COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Friedman, Frucci and Senior Judge Humphreys Argued at Fredericksburg, Virginia
NATHAN ELMORE THOMAS MEMORANDUM OPINION* BY v. Record No. 1213-23-4 FRANK K. FRIEDMAN SEPTEMBER 3, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY James E. Plowman, Jr., Judge
Alan J. Cilman for appellant.
Robert D. Bauer, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Following a jury trial, the trial court convicted Nathan Elmore Thomas of transporting five
or more pounds of marijuana into the Commonwealth in violation of Code § 18.2-248.01 and
possessing with the intent to distribute five or more pounds of marijuana in violation of Code
§ 18.2-248.1. The trial court sentenced Thomas to ten years of imprisonment, with six years and six
months suspended, and fines of $85,000. Thomas argues that the trial court erred in denying his
motions to suppress, refusing to dismiss the charges because of improper trial testimony, and
sentencing him unlawfully. He also objects to various aspects of federal law enforcement’s
involvement in the case and the trial court’s refusal to dismiss the charges. Finding no trial court
error, we affirm the judgment.
* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1
The interdiction operation of United Airlines flight 2064 from Los Angeles
On October 12, 2021, a federal Drug Enforcement Agency (DEA) task force team at
Dulles Airport in Loudoun County screened luggage arriving at the airport on a flight from Los
Angeles; this process is called an “interdiction operation.” The task force chose that flight
because narcotics are typically trafficked on flights traveling west to east. Officer Patrick Briant,
also a member of the Fairfax County police, was the handler for a trained drug detection dog,
Storm.2 Officer Briant used Storm to sniff the bags on the conveyor belt outside the baggage
retrieval area as each piece of luggage was loaded from the plane onto the belt.
Storm alerted to two suitcases belonging to Thomas. Both bags had luggage tags bearing
Thomas’ name. Detective Janet Yonkers3 observed Thomas retrieve one of those bags from the
conveyor belt in the baggage claim area. Detective Yonkers approached Thomas, produced her
badge, and asked for his boarding pass and to speak with him. Detective Yonkers advised
Thomas about the dog’s alert on the bag and asked if he had any drugs or large sums of currency.
Thomas said no, then refused the officer’s request to search the bag. Detective Yonkers
explained that Thomas was being detained, “there would be a search warrant” for the bag, and
1 On appeal, “we review the evidence in the ‘light most favorable’ to the Commonwealth.” Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc) (quoting Commonwealth v. Hudson, 265 Va. 505, 514 (2003)). That principle requires us to “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.” Kelly v. Commonwealth, 41 Va. App. 250, 254 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va. App. 335, 348 (1998)). 2 Officer Briant testified that he was the only police officer trained to work with Storm. Storm was certified to identify marijuana, cocaine, ecstasy, heroin, and methamphetamine by smell. 3 Detective Yonkers, of the Arlington County police and DEA task force, was working with Officer Briant in the interdiction at Dulles Airport on October 12, 2021. -2- that Thomas “could just really sit over in one of the seated areas.” Thomas “asked for his
attorney” but did not provide the name or contact information of an attorney.4 The police
retrieved Thomas’ other bag from the carousel. Thomas was seated, but unrestrained, during the
wait for a search warrant for the luggage. For Thomas’ privacy, the police moved him and his
bags to a walled area that was still accessible to the public.
The search warrant and subsequent search of Thomas’ bags
Corporal Michael Austin of the Metropolitan Washington Airports Authority (“MWAA”)
applied for, and obtained, a search warrant to search Thomas’ bags. Corporal Austin stated that
Officer Briant was partnered with Storm on the first page of the affidavit but erroneously stated
that “your affiant”—being Corporal Austin—was partnered with Storm on a subsequent page.
The search took place at 9:42 p.m. in a seating area near a back wall in the baggage
claim. Thomas was not handcuffed. There were at least four other DEA agents “essentially just
standing around.” As the officers removed items from his luggage, Thomas commented, “It’s
Delta-8” or “It’s only Delta-8.”5 Officer Briant testified that Thomas’ comment was a
“spontaneous utterance[]” and was not in response to any question posed to him by a law
enforcement officer.6 Thomas’ luggage contained “minimal clothing.” The luggage also
contained sheets of a yellow substance later determined to be THC wax slabs. There were also
4 Officer Briant’s report noted that Thomas asked for his attorney, but Detective Yonkers testified that she did not recall Thomas asking for an attorney. Officer Briant testified that due to concerns for officer safety and destruction of evidence, suspects are “typically” not allowed to use a phone while in investigative detention. 5 “Delta-8” is a compound derived from a hemp plant that is similar in appearance to marijuana but is legal to grow. 6 At the suppression hearing, Officer Briant indicated Thomas also said that the police “would be sorry because [they] didn’t know what [they] were looking at” and “didn’t know what [they] were doing.” These comments were not introduced into evidence at trial, so any consideration of their admissibility is moot. See Jenkins v. Commonwealth, 244 Va. 445, 452 (1992). -3- jars containing purchased material. Scientific testing determined that the items seized from
Thomas’ bags contained marijuana and had a combined weight of more than five pounds.
Testifying as an expert in the use, packaging, and distribution of narcotics, Officer Briant
described the potency and potential uses for the THC wax product found in Thomas’ bags and
opined that possession of these items was inconsistent with personal use.
The suppression hearing
Thomas moved to suppress the items seized in the search of his bags. The motion was set
to be heard on September 19, 2022. Thomas’ counsel issued subpoenas for several members of
the task force for that hearing. The United States removed the subpoenas to the federal district
court pursuant to 28 U.S.C. § 1442. The trial court removed the suppression hearing from the
docket.
On November 15, 2022, Thomas moved to suppress the statements he made during the
search of his luggage. That motion, along with the earlier motion seeking suppression of the
evidence seized, was heard on January 3, 2023. Thomas did not subpoena witnesses for the
January 2023 hearing.7 The trial court denied Thomas’ motion to suppress his statements. The
trial court found that Thomas made his statements in response to officers removing a package
from his luggage during their search. The court further found that the police did not violate
Thomas’ Miranda8 rights when they did not allow him to contact an attorney during his
detention. The court also found that the search of his luggage was not designed to elicit a
response from Thomas and his statements were voluntary.
The trial court denied Thomas’ motion to suppress the evidence seized from his luggage.
The court found that the search warrant appropriately limited the scope of search to “drugs [and]
7 Officer Briant and Detective Yonkers still appeared at the hearing. 8 Miranda v. Arizona, 384 U.S. 436 (1966). -4- any amount of marijuana that might be illegal.” The trial court found no problem with the
affidavit for the search warrant, finding that, when read as a whole, it clearly identified Officer
Briant as Storm’s handler. The court concluded that Storm’s sniff of Thomas’ bags provided
sufficient probable cause for the officers to obtain a search warrant for the bags.
Pretrial motions to dismiss
Thomas moved to dismiss the case for “selective enforcement” and “selective
prosecution.” Prior to the hearing, Thomas’ counsel once again issued subpoenas for DEA
agents. None of those subpoenas were issued in accordance with the governing Code § 19.2-272
et seq. On January 13, 2023, the United States removed the subpoenas to the United States
District Court for the Eastern District of Virginia and moved to quash them.
At the hearing on January 17, 2023, Thomas’ counsel conceded that he elected not to
comply with the federal regulations regarding production or disclosure of information held by
the Department of Justice. The trial court ruled that Thomas could rely on the Commonwealth’s
subpoenas for federal officers that were issued for the trial. The trial court concluded that the
DEA is “taken out of the equation” when the Commonwealth’s Attorney elects to pursue charges
based on information provided to them by the DEA. The trial court found that the federal
government lacks the discretion to determine “what gets prosecuted at the state level” and that a
local Commonwealth Attorney’s discretion whether to prosecute acts as a “buffer” against
federal influence. The trial court denied both motions to dismiss.
The federal district court quashed Thomas’ subpoenas on January 18, 2023, reasoning
that “the state court in this action lacks the jurisdiction to compel federal employees who are
acting pursuant to agency direction to testify through subpoena.” After that ruling, Thomas filed
a new motion to dismiss in the trial court on January 23, 2023, and the court held a hearing on
the motion on January 26, 2023. The trial court again denied Thomas’ motion to dismiss,
-5- finding that information on topics other than the witnesses’ knowledge of the encounter with
Thomas was not relevant here.
A jury convicts Thomas
At trial, Thomas asserted that the search warrant was invalid because Officer Briant did
not advise Corporal Austin, who prepared the search warrant affidavit, that Storm had alerted in
situations where no illegal substances were found. Thomas suggested that the magistrate made
the probable cause determination with incomplete information. The Commonwealth objected
that Thomas should have raised the issue in a pretrial motion to suppress. The trial court denied
the motion without further comment.
Also, during the trial, Thomas objected to a portion of Detective Yonkers’ testimony that
he refused to consent to a search of the bag. He moved to dismiss the case, arguing that he had
“a right not to consent to a search, and it’s prejudicial and I don’t think it should have been
broached.” The trial court denied the motion but offered to give a curative instruction. Thomas
did not request such an instruction at that time.
The jury convicted Thomas of the two charged offenses. Thomas moved for a new trial,
challenging the constitutionality of the sentence for his convictions. The trial court denied that
motion.
ANALYSIS
I. The Trial Court Did Not Err In Denying Thomas’ Motion To Suppress His Voluntary Statement
Thomas argues that the trial court erred in denying the motion to suppress his statement that
his luggage contained “Delta-8.” Emphasizing how long the police detained him while they
obtained a search warrant, Thomas contends that the police subjected him to custodial
interrogation after he invoked his right to an attorney.
-6- “In reviewing the denial of a motion to suppress, we ‘consider the facts in the light most
favorable to the Commonwealth, the prevailing party at trial.’” Aponte v. Commonwealth, 68
Va. App. 146, 156 (2017) (quoting Hairston v. Commonwealth, 67 Va. App. 552, 560 (2017)).
“It is the appellant’s burden to show that when viewing the evidence in such a manner, the trial
court committed reversible error.” Id. (quoting Hairston, 67 Va. App. at 560).
“The principle is now well-established that, pursuant to the Fifth Amendment of the
United States Constitution, law enforcement officers must inform a suspect in a custodial
interrogation of certain rights, including the right to remain silent and to have the assistance and
presence of legal counsel during the interrogation.” Bass v. Commonwealth, 70 Va. App. 522,
539-40 (2019) (quoting Stevens v. Commonwealth, 283 Va. 296, 302 (2012)). If a suspect
waives his right to an attorney after he has received Miranda warnings, the police “are free to
interrogate him, but if the suspect requests counsel at any time during the interrogation, the
interrogation must cease until an attorney has been made available to the suspect or the suspect
reinitiates the interrogation.” Id. at 540 (quoting Commonwealth v. Redmond, 264 Va. 321, 328
(2002)); see also Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
“Edwards held that when an accused, during a custodial interrogation, invokes the right
to have counsel present, the police may not resume the interrogation until the individual
re-initiates communications and waives his right to counsel.” Tipton v. Commonwealth, 18
Va. App. 832, 834 (1994). But “[t]he Edwards rule has not been expanded to include
non-custodial demands for an attorney . . . .” Id.; see also Webber v. Commonwealth, 26
Va. App. 549, 558 (1998). Thus, whether Thomas faced custodial police interrogation is a
threshold issue to the claim on appeal.
In Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980), the United States Supreme Court
found that, in the context of Miranda, interrogation includes police communication that is the
-7- functional equivalent of questioning. “Words or actions constitute the functional equivalent of
questioning when the officers should know their communication is ‘reasonably likely to elicit an
incriminating response from the suspect.’” Thomas v. Commonwealth, 72 Va. App. 560, 579-80
(2020) (quoting Timbers v. Commonwealth, 28 Va. App. 187, 195 (1998)). We must determine
“whether an objective observer would view an officer’s words or actions as designed to elicit an
incriminating response.” Timbers, 28 Va. App. at 195 (quoting Blain v. Commonwealth, 7
Va. App. 10, 15 (1988)).
The record supports the trial court’s finding that the police did not subject Thomas to
interrogation or its functional equivalent to prompt his remark, regardless of the time it took for the
police to get the search warrant. There was no evidence that the police questioned Thomas. As
Officer Briant testified, Thomas’ comment about Delta-8 was a spontaneous remark and not a
response to any question by the police. Thomas simply volunteered the comment while the police
searched his luggage. “Because volunteered statements of any kind do not implicate the Fifth
Amendment, they are unaffected by Miranda’s precautionary evidentiary rules.” Thomas, 72
Va. App. at 578. Nor is there “a constitutional privilege against inadvertent self-incrimination.”
Id. For these reasons, the trial court did not err in refusing to suppress Thomas’ statement.9
Having concluded that Thomas was not subjected to custodial police interrogation, we
need not examine whether he invoked his right to counsel. See Commonwealth v. White, 293 Va.
9 Thomas also appears to contend that the trial court erred in denying the motion to suppress his statement because he invoked his right to counsel under the Sixth Amendment. But “the Sixth Amendment right to counsel does not attach prior to initiation of adversarial proceedings.” Lafon v. Commonwealth, 17 Va. App. 411, 422 (1993) (citing United States v. Gouvia, 467 U.S. 180, 188 (1984)). “The Sixth Amendment right to counsel does not attach during the investigation of a crime, even when the suspect has retained counsel.” Id. (citing Hummel v. Commonwealth, 219 Va. 252, 256-57 (1978)). No adversarial proceeding against Thomas had been initiated at the time he commented about his bag containing Delta-8. Thus, we find no merit to Thomas’ Sixth Amendment claim. -8- 411, 419 (2017) (recognizing that “judicial restraint dictates that we decide cases on the best and
narrowest grounds available” (quoting Commonwealth v. Swann, 290 Va. 194, 196 (2015))).
II. The Trial Court Did Not Err In Denying Thomas’ Motion To Suppress The Evidence Seized During The Search Of Thomas’ Bags
A. The Dog Sniff
Thomas contends that his Fourth Amendment rights were violated when Storm sniffed
his luggage and alerted for narcotics. He maintains that the police, without justification,
conducted a general search using Storm to sniff the baggage from the Los Angeles flight. We
disagree.
“The law is well established that a canine sniff, standing alone, is not a search for
purposes of the Fourth Amendment.” Sanders v. Commonwealth, 64 Va. App. 734, 753 (2015).
In United States v. Place, 462 U.S. 696, 707 (1983), the United States Supreme Court “affirmed
that a person possesses a privacy interest in the contents of personal luggage that is protected by
the Fourth Amendment.” But
[a] “canine sniff” by a well-trained narcotics detection dog . . . does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.
Id.; see also Illinois v. Caballes, 543 U.S. 405, 409 (2005) (use of a narcotics detecting dog
during a lawful traffic stop seldom implicates legitimate privacy interests). The Court concluded
that “exposure of respondent’s luggage, which was located in a public place, to a trained canine”
-9- was not a “‘search’ within the meaning of the Fourth Amendment.” Place, 462 U.S. at 707.
Upon this well-established authority, the trial court did not err in finding that the police did not
search Thomas’ luggage by having Storm sniff it.
B. Search Warrant
Thomas challenges the trial court’s denial of his motion to suppress evidence that the
police seized after obtaining the warrant and searching his luggage. Thomas asserts that the
search warrant “obtained in this case violated each of the requirements delineated in United
States v. Leon,” 468 U.S. 897 (1984). In Leon, “‘the United States Supreme Court established a
good-faith exception to the exclusionary rule, applicable when a search is conducted pursuant to
a warrant subsequently determined to be defective for Fourth Amendment purposes,’ and
‘outlined four circumstances in which the good-faith exception to the exclusionary rule would
not apply.’” Midkiff v. Commonwealth, 54 Va. App. 323, 330 (2009) (quoting Ward v.
Commonwealth, 273 Va. 211, 222 (2007)), aff’d on other grounds, 280 Va. 216 (2010). We do
not conclude that the search warrant was “defective for Fourth Amendment purposes,” thus we
need not reach the question of whether the Leon good-faith exception applies here.
“[W]here the police conduct a search pursuant to a judicially sanctioned warrant, the
defendant must rebut the presumption of validity by proving that the warrant is illegal or
invalid.” Brown v. Commonwealth, 68 Va. App. 517, 524 (2018) (alteration in original) (quoting
Lebedun v. Commonwealth, 27 Va. App. 697, 711 (1998)). “When reviewing a question of
probable cause, appellate courts consider ‘only those sworn, written facts stated in the search
warrant affidavit’ as well as ‘information simultaneously presented to a magistrate by sworn oral
testimony’ or in ‘supplemental affidavits.’” Id. (quoting Adams v. Commonwealth, 275 Va. 260,
270 (2008)). “In determining whether the affidavit[] [is] sufficient to support the search warrant,
[appellate courts] must look to the totality of the circumstances.” Id. (third alteration in original)
- 10 - (quoting Derr v. Commonwealth, 242 Va. 413, 421 (1991)). “Viewing an affidavit’s facts in
their totality, ‘[t]he task of the issuing magistrate is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit before him . . . there is a
fair probability that contraband or evidence of a crime will be found in a particular place.’” Id. at
525 (alterations in original) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
“[T]he duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial
basis for . . . [concluding]’ that probable cause existed.” Id. (all but first alteration in original)
(quoting Gates, 462 U.S. at 238-39). On review of this issue, we “must grant ‘great deference’
to the magistrate’s interpretation of the predicate facts supporting the issuance . . . and to the
determination of whether probable cause supported the warrant.” Cunningham v.
Commonwealth, 49 Va. App. 605, 612-13 (2007) (alteration in original) (quoting Janis v.
Commonwealth, 22 Va. App. 646, 652, aff’d upon reh’g en banc, 23 Va. App. 696 (1996)).
Officer Michael Austin signed the affidavit to obtain a search warrant for Thomas’
luggage. In the affidavit, Officer Austin detailed both his and Officer Briant’s training,
qualifications, and experience in law enforcement. The affidavit stated:
Detective P. C. Briant is currently the handler of a Controlled Substance Detection Canine, a German Shepherd by the name of Storm. He and Canine partner Storm were trained by the United States Customs and Border Protection Canine Program and have received basic training in the detection of odors of Cocaine and its derivatives, Marijuana and its derivatives, Heroin and its derivatives, Methamphetamine and its derivatives, and Ecstasy. He and Canine partner Storm were certified on December 12, 2018 by the United States Customs and Border Protection Canine Program as a controlled substance detection canine team and our certification was renewed on October 7, 2021, and remains current. As a result of this training, Canine Storm has been certified as reliable in the detection of odors of Cocaine and its derivatives, Marijuana and its derivatives, Heroin and its derivatives, Methamphetamine and its derivatives, and Ecstasy. On November 21, 2019, your Affiant and Canine partner Storm were certified by the North America Police Working Dog Association as a Narcotic Detection Team and our certification was renewed on September - 11 - 29, 2021 and remains current. . . . Detective P. C. Briant has worked exclusively with Canine Storm since October 2018 and is familiar with the trained responses of the canine with odors of Cocaine and its derivatives, Marijuana and its derivatives, Heroin and its derivatives, Methamphetamine and its derivatives, and Ecstasy.
(Emphases added). The affidavit further related that:
[o]n October 12, 2021, your Affiant, and other Task Force Officers with the Drug Enforcement Administration (DEA) were operating in the Airport Operation Area of the Dulles International Airport, focusing on baggage for United Airlines flight 2064 from Los Angeles, California to Dulles International Airport. During our operation, Detective P. C. Briant deployed his narcotic detection canine Storm on the baggage belt for baggage claim carousel number four (4) and observed an alert for the odor of narcotics [on two described suitcases].
The affidavit stated that the bags were identified as belonging to Thomas, who was detained at
the airport and did not consent to a search of the luggage. Officer Austin stated that he sought
the search warrant for the bags for drugs “[b]ased upon the alert of the Controlled Substance
Detection Canine Storm, a certified Controlled Substance Detection Canine, [and] the reading of
that alert by Detective P. C. Briant[.]” The affidavit also stated that Officer Briant advised that
his narcotics detection dog Storm had alerted for the odor of narcotics upon Thomas’ bags. The
search warrant, issued at 9:39 p.m. on October 12, 2021, authorized the police to search Thomas’
luggage for “Controlled substances, Marijuana, paraphernalia, and items/instrumentalities
associated with the use, distribution, and packaging of controlled substances and marijuana.”
The affidavit contained a misstatement that the affiant, Officer Austin, was Storm’s
handler. But, when read as a whole, the affidavit relates that Officer Briant, not Officer Austin,
was trained and certified with Storm, that Officer Briant worked exclusively with Storm, and that
in the drug interdiction operation Officer Briant recognized Storm’s signals of alert on Thomas’
bags.
- 12 - In Alvarez v. Commonwealth, 24 Va. App. 768, 775 (1997), we concluded that a drug
dog’s “hit” on a cardboard box in the cargo area of a bus at a public passenger terminal
established probable cause to believe that the box contained a controlled substance. Likewise, in
Quigley v. Commonwealth, 14 Va. App. 28, 34 (1992), this Court found that a drug dog’s alert to
the presence of contraband provided probable cause for an automobile search.
Consistent with these findings, and granting great deference to the magistrate’s
determination, we conclude that the affidavit provided probable cause to believe that drugs were
in the bags on which Storm alerted. Thus, the warrant was lawful and authorized the police to
search Thomas’ bags. Because the search warrant was not “defective for Fourth Amendment
purposes,” we need not consider whether the good-faith exception to the exclusionary rule
applied here.
III. The Trial Court Did Not Err When It Denied Thomas’ Motion To Dismiss
Thomas maintains that the trial court erred in denying his motion to dismiss the
proceedings because of the involvement of federal law enforcement authorities and a federal
court in the matter. He raises many complaints about the alleged initiation of the proceedings by
federal agents and a federal court’s quashing of witness subpoenas for hearings on pre-trial
motions. Thomas wholly fails to acknowledge the role of the Commonwealth in his prosecution,
which prosecuted the case after receiving the allegations from the federal task force and local
police.
A Loudoun County grand jury indicted Thomas for transporting more than five pounds of
marijuana into the Commonwealth with the intent to distribute and possessing more than five
pounds of marijuana with the intent to distribute. On June 3, 2022, Thomas moved to suppress
evidence as well as other motions. A hearing on the motion to suppress was scheduled for
September 19, 2022.
- 13 - On September 15, 2022, the United States Attorney filed a notice for the removal to
federal court of subpoenas for six DEA task force agents to appear at a motions hearing in
Loudoun County Circuit Court on September 19, 2022. The United States Attorney moved to
quash the subpoenas in federal court for Thomas’ failure to comply with regulations of the
Department of Justice in accordance with United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
The trial court held a hearing in the case on September 19, 2022. The transcript of that
hearing was not timely filed and is not a part of the record on appeal, so we may not consider it.
See Rule 5A:8. The order from the September 19, 2022 hearing suggests that the trial court
entertained and ruled on several motions, but not upon Thomas’ motion to suppress evidence.
On November 4, 2022, Thomas moved to dismiss the case based on the federal court’s
order granting the motion to quash the witness subpoenas. The federal court’s October 14, 2022
order granting the motion to quash, which Thomas attached as an exhibit to his motion to
dismiss, cited Touhy and stated that “the state court in this action does not have the authority to
compel the testimony of Drug Enforcement Administration task force members through
subpoena.”
On December 20, 2022, Thomas filed a “Motion to Dismiss for Selective Enforcement
and Selective Prosecution.” He maintained that the DEA was selectively prosecuting him
“because he [wa]s not a publicly traded corporation” that distributed marijuana, nor was he
authorized to distribute marijuana. Thomas claimed, “[T]he United States and its DEA are too
cowardly or too corrupt to enforce the Federal law against those with political and financial
power or against states[.]” He maintained that the “selective enforcement” of Virginia law on
marijuana was “based on politics” and the “selective prosecution of [Thomas] . . . violate[d] the
Constitutional requirement for equal justice[.]”
- 14 - At the start of a hearing on January 3, 2023, the trial court noted that the motions
scheduled to be heard that day were only Thomas’ motions to suppress and the November 4,
2022 motion to dismiss because the federal court had quashed the subpoenas. Thomas argued
that the trial court should dismiss the charges because he could not subpoena officers who were
involved in the investigation, the search, and the seizure of evidence. He maintained that he had
subpoenaed witnesses who were members of the DEA task force. Defense counsel asserted that
a federal court had ruled that the trial court did not have the authority to compel the testimony of
DEA members through subpoena. Defense counsel admitted that he refused to advise the federal
court of why the witnesses’ testimony was relevant to Thomas’ charges, as required by federal
regulation. The Commonwealth contended that the defense had failed to follow the proper
procedures under Touhy to secure the attendance of the witnesses. The trial court denied the
motion to dismiss, finding that the defense had not complied with federal regulations to obtain
the presence of the witnesses by subpoena. In addition, the trial court noted that Thomas had not
proffered the witness testimony, so the court had no way to determine whether “these people
really had anything to say or not.”
The trial court then held an evidentiary hearing on Thomas’ motions to suppress his
statement and the evidence seized by the police. Officer Briant testified for the Commonwealth
and was cross-examined by Thomas. Thomas then called Detective Yonkers to testify. The
record does not reflect that Thomas tried to subpoena any witnesses for the January 3, 2023
hearing. After hearing the evidence and argument, the trial court denied the motions to suppress.
At a later hearing on the selective enforcement issue, Thomas asserted that a motion was
pending in federal court to quash his subpoenas for witnesses to appear that day. He maintained
that large corporations were producing marijuana, but the laws on marijuana were not enforced
against them. The trial court asked Thomas what evidence he would have elicited from the
- 15 - witnesses he had attempted to subpoena. Defense counsel said that he did not know. The trial
court noted that it was Virginia law enforcement, not the DEA, that elects whether to pursue
charges in courts of the Commonwealth. The trial court observed that Officer Briant, while also
a member of the DEA task force, was an officer of the Fairfax County police. The trial court
ruled that the election to prosecute Thomas was within the discretion of the Commonwealth’s
Attorney and denied his motion to dismiss for selective enforcement.
To the extent that Thomas claims on appeal that the ruling of the federal court concerning
the witness subpoenas violated his right to compulsory process, he proffered no evidence that he
was prevented from presenting. Indeed, in the trial court, Thomas said that he did not know what
the content of the witnesses’ testimony would be. “Error may not be predicated upon admission
or exclusion of evidence, unless . . . the substance of the evidence was made known to the court
by proffer.” Murray v. Commonwealth, 71 Va. App. 449, 458 (2020) (alteration in original)
(quoting Va. R. Evid. 2:103); see Massey v. Commonwealth, 67 Va. App. 108, 132 (2016) (“The
failure to proffer the expected testimony is fatal to [the] claim on appeal.” (alteration in
original)).
In addition, Thomas’ various arguments rest on his claim that the charges were “initiated”
by the DEA and should have been brought in federal court. We disagree. Although they were
also affiliated with the DEA, law enforcement officers from Virginia localities were involved in
the interdiction, as well as the search and seizure of evidence from Thomas’ luggage at Dulles
Airport. A Loudoun County grand jury indicted Thomas for violating Virginia law. “[I]t is well
established that the choice of offenses for which a criminal defendant will be charged is within
the discretion of the Commonwealth’s Attorney.” Barrett v. Commonwealth, 268 Va. 170, 178
(2004) (quoting Barrett v. Commonwealth, 41 Va. App. 377, 391 (2003)). “Indeed, ‘the
institution of criminal charges, as well as their order and timing, are matters of prosecutorial
- 16 - discretion.’” Id. (quoting Barrett, 41 Va. App. at 391). We find no abuse of discretion in the
institution of criminal charges against Thomas.
IV. The Trial Court Did Not Err In Overruling His Objection To Officer Briant’s Comment That Thomas Refused Consent To Search His Bag
Thomas argues that the trial court erred in overruling his objection to Officer Briant’s
comment at trial that Thomas refused consent to search his luggage. “Appellate courts review
evidentiary rulings under an abuse of discretion standard.” Campos v. Commonwealth, 67 Va. App.
690, 702 (2017) (quoting Boone v. Commonwealth, 63 Va. App. 383, 388 (2014)). “Under this
deferential standard, a ‘trial judge’s ruling will not be reversed simply because an appellate court
disagrees;’ only in those cases where ‘reasonable jurists could not differ’ has an abuse of discretion
occurred.” Id. (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted upon reh’g en
banc, 45 Va. App. 811 (2005)).
Even if we assume arguendo that the trial court erred in overruling Thomas’ objection,
the admission of Officer Briant’s comment that Thomas refused consent to search his luggage
does not necessarily constitute reversible error. “We must reverse a criminal conviction unless it
plainly appears from the record and the evidence given at the trial that the error did not affect the
verdict.” Cairns v. Commonwealth, 40 Va. App. 271, 286 (2003). “An error does not affect the
verdict if we can determine, without usurping the [fact finder’s] . . . function, that, had the error
not occurred, the verdict would have been the same.” Id. “[I]f the evidence admitted in error
was merely cumulative of other, undisputed evidence, we may still conclude that the error did
not affect the verdict.” Perry v. Commonwealth, 58 Va. App. 655, 672 (2011) (quoting
Ferguson v. Commonwealth, 16 Va. App. 9, 12 (1993)).
The evidence at trial was uncontroverted that the police searched Thomas’ bags after
obtaining a search warrant. And the evidence that Thomas possessed the two bags and knew of
their contents was overwhelming. Both bags bore luggage tags with Thomas’ name, and he - 17 - claimed one from the baggage carousel. When the police opened the bags, Thomas commented
that they contained Delta-8, a hemp product. Considering all the circumstances, we conclude
that any possible error in the trial court’s ruling did not affect the verdict and was harmless.
V. Thomas’ Sentence Was Not Unconstitutional
The trial court denied Thomas’ post-trial motion arguing that the terms of imprisonment
defined by Virginia law constituted unconstitutional cruel and unusual punishment. Thomas
challenges this ruling on appeal.
“We review the trial court’s sentence for abuse of discretion.” Scott v. Commonwealth,
58 Va. App. 35, 46 (2011). “[W]hen a statute prescribes a maximum imprisonment penalty and
the sentence does not exceed that maximum, the sentence will not be overturned as being an
abuse of discretion.” Minh Duy Du v. Commonwealth, 292 Va. 555, 564-65 (2016) (quoting
Alston v. Commonwealth, 274 Va. 759, 771-72 (2007)).
The sentence the trial court imposed was within the ranges set by the legislature. See
Code §§ 18.2-248.01, -248.1. It was within the trial court’s purview to consider any mitigating
factors in determining Thomas’ sentence. Keselica v. Commonwealth, 34 Va. App. 31, 36
(2000). “[O]nce it is determined that a sentence is within the limitations set forth in the statute
under which it is imposed, appellate review is at an end.” Thomason v. Commonwealth, 69
Va. App. 89, 99 (2018) (quoting Minh Duy Du, 292 Va. at 565). Here, Thomas’ sentence was
within the statutory range, so “our task is complete.” Id.
In addition, this Court declines to engage in a proportionality review in cases that do not
involve life sentences without the possibility of parole. Cole v. Commonwealth, 58 Va. App.
642, 653-54 (2011). We noted in Cole that the Supreme Court of the United States “has never
found a non-life ‘sentence for a term of years within the limits authorized by statute to be, by
itself, a cruel and unusual punishment’ in violation of the Eighth Amendment.” Id. at 653
- 18 - (quoting Hutto v. Davis, 454 U.S. 370, 372 (1982) (per curiam)). Cf. Vasquez v. Commonwealth,
291 Va. 232, 243 (2016) (rejecting Eighth Amendment challenge to 133-year active sentence
because the sentence was imposed for “eighteen separate crimes”).
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
Affirmed.
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