CW v. Eric Randal Norman & Christopher Lane Walton

• Court: Court of Appeals of Virginia
• Decided: March 15, 2001
• Docket: 2497002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Bumgardner and Senior Judge Hodges Argued by teleconference

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 2497-00-2 JUDGE RUDOLPH BUMGARDNER, III MARCH 15, 2001 ERIC RANDAL NORMAN AND CHRISTOPHER LANE WALTON

FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY William H. Shaw, III, Judge

Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellant.

Joseph R. Caprio (Michael T. Soberick; Dusewicz & Soberick, P.C., on brief), for appellees.

Eric Randal Norman and Christopher Lane Walton filed

motions to suppress evidence seized during execution of a search

warrant. The trial court granted the motions and suppressed use

of the evidence in proving burglary and grand larceny by the

defendants. The Commonwealth contends the evidence was

admissible because the good faith exception to the exclusionary

rule applied. We agree, and reverse the ruling.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Captain Bruce A. Boles was investigating a burglary and

larceny at the home of Robert C. Pitts in Middlesex County on

January 21, 2000. On March 21, 2000, a deputy told him the

television set stolen from Pitts's home was in a wooded area in

the rear of the defendants' residence in King & Queen County.

Two days later, Captain Boles obtained a warrant 1 to search the

defendants' residence for items stolen January 21. It also

authorized a search for any pawn tickets or sales receipts that

indicated a transfer of any of the stolen property. The

defendants moved to suppress the evidence recovered during the

search.

The trial court ruled the affidavit did not establish

probable cause for a search warrant of the residence. It

characterized the affidavit as more than "bare bones" but found

it "so lacking in probable cause" that the good faith exception

was not applicable. United States v. Leon, 468 U.S. 897 (1984).

The trial court suppressed the evidence found pursuant to the

1 The affidavit recited these facts:

On Tuesday, 03-21-00 at approximately 3:20 pm I [Captain Boles] spoke with King & Queen County Deputy Sheriff Tommy Atkinson by telephone regarding identification of a television which he had located in a wooded area in the rear of the residence of Eric Norman . . . in King & Queen County, Virginia. Atkinson told me that [the] serial number [on the television] matches the television stolen from the residence of Robert Pitts.

- 2 - warrant but admitted the television found "in a wooded area in

the rear" of the residence.

Ordinarily, an officer executing a search warrant "cannot

be expected to question the magistrate's probable-cause

determination or his judgment that the form of the warrant is

technically sufficient." Leon, 468 U.S. at 921. The good faith

exception does not apply if (1) there is evidence the magistrate

abandoned his judicial role, (2) the magistrate was misled by

information in the affidavit, (3) the warrant was so lacking in

indicia of probable cause as to render official belief in its

existence unreasonable, or (4) the warrant was so facially

deficient that an officer could not have reasonably assumed it

was valid. Leon, 468 U.S. at 923.

The Commonwealth did not appeal the ruling that the

affidavit did not provide probable cause for a search warrant.

The parties agree that only the third exception of Leon could

apply in this case. The issue is whether the officer could

reasonably presume the warrant was valid. Atkins v.

Commonwealth, 9 Va. App. 462, 464, 389 S.E.2d 179, 180 (1990).

Colaw v. Commonwealth, 32 Va. App. 806, 810-11, 531 S.E.2d

31, 33 (2000), refused to apply the good faith exception where

an informant provided sketchy information about a drug party to

be held at a residence. The affidavit was "bare bones" and

contained nothing more than conclusory declarations about a

- 3 - future event. It failed to provide a basis for the informant's

knowledge and did not even state when the party would be held.

Janis v. Commonwealth, 22 Va. App. 646, 652, 472 S.E.2d

649, 652, aff'd en banc, 23 Va. App. 696, 479 S.E.2d 534 (1996),

reversed an application of the good faith exception. The police

observed the defendants cultivating marijuana in a field in

Dinwiddie County. They obtained a search warrant for the

defendants' home in Hopewell. The affidavit failed to provide a

nexus between the marijuana found in Dinwiddie and the residence

in Hopewell. "[T]he affidavit gave absolutely no indication

that the fruits of the criminal activity would probably be

found" at the defendants' residence. 22 Va. App. at 653-54, 472

S.E.2d at 653.

In this case, the trial court found that the search warrant

was supported by more than a "bare bones" affidavit. The

information was not a conclusory declaration about a future

event at some unspecified time. It was a clear and succinct

statement of fact by a deputy sheriff who had identified the

precise television taken during the burglary. The deputy found

it in the woods behind the defendants' house. The officer

investigating the burglary compiled the information during his

continuing investigation of the burglary. The information came

from a deputy sheriff, not from an unconnected tip by an unknown

informer. A reasonable officer could infer that the stolen

television hidden in the woods behind a house was connected to

- 4 - the house or the people in it. The location of the stolen

television provided a nexus between the information in the

affidavit and the place to be searched. The television itself

was admitted into evidence.

"[T]he exclusionary rule is designed to deter police

misconduct rather than to punish the errors of judges and

magistrates." Leon, 468 U.S. at 916. Evidence seized pursuant

to a warrant should be suppressed "on a case-by-case basis and

only in those unusual cases in which exclusion will further the

purposes of the exclusionary rule." Leon, 468 U.S. at 918. If

none of the evils to be avoided in Leon are present, the

evidence should be admitted. Polston v. Commonwealth, 255 Va.

500, 504, 498 S.E.2d 924, 926 (1998); Derr v. Commonwealth, 242

Va. 413, 422, 410 S.E.2d 662, 667 (1991).

As in Leon, the information in the affidavit provided

"evidence sufficient to create disagreement among thoughtful and

competent judges as to the existence of probable cause." 468

U.S. at 926. The trial court found deficiencies in timeliness

of the information and the lack of detail about the proximity

and association of the woods with the house, but that was detail

for the magistrate to assay. We conclude the warrant was

sufficiently descriptive that the officer could reasonably

presume it was valid. He acted in good faith in executing the

- 5 - warrant and acted within its scope. Accordingly, the good faith

exception applied, and the evidence is admissible.

Reversed and remanded.

- 6 -