best position to assess witness credibility). And 

because the suspected traffic violation was sufficient to provide 

reasonable suspicion to stop the vehicle in which Moreno was a 

passenger, see State v. Acosta, 166 Ariz. 254, 257, 801 P.2d 489, 492 

(App. 1990), we need not determine whether other factors relied 

upon by Detective Barco and considered by the trial court also 

supported reasonable suspicion. Accordingly, we find no error in 

the court’s denial of the motion to suppress the evidence obtained as 

a result of the stop.

Disposition

¶19 For the foregoing reasons, Moreno’s convictions and 

sentences are affirmed.

 

7In upholding the trial court’s ruling, we do not suggest an 

officer’s mistaken perception of a tint violation may be excused 

upon merely describing the tint as “appear[ing] to be illegal,” or 

“too dark” where it later proves to be within legal tolerance. The 

determination turns on the specific facts and totality of 

circumstances involved, see Fornof, 218 Ariz. 74, ¶ 6, 179 P.3d at 956 

(reasonable suspicion inquiry is fact specific), and the trial court’s 

assessment of the basis for and credibility of such testimony, see 

State v. Hoskins, 199 Ariz. 127, ¶ 97, 14 P.3d 997, 1019 (2000) (trial 

court in best position to evaluate witness credibility and weigh 

evidence).