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. 
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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.

 

 1Code § 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."