Martin Warner, Jr. v. Commonwealth of Virginia ( 2019 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Humphreys and Russell
UNPUBLISHED
Argued at Leesburg, Virginia
MARTIN WARNER, JR.
MEMORANDUM OPINION* BY
v. Record No. 0871-18-4 JUDGE WESLEY G. RUSSELL, JR.
NOVEMBER 26, 2019
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
John M. Tran, Judge1
Harold N. Ward, Jr. (The Ward Law Office, P.C., on briefs), for
appellant.
Lauren C. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Martin Warner, Jr., appellant, was convicted by a jury of three counts of felony possession
of a controlled substance in violation of Code § 18.2-250 and misdemeanor possession of a
controlled substance in violation of Code § 18.2-250.1. On appeal, appellant argues the trial court
erred in denying his motion to suppress evidence recovered as a result of an unlawful traffic stop.
Appellant also contends the trial court erred in admitting Commonwealth’s Exhibits 2 through 7,
claiming the Commonwealth did not establish all vital links in the chain of custody. For the reasons
stated, we affirm.
BACKGROUND
On August 12, 2016, Officer Tyler Timberlake with the Fairfax County Police Department
stopped appellant for a motor vehicle violation. When Timberlake reached the vehicle, he smelled
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The Honorable Robert J. Smith presided over the motion to suppress.
the odor of marijuana coming from the vehicle. He obtained appellant’s license and registration and
ordered appellant out of the vehicle. Appellant refused and, after a short interval, “took off at a high
rate of speed[.]” Timberlake and his partner pursued appellant and were able to stop his vehicle
utilizing a PIT maneuver.2 Timberlake’s squad car was totaled as a result of the chase and PIT
maneuver. As a result of the encounter, appellant was arrested for felony eluding.3
Slightly more than a month later, on September 22, 2016, Fairfax Officer Bradley Chiz was
driving in an unmarked car with Timberlake. They were observing traffic exiting off of Interstate
95. The officers observed a red van traveling on the exit ramp, and Timberlake recognized the
license plate as belonging to appellant. For the sake of accuracy, Timberlake ran the license plate
number through DMV and confirmed that it was appellant’s van. At that point, Chiz followed the
van. The officers testified that they observed the van cross over the solid white lane marker that
separates the turn lane from the “straight-through” lane and then pull back into the lane abruptly in
front of another vehicle without using a turn signal. According to testimony, appellant’s abrupt lane
change caused the other vehicle to brake suddenly. Chiz then observed appellant’s van “drift” over
the dotted white lane marker before correcting back into his lane.
Suspecting that the driver was intoxicated, Chiz activated the lights and siren on his police
vehicle and initiated a traffic stop. The van pulled into a parking lot and stopped. As Chiz
approached the vehicle, he noticed a “very heavy odor of air freshener coming out of the window.”
Chiz testified that, in his experience, individuals use air fresheners to cover up scents associated
with the presence of illegal drugs. Appellant produced his license and registration, and Chiz asked
him to step out of the van. In his interactions with appellant, Chiz was observing “whether or not
2
A PIT maneuver is a pursuit tactic in which a pursuing car strikes the rear quarter panel
of the car being pursued in an effort to turn it sideways, thereby causing the fleeing driver to lose
control and stop.
3
That offense is not a subject of this appeal.
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there was any slurred speech, again going back to the possible DWI aspect from the driving
behavior.” Chiz did not detect any signs of DWI and returned to his cruiser while Timberlake spoke
with appellant. During cross-examination, Chiz confirmed that appellant had told him that appellant
had committed the sudden lane change in order to avoid a car accident.4
While Chiz was at the cruiser, Timberlake communicated to him via radio that he noticed
the odor of marijuana coming from the opened driver’s door. Timberlake later testified that the
odor was unburnt marijuana. As a result of his olfactory observation, Timberlake searched the van
and located a grinder in the center console and individual bags of marijuana underneath the driver’s
seat.
On cross-examination, Timberlake testified that he recognized appellant as the individual he
had stopped a month earlier, and appellant’s driver’s license and vehicle tags came back from DMV
as valid.5 When asked by counsel if he “began following [appellant] just because you recognized
him as someone you had arrested several weeks earlier?”, Timberlake responded, “Yes, sir, it was a
pretextual stop.” Again, when asked if Timberlake followed appellant because he was someone he
previously had arrested, Timberlake answered, “Yes, sir.”
Appellant moved to suppress the evidence recovered from the search of his van. In addition
to the testimony summarized above, a copy of the video recorded by the on-board camera on Chiz’s
police cruiser was admitted into evidence. According to Chiz, if working properly, the on-board
camera records video while the cruiser is in operation. Once the cruiser’s lights and siren are
activated, the on-board camera system preserves what was captured on the video thirty seconds
4
Specifically, appellant’s counsel asked Chiz whether appellant “told you that somebody
had cut him off and he had to quickly adjust to avoid a collision[?]”, and Chiz responded,
“That’s what he said, yes, sir.”
5
On redirect, Timberlake verified that he did not initially run appellant’s driver’s license,
just his vehicle tags.
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prior to the activation of the lights and siren through the end of the encounter. The video here failed
to show the red van make any of the unsignaled lane changes or sudden maneuvers about which the
officers testified. In fact, appellant’s red van is not visible in the vast majority of the video.
Appellant argued the officers lacked reasonable, articulable suspicion to conduct a traffic
stop because their testimony was not supported by the on-board camera video. He argued that these
inconsistencies rendered the officers’ testimony unworthy of belief. Appellant also argued that the
length of the stop, which lasted almost fifteen minutes, exceeded any legitimate purpose of the stop.
The Commonwealth responded that the stop was lawful because it is a moving violation for
a vehicle to weave outside of its lane of travel and for a driver to change lanes in traffic without
using a turn signal. In regard to the video, the Commonwealth suggested that the fact that the video
did not capture appellant’s erratic driving did not establish that such erratic driving did not occur.
The trial court denied the motion to suppress. In doing so, the trial court noted that it was
initially skeptical of the officers’ testimony given the complete absence of any corroboration on the
video. The trial court, however, found that Timberlake’s willingness to admit that the stop of
appellant was pretextual, i.e., the officers were looking for a reason to stop him to allow a search for
something unrelated to the stop, made the officers’ other testimony more credible. In essence, the
trial court found that, if Timberlake were going to lie during his testimony, he would have lied about
the stop being pretextual. The trial court summarized its conclusion by stating, “[Y]ou take out that
statement about it being a pretext, I grant the motion but since it’s there, the credibility shoots sky
high, so I deny the motion.”
The matter proceeded to trial. During trial, Timberlake testified that he recovered from
appellant’s van whole, multi-colored pills that he believed to be methamphetamine. He also
recovered other packages that he believed contained drugs. Timberlake stated that he did not
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package the suspected drugs, but placed them in the locked police cruiser.6 Upon returning to
the station, Timberlake unlocked the police car, retrieved the suspected drugs, and delivered
them to Officer Arnold Endl. Endl packaged them in plastic evidence bags, sealed them with
tape, initialed the tape, and filled out a state laboratory sheet. (Exhibit 6). At trial, Endl was
shown and identified Exhibits 2 through 5, the substances at issue, and indicated that he did not
alter or tamper with the evidence in any way. After Endl packaged the evidence, he gave it back
to Timberlake.
In October of 2016, Raul Rankin, an evidence technician, traveled to the Mount Vernon
Police Station and retrieved Exhibits 2 through 5. He stored them in a secured evidence locker
within the property evidence room at the Fairfax police department. He did not tamper with or
alter the evidence in any way. Officer Garrett Polowy, a narcotics control officer, transported the
items to the Virginia Department of Forensic Science Northern Lab in Manassas. Polowy
delivered the items to receiving technician Stephen Delfino, who took control of them.
Kelly Janocka, a forensic scientist at the Department of Forensic Science in Richmond,
qualified as an expert in the area of chemical analysis of narcotics. She testified that she
personally received four evidence bags, Exhibits 2 through 5, on December 30, 2016, from an
evidence technician in the Richmond evidence vault. Each bag contained a unique forensic
science laboratory number and her initials. At trial, Janocka identified each exhibit and testified
that the drugs she identified appeared in the same condition as when she first received them
6
Chiz testified that at the scene of the traffic stop, Timberlake handed the suspected
drugs, which were contained in an iPhone case, to Chiz, who placed the case inside a plastic bag
and locked the bag inside the cruiser while Timberlake finished his search of the van. Chiz then
transported appellant and the suspected drugs to the Mount Vernon Police Station. Timberlake
testified that he transported appellant to the police station and advised appellant of his Miranda
rights. According to Timberlake, appellant agreed to speak with him without an attorney. In that
conversation, appellant admitted to Timberlake to possessing “Molly rocks” and “marijuana,
cocaine, and MDMA” in his van.
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except for Commonwealth’s Exhibit 4, which were now crumbled pills that she had to break into
smaller pieces in order to test them.
Janocka testified regarding her analysis of the substances. She stated that
Commonwealth’s Exhibit 2 was dibutylone, a Schedule I controlled substance, that
Commonwealth’s Exhibit 3 was five smaller bags all containing cocaine, a Schedule II
controlled substance, that Commonwealth’s Exhibit 4 consisted of tablets that contained
methamphetamine, a Schedule II controlled substance, and that Commonwealth’s Exhibit 5 was
marijuana. Janocka further testified that Commonwealth’s Exhibit 7 was the certificate of
analysis that she prepared, with her signature, accurately documenting her testing of the
referenced items.
Appellant objected to the admission of Commonwealth’s Exhibits 2, 3, 4, 5, 6, and 7
based on the Commonwealth’s failure to prove the chain of custody. Specifically, appellant
argued that there was no evidence about how the narcotics were transported from the Manassas
lab to the Richmond lab where Janocka tested the evidence.
The trial court initially overruled the objection, but stated that it had some criticism of the
manner in which the chain of custody was proven in this case. The trial court noted that it found
Janocka’s testimony very credible and “matter of fact” and found that it tied up all the “lo[o]se
ends.” Nevertheless, the trial court indicated it would spend the evening looking at caselaw and
revisit the motion in the morning. The next day, the trial court recited its final ruling on the
matter:
I have every confidence in the world that these are the same
drugs. By the consideration of testimony of the witness, Officer
Timberlake, and the chemist, as well as [what is] apparent on the
packaging themselves.
I found that the evidence clearly shows that there is a
reasonable certainty there has been no alteration, or substitution of
the substance[s] found in Mr. Warner’s car.
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At the conclusion of the trial, the jury convicted appellant of the drug offenses that are
the subject of this appeal. In his appeal, appellant argues that the trial court erred in denying his
motion to suppress and in finding the evidence of the chain of custody was sufficient to allow
Exhibits 2 through 7 to be admitted in evidence.
ANALYSIS
I. Trial court’s ruling on the motion to suppress
“On review of the denial of a motion to suppress, we view the evidence in the light most
favorable to the Commonwealth[,]” the prevailing party below. Adams v. Commonwealth, 48
Va. App. 737, 741 (2006). An appellate court “should take care both to review findings of
historical fact only for clear error and to give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers.” Reittinger v. Commonwealth, 260 Va. 232,
236 (2000) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)). Accordingly, although
“whether the officers’ conduct violated the Fourth Amendment triggers de novo scrutiny on
appeal, we defer to the trial court’s findings of ‘historical fact[.]’” Barkley v. Commonwealth,
39 Va. App. 682, 689-90 (2003) (quoting Davis v. Commonwealth, 37 Va. App. 421, 429
(2002)).
Appellant acknowledges that Timberlake’s admission that the stop of appellant was based
on a pretext does not render the stop and search invalid. As the United States Supreme Court has
made clear, an officer’s subjective motivation for a traffic stop, including pretextual stops, is
irrelevant to the Fourth Amendment analysis so long as, objectively viewed, there is sufficient
probable cause or reasonable, articulable suspicion to justify the stop. See Whren v. United
States, 517 U.S. 806, 813 (1996) (holding that the relevant “cases foreclose any argument that
the constitutional reasonableness of traffic stops depends on the actual motivations of the
individual officers involved. . . . Subjective intentions play no role in ordinary, probable-cause
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Fourth Amendment analysis”).7 Accordingly, appellant challenges whether such an objective
basis existed and whether the stop was impermissibly elongated to allow for the ultimate
discovery of the contraband.
A. Justification for the traffic stop
There is no dispute that, if the officers witnessed appellant commit a traffic infraction (or
what they reasonably believed to be a traffic infraction), they possessed sufficient cause for the
traffic stop. Similarly, it is undisputed that, if appellant drove his van in the manner described by
the officers in their testimony, appellant committed such a traffic infraction. Accordingly, if the
factfinder concluded that the officers were telling the truth about appellant’s driving, there was
sufficient cause for the stop, and thus, the stop did not violate the Fourth Amendment.
The record is clear that the trial court, sitting as factfinder on the motion to suppress,
credited the officers’ testimony regarding appellant’s driving; thus, appellant’s challenge is a
challenge to the trial court’s credibility finding regarding the officers.
“Determining the credibility of witnesses . . . is within the exclusive province of the
[factfinder], which has the unique opportunity to observe the demeanor of the witnesses as they
testify.” Dalton v. Commonwealth, 64 Va. App. 512, 525 (2015) (ellipsis in original) (quoting
Lea v. Commonwealth, 16 Va. App. 300, 304 (1993)). Therefore, this Court will not disturb the
factfinder’s determination of the credibility of witness testimony unless, “as a matter of law, the
testimony is inherently incredible.” Walker v. Commonwealth, 258 Va. 54, 70-71 (1999).
“Indeed, ‘[t]he living record contains many guideposts to the truth which are not in the printed
record,’ and an appellate court, not having the benefit of these guideposts, ‘should give great
7
Although the rule of Whren does not render an otherwise valid stop invalid because of
an officer’s subjective motivation, it should not be read, as Timberlake appears to have done, as
an endorsement of pretextual stops.
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weight to the conclusions of those who have seen and heard them.’” Dalton, 64 Va. App. at 526
(alteration in original) (quoting Bradley v. Commonwealth, 196 Va. 1126, 1136 (1955)).
Appellant argues that, given the evidence, the trial court could not have concluded that
the officers saw what they claimed to have seen. Specifically, he notes that none of the erratic
driving behavior described by the officers can be seen on the video recording from the on-board
camera in Chiz’s cruiser.
We acknowledge that nothing described by the officers can be seen on the video.
Although the absence of such video evidence should be considered by a factfinder and could lead
a reasonable factfinder to conclude that the events testified to by the officers did not occur, it is
not dispositive. Any number of factors ranging from camera angle, system malfunction, some
minor error in Chiz’s testimony about when he activated the lights and siren that should have
begun the process of saving the recorded video, and potentially others could explain why the
video does not capture erratic driving by appellant.8 Accordingly, the absence on the video of
the events described was but one data point for the factfinder to consider and did not establish
that the officers’ version of appellant’s driving was untruthful.
Particularly galling to appellant is that the trial court acknowledged that the absence of
evidence of erratic driving on the video raised significant credibility questions regarding the
officers’ testimony. The trial court acknowledged that it would have found their testimony
unbelievable but for Timberlake admitting that the stop of appellant was pretextual, based on his
prior encounter with appellant and a hope to find evidence of crimes other than a mere traffic
infraction. In short, the trial court concluded that if Timberlake were going to lie during his
8
Obviously, appellant posits that the absence of such video is explained by the fact that
he never drove his van in the manner described. However, viewing the evidence in the light
most favorable to the Commonwealth, see Adams, 48 Va. App. at 741, we must reject this
possibility because it was rejected by the factfinder.
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sworn testimony, he would have lied about conducting a pretextual stop. Thus, according to the
trial court’s logic, Timberlake must have been telling the truth about appellant’s driving.
Appellant argues that such reasoning requires reversal; however, he cites no support for this
argument. Ultimately, the trial court, as factfinder, considered all of the evidence, and, despite its
initial misgivings about the officers’ testimony, ultimately credited the officers’ version of
appellant’s driving behavior.
Although the testimony is disputed by appellant, there is nothing inherently incredible in the
officers’ testimony. Accordingly, we are bound by the trial court’s credibility finding because
“[w]hen the law says that it is for the trier of fact to judge the credibility of a witness, the issue is
not a matter of degree.” Dalton, 64 Va. App. at 526 (alteration in original) (quoting Simpson v.
Commonwealth, 199 Va. 549, 557 (1957)). Thus, even though another factfinder could have
weighed the evidence differently, concluding that the video evidence demonstrated that appellant
did not drive in the manner described and that Timberlake’s admission to engaging in a
pretextual stop damaged rather than enhanced his credibility as a testifying officer, we are bound
by the trial court’s determination on appeal.
Accepting that appellant drove in the manner described by the officers, it is clear that
appellant committed at least one traffic offense in their presence. Thus, the officers possessed
sufficient cause to stop appellant, and the stop did not violate the Fourth Amendment.
Accordingly, given its factual findings, the trial court did not err in denying the motion to
suppress.
B. Alleged elongation of the stop
Although he cites no law to support his position in his opening brief, appellant argues that
the stop of his vehicle for the alleged traffic infraction was impermissibly elongated in violation
of the Fourth Amendment.
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The question of whether a traffic stop has been impermissibly elongated to investigate
other potential crimes is governed by Rodriguez v. United States, 135 S. Ct. 1609 (2015). In
Rodriguez, the United States Supreme Court explained that, consistent with the Fourth
Amendment, a “seizure justified only by a police-observed traffic violation, therefore,
‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e]
mission’ of issuing a ticket for the violation.” Id. at 1612 (alteration in original) (quoting Illinois
v. Caballes, 543 U.S. 405, 407 (2005)). Although the length of the stop obviously includes the
decision of the officer “whether to issue a traffic ticket,” it also permissibly includes “checking
the driver’s license, determining whether there are outstanding warrants against the driver, and
inspecting the automobile’s registration and proof of insurance.” Id. at 1615. Only if an officer
learns of new information that gives him “the reasonable suspicion ordinarily demanded to
justify detaining an individual[,]” id., may the officer extend the stop to investigate other
criminal activity.
Given the trial court’s ultimate acceptance of the officers’ testimony, the length of the
stop here does not run afoul of either Rodriguez or the Fourth Amendment. Upon arriving at
appellant’s window to request his driver’s license and conduct his investigation regarding a
possibly DWI charge, Chiz smelled air freshener, which, in his experience often was used to
attempt to mask the smell of illegal drugs. Then, when Chiz returned to his cruiser to conduct
the type of license and warrant checks expressly approved of in Rodriguez, Timberlake detected
the smell of unburnt marijuana. This gave him probable cause independent of the traffic stop to
detain appellant and search both appellant and his van for marijuana. See Bunch v.
Commonwealth, 51 Va. App. 491, 496 (2008) (adopting the plain smell doctrine and concluding
that an officer who smells marijuana has probable cause to seize and search). Accordingly,
assuming appellant was detained longer than necessary to complete the incidents of the traffic
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stop, the officers had independent probable cause to investigate the potential possession of
marijuana, and thus, did not violate the Fourth Amendment.
Accordingly, the length of the stop did not violate the Fourth Amendment, and the trial
court did not err in denying the motion to suppress.
II. Trial court’s admission of Exhibits 2 through 7
On chain of custody grounds, appellant challenges the admission into evidence of six
exhibits related to the drugs recovered from his van and the chemical analysis of those drugs.
Questions regarding the admissibility of the evidence are reviewed under an abuse of discretion
standard. Atkins v. Commonwealth, 68 Va. App. 1, 7 (2017). “An abuse of discretion occurs
only when reasonable jurists could not differ as to the proper decision.” Reston Hosp. Ctr., LLC
v. Remley, 63 Va. App. 755, 764 (2014) (internal quotation marks omitted) (quoting Brandau v.
Brandau, 52 Va. App. 632, 641 (2008)). The abuse of discretion standard “necessarily implies
that, for some decisions, conscientious jurists could reach different conclusions based on exactly
the same facts—yet still remain entirely reasonable.” Hamad v. Hamad, 61 Va. App. 593, 607
(2013).
The rule governing chain of custody requires “a showing with reasonable certainty that
the item [has] not been altered, substituted, or contaminated prior to analysis, in any way that
would affect the results of the analysis.” Reedy v. Commonwealth, 9 Va. App. 386, 387 (1990)
(alteration in original) (quoting Washington v. Commonwealth, 228 Va. 535, 550 (1984)). The
Commonwealth needs only to “establish . . . the vital links in the chain of custody. Other gaps in
the chain go to the weight of the evidence rather than its admissibility.” Branham v.
Commonwealth, 283 Va. 273, 282 (2012). The evidentiary burden the Commonwealth must
meet in making the requisite showing is the preponderance of the evidence standard. Atkins, 68
Va. App. at 9 (recognizing that “factual questions underlying the admissibility of evidence” need
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only be proved “by a preponderance of the evidence” (quoting Bloom v. Commonwealth, 262
Va. 814, 821 (2001))). “Where there is mere speculation that contamination or tampering could
have occurred, it is not an abuse of discretion to admit the evidence and let what doubt there may
be go to the weight to be given the evidence.” Brown v. Commonwealth, 21 Va. App. 552, 556
(1996) (quoting Reedy, 9 Va. App. at 391).
Thus, to prevail in his chain of custody argument, appellant must demonstrate that no
reasonable factfinder could have concluded that the Commonwealth established that the drugs
analyzed by Janocka were the same drugs recovered from his van. On this record, he cannot do
so.
The record reflects that the trial court thoroughly reviewed the pertinent evidence and
gave every consideration to appellant’s objection. Based on the witnesses it found to be credible,
most importantly Janocka, and the assurance provided by the evidence being in signed and
sealed evidence bags at the critical points in the chain, the trial court reasonably concluded that
the Commonwealth had made the necessary showing for the challenged exhibits to be admitted
into evidence. Because such a conclusion falls well within the “bell-shaped curve of
reasonability[,]” Hamad, 61 Va. App. at 607, that is the essence of the abuse of discretion
standard, the trial court did not err in admitting Exhibits 2 through 7 into evidence.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court.
Affirmed.
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