                                             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UNPUBLISHED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

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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

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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

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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.




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