                      COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia


ERIC MICHAEL PRUNTY
                                          MEMORANDUM OPINION * BY
v.   Record No. 2074-00-1                  JUDGE ROBERT P. FRANK
                                               JULY 3, 2001
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Dean W. Sword, Jr., Judge

          S. Jane Chittom, Appellate Defender (Public
          Defender Commission, on briefs), for
          appellant.

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Eric Michael Prunty (appellant) was convicted, in a bench

trial, for possession of cocaine with the intent to distribute, in

violation of Code § 18.2-248.   On appeal, he contends the trial

court erred in denying his motion to suppress the drugs seized by

the police because the police had no "reasonable suspicion" to

stop his vehicle.   Finding no error, we affirm the judgment of the

trial court.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                           I.   BACKGROUND

     On the afternoon of September 15, 1999, Officers G.C.

Richardson and G.B. Smith of the City of Portsmouth Police

Department were on uniformed patrol in a marked police car.      The

officers had met with narcotics detectives earlier and were shown

a picture of appellant.   They were told to be on the lookout for

him and were directed to a specific location.   The officers also

were given information describing the car he would be driving, a

Ford Taurus, and were told that his driver's license was

suspended.   Appellant was expected to be carrying a large amount

of crack cocaine.   The information was that appellant's vehicle

would be passing through that area "within the next couple of

minutes or within the hour."    When the vehicle passed by the

officers, they were to stop it if appellant was the driver and

then arrest him.

     Once in the police car, Richardson had Smith verify through

the dispatcher that appellant's license was actually suspended.

Consequently, they knew that if appellant was driving the vehicle,

he would be doing so on a suspended license.

     The officers drove to the designated location.    Richardson,

who was driving, saw a burgundy Ford Taurus pass them, heading

westbound.   The vehicle, however, had "very, very dark tinted"

side windows, which caused the officers to be unable to see inside

the vehicle in order to identify the driver.



                                - 2 -
     Officer Richardson activated his emergency lights and stopped

the vehicle because of the excessive tint on the windows.

Richardson approached the vehicle on the driver's side, and

Officer Smith approached on the passenger's side.   When Richardson

walked up to the driver's side door, he was still unable to see

inside because of the dark tint on the windows.   He knocked on the

window.   Appellant, who was driving, opened the driver's door and

asked "what the problem was."   It was only after appellant opened

the door that the officer could see him.   Richardson told

appellant that the tint on his windows was too dark.   The officers

then asked appellant if he had his driver's license and

registration.    Instead of producing a driver's license, appellant

provided the officer with an identification card.   The officer,

through the dispatcher, again confirmed that appellant's license

was suspended.

     Richardson testified that his legal basis to stop the car was

the tinted windows.   He stated, "I pulled it for tinted windows."

Asked whether he knew how much tint was legal on car windows,

Richardson said he had no idea.   Officer Robinson, over the radio,

advised Richardson that the tint was so dark as to be illegal.

Officer Robinson was not at the scene when he advised Richardson

that the window tint violated the Code.    Richardson testified that

"all [he knew about the legality of the window tint was] what

Officer Robinson told [him] over the radio."   Officer Robinson



                                - 3 -
never came to the scene until after appellant's arrest.    Robinson

did not testify.

     The officers asked appellant to get out of the car and walk

between his car and the police car.    Appellant complied with the

request.   Richardson arrested him for driving on a suspended

license, and Officer Smith took custody of him.

     Officer Smith handcuffed appellant and frisked him.    Smith

found a total of $1,848 and a pager.    During the frisk, Officer

Smith also felt an object in the area of appellant's groin.     Smith

suspected that appellant was hiding narcotics.    He told Richardson

what he suspected and asked Richardson also to frisk appellant.

Richardson did so and verified the suspicious object hidden

between appellant's legs.

     Once at police headquarters, after obtaining permission from

a sergeant, Officer Smith conducted a complete search of

appellant, which included a strip search.

     A large quantity of crack cocaine was found in the area of

appellant's groin.   Appellant was arrested for the drug offense

and was issued summonses for driving on a suspended license and

having improperly tinted windows.

     The trial court denied appellant's motion to suppress,

finding that the officers had "reasonable suspicion" to stop

appellant's vehicle.




                               - 4 -
                             II.    ANALYSIS

               "In reviewing a trial court's denial of
          a motion to suppress, '[t]he burden is upon
          [the defendant] to show that th[e] ruling,
          when the evidence is considered most
          favorably to the Commonwealth, constituted
          reversible error.'" McGee v. Commonwealth,
          25 Va. App. 193, 197, 487 S.E.2d 259, 261
          (1997) (en banc) (citation omitted). "[W]e
          review de novo the trial court's application
          of defined legal standards such as probable
          cause and reasonable suspicion to the
          particular facts of the case." Hayes v.
          Commonwealth, 29 Va. App. 647, 652, 514
          S.E.2d 357, 359 (1999) (citation omitted).
          "In performing such analysis, we are bound by
          the trial court's findings of historical fact
          unless 'plainly wrong' or without evidence to
          support them and we give due weight to the
          inferences drawn from those facts by resident
          judges and local law enforcement officers."
          McGee, 25 Va. App. at 198, 487 S.E.2d at 261
          (citing Ornelas v. United States, 517 U.S.
          690, 699, 116 S. Ct. 1657, 1663, 134 L.Ed.2d
          911 (1996)).

Hamlin v. Commonwealth, 33 Va. App. 494, 497-98, 534 S.E.2d 363,

364 (2000), aff'd, 35 Va. App. 375, 545 S.E.2d 556 (2001) (en

banc).

     "'[P]olice officers may approach a person for the purpose of

investigating possible criminal behavior even though no probable

cause exists for arrest.'"    Johnson v. Commonwealth, 20 Va. App.

49, 54, 455 S.E.2d 261, 264 (1995) (quoting Quigley v.

Commonwealth, 14 Va. App. 28, 32, 414 S.E.2d 851, 853-54 (1992)).

"The standard for conducting such a detention is less than

probable cause, but more than an 'inchoate and unparticularized

suspicion or "hunch."'"   Gregory v. Commonwealth, 22 Va. App. 100,


                                   - 5 -
105, 468 S.E.2d 117, 120 (1996) (quoting Moss v. Commonwealth, 7

Va. App. 305, 308, 373 S.E.2d 170, 172 (1988) (citation omitted)).

Therefore, "[a]n investigative detention to detect or prevent

incipient criminal activity is, when supported by the officer's

reasonable and articulable suspicion that criminal activity may be

afoot, consonant with the fourth amendment protections against

unreasonable seizures."    Layne v. Commonwealth, 15 Va. App. 23,

25, 421 S.E.2d 215, 216 (1992) (citations omitted).

     Thus,

             [t]he Fourth Amendment does not require a
             policeman who lacks the precise level of
             information necessary for probable cause to
             arrest to simply shrug his shoulders and
             allow a crime to occur or a criminal to
             escape. On the contrary, Terry recognizes
             that it may be the essence of good police
             work to adopt an intermediate response. A
             brief stop of a suspicious individual, in
             order to determine his identity or to
             maintain the status quo momentarily while
             obtaining more information, may be most
             reasonable in light of the facts known to the
             officer at the time.

Adams v. Williams, 407 U.S. 143, 145-46 (1972) (citations

omitted).

     Clearly, the officers intended to arrest appellant because of

the information received from the narcotics detectives.      Appellant

argues that the dark tint on his windows served only as a pretext

to stop the car.

     However, an officer's subjective intent in making a traffic

stop is irrelevant in determining a Fourth Amendment violation.


                                 - 6 -
See Limonja v. Commonwealth, 8 Va. App. 532, 537-38, 383 S.E.2d

476, 480 (1989) (en banc) ("Police actions are to be tested 'under

a standard of objective reasonableness without regard to the

underlying intent or motivation of the officers involved.'").

     Our inquiry then is to determine whether the officers had

"reasonable suspicion" to stop appellant's car, whether there was

"reasonable suspicion" to believe that appellant violated the

statutory provisions dealing with tinted windows.1


     1
         Code § 46.2-1052(A) provides, in part:

                 Except as otherwise provided in this
            article or permitted by federal law, it
            shall be unlawful for any person to operate
            any motor vehicle on a highway with any
            sign, poster, colored or tinted film,
            sun-shading material, or other colored
            material on the windshield, front or rear
            side windows, or rear windows of such motor
            vehicle. This provision, however, shall not
            apply to any certificate or other paper
            required by law or permitted by the
            Superintendent to be placed on a motor
            vehicle's windshield or window.

     Code § 46.2-1052(C)(1)-(3) provides:

                 Except as provided in § 46.2-1053, but
            notwithstanding the foregoing provisions of
            this section, no sun-shading or tinting film
            may be applied or affixed to any window of a
            motor vehicle unless such motor vehicle is
            equipped with a mirror on each side of such
            motor vehicle, so located as to reflect to
            the driver of the vehicle a view of the
            highway for at least 200 feet to the rear of
            such vehicle, and the sun-shading or tinting
            film is applied or affixed in accordance
            with the following:
                 1. No sun-shading or tinting films may
            be applied or affixed to the rear side

                                - 7 -
     Appellant contends the officer did not have reasonable

suspicion to believe he violated Code § 46.2-1052 because the

officer testified he did not know how much tint was permissible on

the side windows.   Rather, the officer relied on Officer



          windows or rear window or windows of any
          motor vehicle operated on the highways of
          this Commonwealth that reduce the total
          light transmittance of such window to less
          than thirty-five percent;
               2. No sun-shading or tinting films may
          be applied or affixed to the front side
          windows of any motor vehicle operated on the
          highways of this Commonwealth that reduce
          total light transmittance of such window to
          less than fifty percent;
               3. No sun-shading or tinting films
          shall be applied or affixed to any window of
          a motor vehicle that (i) have a reflectance
          of light exceeding twenty percent or (ii)
          produce a holographic or prism effect.
               Any person who operates a motor vehicle
          on the highways of this Commonwealth with
          sun-shading or tinting films that (i) have a
          total light transmittance less than that
          required by subdivisions 1 and 2 of this
          subsection, (ii) have a reflectance of light
          exceeding twenty percent, or (iii) produce
          holographic or prism effects shall be guilty
          of a traffic infraction but shall not be
          awarded any demerit points by the
          Commissioner for the violation.
               Any person or firm who applies or
          affixes to the windows of any motor vehicle
          in Virginia sun-shading or tinting films
          that (i) reduce the light transmittance to
          levels less than that allowed in
          subdivisions 1 and 2 of this subsection,
          (ii) have a reflectance of light exceeding
          twenty percent, or (iii) produce holographic
          or prism effects shall be guilty of a Class
          3 misdemeanor for the first offense and of a
          Class 2 misdemeanor for any subsequent
          offense.

                               - 8 -
Robinson's radio communication that the window tint violated the

Code.

        While the officer may not have known the precise amount of

tinting allowable by law, he suspected the car violated the

statute because he could not see into the car due to the dark

tinting.    He radioed another officer with expertise in tinting and

requested the tinted windows be tested to determine if they

violated the law.

        Clearly, it would be unreasonable to require an officer to

determine the percentage of the amount of reduction of "light

transmission" before stopping a vehicle whose windows are so

darkly tinted as to prevent the officer from seeing through the

window.    To sustain appellant's argument would also require an

officer to perform a drug analysis prior to stopping a vehicle

upon reasonable suspicion for the possession of drugs.

        Here, the officer had more than an "unparticularized

suspicion or hunch."    He had reasonable suspicion to believe

appellant violated Code § 46.2-1052 and properly stopped the

vehicle to "dispel or confirm" his suspicions.

        For these reasons, we conclude that the trial court did not

err in denying the motion to suppress.    We, therefore, affirm

appellant's conviction.



                                                               Affirmed.



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