Commonwealth v. Thomas

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued by Teleconference Call

COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 1663-96-4 JUDGE JOHANNA L. FITZPATRICK
DECEMBER 17, 1996
MICHAEL S. THOMAS

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
briefs), for appellant.

James C. Love, IV (Thierry Barston; Love,
Keilsgard & Associates, P.C., on brief), for
appellee.

Michael S. Thomas (defendant) was indicted for possession of

Phencyclidine (PCP), possession with intent to distribute PCP,

possession of a firearm while possessing PCP, and possession of a

firearm after having been convicted of a felony. Defendant filed

a motion to suppress the evidence recovered in a traffic stop on

the ground that the police had no basis to detain him after they

issued a traffic citation. The trial court granted the

suppression motion in part, and the Commonwealth appeals that

ruling pursuant to Code § 19.2-398(2). On appeal, the

Commonwealth argues that the officers had reasonable and

articulable suspicion to stop the vehicle, and the officers'

continued detention of defendant was justified under Terry v.
Ohio, 392 U.S. 1 (1968). 1 We agree with the Commonwealth and
1
Upon granting the Commonwealth's appeal, we raised the
reverse the trial court's ruling.
I. BACKGROUND

On August 24, 1995 at approximately 11:00 p.m., Officer

Michael Buracker (Buracker) of the Leesburg Police Department

was on routine patrol. After being advised by radio of a

maroon-colored vehicle, with a low front-end suspension system,

he located and followed a 1964 Chevrolet. After the vehicle

pulled off the road, defendant stepped out of the driver's side

and locked his door; two other men exited the car from the

passenger's side and locked their doors. The three men "started

walking back to [the] police cruiser but away from it." Buracker

yelled for them to stop, radioed for backup, and requested K-9

assistance. Once out of his cruiser, Buracker approached the

defendant and requested his driver's license and registration.

Defendant did not have his license, but retrieved the

registration from the car's glove compartment and once again

locked the car door.
Buracker measured the distance from the bumper of the car to

the ground and found it to be seven inches lower than required by

Code § 46.2-1063. Buracker issued a ticket for improper

suspension pursuant to Code § 46.2-1063 and asked defendant if he

could search the vehicle. Defendant refused. When Buracker gave

additional issues of (1) whether this Court may review a
prosecutor's certification under Code § 19.2-398(2), and (2) if
so, whether the record establishes that the evidence suppressed
is "essential to the prosecution" as described by Code
§ 19.2-398(2).

2
defendant the citation, he "detected an odor of alcohol emitting

from his person" and subsequently conducted field sobriety tests.

Defendant performed the tests adequately.

"Approximately a minute, minute and a half after the traffic

stop" and before Buracker issued the traffic citation, Officer

Scott Warner (Warner) arrived on the scene with Rex, a narcotics

patrol dog. Buracker directed defendant and the other two men to

sit on the curb while Warner and Rex investigated the car. When

Warner stated that he "was getting a hit to the front" of

defendant's car, Corporal Dodson suggested placing handcuffs on

defendant, who then ran from the scene despite the officers'

attempts to stop him.
Acting on the information provided by the dog's hit, the

officers opened the hood of the car and found a shopping bag next

to the battery. The bag contained a .38 caliber pistol and

suspected illegal drugs in a baggie. In the car's interior, the

officers found under the driver's seat an additional .22 caliber

pistol and a baggie with several small aluminum foil packages

containing PCP.

The trial court heard defendant's pretrial motion to

suppress on June 26, 1996. Buracker testified that while he was

writing the summons, defendant was "a little uneasy, pacing his

feet . . . walking back and forth." Warner stated that when he

arrived on the scene he observed that defendant "was excited" and

that he "was pacing, throwing his hands in the air . . . . [H]e

3
was distraught that Officer Buracker had stopped him . . . . [H]e

was combatted [sic] in reference to the stop."

Defendant testified that he did not see Buracker's vehicle,

and that he stopped on the side of the road because of mechanical

problems with the car. He claimed that Buracker told him that he

was free to go, but as he began to walk away, he was pushed in

the back by an "officer with black hair." He testified that he

then ran from the scene "[f]or my own safety. I didn't want to

get beat down for no reason just for altered suspension."
The Commonwealth contended that the officers possessed

reasonable and articulable suspicion to stop and detain defendant

based on the circumstances existing at the time, including the

car's lowered suspension, defendant's demeanor and actions, the

locked car doors, and the dog's "hit." The trial court granted

the suppression motion in part and stated as follows:
The Court would first see Officer
Buracker's stop of this vehicle to have been
entirely appropriate under the facts of this
case in terms of his having stopped the
vehicle or having approached the vehicle,
because the evidence in this case is not that
he actually stopped the vehicle. The vehicle
was stopped by [defendant] in order that he
might park the vehicle and lock it and go
wherever else he was supposed to go. But
Officer Buracker had a right to temporarily
detain [defendant] in order that he could
issue him a citation for this traffic
infraction, which he did.

The question is whether or not he could
further detain [defendant] in order that this
dog might make this inspection of the vehicle
[defendant] had been in with the two other
persons, and whether or not he had reasonable
articulable suspicion to do so. . . . There

4
 are no objective facts which would have
permitted this officer to detain [defendant]
further after he had issued him the citation.

Now, anything that would flow from that
detention would be excluded pursuant to this
motion to suppress and Wansung [sic] and its
progeny in terms of fruit of the poisonous
tree. However, there has to be some nexus
between the continued detention of
[defendant] and the illegal or purported
illegal search and seizure of the vehicle.
And in this case, there isn't, because
[defendant], by his own testimony, had locked
the vehicle. And the vehicle was inoperable
at the time he locked the vehicle, according
to his own testimony.
* * * * * * *

So the question becomes then whether or
not the officer who arrived with the dog was
presented with reasonably articulable facts
as a result of the sniff of the dog and to
conduct a search of the vehicle. And the
Court finds that he was.

The Court, in this case, therefore, will
grant the motion to suppress insofar as any
statements that may have been made or actions
by [defendant] subsequent to the issuance of
the summons, deny the motion with respect to
any items that may have been seized as a
result of the search of the vehicle in this
case.

(Emphasis added). In effect, this ruling allowed in all the

tangible evidence of guns and drugs and excluded only the

evidence of defendant's flight.
II. PROSECUTOR'S CERTIFICATION

We first address the question whether we may review a

prosecutor's certification made pursuant to Code § 19.2-398(2)

5
that the evidence excluded is essential to the prosecution. 2

This issue is one of first impression. Code § 19.2-398 provides

in pertinent part:
A petition for appeal from a circuit
court may be taken by the Commonwealth only
in felony cases, before a jury is impaneled
and sworn in a jury trial, or before the
court begins to hear or receive evidence or
the first witness is sworn, whichever occurs
first, in a nonjury trial. The appeal may be
taken from:

* * * * * * *
(2) An order of a circuit court
prohibiting the use of certain evidence at
trial on the grounds such evidence was
obtained in violation of the provisions of
the Fourth, Fifth or Sixth Amendments to the
Constitution of the United States or Article
I, Sections 8, 10 or 11 of the Constitution
of Virginia prohibiting illegal searches and
seizures and protecting rights against
self-incrimination, provided the Commonwealth
certifies the evidence is essential to the
prosecution.

(Emphasis added). "'[T]he plain, obvious, and rational meaning

of a statute is always to be preferred to any curious, narrow, or

strained construction.'" Bunn v. Commonwealth, 21 Va. App. 593,

598, 466 S.E.2d 744, 746 (1996) (quoting Turner v. Commonwealth,

226 Va. 456, 459, 309 S.E.2d 337, 338 (1983)). "Generally, the

words and phrases used in a statute should be given their

ordinary and usually accepted meaning . . . ." Woolfolk v.

2
Because we conclude that the Court of Appeals will not
review a prosecutor's certification pursuant to Code
§ 19.2-398(2), we do not reach the merits of the "essential-to-
the-prosecution" issue.

6
Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d 530, 534 (1994).
While in the construction of statutes
the constant endeavor of the courts is to
ascertain and give effect to the intention of
the legislature, that intention must be
gathered from the words used, unless a
literal construction would involve a manifest
absurdity. Where the legislature has used
words of a plain and definite import the
courts cannot put upon them a construction
which amounts to holding the legislature did
not mean what it actually expressed.

Dominion Trust Co. v. Kenbridge Constr. Co., 248 Va. 393, 396,

448 S.E.2d 659, 660 (1994) (emphasis added) (quoting Barr v. Town
& Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674

(1990)).
We must also assume that the legislature
chose, with care, the words it used when it
enacted the relevant statute, and we are
bound by those words as we interpret the
statute. "Courts are not permitted to
rewrite statutes. This is a legislative
function. The manifest intention of the
legislature, clearly disclosed by its
language, must be applied. There can be no
departure from the words used where the
intention is clear."

Barr, 240 Va. at 295, 396 S.E.2d at 674 (quoting Anderson v.

Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944)).

Defendant contends that our power to review the prosecutor's

certification arises as an "element of the Court's jurisdiction

over criminal appeals as well as an exercise of the Court's

inherent power over its operations and its officers." However,

he agrees that "there does not appear to be any authority

expressly governing this issue."

7
 We have discussed on numerous occasions the limited scope of

the Commonwealth's right to appeal and the nature of the appeal

authorized. "The statute must be read so as to give effect to

the plain meaning of all of its terms. It is in derogation of

the general constitutional prohibition against appeals by the

Commonwealth. It 'must be strictly construed against the state

and limited in application to cases falling clearly within the

language of the statute.'" Commonwealth v. Hawkins, 10 Va. App.

41, 44, 390 S.E.2d 3, 5 (1990) (citations omitted). See also

Commonwealth v. Brown, 8 Va. App. 41, 378 S.E.2d 623 (1989);

Commonwealth v. Rodgers, 21 Va. App. 745, 467 S.E.2d 813 (1996).

Accordingly, we decline to write additional language into Code

§ 19.2-398 to provide an avenue for this Court to review a

prosecutor's certification when the General Assembly declined to

do so.

Moreover, this statutorily circumscribed appeal is also

controlled by expedited time limitations. "The Court of Appeals

shall accelerate the appeal on its docket and render its decision

not later than sixty days after the filing of the appellee's

brief or after the time for filing such brief has expired." See

Code § 19.2-404. There is no statutory scheme which would

include an additional hearing within this appeal to determine a

prosecutor's good faith or lack thereof.

The corresponding federal statute, 18 U.S.C. § 3731,

contains language similar to that of Code § 19.2-398(2) and

8
provides in pertinent part as follows:
An appeal by the United States shall lie to a
court of appeals from a decision or order of
a district court suppressing or excluding
evidence . . . in a criminal proceeding, not
made after the defendant has been put in
jeopardy and before the verdict or finding on
an indictment or information, if the United
States attorney certifies to the district
court that the appeal is not taken for
purpose of delay and that the evidence is a
substantial proof of a fact material in the
proceeding.

(Emphasis added). We find federal case law interpreting this

statute instructive in our analysis in the instant case. The

certification by a federal prosecutor under 18 U.S.C. § 3731 that

a pretrial appeal from an adverse suppression ruling is not being

taken for purposes of delay and that the appeal involves

"evidence . . . material in the proceeding" is not judicially

reviewable. See United States v. Kepner, 843 F.2d 755, 761 (3d

Cir. 1988) (the court declined to analyze the United States

attorney's required certification to the district court); In re

Grand Jury Investigation, 599 F.2d 1224, 1226 (3d Cir. 1979)

("The district court having received this certification, we are

not required by section 3731 to evaluate independently the

substantiality or the materiality of the contested material.");
United States v. Comiskey, 460 F.2d 1293, 1297-98 (7th Cir. 1972)

(holding that "[t]he form of the certification is not prescribed

in the statute[,]" and that under 18 U.S.C. § 3731, a United

States attorney need not allege any facts in support of the

certification that his appeal is not meant for delay or that the

9
suppressed evidence is substantial proof of the charge). The

Kepner Court explained its reasoning with respect to 18 U.S.C.

§ 3731 as follows:
Each of the jurisdictional prerequisites has
been met. The two orders from which the
Government appeals both suppress evidence,
and both were made before the defendants were
put in jeopardy and before a verdict was
rendered on the indictment. The United
States Attorney has made the required
certification to the district court. This
court need look no further in order to
determine the existence of jurisdiction.

Kepner, 843 F.2d at 761 (emphasis added). We adopt this

reasoning and hold that the prosecutor's certification that "the

evidence is essential to the prosecution" is not reviewable on

appeal.
III. DETENTION BEYOND INITIAL STOP

In reviewing a trial court's ruling on a suppression motion,

we consider the evidence in the light most favorable to the

prevailing party below, and the decision will not be disturbed

unless it is plainly wrong or without evidence to support it.
Lee v. Commonwealth, 18 Va. App. 235, 238, 443 S.E.2d 180, 181

(1994); Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407

S.E.2d 47, 48 (1991).

It is undisputed that the police had the right to stop and

temporarily detain defendant to issue him a traffic citation for

a violation of Code § 46.2-1063. Defendant argues that no

objective facts warranted his further detention after the

10
issuance of the citation, because the police had no reasonable

articulable suspicion that he was engaged in criminal activity.

Terry v. Ohio, 392 U.S. 1 (1968). The Commonwealth contends that

a "combination of articulable facts gave the officers reasonable

suspicion to justify the detention after the . . . [initial] stop

ended," beyond the time necessary to issue the traffic summons.

It is well-settled in Virginia that "'[w]hen the police stop

a motor vehicle and detain an occupant, this constitutes a

seizure of the person for Fourth Amendment purposes, even though

the function of the stop is limited and the detention brief.'"
Logan v. Commonwealth, 19 Va. App. 437, 441, 452 S.E.2d 364, 367

(1994) (en banc) (quoting Zimmerman v. Commonwealth, 234 Va. 609,

611, 363 S.E.2d 708, 709 (1988)). A police officer may conduct

an investigatory stop of a vehicle when he or she has an

"articulable and reasonable suspicion that . . . either the

vehicle or an occupant is otherwise subject to seizure for

violation of law." Delaware v. Prouse, 440 U.S. 648, 663 (1979).

"When determining if reasonable suspicion exists, courts

must consider that '[t]rained and experienced police officers

. . . may be able to perceive and articulate meaning in given

conduct which would be wholly innocent to the untrained

observer.'" Buck v. Commonwealth, 20 Va. App. 298, 302, 456

S.E.2d 534, 536 (1995) (citing Richards v. Commonwealth, 8 Va.

App. 612, 616, 383 S.E.2d 268, 271 (1989)). The court "must view

the totality of the circumstances and view those facts

11
objectively through the eyes of a reasonable police officer with

the knowledge, training, and experience of the investigating

officer." Logan, 19 Va. App. at 441-42, 452 S.E.2d 364 at 367

(quoting Murphy v. Commonwealth, 9 Va. App. 139, 143-44, 384

S.E.2d 125, 128 (1989)).

In order to make a valid investigatory stop, a police

officer "'must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts,

reasonably warrant that intrusion.'" Baldwin v. Commonwealth,

243 Va. 191, 195, 413 S.E.2d 645, 647 (1992) (citing Terry, 392

U.S. at 21). "Reasonable suspicion" is more than a "mere hunch"

but less than "proof of wrongdoing by a preponderance of the

evidence." See United States v. Sokolow, 490 U.S. 1, 7 (1988).

"There are no bright line rules to follow when determining

whether a reasonable and articulable suspicion exists to justify

an investigatory stop. Instead, the courts must consider 'the

totality of the circumstances--the whole picture.'" Hoye v.
Commonwealth, 18 Va. App. 132, 134-35, 442 S.E.2d 404, 406 (1994)

(quoting Sokolow, 490 U.S. at 8). The circumstances to consider

in making the determination include "the 'characteristics of the

area' where the stop occurs, the time of the stop, whether late

at night or not, as well as any suspicious conduct of the person

accosted such as an obvious attempt to avoid officers or any

nervous conduct on the discovery of their presence." Smith v.
Commonwealth, 12 Va. App. 1100, 1103, 407 S.E.2d 49, 51-52 (1991)

12
(citations omitted).

The Commonwealth contends that Limonja v. Commonwealth, 8

Va. App. 532, 383 S.E.2d 476 (1989), governs the instant case.

We agree. In Limonja, as here, the issue was whether the

"combination of articulable facts gave the officers reasonable

suspicion to justify the detention after the consensual stop

ended." Id. at 542, 383 S.E.2d at 482. In Limonja, after

observing a rental car with a Florida license plate, the police

officer "radioed for a narcotics dog and a backup." Soon

thereafter, at 12:20 p.m., he stopped the defendants after they

drove through a stop sign at an automatic toll booth without

paying the toll. Initially, the defendants consented to the

search of their vehicle and a package contained in the vehicle.

However, at 12:48 p.m., while waiting for the narcotics dog to

arrive, the defendants withdrew their consent for the officers to

search the package. The dog arrived on the scene at 1:10 p.m.

and "alerted on the package." The defendants again consented to

a search of the package, which contained a white powder

substance, and were arrested at 1:20 p.m.
In analyzing the issue whether the time lapse between the

defendant's withdrawal of consent and the dog's alerting on the

package removed this stop from the parameters of an

"investigative stop," we determined that:
In assessing whether a detention is too
long in duration to be considered an
investigative stop, we consider it
appropriate to examine whether the police
diligently pursued a means of investigation

13
 that was likely to confirm or dispel their
suspicions quickly, during which time it was
necessary to detain the defendant.

Using the foregoing tests, courts have
upheld detentions of forty-five minutes;
fifty minutes; sixty minutes; and seventy-
five minutes, [including] cases involv[ing]
delays necessitated by efforts to obtain a
narcotics dog for sniffing luggage or
packages . . . .

Id. at 542-43, 383 S.E.2d at 482 (citations omitted). Thus, we

held that "[i]t is just as clear that there will be inevitable

delay in obtaining a dog to sniff luggage or packages transported

on interstate highways. If, as in this case, the officers make a

diligent effort to obtain a dog, continued detention during the

delay does not violate the constitution. Therefore, . . . we

find that the detention did not exceed the permissible bounds of

an investigatory stop." Id. 3

The evidence in the instant case established objective facts

comparable to those of Limonja and, when considered in the

aggregate, gave the officers reasonable suspicion of the

defendant's involvement in criminal activity. In Limonja, as in
the instant case, the police had lawful authority to stop the

vehicle for a traffic violation. However, in Limonja, twenty-two
3
We also analyzed whether there was any "'way that the
agents could have greatly shortened their inquiry if they were to
"confirm or dispel their suspicions" meaningfully.'" Limonja, 8
Va. App. at 543, 383 S.E.2d at 483 (quoting United States v.
Quinn, 815 F.2d 153, 158 (1st Cir. 1987)). We held that the
police "had not been investigating the defendants, had not
anticipated the encounter, and could not have dispelled their
suspicions more quickly." Id. We reach the same conclusion in
the instant case.

14
minutes elapsed between the defendant's withdrawal of consent and

the alerting by the narcotics dog. Here, a scant one to one and

a half minutes passed between the writing of the citation and

the dog's alerting on the hood of defendant's car. The officers

in Limonja observed that the defendants possessed a radar

detector, behaved in a nervous fashion, and offered confused and

inconsistent explanations for the package. In the case at bar,

Buracker detected an odor of alcohol on defendant and observed

defendant's nervous behavior, including locking the car door,

pacing, and becoming excited and agitated. This scenario,

coupled with the fact that the stop occurred at approximately

11:00 p.m. at night in an isolated area, gave the police a

reasonable suspicion to detain the defendant for the one and a

half minutes prior to the dog's hit. See Smith, 12 Va. App. at

1103, 407 S.E.2d at 51-52.

Defendant's reliance on Deer v. Commonwealth, 17 Va. App.

730, 441 S.E.2d 33 (1994), is misplaced. In that case, the

officer stopped Deer for speeding. Following the issuance of a

speeding citation, the officer requested permission to search

Deer's vehicle. Deer refused, but later agreed to the search

when the officer told him that he would be detained until a K-9

drug unit arrived. When the officer found a bag in the car

containing a white substance, Deer fled the scene. The trial

court denied his motion to suppress, even though the Commonwealth

admitted that, at the time of the search, the officer "lacked

15
probable cause to suspect that Deer had committed a crime." Id.

at 733, 441 S.E.2d at 35. Because the facts that the officer

relied upon amounted to "no more than an 'inchoate and

unparticularized suspicion or "hunch,"'" we held that "the

detention of [defendant] and his vehicle beyond the time

necessary to issue the traffic citation was not permitted under

the Fourth Amendment." Id. at 736, 441 S.E.2d at 37 (citation

omitted). Here, there was no time delay for the arrival of the

K-9 unit. They were already present before the completion of the

traffic stop. The police had a reasonable basis to suspect

criminal activity and to detain the defendant for a brief period

after the issuance of the traffic citation and prior to the

police dog indicating the presence of drugs.
For the foregoing reasons, the ruling of the trial court is

reversed and the case remanded for trial.

Reversed.

16