Com. v. Thomas

• Citation: 23 Va.App. 598,478 S.E.2d 715
• Decision Date: 17 December 1996
• Docket Number: No. 1663-96-4,1663-96-4
• Parties: COMMONWEALTH of Virginia v. Michael S. THOMAS.
• Court: Court of Appeals of Virginia

Page 715

478 S.E.2d 715

23 Va.App. 598

COMMONWEALTH of Virginia v. Michael S. THOMAS.

Record No. 1663-96-4.

Court of Appeals of Virginia.

Dec. 17, 1996.

Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on briefs), for appellant.

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

Present: MOON, C.J., and WILLIS and FITZPATRICK, JJ.

FITZPATRICK, Judge.

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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). ¹ We agree with the Commonwealth and 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 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 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 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) 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. 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...