COURT OF APPEALS OF VIRGINIA
Present: Judges Decker, AtLee and Malveaux UNPUBLISHED
Argued at Richmond, Virginia
FATEH AL-HAYANI MEMORANDUM OPINION* BY v. Record No. 1962-15-2 JUDGE RICHARD Y. ATLEE, JR. JANUARY 24, 2017 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUISA COUNTY Timothy K. Sanner, Judge
John R. Maus for appellant.
Benjamin H. Katz, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Appellant Fateh Al-Hayani entered a conditional guilty plea before the Circuit Court of
Louisa County (“trial court”) for possession of over five-hundred cartons of cigarettes with intent
to distribute. The trial court accepted the plea and sentenced Al-Hayani to five years in prison,
with four years and six months suspended. He now argues that the trial court erred in denying
his motion to suppress and maintains that the search of his vehicle was not supported by probable
cause. We disagree and affirm.
I. BACKGROUND
“On appeal of criminal convictions, we view the facts in the light most favorable to the
Commonwealth, and draw all reasonable inferences from those facts.” Payne v. Commonwealth,
65 Va. App. 194, 198, 776 S.E.2d 442, 444 (2015). So viewed, the evidence shows that at
approximately 1:20 a.m. in late November 2014, a state trooper observed a minivan traveling
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. westbound on Interstate 64 at 86 miles per hour. The speed limit was 70 miles per hour. The
trooper initiated a traffic stop.
As the trooper approached the minivan, he observed that the rear seats were folded down
and the vehicle was filled with black garbage bags containing boxes of uniform size and shape.
He also saw that, on top of the larger boxes, there were small, loose boxes. The trooper had
received training on narcotic and cigarette smuggling in Virginia, during which he learned
certain signs consistent with cigarette smuggling. Specifically, cigarette smugglers frequently
travel from Virginia to northern states, use rental vehicles, and keep the cigarettes in the original
shipping boxes, using bags to conceal them from view. The trooper noted that “[t]he primary
boxes, the big boxes appeared to me to be to me from my training consistent with the shape of
cigarette boxes. The small boxes on top of those big boxes appeared to be the same shape
consistent with cartons of cigarettes.”
The trooper approached the window and began speaking with Al-Hayani, who was the
driver and sole occupant of the minivan. Al-Hayani initially told the trooper he was traveling to
Harrisonburg. When asked about the contents of the vehicle, he stated he was moving, although
he did not respond when asked where he was moving to. The trooper noted that the van
contained “no personal items, no clothing, no furniture, nothing consistent with people moving.”
Al-Hayani told the trooper he could not provide the vehicle’s registration because it was a rental
car. Upon reviewing the rental agreement, the trooper observed that it was executed in New
York, and it stated the vehicle was only to be operated in the New York, New Jersey, and
Connecticut area. The agreement had also expired ten days prior.
The trooper asked if Al-Hayani had anything illegal in the vehicle. Al-Hayani “didn’t
make eye contact. He looked down and paused for a couple of seconds and then he stated no.”
The trooper observed that, although people are often nervous during traffic stops, Al-Hayani
-2- seemed “more nervous than on a usual traffic stop.” The trooper went to run Al-Hayani’s
information through dispatch, and discovered that Al-Hayani had been convicted in the City of
Richmond for cigarette smuggling in 2012. The trooper returned to the minivan and issued a
summons for the speeding violation. He asked Al-Hayani where he was headed, and this time he
said he was headed to New York, contradicting his earlier statement.
The trooper asked if he could search the vehicle. Al-Hayani refused, so the trooper
conducted a search without Al-Hayani’s consent. Ultimately, the search uncovered over seven
hundred cartons of cigarettes in the plastic bags the trooper observed at the beginning of the stop.
II. ANALYSIS
“If a car is readily mobile and probable cause exists to believe it contains contraband, the
Fourth Amendment . . . permits police to search the vehicle without more.” Maryland v. Dyson,
527 U.S. 465, 467 (1999) (quoting Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per
curiam)). In his appeal, Al-Hayani argues that the trooper did not have probable cause to search
his vehicle. “Probable cause, as the term implies, ‘exists when there is a fair probability that
contraband or evidence of a crime will be found in a particular place,’ as determined from the
totality of the circumstances.” Byrd v. Commonwealth, 57 Va. App. 589, 595, 704 S.E.2d 597,
599 (2011) (quoting Jones v. Commonwealth, 277 Va. 171, 178, 670 S.E.2d 727, 731 (2009)).
In reviewing the evidence, we “must give deference to the factual findings of the circuit court
and give due weight to the inferences drawn from those factual findings; however, the appellate
court must determine independently whether the manner in which the evidence was obtained
meets the requirements of the Fourth Amendment.” Collins, 65 Va. App. at 42, 773 S.E.2d at
621 (quoting Commonwealth v. Robertson, 275 Va. 559, 563, 659 S.E.2d 321, 324 (2008)).
Here, the evidence shows that the trooper, who had prior training in identifying interstate
cigarette trafficking, immediately noticed Al-Hayani’s cargo and suspected he was smuggling
-3- cigarette cartons. See Perry v. Commonwealth, 280 Va. 572, 582, 701 S.E.2d 431, 437 (2010)
(identifying an officer’s “training and experience” as a relevant factor in probable cause
determination). His interactions with Al-Hayani further corroborated this suspicion, as he
appeared unusually nervous and provided inconsistent answers to the trooper’s questions about
his destination. Al-Hayani was driving the vehicle outside of the geographic boundaries, and
past the expiration date, set forth in the rental contract. Finally, while running Al-Hayani’s
information as part of the traffic stop, the trooper learned Al-Hayani had a prior conviction in the
City of Richmond for smuggling cigarettes. This conviction was from a mere two years prior to
the date of the stop. Even if the trooper’s suspicion had not risen to probable cause before he ran
Al-Hayani’s license information, learning that Al-Hayani had a recent conviction for the precise
crime the trooper suspected he was engaged in here removed any doubt that he then had probable
cause to search. See, e.g., United States v. Nora, 765 F.3d 1049, 1059 (9th Cir. 2014)
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA
Present: Judges Decker, AtLee and Malveaux UNPUBLISHED
Argued at Richmond, Virginia
FATEH AL-HAYANI MEMORANDUM OPINION* BY v. Record No. 1962-15-2 JUDGE RICHARD Y. ATLEE, JR. JANUARY 24, 2017 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUISA COUNTY Timothy K. Sanner, Judge
John R. Maus for appellant.
Benjamin H. Katz, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Appellant Fateh Al-Hayani entered a conditional guilty plea before the Circuit Court of
Louisa County (“trial court”) for possession of over five-hundred cartons of cigarettes with intent
to distribute. The trial court accepted the plea and sentenced Al-Hayani to five years in prison,
with four years and six months suspended. He now argues that the trial court erred in denying
his motion to suppress and maintains that the search of his vehicle was not supported by probable
cause. We disagree and affirm.
I. BACKGROUND
“On appeal of criminal convictions, we view the facts in the light most favorable to the
Commonwealth, and draw all reasonable inferences from those facts.” Payne v. Commonwealth,
65 Va. App. 194, 198, 776 S.E.2d 442, 444 (2015). So viewed, the evidence shows that at
approximately 1:20 a.m. in late November 2014, a state trooper observed a minivan traveling
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. westbound on Interstate 64 at 86 miles per hour. The speed limit was 70 miles per hour. The
trooper initiated a traffic stop.
As the trooper approached the minivan, he observed that the rear seats were folded down
and the vehicle was filled with black garbage bags containing boxes of uniform size and shape.
He also saw that, on top of the larger boxes, there were small, loose boxes. The trooper had
received training on narcotic and cigarette smuggling in Virginia, during which he learned
certain signs consistent with cigarette smuggling. Specifically, cigarette smugglers frequently
travel from Virginia to northern states, use rental vehicles, and keep the cigarettes in the original
shipping boxes, using bags to conceal them from view. The trooper noted that “[t]he primary
boxes, the big boxes appeared to me to be to me from my training consistent with the shape of
cigarette boxes. The small boxes on top of those big boxes appeared to be the same shape
consistent with cartons of cigarettes.”
The trooper approached the window and began speaking with Al-Hayani, who was the
driver and sole occupant of the minivan. Al-Hayani initially told the trooper he was traveling to
Harrisonburg. When asked about the contents of the vehicle, he stated he was moving, although
he did not respond when asked where he was moving to. The trooper noted that the van
contained “no personal items, no clothing, no furniture, nothing consistent with people moving.”
Al-Hayani told the trooper he could not provide the vehicle’s registration because it was a rental
car. Upon reviewing the rental agreement, the trooper observed that it was executed in New
York, and it stated the vehicle was only to be operated in the New York, New Jersey, and
Connecticut area. The agreement had also expired ten days prior.
The trooper asked if Al-Hayani had anything illegal in the vehicle. Al-Hayani “didn’t
make eye contact. He looked down and paused for a couple of seconds and then he stated no.”
The trooper observed that, although people are often nervous during traffic stops, Al-Hayani
-2- seemed “more nervous than on a usual traffic stop.” The trooper went to run Al-Hayani’s
information through dispatch, and discovered that Al-Hayani had been convicted in the City of
Richmond for cigarette smuggling in 2012. The trooper returned to the minivan and issued a
summons for the speeding violation. He asked Al-Hayani where he was headed, and this time he
said he was headed to New York, contradicting his earlier statement.
The trooper asked if he could search the vehicle. Al-Hayani refused, so the trooper
conducted a search without Al-Hayani’s consent. Ultimately, the search uncovered over seven
hundred cartons of cigarettes in the plastic bags the trooper observed at the beginning of the stop.
II. ANALYSIS
“If a car is readily mobile and probable cause exists to believe it contains contraband, the
Fourth Amendment . . . permits police to search the vehicle without more.” Maryland v. Dyson,
527 U.S. 465, 467 (1999) (quoting Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per
curiam)). In his appeal, Al-Hayani argues that the trooper did not have probable cause to search
his vehicle. “Probable cause, as the term implies, ‘exists when there is a fair probability that
contraband or evidence of a crime will be found in a particular place,’ as determined from the
totality of the circumstances.” Byrd v. Commonwealth, 57 Va. App. 589, 595, 704 S.E.2d 597,
599 (2011) (quoting Jones v. Commonwealth, 277 Va. 171, 178, 670 S.E.2d 727, 731 (2009)).
In reviewing the evidence, we “must give deference to the factual findings of the circuit court
and give due weight to the inferences drawn from those factual findings; however, the appellate
court must determine independently whether the manner in which the evidence was obtained
meets the requirements of the Fourth Amendment.” Collins, 65 Va. App. at 42, 773 S.E.2d at
621 (quoting Commonwealth v. Robertson, 275 Va. 559, 563, 659 S.E.2d 321, 324 (2008)).
Here, the evidence shows that the trooper, who had prior training in identifying interstate
cigarette trafficking, immediately noticed Al-Hayani’s cargo and suspected he was smuggling
-3- cigarette cartons. See Perry v. Commonwealth, 280 Va. 572, 582, 701 S.E.2d 431, 437 (2010)
(identifying an officer’s “training and experience” as a relevant factor in probable cause
determination). His interactions with Al-Hayani further corroborated this suspicion, as he
appeared unusually nervous and provided inconsistent answers to the trooper’s questions about
his destination. Al-Hayani was driving the vehicle outside of the geographic boundaries, and
past the expiration date, set forth in the rental contract. Finally, while running Al-Hayani’s
information as part of the traffic stop, the trooper learned Al-Hayani had a prior conviction in the
City of Richmond for smuggling cigarettes. This conviction was from a mere two years prior to
the date of the stop. Even if the trooper’s suspicion had not risen to probable cause before he ran
Al-Hayani’s license information, learning that Al-Hayani had a recent conviction for the precise
crime the trooper suspected he was engaged in here removed any doubt that he then had probable
cause to search. See, e.g., United States v. Nora, 765 F.3d 1049, 1059 (9th Cir. 2014)
(“[C]riminal history ‘can be helpful in establishing probable cause, especially where the previous
arrest or conviction involves a crime of the same general nature as the one the warrant is seeking
to uncover.’” (quoting Greenstreet v. Cty. of San Bernardino, 41 F.3d 1306, 1309 (9th Cir.
1994)); United States v. Dyer, 580 F.3d 386, 392 (6th Cir. 2009) (“Although a defendant’s
criminal history is not dispositive, it is relevant to the probable cause inquiry.” (citation
omitted)); United States v. Grossman, 400 F.3d 212, 218 (4th Cir. 2005) (noting that criminal
history and suspicious explanations and behavior are relevant factors in probable cause
determination); United States v. Artez, 389 F.3d 1106, 1114 (10th Cir. 2004) (“[C]riminal
history, combined with other factors, can support a finding of reasonable suspicion or probable
cause.”); cf. Commonwealth v. Smith, 281 Va. 582, 591, 709 S.E.2d 139, 143 (2011) (prior
criminal history is “highly relevant” to determining if law enforcement had reasonable suspicion
for a search). Viewed in their totality, these facts plainly provided a fair probability that
-4- contraband would be found in the vehicle. Accordingly, because the trooper had probable cause
for the search of Al-Hayani’s rental vehicle, the trial court did not err in denying the motion to
suppress.
III. CONCLUSION
The trial court did not err in denying appellant’s motion to suppress. Accordingly, we
affirm the conviction.
Affirmed.
-5-