Kurupt Mahdi v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 4, 2024
• Docket: 0545231
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Huff, Malveaux and White Argued at Norfolk, Virginia

KURUPT MAHDI MEMORANDUM OPINION* BY v. Record No. 0545-23-1 JUDGE KIMBERLEY SLAYTON WHITE JUNE 4, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Mary Jane Hall, Judge1

J. Barry McCracken, Assistant Public Defender, for appellant.

Jessica M. Bradley, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Following a bench trial, the trial court convicted Kurupt Mahdi of possessing a stun weapon

after conviction of a felony and eluding the police, in violation of Code §§ 18.2-308.2(A) and

46.2-817(A). The trial court sentenced Mahdi to two years and six months of imprisonment with

one year and six months suspended. Mahdi argues that the trial court erred in denying his motion to

suppress the evidence because the police lacked probable cause to search his vehicle without a

warrant. We find no trial court error and affirm the judgment.

BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the

light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v.

Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Judge Tasha D. Scott ruled on Mahdi’s motion to suppress the evidence, which is the subject of this appeal. Judge Mary Jane Hall presided at Mahdi’s trial and sentencing. (2016)). In doing so, we discard any of Mahdi’s conflicting evidence, and regard as true all

credible evidence favorable to the Commonwealth and all inferences that may reasonably be

drawn from that evidence. Id. at 473. “When considering whether to affirm the denial of a

pretrial suppression motion, an appellate court reviews not only the evidence presented at the

pretrial hearing but also the evidence later presented at trial.” Commonwealth v. White, 293 Va.

411, 414 (2017).

While on patrol on March 24, 2022, Norfolk Police Officers Labat and Martinson learned

of an active felony arrest warrant for Mahdi, who was the registered owner of a black Nissan that

they saw stopped on the street. They learned of this arrest warrant by running the tags of the

Nissan while it was parked. Officer Labat turned his police vehicle around, stopped behind the

Nissan, and activated his emergency lights. As he walked toward the Nissan, Officer Labat saw

Mahdi, whom the officer recognized from a Department of Motor Vehicles photograph, in the

driver’s seat. Before Officer Labat reached the driver’s door of the car, however, Mahdi sped

away. Officer Labat returned to his police unit and pursued Mahdi. During the pursuit, a front

seat passenger jumped out of Mahdi’s moving car and fled on foot.

After a short distance, Mahdi lost control of the car and it stopped in a grassy area beyond

the curb on the sidewalk. After Mahdi got out of the car while it was still running and closed the

driver’s door, the officers handcuffed Mahdi and advised him that there was a warrant for his

arrest. Mahdi informed the officers that the car was not in park. While his partner kept Mahdi in

physical custody, Officer Labat opened the driver’s door of the Nissan, then manipulated the

gear shift, placed the car in park, and turned off the ignition. Officer Labat then left the inside of

the car. A short time later, Officer Labat shone his flashlight through the open passenger side

window. On the front passenger seat, Officer Labat saw an orange or red glassine baggie

containing small pieces of an off-white rock-like substance that he believed to be crack cocaine. -2- Officer Labat testified that he believed the substance was crack cocaine as a result of his training

and experience. Through his radio, Officer Labat alerted police dispatch to the presence of

suspected narcotics in the car.

Officer Labat decided to search the car based upon his training and experience. He stated

that “when you see narcotics inside the vehicle, especially when somebody runs, there’s likely to

be more narcotics in the vehicle.” Officer Labat also concluded that Mahdi’s car must be towed

and impounded since no other driver was available to move it and the car was illegally parked

over the curb.

Officer Labat returned to his police car and confirmed the validity of the warrant for

Mahdi’s arrest. Officer Labat then searched Mahdi’s car. In the center console the officer found

several baggies of suspected marijuana and a blue Vipertek stun weapon. The suspected

narcotics were not retrieved until Labat was conducting his thorough search of the vehicle in

which he found the “stun weapon” which was the basis for the felony conviction giving rise to

this appeal. There was also a concealed machete found in the back seat of the vehicle. Officer

Labat did not recall completing an inventory form as required by police department policy for a

search preceding impoundment of a vehicle.

The officer authenticated a short portion of a video as being from his body camera that

recorded the events starting from the point of the initial decision to approach Mahdi’s vehicle;

the Commonwealth placed the first portion, approximately 4 minutes and 10 seconds, of a

14-minute video into evidence. The video did not depict the subsequent search of the vehicle

that led to the discovery of the items sought to be suppressed.

-3- Mahdi filed a motion to suppress on September 16, 2022, which the court denied. While

the court did find that Officer Labat did not conduct a valid inventory search,2 it denied the

motion to suppress based on the “plain view doctrine.” The court explained:

It appears from the testimony from the officer as well as the behavior shown on the video [–] the immediate calling it in as a code of 174 [–] that . . . the officer believed [it] to be, suspected [it] to be narcotics[;] it was apparent from the video. And as we know with plain view, there’s no expectation of privacy in items that are in plain view.

And that did happen. He didn’t manipulate the car door or anything else as seen by the Court in the video in order to get a view of the baggie that he believed had suspected narcotics.

Denying Mahdi’s motion to suppress, the trial court found that Officer Labat observed

the suspected drugs in plain view in Mahdi’s car, thus providing the police with probable cause

to search the vehicle. The trial court convicted Mahdi of possessing the stun weapon after

conviction of a felony, carrying a sentence of two years of incarceration with one year

suspended, and eluding the police.3 This appeal followed.

ANALYSIS Mahdi maintains that the police violated his Fourth Amendment rights when they

searched his vehicle and discovered the stun weapon.4 “On appeal of the denial of a motion to

suppress, we view the evidence in the light most favorable to the Commonwealth.” Jones v.

Commonwealth, 71 Va. App. 375, 380 (2019) (quoting Carlson v. Commonwealth, 69 Va. App.

749, 757 (2019)). “[W]hen a defendant challenges the denial of a motion to suppress, he has the

burden to show that the trial court’s ruling constituted reversible error.” Adams v.

2 The inventory search was found invalid because Officer Labat did not complete a Form 924 as required by the police department’s policies. 3 On appeal, Mahdi does not challenge his conviction of eluding the police. 4 Mahdi does not argue that the stop of his vehicle violated his Fourth Amendment rights. -4- Commonwealth, 48 Va. App. 737, 745 (2006). “Since the constitutionality of a search and

seizure under the Fourth Amendment involves questions of law and fact, we give deference to

the factual findings of the trial court but independently decide whether, under the applicable law,

the manner in which the challenged evidence was obtained satisfies constitutional requirements.”

Jackson v. Commonwealth, 267 Va. 666, 672 (2004).

The Fourth Amendment protects “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

“The Fourth Amendment prohibits only unreasonable searches and seizures.” Thompson v.

Commonwealth, 54 Va. App. 1, 7 (2009) (quoting James v. Commonwealth, 22 Va. App. 740,

745 (1996)). “Warrantless searches, of course, are per se unreasonable, subject to a few

well-defined exceptions.” Moore v. Commonwealth, 69 Va. App. 30, 36 (2018) (quoting Abell v.

Commonwealth, 221 Va. 607, 612 (1980)). These “well-defined exceptions” include (1) consent,

(2) search incident to lawful arrest, (3) plain view, and (4) exigent circumstances. Collins v.

Commonwealth, 292 Va. 486, 497 (2016).

The Supreme Court of the United States has repeatedly “held that the search of an

automobile can be reasonable without a warrant.” Collins v. Virginia, 584 U.S. 586, 601 (2018).

As a result, given “the impracticability of securing a warrant in cases involving the transportation

of contraband goods,” the Supreme Court has held that a warrantless search of an automobile

supported by probable cause does not violate the Fourth Amendment. United States v. Ross, 456

U.S. 798, 806 (1982); see also California v. Acevedo, 500 U.S. 565, 580 (1991) (the police may

search a vehicle, and containers within it, without a warrant if they have probable cause to

believe the vehicle contains contraband). “The right to search and the validity of the seizure . . .

are dependent on the reasonable cause the seizing officer has for belief that the contents of the

automobile offend against the law.” Chambers v. Maroney, 399 U.S. 42, 49 (1970) (quoting -5- Carroll v. United States, 267 U.S. 132, 158-59 (1925)). Simply stated, under the “automobile

exception,” an officer may search a vehicle without first obtaining a warrant authorizing the

search when there is probable cause to believe that the vehicle contains evidence of criminal

activity. Arizona v. Gant, 556 U.S. 332, 347 (2009). The test is whether the officer conducting

the search had probable cause under the totality of the circumstances, including the “officer’s

knowledge, training and experience.” Cost v. Commonwealth, 275 Va. 246, 251 (2008).

Probable cause, “as the very name implies, deals with probabilities.” Slayton v.

Commonwealth, 41 Va. App. 101, 105 (2003) (quoting Derr v. Commonwealth, 242 Va. 413,

421 (1991)). It does not “demand any showing that such a belief be correct or more likely true

than false.” Id. at 106 (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)). The “very phrase

‘probable cause’ confirms that the Fourth Amendment does not demand all possible precision.”

Herring v. United States, 555 U.S. 135, 139 (2009). “Perhaps the best that can be said generally

about the required knowledge component of probable cause for a law enforcement officer’s

evidence search is that it raises a ‘fair probability’ or a ‘substantial chance’ of discovering

evidence of criminal activity.” Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 371

(2009) (quoting Illinois v. Gates, 462 U.S. 213, 238, 244 n.13 (1983)).

“The theory of the plain view doctrine is that an individual has no reasonable expectation

of privacy in items that are in plain view.” Daniels v. Commonwealth, 69 Va. App. 422, 435

(2018) (quoting Commonwealth v. Thornton, 24 Va. App. 478, 483 (1997)). Thus, “police

observation of objects in plain view does not implicate the Fourth Amendment so long as the

police are legitimately in the place where they viewed the objects.” Gibson v. Commonwealth,

50 Va. App. 744, 749 (2007). In order for a seizure to be permissible under the plain view

doctrine, two requirements must be met: “(a) the officer must be lawfully in a position to view

and seize the item, [and] (b) it must be immediately apparent to the officer that the item is -6- evidence of a crime, contraband, or otherwise subject to seizure.” Conway v. Commonwealth, 12

Va. App. 711, 718 (1991). Moreover, “[t]he use of [a] flashlight d[oes] not preclude the

application of the ‘plain view’ doctrine.” Derr v. Commonwealth, 6 Va. App. 215, 222 (1988)

(quoting Effler v. Rose, 535 F.2d 980, 981 (6th Cir. 1984)). If a police officer does nothing more

than use a flashlight to “illuminate what [the defendant] exposed to plain view,” Gibson, 50

Va. App. at 753, the use of the light does “not change the plain view nature of the discovery,” id.

at 754 (quoting People v. Clark, 261 Cal. Rptr 181, 183 (Cal. Ct. App. 1989)). And when the

police lawfully observe what they believe to be a controlled substance in plain view inside a

vehicle, they possess probable cause to search the car. See Fox v. Commonwealth, 213 Va. 97,

100 (1972).

“[P]olice observation of objects in plain view does not implicate the Fourth Amendment

so long as the police are legitimately in the place where they viewed the objects.” Gibson, 50

Va. App. at 749 (citing Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)). Here, Officer Labat

walked up to the Nissan’s passenger side, looked through the partially open window with his

flashlight, and immediately saw a bag of suspected crack cocaine in the front passenger seat.

Officer Labat did not touch the car to see it, but merely looked through the ajar window. “This

did not constitute a search but a simple observation by the officer of that which was open to plain

view.” Fox, 213 Va. at 100 (citing Miller v. United States, 356 F.2d 63 (5th Cir. 1966)).

After stopping Mahdi’s vehicle and interacting with him, Officer Labat reached into the

car to turn off the engine, but he did not remain within the car nor search the car. Officer Labat

later, while standing outside of the car, shone his flashlight through an open window into the

front passenger seat. These actions did not infringe upon Mahdi’s Fourth Amendment rights.

See Gibson, 50 Va. App. at 753. On the front passenger seat, in plain view, Officer Labat saw a

glassine bag containing a white rock-like substance. Mahdi argues that this was a mere -7- suspicion, but probable cause analysis is based on an officer’s experience and training. Officer

Labat, in the record, testified that he believed the substance to be crack cocaine because of this

training and experience.

The discovery of what Officer Labat suspected to be crack cocaine was merely a factor in

the equation that amounts to probable cause. Mahdi had fled from the officers, his passenger had

bailed out of the car during the chase, Mahdi himself left the car running, and there was an active

warrant out for his arrest. When looking at the totality of the circumstances presented to Officer

Labat, there was a “fair probability” or a “substantial chance” of discovering evidence of

criminal activity if he searched the vehicle. Safford Unified Sch. Dist. #1, 557 U.S. at 371

(quoting Gates, 462 U.S. at 238, 244 n.13). The discovery and subsequent seizure of the

suspected drugs was not the standalone cause of the search of the vehicle, but merely a factor in

a greater analysis. For these reasons, Officer Labat was justified in searching the car without a

warrant. “If there is probable cause to believe a vehicle contains” contraband, officers may

search “any area of the vehicle in which the [contraband] might be found.” Arizona v. Gant, 556

U.S. 332, 347 (2009). The officer discovered the stun weapon during the course of that lawful

search. Because the police lawfully searched Mahdi’s car and seized the stun weapon, the trial

court did not err in denying the motion to suppress.

CONCLUSION For the foregoing reasons, we affirm the trial court’s judgment.

Affirmed

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