Eric Michael Prunty v. Commonwealth of Virginia

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.
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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
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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.
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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,
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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.
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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
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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.
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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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