COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
JOHN THOMAS LEWIS, JR.
MEMORANDUM OPINION *
v. Record No. 1483-96-1 BY JUDGE JOSEPH E. BAKER
MAY 20, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
Samuel T. Powell, III, Judge
George U. Brooks, III (Dwight G. Rudd; Wood &
Brooks, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
John Thomas Lewis, Jr. (appellant) appeals from his bench
trial convictions by the Circuit Court of York County (trial
court) for possession of cocaine and possession of a firearm
(gun) while in possession of cocaine. Appellant asserts that the
cocaine and gun were discovered as a result of an illegal stop
and search of his motor vehicle and, therefore, contends that the
trial court erroneously denied his motion to suppress the drug
and gun evidence.
Upon familiar principles, we state the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Stated accordingly, the record discloses that at about 10:35 p.m.
on September 7, 1995, appellant and a passenger were traveling
eastbound on Route 143. Appellant was driving a 1992-93 Pontiac
Grand Am loaner vehicle which had tinted rear windows. At the
same time, Deputy Sheriff Paul Osborne (Osborne) of the York
County Sheriff's Department was traveling westbound on Route 143.
Osborne observed that appellant's vehicle had tinted windows
that appeared to be darker than permitted by Code § 46.2-1052.
Osborne pursued appellant and initiated a stop to
investigate whether the window tinting was in violation of the
statute. As Osborne first approached the vehicle, he immediately
smelled a strong and distinct odor of marijuana. Because he had
been trained as a police officer to immediately associate the
presence of narcotics with the possible presence of weapons,
Osborne testified that he was alerted to the possibility that the
occupants of the vehicle might be armed and dangerous.
Osborne first ran a check on appellant's driver's license.
Then, using a window testing device Osborne found that the window
tinting was close to the legal limitation set forth in Code
§ 46.2-1052. Appellant conceded in oral argument that the
tinting was close to the limitation set forth in the Code.
After other officers arrived at the scene, Osborne decided
to require appellant to step out of the car and conducted a
"frisk" search of the vehicle for weapons. During the search of
the vehicle, Osborne found a gun in a box under the driver's
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seat. Next to the gun, Osborne found a small plastic baggie
containing cocaine. Lastly, Osborne found another plastic baggie
containing marijuana in a storage pocket located on the driver's
door panel.
Appellant contends that his vehicle was unlawfully stopped
by Osborne and that the search of his vehicle was made in
violation of the Fourth Amendment to the United States
Constitution. He argues that at trial the police officer failed
to articulate reasonable suspicion that a crime was being
committed which would justify the stop and the search. We
disagree.
In determining whether an "articulable and
reasonable suspicion" justifying an
investigatory stop of a vehicle exists,
courts must consider "the totality of the
circumstances--the whole picture," . . . and
view those facts objectively through the eyes
of a reasonable police officer with the
knowledge, training, and experience of the
investigating officer.
Murphy v. Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128
(1989). In doing so, courts should of course take "into account
that 'trained law enforcement officers may be able to perceive
and articulate meaning in given conduct which would be wholly
innocent to the untrained observer.'" Brown v. Commonwealth, 17
Va. App. 694, 698, 440 S.E.2d 619, 621 (1994).
Code §§ 46.2-1052(C)(4) and 46.2-1052(C)(1) prohibit a
motorist from driving a vehicle in which sunshading or tinting
film has reduced "the total light transmittance of [the rear]
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window to less than thirty-five percent." Osborne testified that
when he first observed the windows of appellant's vehicle, they
appeared to be in violation of the Code. Osborne tested the
windows and discovered that the rear window was close to the
limitation in Code § 46.2-1052, but not in violation. 1 Appellant
conceded in oral argument that the windows were close to the
limitation. The trial court found that Osborne's testimony
articulated a reasonable suspicion justifying the investigatory
stop of appellant's vehicle. We cannot say that finding was
plainly wrong or without evidence to support it. See Code
§ 8.01-680; Higginbotham, 216 Va. at 352, 218 S.E.2d at 537.
Having lawfully stopped appellant and determined the vehicle
probably contained a drug prohibited by law, Osborne had probable
cause to search the vehicle in which the cocaine and firearm were
discovered. See United Stated v. Parker, 72 F.3d 1444, 1450
(10th Cir. 1995); United States v. Haley, 669 F.2d 201, 203-04
(4th Cir. 1982). Therefore, the search was constitutionally
permissible.
For the reasons stated, the judgments of the trial court are
affirmed.
Affirmed.
1
Code § 46.2-1052(D) allows a "tolerance of minus seven
percentage points" in measuring light transmittance. Osborne
testified that appellant's window was "off by five percent" and
"within the seven percent variance."
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