COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bray Argued at Chesapeake, Virginia
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 2065-99-3 JUDGE RICHARD S. BRAY FEBRUARY 29, 2000 GEORGE WINSTON SAGE
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. Strauss, Judge
Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellant.
Jon I. Davey for appellee.
George Winston Sage (defendant) was before the trial court on
indictments alleging rape, forcible sodomy, attempted rape,
attempted forcible sodomy, and two counts of object sexual
penetration and aggravated sexual battery. Defendant successfully
moved the court to suppress evidence obtained during the execution
of two search warrants, arguing that the affidavit supporting the
initial warrant did not establish the requisite probable cause.
The Commonwealth appeals pursuant to Code § 19.2-398, contending
that the affidavit was sufficient but, if not, the "good faith
exception" saves the evidence from the operation of the
exclusionary rule. We agree and reverse the order.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. "It is well established that on appeal the burden is on the
appellant to show, considering the evidence in a light most
favorable to [defendant], that the [granting] of a motion to
suppress constitutes reversible error." Commonwealth v. Tart, 17
Va. App. 384, 390-91, 437 S.E.2d 219, 223 (1993). "Questions of
. . . probable cause to . . . search are subject to de novo review
on appeal. 'In performing such analysis, we are bound by the
trial court's findings of historical fact unless "plainly wrong"
or without evidence to support them[.]'" Archer v. Commonwealth,
26 Va. App. 1, 8, 492 S.E.2d 826, 830 (1997) (citations omitted).
I.
Pittsylvania County Detective Boyd Arnold, III, while
investigating a complaint that defendant, a convicted felon, had
sexually assaulted three minor girls, learned that defendant
possessed a "handgun." Acting on information obtained during
questioning of the mother (mother) and adult half-sister (sister)
of the alleged victims, Arnold secured a search warrant for
defendant's residence, supported, in pertinent part, by the
following affidavit:
During my investigation of [defendant] I was told by [mother] and [sister] that he was in possession of a handgun. The handgun was described as a semi-automatic pistol. [Mother] told me that [defendant] would carry the handgun on his person, kept in the vehicle, or in the house . . . . A criminal history check showed two felony convictions (05/18/83 & 01/14/85).
* * * * * * *
- 2 - The mother and . . . sister . . . have seen the handgun in the possession of [defendant] . . . . Both of them are adults and they described a handgun to me when I spoke with them on 09/30/98. [Mother] told me that she last saw the handgun about 2 months ago.
The informer's [sic] told me that they have known [defendant] for about 5-7 years and have seen the handgun in his possession. The informers appear to have some knowledge of what and how a handgun works. The informer's [sic] did not tell me anything about the handgun until I questioned them about it.
Upon execution of the warrant on October 21, 1998, police
discovered no guns but observed "children's underwear" and
various "cassette tapes" on the premises. Aware that the
victims had missed certain articles of underclothing after
"overnight visits" at defendant's home and that defendant had
been surreptitiously "recording [the] sexual relations" of other
houseguests, Arnold obtained and executed a second search
warrant, which resulted in the seizure of "children's panties"
and numerous cassette tapes.
In granting defendant's motion to suppress all evidence
resulting from both searches, the trial court determined that
"the statements . . . by the informants appear overly general,"
unsupported by "facts from which the Magistrate could determine
that at the time the warrant was issued, on October 19th, 1998,
there was any reasonable likelihood that a firearm would be
- 3 - located in the residence of the defendant" or "how [the
informants] knew the defendant 'carried the handgun on his
person . . . or [kept it] in the house.'" The court, therefore,
concluded that "the facts contained in the Affidavit . . .
failed to provide . . . the Magistrate . . . probable cause to
issue the search warrant." The court likewise rejected
application of the good faith exception established by United
States v. Leon, 468 U.S. 897 (1984), reasoning that "the warrant
was based on an Affidavit 'so lacking in indicia of probable
cause' as to render official belief in its existence
unreasonable[.]"
II.
Assuming, without deciding, that the affidavit failed to
provide the requisite probable cause, we, nevertheless, apply
the good faith exception of Leon to preclude operation of the
exclusionary rule. "'The exclusionary rule is designed to deter
police misconduct rather than to punish the errors of judges and
magistrates. In the ordinary case, an officer cannot be
expected to question the magistrate's probable-cause
determination or his judgment that the form of the warrant is
technically sufficient.'" Tart, 17 Va. App. at 390, 437 S.E.2d
at 222 (citation omitted). Thus, "[t]he deterrent effect of the
exclusionary rule 'is absent where an officer, acting in
objective good faith, obtains a search warrant from a magistrate
and acts within the scope of the warrant.'" Janis v.
- 4 - Commonwealth, 22 Va. App. 646, 653, 472 S.E.2d 649, 653 (1996)
(citation omitted).
The good faith exception is not available in the following
four instances:
(1) [W]here the magistrate was misled by information in the affidavit which the affiant knew was false or should have known was false, (2) the issuing magistrate totally abandoned his judicial role, (3) the warrant was based on an affidavit "so lacking in indicia of probable cause" as to render official belief in its existence unreasonable or (4) where the warrant was so facially deficient that an executing officer could not reasonably have assumed it was valid.
Robinson v. Commonwealth, 19 Va. App. 642, 647, 453 S.E.2d 916,
918 (1995). In declining to apply Leon to the instant search,
the trial court, and defendant on appeal, rely on the third
exception to the doctrine. However, our review of the affidavit
discloses an "objectively reasonable belief that probable cause
existed" in support of the warrant.
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bray Argued at Chesapeake, Virginia
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 2065-99-3 JUDGE RICHARD S. BRAY FEBRUARY 29, 2000 GEORGE WINSTON SAGE
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. Strauss, Judge
Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellant.
Jon I. Davey for appellee.
George Winston Sage (defendant) was before the trial court on
indictments alleging rape, forcible sodomy, attempted rape,
attempted forcible sodomy, and two counts of object sexual
penetration and aggravated sexual battery. Defendant successfully
moved the court to suppress evidence obtained during the execution
of two search warrants, arguing that the affidavit supporting the
initial warrant did not establish the requisite probable cause.
The Commonwealth appeals pursuant to Code § 19.2-398, contending
that the affidavit was sufficient but, if not, the "good faith
exception" saves the evidence from the operation of the
exclusionary rule. We agree and reverse the order.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. "It is well established that on appeal the burden is on the
appellant to show, considering the evidence in a light most
favorable to [defendant], that the [granting] of a motion to
suppress constitutes reversible error." Commonwealth v. Tart, 17
Va. App. 384, 390-91, 437 S.E.2d 219, 223 (1993). "Questions of
. . . probable cause to . . . search are subject to de novo review
on appeal. 'In performing such analysis, we are bound by the
trial court's findings of historical fact unless "plainly wrong"
or without evidence to support them[.]'" Archer v. Commonwealth,
26 Va. App. 1, 8, 492 S.E.2d 826, 830 (1997) (citations omitted).
I.
Pittsylvania County Detective Boyd Arnold, III, while
investigating a complaint that defendant, a convicted felon, had
sexually assaulted three minor girls, learned that defendant
possessed a "handgun." Acting on information obtained during
questioning of the mother (mother) and adult half-sister (sister)
of the alleged victims, Arnold secured a search warrant for
defendant's residence, supported, in pertinent part, by the
following affidavit:
During my investigation of [defendant] I was told by [mother] and [sister] that he was in possession of a handgun. The handgun was described as a semi-automatic pistol. [Mother] told me that [defendant] would carry the handgun on his person, kept in the vehicle, or in the house . . . . A criminal history check showed two felony convictions (05/18/83 & 01/14/85).
* * * * * * *
- 2 - The mother and . . . sister . . . have seen the handgun in the possession of [defendant] . . . . Both of them are adults and they described a handgun to me when I spoke with them on 09/30/98. [Mother] told me that she last saw the handgun about 2 months ago.
The informer's [sic] told me that they have known [defendant] for about 5-7 years and have seen the handgun in his possession. The informers appear to have some knowledge of what and how a handgun works. The informer's [sic] did not tell me anything about the handgun until I questioned them about it.
Upon execution of the warrant on October 21, 1998, police
discovered no guns but observed "children's underwear" and
various "cassette tapes" on the premises. Aware that the
victims had missed certain articles of underclothing after
"overnight visits" at defendant's home and that defendant had
been surreptitiously "recording [the] sexual relations" of other
houseguests, Arnold obtained and executed a second search
warrant, which resulted in the seizure of "children's panties"
and numerous cassette tapes.
In granting defendant's motion to suppress all evidence
resulting from both searches, the trial court determined that
"the statements . . . by the informants appear overly general,"
unsupported by "facts from which the Magistrate could determine
that at the time the warrant was issued, on October 19th, 1998,
there was any reasonable likelihood that a firearm would be
- 3 - located in the residence of the defendant" or "how [the
informants] knew the defendant 'carried the handgun on his
person . . . or [kept it] in the house.'" The court, therefore,
concluded that "the facts contained in the Affidavit . . .
failed to provide . . . the Magistrate . . . probable cause to
issue the search warrant." The court likewise rejected
application of the good faith exception established by United
States v. Leon, 468 U.S. 897 (1984), reasoning that "the warrant
was based on an Affidavit 'so lacking in indicia of probable
cause' as to render official belief in its existence
unreasonable[.]"
II.
Assuming, without deciding, that the affidavit failed to
provide the requisite probable cause, we, nevertheless, apply
the good faith exception of Leon to preclude operation of the
exclusionary rule. "'The exclusionary rule is designed to deter
police misconduct rather than to punish the errors of judges and
magistrates. In the ordinary case, an officer cannot be
expected to question the magistrate's probable-cause
determination or his judgment that the form of the warrant is
technically sufficient.'" Tart, 17 Va. App. at 390, 437 S.E.2d
at 222 (citation omitted). Thus, "[t]he deterrent effect of the
exclusionary rule 'is absent where an officer, acting in
objective good faith, obtains a search warrant from a magistrate
and acts within the scope of the warrant.'" Janis v.
- 4 - Commonwealth, 22 Va. App. 646, 653, 472 S.E.2d 649, 653 (1996)
(citation omitted).
The good faith exception is not available in the following
four instances:
(1) [W]here the magistrate was misled by information in the affidavit which the affiant knew was false or should have known was false, (2) the issuing magistrate totally abandoned his judicial role, (3) the warrant was based on an affidavit "so lacking in indicia of probable cause" as to render official belief in its existence unreasonable or (4) where the warrant was so facially deficient that an executing officer could not reasonably have assumed it was valid.
Robinson v. Commonwealth, 19 Va. App. 642, 647, 453 S.E.2d 916,
918 (1995). In declining to apply Leon to the instant search,
the trial court, and defendant on appeal, rely on the third
exception to the doctrine. However, our review of the affidavit
discloses an "objectively reasonable belief that probable cause
existed" in support of the warrant.
The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . conclud[ing]" that probable cause existed.
- 5 - Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (citation
omitted). The reliability of an informer's tip depends "on the
nature of the informer and the manner in which the information
provided by the informer reaches the magistrate." Polston v.
Commonwealth, 24 Va. App. 738, 745, 485 S.E.2d 632, 635 (1997).
"If the informer is a disinterested citizen who is either the
victim or eyewitness of a crime, the magistrate is permitted to
infer that reasonable information obtained from the citizen is
reliable." Id.
Here, the informants, both citizens known to the
affiant/Arnold as adult relatives of the several infant victims,
advised him, during questioning, that defendant, a convicted
felon, "was in possession of a handgun." Both women had "known"
defendant for five to seven years, had "some knowledge of what
and how a handgun works" and "had seen" defendant in possession
of a specifically described "pistol." The mother stated that
defendant "would carry the handgun on his person" or "kept [it]
in the vehicle, or in the house" and had "last" seen the weapon
"about two months ago."
Thus, like Leon, the warrant in issue was not dependent
upon a "bare bones" affidavit. To the contrary, the instrument
recited detailed information provided by citizen informers,
based upon personal observations not too remote in time 1 and
1 "The ultimate criterion in determining the degree of evaporation of probable cause,
- 6 - deemed reliable, that defendant feloniously possessed a firearm.
Clearly, "the affidavit 'provided evidence sufficient to create
disagreement among thoughtful and competent judges as to the
existence of probable cause.' Therefore, we cannot say that the
officers could not have 'harbored an objectively reasonable
belief in the existence of probable cause.'" Tart, 17 Va. App.
at 390, 437 S.E.2d at 223 (citations omitted).
Accordingly, we reverse the order suppressing the evidence
and remand for further proceedings consistent with this opinion.
Reversed and remanded.
however, is not case law but reason. The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. The hare and the tortoise do not disappear at the same rate of speed."
Turner v. Commonwealth, 14 Va. App. 737, 745, 420 S.E.2d 235, 240 (1992) (quoting Donaldson v. State, 420 A.2d 281, 286 (Md. App. 1980) (citation omitted)).
- 7 -