                                             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UNPUBLISHED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.
                                                    -2-
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.
                                                -3-
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




                                                   -4-
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.
                                                   -5-
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.
                                                   -6-
       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

                                                 -7-
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.
                                                -8-
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.
                                                 -9-
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.

                                                 - 10 -
       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

                                                - 11 -
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

                                                - 12 -
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.




                                               - 13 -
