                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Haley
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                              MEMORANDUM OPINION* BY
v.     Record No. 0952-07-4                                  JUDGE ROBERT J. HUMPHREYS
                                                                   OCTOBER 2, 2007
NAHOM F. BEYENE


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                             M. Langhorne Keith, Judge Designate

                 Benjamin H. Katz, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellant.

                 Dawn M. Butorac, Deputy Public Defender (Office of the Public
                 Defender, on brief), for appellee.


       Pursuant to Code § 19.2-398, the Commonwealth appeals a decision of the trial court to

suppress evidence pertaining to Nahom Beyene’s (“Beyene”) indictment for possession of a

controlled substance in violation of Code § 18.2-250. The Commonwealth argues that the trial

court erred in holding that the police lacked reasonable suspicion to stop the vehicle in which

Beyene was traveling. For the following reasons, we agree with the Commonwealth, reverse the

trial court’s ruling, and remand for proceedings consistent with this opinion.

                                        I. BACKGROUND

       “On appeal of a ruling on a motion to suppress, we view the evidence in the light most

favorable to the party prevailing below, granting to it all reasonable inferences fairly deducible

therefrom.” Edwards v. Commonwealth, 38 Va. App. 823, 827, 568 S.E.2d 454, 456 (2002).


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
“The burden is on the appellant to show that the trial court’s decision constituted reversible

error.” Benton v. Commonwealth, 40 Va. App. 136, 140, 578 S.E.2d 74, 76 (2003) (quoting

Quinn v. Commonwealth, 25 Va. App. 702, 712, 492 S.E.2d 470, 475 (1997)). The only

testimony presented at the suppression hearing was the testimony of Fairfax County Police

Officer David Koenigsberg (“Koenigsberg”). His testimony established the following.

       On September 23, 2006 at 11:20 p.m., Koenigsberg observed two vehicles traveling on

U.S. Route 1 in Fairfax County. Koenigsberg observed that the second vehicle, a Jeep Cherokee,

was traveling only one-half of one car length, approximately six to seven feet, behind the first

vehicle. It is a violation of Code § 46.2-816 to follow a vehicle “more closely than is reasonable

and prudent, having due regard to the speed of both vehicles and the traffic on, and the

conditions of, the highway at the time.” Koenigsberg followed the two vehicles in his patrol car

for twenty to twenty-five seconds from a distance of three to four car lengths, approximately

sixty feet behind the second vehicle. He estimated that the vehicles were traveling

approximately thirty-five miles per hour in a twenty-five mile-per-hour zone. Through the

Fairfax Police Academy, Koenigsberg had twice completed training to successfully estimate a

vehicle’s speed to within five miles per hour of its actual speed.

       Koenigsberg noticed that the passenger in the rear seat of the Jeep was “moving around,”

“bouncing,” and “completely disappearing” from his view. Koenigsberg stopped the Jeep to

investigate the passenger’s activity. Upon stopping the Jeep, he observed a driver, a front-seat

passenger, and a rear-seat passenger. Koenigsberg subsequently identified the rear-seat

passenger as the appellee, Nahom Beyene. The driver of the vehicle did not have his driver’s

license with him so Koenigsberg asked him to step out of the vehicle. As they spoke, the driver

asked Koenigsberg if he would retrieve the driver’s bottle of Gatorade from the vehicle.



                                                -2-
       When Koenigsberg reached into the vehicle, he observed cigar tobacco and “a bud of

green vegetation” on the floorboard. Based on his training and experience of over thirteen years

as a police officer, during which he had encountered marijuana between two hundred and three

hundred times, he recognized the green vegetation as marijuana. After discovering the

marijuana, Koenigsberg searched the vehicle. As a result of the search, he discovered a small

glass vial wedged into the back seat. The liquid was later determined to be phencyclidine.

       Beyene was subsequently charged with possession of a controlled substance in violation

of Code § 18.2-250. Before trial, Beyene made a motion to suppress the vial containing

phencyclidine. Beyene argued that Koenigsberg did not have reasonable suspicion to stop the

Jeep and that Koenigsberg’s subsequent observation of “green vegetation” did not give him

probable cause to search the Jeep. Beyene argued that the stop was improper for two reasons.

First, Beyene claimed the stop was invalid because the vehicle’s speed and distance from the car

in front of it did not create reasonable suspicion. Second, the stop was invalid because

Koenigsberg’s stated reason for stopping the vehicle was to investigate the behavior of the

back-seat passenger.

       The Commonwealth argued that the stop was valid regardless of Koenigsberg’s state of

mind because Koenigsberg had reasonable suspicion that the Jeep was following too closely, in

violation of Code § 46.2-816 and exceeding the posted speed limit. The Commonwealth

presented the tables of speed and stopping distances, Code § 46.2-880, as evidence that the Jeep

was following too closely. The trial court granted Beyene’s motion to suppress. The court held:

               I’m going to grant the motion to suppress. I think the Officer’s
               testimony, “I wanted to find out what was going on,” leads me to
               conclude that, he was sixty feet behind, 11:30 at night, 11:23 at
               night, that this was a pretextual stop because he thought something
               was going on in the car.

                          *      *       *      *       *       *      *
                                               -3-
               But I think his candid testimony that “I wanted to find out what
               was going on” leads me to believe that this stop was pretextual and
               for that reason I grant the motion to suppress.

                          *      *       *       *       *      *       *

               [Beyene] said he didn’t have reasonable cause to stop and that’s
               what I find, he didn’t have reasonable cause to stop, i.e., it was
               pretextual.

       The Commonwealth filed a notice of appeal pursuant to Code § 19.2-398. The trial court

continued the case pending the outcome of this appeal.

                                         II. ANALYSIS

       In reviewing the granting of a motion to suppress, “we are bound by the trial court’s

findings of historical fact unless ‘plainly wrong’ or without evidence to support them.” McGee

v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc). “However, we

consider de novo whether those facts implicate the Fourth Amendment.” Shaver v.

Commonwealth, 30 Va. App. 789, 794-95, 520 S.E.2d 393, 396 (1999).

       At oral argument, Beyene took the position that the trial court made a finding of fact that

Koenigsberg’s testimony was not credible and, that, consequently, this Court cannot consider

Koenigsberg’s testimony regarding the Jeep’s speed or distance from the car in front of it.1

Beyene bases his argument on the trial court’s statement: “I think the Officer’s testimony, ‘I

wanted to find out what was going on,’ leads me to conclude that, [Koenigsberg] was sixty feet

behind, 11:30 at night, 11:23 at night, that this was a pretextual stop because he thought

something was going on in the car.”




       1
         This argument contradicts Beyene’s concession on brief that the Jeep and the car it was
following “were traveling approximately 35 miles per hour in a 25 mile per hour zone” and that
“the second car, a Jeep Cherokee, was approximately six to seven feet behind the first car.”

                                               -4-
       When that statement is read in the context of the entire ruling, it is clear that the trial

court did not find Koenigsberg’s testimony incredible. In its very next statement, the trial court

found credible Koenigsberg’s testimony that he could identify the “green vegetation” on the

floorboard as marijuana. In the final sentence of its ruling, the trial court made clear its opinion

of Koenigsberg’s credibility and the reason for its ruling: “I think [Koenigsberg’s] candid

testimony that ‘I wanted to find out what was going’ on leads me to believe that this stop was

pretextual and for that reason I grant the motion to suppress.” Thus it is clear that the trial

court’s ruling was not based upon any lack of credibility with respect to the otherwise

uncontradicted facts to which Koenigsberg testified. Rather, it was clearly based upon the trial

court’s perception that the existing facts served as a pretext for the officer’s desire to investigate

what he perceived to be suspicions actions on the part of the vehicle’s occupants.

       “A police officer may stop and detain a person ‘for purposes of investigating possible

criminal behavior even though there is no probable cause to make an arrest.’” Ford v.

Commonwealth, 28 Va. App. 249, 255, 503 S.E.2d 803, 805 (1998) (quoting Terry v. Ohio, 392

U.S. 1, 22 (1968)). “In order to justify the stop, the fourth amendment requires that the officer

have a ‘reasonable suspicion, based on objective facts, that the individual is involved in criminal

activity.’” Woodson v. Commonwealth, 14 Va. App. 787, 792, 421 S.E.2d 1, 4 (1992) (quoting

Moss v. Commonwealth, 7 Va. App. 305, 307-08, 373 S.E.2d 170, 172 (1988)).2

               [R]easonable suspicion is a less demanding standard than probable
               cause not only in the sense that reasonable suspicion can be
               established with information that is different in quantity or content
               than that required to establish probable cause, but also in the sense
               that reasonable suspicion can arise from information that is less
               reliable than that required to show probable cause.


       2
         Although a passenger in the vehicle, Beyene has standing to challenge the stop of the
vehicle. See Brendlin v. California, 127 S. Ct. 2400, 2403 (2007) (In a traffic stop, each
“passenger is seized as well and so may challenge the constitutionality of the stop.”).
                                               -5-
Alabama v. White, 496 U.S. 325, 330 (1990). “An investigatory stop under Terry anticipates

that some innocent people may be stopped. Nevertheless, it is a lawful stop designed to permit

an officer with reasonable suspicion of criminal activity to quickly confirm or dispel that

suspicion.” Davis v. Commonwealth, 35 Va. App. 533, 539, 546 S.E.2d 252, 255 (2001).

       In determining the validity of a stop, “[p]olice actions are to be tested ‘under a standard

of objective reasonableness without regard to the underlying intent or motivation of the officers

involved.’” Limonja v. Commonwealth, 8 Va. App. 532, 537-38, 383 S.E.2d 476, 480 (1989)

(en banc) (quoting Scott v. United States, 436 U.S. 128, 138 (1978)) (emphasis added). “The

subjective intent of a police officer in making a stop is irrelevant.” Clarke v. Commonwealth, 32

Va. App. 286, 295, 527 S.E.2d 484, 489 (2000).

       Thus, in this case, Koenigsberg’s subjective motivation in making the stop was irrelevant.

The question the trial court should have considered is whether Koenigsberg had reasonable

suspicion, based on the objective facts, that the Jeep was involved in criminal activity. We hold

that Koengsberg had two independent, objective bases of reasonable suspicion.

       First, Koenigsberg observed the Jeep traveling one car length, approximately six feet,

behind the vehicle in front of it. It is a violation of Code § 46.2-816 to follow a vehicle “more

closely than is reasonable and prudent, having due regard to the speed of both vehicles and the

traffic on, and the conditions of, the highway at the time.” Upon observing the Jeep following so

closely, Koenigsberg could have reasonably concluded that the Jeep was following “more

closely than is reasonable and prudent.” Thus, Koenigsberg had reasonable suspicion based on

an objective fact that the Jeep was in violation of Code § 46.2-816.

       Second, Koenigsberg estimated that the Jeep was traveling approximately thirty-five

miles per hour in a twenty-five mile-per-hour zone. Koenigsberg had twice completed training

in which he accurately estimated a vehicle’s speed within five miles per hour of its actual speed.
                                               -6-
Thus, Koenigsberg had reason to believe that the Jeep was exceeding the speed limit by at least

five miles per hour. Because Koenigsberg could reasonably believe that the Jeep was violating

the speed limit, he had reasonable suspicion to stop the Jeep.

        Because Beyene presented no evidence to contradict Koenigsberg’s testimony and the

trial court did not find his testimony incredible, we accept it as true. Koenigsberg had reasonable

suspicion to stop the Jeep based on two objective and independent grounds. Koenigsberg

observed the Jeep in violation of two traffic laws, speeding and following too closely. The

observance of facts suggesting either violation supports reasonable suspicion that the Jeep was in

violation of the law, which constitutionally justifies a brief investigative detention of the vehicle

and its occupants. Because Koenigsberg had reasonable suspicion based on objective facts, his

state of mind at the time of the stop is irrelevant in the constitutional analysis.

                                         III. CONCLUSION

        For the foregoing reasons, we hold that the trial court erred in granting Beyene’s motion

to suppress. We therefore reverse its decision and remand for further proceedings consistent

with this opinion.

                                                                             Reversed and remanded.




                                                 -7-
