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 

 

 1Upon granting the Commonwealth's appeal, we raised the 
 2 

 

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). 
 3 

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 
 4 

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 
 5 

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) 
 6 

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. 

 

 2Because 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-tothe-prosecution" issue. 
 7 

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." 
 8 

 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 
 9 

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 
 10 

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 
 11 

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 
 12 

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) 
 13 

(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 
 14 

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 seventyfive 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 

 

 3We 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. 
 15 

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 
 16 

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.