Thomas v. Commonwealth

1

NATHAN ELMORE THOMAS v. COMMONWEALTH OF VIRGINIA

No. 1213-23-4

Court of Appeals of Virginia

September 3, 2024

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.

Present: Judges Friedman, Frucci and Senior Judge Humphreys Argued at Fredericksburg, Virginia

MEMORANDUM OPINION ^[*]

FRANK K. FRIEDMAN JUDGE

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.

BACKGROUND^[1]

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 Yonkers^[3] 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 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 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' Miranda^[8] 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] 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, 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.

"In reviewing the denial of a motion to suppress, we 'consider...