                               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



                              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.

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                        STATE v. MORENO
                        Opinion of the Court

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.”

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                        STATE v. MORENO
                        Opinion of the Court

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

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                          STATE v. MORENO
                          Opinion of the Court

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 thirty-
five per cent plus or minus three per cent.”
                                    5
                         STATE v. MORENO
                         Opinion of the Court

¶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).

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                        STATE v. MORENO
                        Opinion of the Court

¶ 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?

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             STATE v. MORENO
             Opinion of the Court

      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.


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                         STATE v. MORENO
                         Opinion of the Court

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).

                                   9
                         STATE v. MORENO
                         Opinion of the Court

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

                                   10
                         STATE v. MORENO
                         Opinion of the Court

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).

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