[Cite as State v. Tarrance, 2013-Ohio-2831.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :        OPINION

                 Plaintiff-Appellant,          :
                                                        CASE NO. 2012-P-0073
        - vs -                                 :

DEMAR J. TARRANCE,                             :

                 Defendant-Appellee.           :


Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R2012 TRC 00791.

Judgment: Reversed and remanded.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).

J. Chris Sestak, Student Legal Services, Inc., Kent State University, 164 East Main
Street, #203, Kent, OH 44240 (For Defendant-Appellee).


DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, the State of Ohio, appeals from the judgment of the

Portage County Municipal Court, Ravenna Division, granting defendant-appellee,

Demar J. Tarrance’s, Motion to Suppress. The issue to be decided in this case is

whether a police officer has reasonable suspicion to conduct a traffic stop for a window

tint violation when he observes a vehicle passing by his police cruiser, in the dark, and

concludes, based on his experience and training in the area of window tinting, that the
vehicle’s side window was excessively tinted. For the following reasons, we reverse

and remand the decision of the court below.

       {¶2}   On January 20, 2012, Tarrance was issued a Complaint, charging him

with two counts of Operating a Vehicle While Under the Influence (OVI), misdemeanors

of the first degree, in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(d), and

a Window Tint violation, a minor misdemeanor, in violation of R.C. 4513.241.

       {¶3}   On March 2, 2012, Tarrance filed a Motion to Suppress/Motion in Limine,

in which he requested that certain evidence be suppressed since, inter alia, there was

no reasonable suspicion to stop or detain Tarrance. He argued that the police officer

viewed his car and its windows for only a moment, in the dark, and this did not provide a

reasonable suspicion to conduct a stop of his vehicle for a Window Tint violation.

       {¶4}   A Suppression Hearing was held on June 12, 2012.                 The following

testimony and exhibits were presented.

       {¶5}   Trooper John Lamm, of the Ohio State Highway Patrol, testified regarding

his stop of Tarrance. On January 20, 2012, at approximately 1:15 a.m., Trooper Lamm

was on patrol and was stationary, facing traffic, in the Key Bank parking lot on State

Route 43 in Kent, Ohio. He observed Tarrance’s vehicle traveling southbound past him

for a “couple of seconds,” and noticed that the front passenger side window was

“extremely dark.”     He had his headlights on at the time and could not “make out

anything inside the car,” except maybe “a shadow or something in there but not able to

make out hardly anything in the vehicle it was so dark.” At that time, he believed it was

well within the range of window tint prohibited by law.          Trooper Lamm stated that

nothing was impeding his view and he could see the car approaching his position. He

explained that the fact that it was dark did not affect his ability to see the window tint.

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       {¶6}   Trooper Lamm testified that he had been trained on window tint law and

had stopped numerous cars for such violations, estimating that “[i]t could be in the

hundreds,” and noting that window tint “has been one of [his] things.”

       {¶7}   The video from Trooper Lamm’s dash camera was presented and showed

Tarrance’s car passing by Trooper Lamm’s parked cruiser. It revealed that Lamm’s

headlights were shining on the passenger side of Tarrance’s car as it passed by and

that Trooper Lamm pulled out a few seconds after Tarrance’s car passed by to

effectuate the stop.

       {¶8}   Upon being stopped, Tarrance was “laughing” and made a comment

about knowing that his window tint was dark. Trooper Lamm returned to his cruiser to

get a tint meter, a device used to measure the amount of light that passes through a

tinted window. Trooper Lamm tested the driver’s side window, and it read “13,” which

was the percent of light being let inside of the car. This fell well below the 50 percent

minimum light required to be able to pass through the window.

       {¶9}   On cross-examination, Trooper Lamm stated that another officer was at

the Key Bank parking lot beside him, but he could not remember if that officer’s car was

parked to his right or to his left. He explained that there was not a lot of light on the

roadway.

       {¶10} Trooper Lamm stated that he did not test the passenger window with the

tint meter, although that was the window he observed when initially watching Tarrance’s

vehicle pass. He stated that in his experience, “most people get windows tinted the

same on both sides,” explained that he had never seen one side window tinted

differently than the other, and that both windows on Tarrance’s car looked “identical.”




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       {¶11} On July 6, 2012, the trial court issued a Judgment Entry, granting

Tarrance’s Motion to Suppress.          The court found that Trooper Lamm “observed

Defendant’s vehicle and front passenger window approximately 40 to 50 feet before

Defendant’s vehicle passed in front of the Trooper’s vehicle.” The court found that

Trooper Lamm observed a passenger window that was “extremely dark,” and could only

see “shadows” in the car. The court further found that when Trooper Lamm approached

the vehicle after conducting a stop, he did not test the front passenger window with his

window tint meter, but did check the driver’s side window. Finally, Trooper Lamm “was

only able to observe Defendant’s vehicle for approximately 1.4 seconds before deciding

to pull out of the Key Bank parking lot and initiate a traffic stop.”

       {¶12} The court held that Trooper Lamm “should have conducted a more

reasonable inquiry before stopping Defendant’s vehicle by driving alongside

Defendant’s vehicle and determining to what extent he could see through Defendant’s

tinted windows.”    The court ultimately concluded that Trooper Lamm “should have and

could have made a more reasonable inquiry as to Defendant’s tinted windows before

stopping Defendant’s vehicle.”        The court granted the Motion to Suppress and

dismissed the charges against Tarrance.

       {¶13} The State timely appeals and raises the following assignment of error:

       {¶14} “The Portage County Municipal Court erred in determining that a Trooper’s

observation and visual estimate regarding the percentage of a vehicle’s window tint did

not establish a reasonable suspicion to justify a traffic stop.”

       {¶15} “The trial court acts as trier of fact at a suppression hearing and must

weigh the evidence and judge the credibility of the witnesses.” (Citations omitted.)

State v. Ferry, 11th Dist. No. 2007-L-217, 2008-Ohio-2616, ¶ 11. “[T]he trial court is

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best able to decide facts and evaluate the credibility of witnesses.” (Citation omitted.)

State v. Wagner, 11th Dist. No. 2010-P-0014, 2011-Ohio-772, ¶ 12.             “The court of

appeals is bound to accept factual determinations of the trial court made during the

suppression hearing so long as they are supported by competent and credible

evidence.” State v. Hines, 11th Dist. No. 2004-L-066, 2005-Ohio-4208, ¶ 14. “Once the

appellate court accepts the trial court’s factual determinations, the appellate court

conducts a de novo review of the trial court’s application of the law to these facts.”

(Citations omitted.) Ferry at ¶ 11.

       {¶16} In the present matter, Tarrance was stopped by Trooper Lamm due to his

determination that Tarrance’s passenger window was excessively tinted, in violation of

the law. Pursuant to R.C. 4513.241(A), “[t]he director of public safety * * * shall adopt

rules governing the use of tinted glass” in motor vehicle windows “that prevent a person

of normal vision looking into the motor vehicle from seeing or identifying persons or

objects inside the motor vehicle.” The applicable rules establish that a person shall not

operate a motor vehicle with any “material which has the effect of making the windshield

or windows nontransparent or would alter the windows’ color, increase its reflectivity, or

reduce its light transmittance, unless the product or material * * * applied to the side

windows to the immediate right or left [of] the driver * * * has a light transmittance of not

less than fifty per cent plus or minus three per cent * * *.” Ohio Adm.Code 4501-41-

03(A)(3).

       {¶17} The State argues that the trial court erred in holding that Trooper Lamm

did not conduct a sufficient investigation to provide him with reasonable suspicion to

stop Tarrance’s vehicle. The State asserts that there was reasonable suspicion of a

window tint violation to justify the stop of Terrance, when considering the totality of the

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circumstances, including Trooper Lamm’s experience, his vantage point in tracking the

vehicle, and his direct observations of the vehicle, which were further supported by his

testing of the driver’s side window, confirming that the side windows were excessively

tinted.

          {¶18} Tarrance argues that there was no reasonable suspicion to conduct the

stop since Trooper Lamm observed his vehicle for less than two seconds, in the dark,

and failed to test the passenger window with the window tint meter.

          {¶19} “A police officer may stop an individual if the officer has a reasonable

suspicion, based on specific and articulable facts that criminal behavior has occurred or

is imminent. Terry v. Ohio (1968), 392 U.S. 1, 21. Detention of a motorist is reasonable

when there exists probable cause to believe a crime, including a traffic violation, has

been committed. Whren v. United States (1996), 517 U.S. 806, 810.” State v. McNulty,

11th Dist. No. 2008-L-097, 2009-Ohio-1830, ¶ 11.

          {¶20} The determination of whether reasonable suspicion exists “involves a

consideration of ‘the totality of the circumstances.’” Hines, 2005-Ohio-4208, at ¶ 16,

citing Maumee v. Weisner, 87 Ohio St.3d 295, 299, 720 N.E.2d 507 (1999) (citation

omitted). The court must consider the totality of the circumstances surrounding the stop

as “viewed through the eyes of the reasonable and prudent police officer on the scene

who must react to events as they unfold.” State v. Andrews, 57 Ohio St.3d 86, 87-88,

565 N.E.2d 1271 (1991).        “The court reviewing the officer’s actions must give due

deference to the officer’s experience and training, and view the evidence as it would be

understood by those in law enforcement.” (Citations omitted.) State v. Teter, 11th Dist.

No. 99-A-0073, 2000 Ohio App. LEXIS 4656, *8 (Oct. 6, 2000).




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       {¶21} In the present case, the trial court concluded that a more reasonable

inquiry was required to conduct the stop. It did not find, however, that Trooper Lamm

was not credible or reject his testimony that he observed Tarrance’s car pass by and

believed that the windows were excessively tinted, based on his experience. Instead,

the court concluded that Trooper Lamm “should have conducted a more reasonable

inquiry before stopping Defendant’s vehicle by driving alongside Defendant’s vehicle.”

We disagree. The correct legal standard is not whether the officer could have done

more, rather, whether he had probable cause to believe a violation had occurred based

on the totality of the circumstances.

       {¶22} When considering the totality of the circumstances and viewing the stop

through the eyes of Trooper Lamm, there was a reasonable suspicion to conduct a stop

for a window tint violation. The testimony of Trooper Lamm, as confirmed by the trial

court’s Judgment Entry and factual findings, was that he observed Tarrance’s car in the

dark, travelling a distance of approximately 40 to 50 feet, with his headlights shining on

the car at one point, for a short period of time (determined to be 1.4 seconds by the trial

court), and found the windows to be “extremely dark.” He explained that based on his

many experiences with window tinting and his training, he believed the windows to be

illegally tinted. Trooper Lamm also testified that the fact that it was dark outside did not

impact his ability to determine that the window was excessively tinted. Again, no finding

was made by the court that these statements were not credible, but instead its only

determination was a legal conclusion that further investigation was necessary to have

reasonable suspicion. When accepting the facts as determined by the lower court,

under the totality of the circumstances, there was reasonable suspicion to conduct the

stop under the foregoing circumstances.

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       {¶23} Stops with similar circumstances have been found to be valid by other

districts. For example, in State v. Taylor, 114 Ohio App.3d 416, 683 N.E.2d 367 (2nd

Dist.1996), the court found that there was reasonable suspicion to conduct a stop for a

window tint violation when an officer viewed a vehicle passing by at approximately

12:47 a.m., noticed the window tinting “appeared exceptionally dark,” and could not see

into the vehicle even with the cruiser headlights “shining directly on the vehicle.” Id. at

418-421. Tarrance argues that Taylor is distinguishable due to the fact that the court

found that the headlights were shining directly on the windows, while in the present

matter, the dashcam video shows that the lights were on the car, but not on the

windows. However, this does not negate the fact that there was light directed toward

Tarrance’s vehicle to assist Trooper Lamm in determining whether the windows were

excessively dark, especially when viewed in light of Lamm’s testimony that the darkness

did not inhibit his ability to determine that the windows were tinted, that his headlights

were on the vehicle, and the court made no finding that the darkness inhibited Lamm’s

ability to see Tarrance’s vehicle.

       {¶24} Similarly, in Richmond Heights v. Williams, 8th Dist. No. 73500, 1998 Ohio

App. LEXIS 5572 (Nov. 25, 1998), where an officer viewed the defendant’s side

windows for “a very short amount of time,” in a lit area, the officer “only had to notice

whether the windows appeared to be excessively tinted” to have reasonable suspicion

to conduct a stop. Id. at *6. See also State v. Stewart, 2nd Dist. No. 19961, 2004-Ohio-

1319, ¶ 15 (a stop for a window tint violation was proper when an officer observed a car

passing by at 12:10 a.m., and the officer was “reasonably certain, based upon his

experience, that the darkly tinted windows violated legal window tint limits”). It should

be emphasized that Trooper Lamm “was not required, as a predicate for effecting the

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stop, to conclude, beyond reasonable doubt,” that Tarrance’s windows were excessively

tinted, but just that he had a “reasonable and articulable suspicion, based upon his

observations,” that they were unlawfully tinted. State v. Terry, 2nd Dist. No. 18166,

2000 Ohio App. LEXIS 3145, *9 (July 14, 2000).

       {¶25} Tarrance argues in his brief that the court “concluded that Lamm had [a]

dark, probably obstructed, angled view of only the passenger window.” However, it

should be emphasized that the court made no such conclusions or findings in its

Judgment Entry that Trooper Lamm’s view was either obstructed or angled in reaching

its determination that the stop was not supported by reasonable suspicion.

       {¶26} In addition, we find no case law to support a conclusion that a specific

length of time is required to investigate a window tint violation or that an officer must

drive beside a vehicle in order to confirm the presence of unlawful window tinting.

Tarrance cites State v. Polk, 5th Dist. No. 07COA007, 2008-Ohio-190, for the

proposition that an officer should drive beside a vehicle to determine if side windows are

excessively tinted. In Polk, the officer did make the window tint observation after driving

beside the defendant’s vehicle, in the absence of any adverse conditions. Id. at ¶ 18.

That court did not state these were the only circumstances that could be present for a

valid stop for a Window Tint violation or that an officer must drive beside the vehicle to

have a reasonable suspicion of a violation. These were merely the facts before the

court in that case.   This does not foreclose a finding in the present matter that a

reasonable suspicion can exist in different circumstances.

       {¶27} Based on the totality of the circumstances and the foregoing cases,

Trooper Lamm had a reasonable suspicion to stop Tarrance, based on his observations




                                            9
of the Window Tint violation. He was not required to drive beside Tarrance’s vehicle in

order to have a reasonable suspicion to perform the traffic stop.

       {¶28} Tarrance argues that, in addition to the foregoing, this court must also

consider that Trooper Lamm, after conducting the stop, did not test the passenger

window he observed prior to the stop, but instead tested only the driver’s side window.

Tarrance asserts that the test performed did not confirm that the passenger window,

which provided the justification for the stop, was actually illegally tinted.

       {¶29} Trooper Lamm, upon seeing the tinted passenger window, conducted the

stop based on the belief that Tarrance was violating the law, and had reasonable

suspicion to do so, as outlined above. No argument has been advanced by Tarrance

that he was detained for an unnecessarily long period of time after the stop was

effectuated, because Trooper Lamm found information contrary to his initial belief that

the windows were improperly tinted, nor was such a reason given by the court as the

basis for granting the motion to suppress. Further, no argument is presented that an

officer has to confirm his reasonable suspicion by conducting a window tint meter test of

the windows after the stop has occurred. Even in circumstances where a stop is based

on a mistaken belief that there has been a violation of the law, however, it has been

held that the stop is still valid as long as it is based on the reasonable belief that a

violation of the law had been committed. See State v. Schmucker, 11th Dist. No. 2008-

P-0027, 2008-Ohio-6885, ¶ 24-29. In the present matter, even if Trooper Lamm did not

confirm that the passenger window was excessively tinted in violation of the law, this

does not negate his reasonable suspicion for effectuating the stop. The test of the

driver’s window only provided additional support to Lamm’s original suspicion that the

passenger side window was tinted, given that it showed the window to be excessively

                                              10
tinted and Trooper Lamm stated the both windows appeared to be “identical.” The test

was taken after a stop with reasonable suspicion and simply provided confirmation that

a violation of the law occurred, which warranted a citation.

       {¶30} Further, in State v. Courts, 2nd Dist. No. 20328, 2004-Ohio-3789, a similar

incident occurred and the stop was found to be proper. In Courts, a stop was held to be

valid when two officers initially observed a tinted passenger’s side window, one officer

tested only the driver’s side window, and the officers testified that both the passenger

and driver’s side windows appeared to be tinted equally. Id. at ¶ 2-4.

       {¶31} In light of the preceding analysis, we hold that the trial court erred in

granting Tarrance’s Motion to Suppress and dismissing the charges against Tarrance.

       {¶32} The sole assignment of error is with merit.

       {¶33} Based on the foregoing, the judgment of the Portage County Municipal

Court, Ravenna Division, granting Tarrance’s Motion to Suppress, is reversed and

remanded for further proceedings consistent with this opinion.       Costs to be taxed

against appellee.



TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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