Trooper Pangburn did testify as to the permissible amount of tint. He believed the front driver and passenger windows to be in violation of the law. He testified that those windows have to allow 50 percent of light in, and he believed they did not. In light of the above, the trial court erred in granting Mr. McDonald’s motion to suppress.
State v. McDonald
2023 – Ohio – 464
Eighth District Appellate Court
February 16, 2023
In November 2021, a Cuyahoga County Grand Jury returned a three- count indictment against Mr. Daniel McDonald. Count 1 charged having weapons while under disability; Count 2 charged improperly handling firearms in a motor vehicle; and Count 3 charged carry a concealed weapon. The charges resulted from a September 2021 stop, and subsequent search of Mr. McDonald’s vehicle on Interstate 71 in Strongsville, Ohio.
Ohio State Highway Patrol Trooper David Pangburn testified that the stop occurred on the morning of Friday September 3, 2021, at which time he was stationed at milepost 233 as a “road trooper.” The trooper explained that a road trooper’s responsibilities include conducting traffic stops and aiding disabled motorists.
Trooper Pangburn testified that he noticed “extremely dark window tint” on Mr. McDonald’s vehicle as Mr. McDonald drove by his post and conducted a traffic stop of the vehicle for that reason. According to Pangburn, the tint was so dark that he could not see anyone in the vehicle.
The trooper testified that the driver side and front passenger windows were of particular concern to him. Those two windows have to allow 50 percent of light in and he could “visually [see] that [Mr. McDonald’s] window tint was more than 50 percent”; he “literally could not see anyone in the car.” Id. at 15, 24. Upon approaching the vehicle, Trooper Pangburn asked Mr. McDonald to “roll down all the windows because [he] could not see into the car.”
Trooper Pangburn admitted that he did not perform field testing to determine the tint. He explained that his cruiser did not have the necessary device for the testing — they are generally in the cruisers for day shift, which he usually does not work but was working on the day in question due to a coverage issue. However, the trooper testified that, at the time of the stop, he had been on road patrol for over three years and issued numerous window-tint violations. He testified that on the occasions he has had the device to test the tint he has never been wrong. Trooper Pangburn further testified that after he graduated from the police academy he was partnered with a coach for 90 days and he learned window-tint detection during that time.
The stop was captured on Trooper Pangburn’s dash camera; the relevant portion of the video was played for the trial court and the video was admitted into evidence. A still picture of Mr. McDonald’s vehicle from the dash camera video was also admitted into evidence.
The trial court issued its decision to grant Mr. McDonald’s motion to suppress from the bench at the conclusion of the suppression hearing. The court started out by saying it had “some concerns about the stop … Everything that takes place afterwards, it really is not relevant.” As this trial judge will later learn with the issuance of this appeal, ‘everything’ really was relevant.
The court elaborated on its concern as follows:
And the problem with the way I see the stop right now is that there’s no comparison that’s been provided to the Court. It looks like, when I see this picture … I can see into the window from here. I don’t know if anybody else can or not, but I can see in and I see that. If there’s a break-out of what the test is supposed to be, a certain percentage of the windows of the front passenger/driver. I mean, the front window, the windshield, the front windshield, the passenger’s window and the driver’s window, there hasn’t been any evidence presented to the Court as to what the ratio would be.
I think we could all assume that it’s not a hundred percent, because if it’s a hundred percent you couldn’t drive the car. So it’s got to be something less than a hundred percent … And I know all windows probably have some sort of tint in them … when … the car is produced. So what that percentage is between, for purposes of [Trooper Pangburn] stopping [Mr. McDonald], I don’t have that in front of me.
The court noted the state’s argument — that even if Trooper Pangburn was incorrect that the tint was illegal — the stop was nonetheless permissible because an objectively reasonable officer would have believed the tint was illegal. The court found that argument “pretextual” because the trooper “didn’t do any tests after to confirm … [he] didn’t do any measurements as to what the front passenger is, what the front driver’s is, what the windshield is.”. The court reasoned that “[S]o as it stand[s] right now, I don’t know that it’s in violation. [Trooper Pangburn] seems to think it is … But the evidence presented in court isn’t such that I could make a finding that he’s right.”
Trial Court Grants the Motion to Suppress
On July 7, 2022, the trial court filed a judgment that, in relevant part, states that “defendant’s motion to suppress is granted,” without elaboration. On July 12, 2022, the state filed its notice of appeal, attaching the court’s July 7 judgment to its notice. On July 15, 2022, the trial court issued another judgment, which elaborated on its reasons for granting Mr. McDonald’s motion to suppress.
State of Ohio Appeals
The state appeals, raising the following sole assignment of error for our review: “The trial court erred in granting Daniel Mr. McDonald’s Motion to Suppress.”
Legality of the Stop
This court has held that window-tint violations provide reasonable suspicion or probable cause for a traffic stop. See, e.g., State v. Bowie, 8th Dist. Cuyahoga 2007-Ohio-4297 (police had probable cause for traffic stop to determine whether car windows were illegally tinted).
Here, the trial court acknowledged Trooper Pangburn’s belief that the window tint was in violation of the law, but found his belief “pretextual” because the trooper “didn’t do any tests after to confirm … [he] didn’t do any measurements as to what the front passenger is, what the front driver’s is, what the windshield is.” The court reasoned that “[S]o as it stand[s] right now, I don’t know that it’s in violation.” However, this court has held that, in conducting a traffic stop, an officer is not required to prove the suspect committed an offense beyond a reasonable doubt or even satisfy the lesser standard of probable cause to believe that the defendant violated the law. Westlake v. Kaplysh, 118 Ohio App.3d 18, 20 (8th Dist.1997).
Trooper Pangburn testified that Mr. McDonald’s vehicle had “extremely dark window tint” and he “literally could not see anyone in the car.” He further testified that he had been working road patrol for three years, had written numerous citations for window-tint violations, would often test the windows during those stops, and had never been wrong. That testimony provided reasonable suspicion for the stop.
That Trooper Pangburn did not test the window after the fact does not invalidate what he believed at the time of the stop. “We note that this probable cause determination, like all probable cause determinations, is fact-dependent and will turn on what the officer knew at the time he [or she] made the stop. Under this test, it is clear that the courts may not determine whether there was probable cause by looking at events that occurred after the stop.” Erickson, 76 Ohio St.3d at 10, quoting United States v. Ferguson, 8 F.3d 385, 391 (6th Cir.1993).
The record here demonstrates that Trooper Pangburn believed the tint on Mr. McDonald’s vehicle was too dark and in violation of the law. The trial court acknowledged the trooper’s belief. Whether the tint was actually a violation is a sufficiency issue, not a reasonable suspicion/probable cause for the stop issue.
Holding
We further note that, contrary to the trial court’s findings, Trooper Pangburn did testify as to the permissible amount of tint. He believed the front driver and passenger windows to be in violation of the law. He testified that those windows have to allow 50 percent of light in, and he believed they did not. In light of the above, the trial court erred in granting Mr. McDonald’s motion to suppress. The state’s sole assignment of error is sustained.
Judgment reversed.
Information for this article was obtained from State v. McDonald, 2023 – Ohio – 464.
This case was issued by the Eighth District Appellate Court and is binding in Cuyahoga County, Ohio.
Lessons Learned:
- The subject of the evidence suppression and the appeal turned on the issue whether Trooper Pangburn could lawfully stop Mr. McDonald based on tinted windows. The stop would later lead to Mr. McDonald being charged with Carrying a Concealed Weapon. The trial court judge utilized the dash cam or body camera video to determine that the window tint was reasonable and the stop was unreasonable. The judge made this analysis and conclusion as he held “[T]he trooper “didn’t do any tests after to confirm … [he] didn’t do any measurements as to what the front passenger is, what the front driver’s is, what the windshield is.”. The court reasoned that “[S]o as it stand[s] right now, I don’t know that it’s in violation. [Trooper Pangburn] seems to think it is … But the evidence presented in court isn’t such that I could make a finding that he’s right.”. The trial judge focused on the fact that Trooper Pangburn could not opine as to the exact window tint percentage and based on that percentage the stop would be or would not be lawful. However, the trial judge erred because an officer does not have to be ‘right’ … only reasonable.
- In 1990 the U.S. Supreme Court held “[P]olice officers conducting a search or seizure under one of the exceptions to the warrant requirement – is not that they always be correct, but that they always be reasonable.” Illinois v. Rodriguez, 497 U.S. 177, 185 (1990). Officers do not have to be ‘right’ … only reasonable and Trooper Pangburn was Objectively Reasonable!
- Ultimately the Eighth District Appellate Court determined that the stop was reasonable, overturned the trial court and sent the case back to the same trial judge to adjudicate.
- Trooper David Pangburn should be highly commended for understanding the window tint law, how to accurately evaluate and apply it! Well done Tr. Pangburn!
Does your agency train on the Traffic Stops?
Contact me at https://www.objectivelyreasonable.com/contact/
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!