Gubari v. Commonwealth
| Docket Number | 0416-21-2 |
| Decision Date | 11 January 2022 |
| Parties | NASHWAN ALI GUBARI v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY W. Allan Sharrett Judge.
Jennifer A. Quezada (Miriam R. Airington-Fisher; Bianca A White; Airington Law, PLLC, on briefs), for appellant.
Liam A. Curry, Assistant Attorney General (Mark R. Herring Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges Malveaux and Friedman Argued at Richmond, Virginia
Nashwan Ali Gubari appeals his conviction for a felony violation of Code § 58.1-1017, which proscribes the possession or transport of 500 or more packages of unstamped cigarettes "for the purpose of evading the payment of the taxes on such products." On appeal, he argues that the circuit court erred by denying his motion to suppress the cigarettes and concluding that the evidence was sufficient to support his conviction. We hold that the court did not err in determining that reasonable suspicion supported the ongoing detention that led to discovery of the cigarettes and denying the motion to suppress on that basis. We further conclude that the appellant failed to preserve his challenge to the sufficiency of the evidence for appeal. As a result, the appellant's conviction is affirmed.
On June 25, 2019, Special Agent Matthew Hand, a sergeant with the Virginia Department of State Police, encountered the appellant while on patrol in Greensville County. Hand initiated a traffic stop of a vehicle traveling north on Interstate 95 that appeared to be in violation of window tint laws, and he radioed for backup. The car was "slow to stop." It pulled to the side of the highway at 1:14 p.m. Hand walked up to the passenger side of the car, but due to the dark window tint, he could not see into the back seat. He knocked on the back window, and the driver rolled down the electric window, allowing him to see luggage in that area.
Special Agent Hand spoke with the driver through the front passenger-side window. The driver was "nervous" and had "a scared look on his face." The appellant was the front seat passenger and appeared to have just awakened. Both men were "breathing heavy [sic]," and "the pulse in . . . their necks" was "visible" and "rapid[]."
Hand identified himself to the driver, explained the reason for the stop, and asked for his license and registration. The driver provided an identification card issued by the state of New York. Special Agent Hand then asked the driver to accompany him back to his vehicle, where he "ran" the driver's information and learned that he did not have a valid license. The driver told Hand that he was driving because the appellant, his cousin, was tired. The driver also reported that they had gone to South Carolina to visit his daughter and had arrived there at about 2:00 a.m. on the day of the traffic stop. He further stated that they had slept until 7:00 or 8:00 a.m. and departed South Carolina at 9:00 a.m. Hand thought it odd that the men had traveled such a long distance to spend only about an hour with the driver's daughter.
At 1:18 p.m., four minutes after the stop began, Virginia State Trooper Austin Albright arrived at the scene with his narcotics canine. At that same time, Special Agent Hand checked the window tint on the car, which exceeded the amount allowed by law. He asked the appellant, who remained in the car, for his driver's license. The appellant provided his license. Outside the presence of the driver, the appellant told Hand that the men were traveling from South Carolina, where they had arrived the previous day. This information contradicted the driver's statement that the men had arrived in South Carolina at 2:00 a.m. that same day. While interacting with the appellant, Hand saw "green, dry plant material" on the car's center console. When Hand asked the appellant what the material was, he "brushed it off with his hand" and "showed [the agent] some cookie crumb or something" instead. Hand believed, based on his training and experience, that the green substance was khat, a Schedule 1 narcotic. The agent described khat as a stimulant that people "chew . . . to keep them awake while they're traveling long distances on the interstate." At 1:21 p.m., Special Agent Hand "ran" the appellant's New York driver's license, which "came back not valid." Because neither of the car's occupants had a valid driver's license, Hand knew he would not be "let[ting] them drive away."
At some point during the traffic stop, Hand learned that the car was a rental vehicle and saw the rental agreement bearing the appellant's name. He further noted that the agreement had been in effect since January of that year. Hand calculated that at the stated rate of $300 per week, the appellant would have paid $7, 200 to rent the car during that six-month period, which he thought seemed "excessive." He also knew based on his training and experience that rental car companies do not tint the windows of their vehicles beyond the legal limit but that criminals do so in order to conceal contraband from law enforcement.
At 1:23 p.m., nine minutes after the traffic stop began, Special Agent Hand gave the driver a verbal warning for the excessive window tint and driving without a license. He also returned both the driver's and the appellant's identification to the driver, along with the vehicle registration. He told the driver, outside the presence of the appellant, that he was free to go. Special Agent Hand testified, however, that he did not actually plan to let the driver or the appellant leave the scene in the vehicle, due to "all the criminal indicators that [he] observed [during] the traffic stop."
Hand opted to "tr[y] to conduct a consensual encounter" with the driver, who agreed to speak with him. Hand asked the driver if he could search the car. The driver responded that Hand would have to ask the appellant because he was the person who had rented it. Hand instead asked Trooper Albright, who was already on the scene, to "run [his drug] dog around the vehicle."
At 1:25 p.m., eleven minutes after the stop was initiated, Trooper Albright had his trained narcotics dog sniff the exterior of the rental car. The dog was trained to "alert" to multiple types of illegal narcotics, including marijuana, as well as to "the residue" of such drugs. Albright explained that although the dog was not trained to detect khat, that substance, like marijuana, contains a "high level of THC" and could also cause the dog to alert. By 1:28 p.m., the dog "alerted to the odor of narcotics coming from" the car.
As a result of the dog's alert, Hand searched the car. He opened the trunk, which was "completely full" of cigarette cartons. Hand also found cigarette cartons on the rear floorboard and under the driver's and passenger's seats, concealed beneath the floor mats and some black sheets. Finally, Special Agent Hand located "what appeared to be marijuana residue" on the driver's side floorboard. Based on the presence of the significant amount of contraband, another trooper drove the rental vehicle to the area office of the State Police. Hand later counted 467 cartons of cigarettes, for a total of 4, 670 packs of cigarettes, none of which "b[ore] a Virginia tax stamp" proving payment of the state's excise tax.
The appellant was indicted for cigarette trafficking. Prior to trial, he filed a motion to suppress the cigarettes, alleging that the dog sniff of the vehicle violated Rodriguez v. United States, 575 U.S. 348 (2015), because it occurred after the "mission" of the stop had concluded.
The trial court heard the suppression motion and trial evidence together. In addition to the evidence regarding the stop and search, Special Agent Hand testified that his department's policy regarding a car stopped on the interstate was to inventory and tow it if none of the occupants was licensed to drive it from the scene.
Detective Robert Matson, of the Henrico County Police Department, testified as an expert witness in the area of illegal cigarette trafficking. Due to the absence of excise tax stamps on the seized cigarettes, he opined that they originated in North Carolina or North Dakota, the only states not requiring such stamps. He noted that due to differences in tax rates, buying cigarettes in North Carolina and selling them in New York would allow for "a significant profit." Matson further opined that a northbound rental vehicle on a two-day trip carrying 467 cartons of unstamped cigarettes "from Carolina" was "consistent with cigarette trafficking." He noted that using a rental vehicle protects traffickers from having a personal vehicle seized if detected.
After the evidence had been presented, the parties argued the motion to suppress and filed legal memoranda.[2] The arguments included discussion of reasonable suspicion, probable cause and inevitable discovery. At a subsequent hearing, the trial court denied the motion. Indicating acceptance of Special Agent Hand's testimony, it specifically ruled that Rodriguez did not apply because the objective evidence established that the car's occupants were not free to leave and Hand had reasonable suspicion to continue the stop. The dog sniff occurred before the officers' "business" had been concluded and, thus, did not impermissibly extend the stop. Both men were unlicensed and could not drive the car from the scene, so it had to be removed from the shoulder of the interstate in some other way. Based on the facts before it, the court also reasoned that an inventory search of the vehicle would be required before the towing. As a result, it held that the contraband found in the search following the dog's alert would...
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