Manley v. Commonwealth

176 S.E.2d 309, 211 Va. 146, 1970 Va. LEXIS 227
CourtSupreme Court of Virginia
DecidedSeptember 4, 1970
DocketRecord 7273
StatusPublished
Cited by57 cases

This text of 176 S.E.2d 309 (Manley v. Commonwealth) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Manley v. Commonwealth, 176 S.E.2d 309, 211 Va. 146, 1970 Va. LEXIS 227 (Va. 1970).

Opinions

I’Anson, J.,

delivered the opinion of the court.

[147]*147Melvin Lloyd Manley, defendant, was convicted by the court of possession of marijuana, a narcotic drug, in violation of § 54-488, Code of 1950, 1967 Rep. Vol.,1 and sentenced to confinement in the State penitentiary for a term of four years and fined $500. We granted defendant a writ of error.

At the commencement of the trial in the court below the defendant, by counsel, moved the court to suppress the evidence of the marijuana seized on the grounds that the affidavit upon which the search warrant was issued was based on hearsay information;2 that the affidavit did not state sufficient facts and circumstances constituting probable cause for issuance of the warrant; and that the search of his premises and seizure of the marijuana violated the rights guaranteed to him by the Fourth Amendment to the Constitution of the United States. After hearing evidence, the trial court overruled the motion.

On July 11, 1968, at about 11:30 a.m., Detective R. H. Isaacs of the Norfolk Police Department obtained from a justice of the peace a warrant authorizing him to search the apartment of the defendant at 313 W. 27th Street in the City of Norfolk. Shortly thereafter Isaacs and another detective went to the defendant’s apartment and served him with the search warrant.

There were five units in the apartment building, three on the first floor and two on the second floor. Defendant’s apartment was on the first floor. Carole Speller, in whose name the apartment was rented, was also present when the officers entered the apartment. Defendant paid the rent on one occasion, and his name appeared on the mailbox.

Upon searching the front room of the apartment, Isaacs found a large quantity of marijuana in a cabinet and in a suitcase. Defendant volunteered the statement that Miss Speller had “nothing to do with it, it’s mine.”

The relevant portion of the affidavit on which the warrant was obtained reads as follows:

“2. The material facts constituting probable cause for issuance of the search warrant. I have received information from a reliable informant who states that he was at the apartment of Melvin Lloyd [148]*148Manley, 313 West 27th Street, this past week and he saw a large quantity of marijuana (a narcotic drug) in a chest in the front room and also some marijuana was in a dresser drawer in the middle room. My informer also states that in the past month he has smoked marijuana in the apartment # * * and in the past month he has made two purchases of marijuana from Melvin Lloyd Manley.
# # * # #
“4. Place to be searched: 313 West 27th Street, a dwelling. The apartment of Melvin Lloyd Manley.”

Defendant now contends (1) that the trial court erred in admitting in evidence the seized marijuana because (a) the justice of the peace was without authority to take the affidavit upon which he issued the search warrant, (b) the affidavit did not state the underlying circumstances for the informant’s conclusion that the marijuana was where he said it was and that the informant was “credible” or his information “reliable,” and (c) the apartment to be searched was not sufficiently described in the affidavit and warrant; and (2) that the evidence was insufficient to support his conviction.

Section 19.1-85, Code of 1950, as amended, 1960 Rep. Vol., provides in part that no search warrant may issue until there is filed with the officer authorized to issue the warrant an affidavit reasonably describing the house or place to be searched and also alleging material facts constituting probable cause for the issuance of the warrant.

When the general laws relating to justices of the peace were revised and amended by Chapter 639, Acts of 1968, there was deleted from Code § 49-43 the provision for making affidavits before or administering oaths by justices of the peace. Thus defendant argues that since the justice of the peace was not authorized by statute to take the affidavit, the warrant was void, the search illegal, and the evidence obtained in the illegal search and seizure was inadmissible.

The question of the authority of the justice of the peace to fake the affidavit was raised for the first time on this appeal.

The Supreme Court of the United States recognized in footnote 9 of its opinion in Mapp v. Ohio, 367 U.S. 643, 659, 81 S.Ct. 1684, 1693, 6 L.E.2d 1081, 1092, 84 A.L.R.2d 933, 945 (1961), rehearing denied 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72 (1961), [149]*149that in determining whether a State criminal conviction is constitutionally permissible because of the admission of evidence obtained as a result of an illegal search and seizure, State procedural requirements must be respected.

Rule 1:8, Rules of Court, provides in part that all objections requiring a ruling or judgment of the trial court shall state with reasonable certainty the ground of objection, and unless it appears from the record to have been so stated, such objections will not be considered by this court. See Fletcher v. Commonwealth, 209 Va. 636, 640, 166 S.E.2d 269, 273 (1969).

An objection that a search warrant was not supported by an affidavit as required by statute cannot be raised for the first time on appeal from a conviction. See Harlow v. Commonwealth, 195 Va. 269, 273, 77 S.E.2d 851, 854 (1953); Nicholas v. Commonwealth, 186 Va. 315, 324, 42 S.E.2d 306, 311 (1947). See also Frogg v. Commonwealth, 163 Ky. 175, 173 S.W. 383, L.R.A. 1915D 330 (1915).

There is a general procedural requirement in most jurisdictions that if a defendant wishes to preserve his right to challenge on appeal the constitutionality of a search and seizure through which certain evidence has been obtained, he must take timely steps in the lower court, either through a motion to suppress the evidence before trial or by sufficient objection to the use of the evidence when offered at trial. United States v. Gitlitz, 368 F.2d 501, cert. denied 386 U.S. 1038, 87 S.Ct. 1492, 18 L.Ed. 2d 602, rehearing denied, 389 U.S. 908, 88 S.Ct. 210, 19 L.Ed.2d 227 (2d Cir. 1966); 29 Am.Jur.2d, Evidence, §§ 425, 426, at 481, 483. See also Annotations: 50 A.L.R.2d 531, §§ 11, 12, at 583, 592, and 30 A.L.R. 3d 128, § 10, at 178-84, and the numerous cases there collected.

Since the defendant did not raise the question of the authority of the justice of the peace to take the affidavit of the affiant-officer in the court below, it will not now be considered by us.

- Defendant says that the affidavit upon which the search warrant was issued was insufficient in that it did not state the underlying circumstances constituting probable cause for the issuance of the warrant, as required by the test set out in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct.

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Bluebook (online)
176 S.E.2d 309, 211 Va. 146, 1970 Va. LEXIS 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manley-v-commonwealth-va-1970.