COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Agee and Senior Judge Coleman Argued at Salem, Virginia
SYLVESTER AARON BAKER MEMORANDUM OPINION * BY v. Record No. 1142-00-3 JUDGE SAM W. COLEMAN, III JUNE 19, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. Strauss, Judge
J. Patterson Rogers, III, for appellant.
Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Sylvester Aaron Baker, appellant, appeals his felony
conviction of possession of a firearm by a convicted felon, in
violation of Code § 18.2-308.2. Appellant presents three issues
for review: (1) whether the search warrant's affidavit
contained adequate indicia of the informer's reliability to
establish probable cause; (2) whether the good faith exception
to the exclusionary rule applies; and (3) whether the evidence
was sufficient to find appellant in possession of the firearm.
Although the affidavit did not provide adequate indicia of the
informer's reliability to establish probable cause, the officers
acted in good faith reliance on the validity of the search
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. warrant. Further, the evidence supported the finding that
appellant was in possession of the firearm. Therefore, the
judgment of the trial court is affirmed.
BACKGROUND
In support of a request for a search warrant for
appellant's residence, Investigator Jesse Tate cited the
following material facts in his affidavit to establish probable
cause:
Within the past forty-eight hours, an informant visited the residence . . . and saw crack cocaine on the premises. Crack cocaine remained on the premises when the informant left the residence. The informant also stated that the persons at the residence also keep cocaine on there [sic] person.
To establish the informer's reliability, the affidavit stated:
The informant . . . has provided information to the Pittsylvania County Sheriffs [sic] Office in the past that has been true and reliable[.] This informant also is aware of what crack cocaine is and knows what it looks like. The Pittsylvania County Sheriffs [sic] Office has received numerous complaints in the past regarding narcotic activity at the residence . . . .
When Tate, and eight members of a S.W.A.T. team, executed
the search warrant, Tate found appellant lying in his bed.
Appellant told Tate he did not have any weapons in the room.
Tate directed another deputy sheriff to search appellant, who is
a paraplegic. Appellant then told Tate he was lying on a gun.
-2- They retrieved a 9 mm handgun that was under a pad, below
appellant's right hip, and within his reach.
Appellant's stepson, Kevin Coleman, testified he owned the
handgun found in appellant's bed. He stated he had been to the
residence the day before the search warrant was executed and had
taken a nap in appellant's bed. He testified he placed the gun
under the bedding near the foot of the bed. When he left for
work, he forgot about the gun. He called appellant later that
evening to tell him about the gun and that he would come the
next day to retrieve it.
Appellant testified that Coleman called him to tell him
about the gun. He conceded he "probably" touched the gun and
looked at it, but that he could not put it out of his reach
because he is paralyzed from the upper chest down to his lower
extremities. Although he had relatives who lived nearby, he did
not trust them to take possession of the gun and decided to wait
for Coleman to come the next day to get it. He initially forgot
about the gun when the deputies arrived, but told Tate about the
weapon when he remembered.
ANALYSIS
The Search Warrant
"The fourth amendment requires that a warrant to search
shall issue only on probable cause supported by oath or
affirmation." Boyd v. Commonwealth, 12 Va. App. 179, 185,
402 S.E.2d 914, 918 (1991). -3- The probable cause inquiry conducted by the magistrate entails "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Appellate review of a magistrate's probable cause determination is deferential in nature. [A] reviewing court must decide "whether the evidence viewed as a whole provided a 'substantial basis' for the [m]agistrate's finding of probable cause."
Id. at 185-86, 402 S.E.2d at 918 (citations omitted). "A
probable cause determination breaks down into 'the informant's
veracity or reliability and his basis of knowledge.'" Corey v.
Commonwealth, 8 Va. App. 281, 287, 381 S.E.2d 19, 22 (1989)
(citation omitted).
"The reliability of any informant . . . can be demonstrated
if the affidavit states that the informant has given information
which has proven correct, if there is corroboration of other
information supplied by the informant, or if the informant makes
a declaration against his own penal interests." Id. at 288,
381 S.E.2d at 23 (citations omitted). "A mere allegation that
the affiant has 'received information from a reliable informant'
is insufficient to show that an informant is credible, or that
his information is reliable." Id. (citation omitted). The
magistrate cannot rely on the conclusory averments of the
affiant, or those of the informant, id. at 288, 381 S.E.2d at
22, without a showing of why the informant is reliable and how
-4- recently he has given information that proved to be reliable.
See Wiles v. Commonwealth, 209 Va. 282, 163 S.E.2d 595 (1968).
While the affidavit suggested the informant had personal
knowledge of the presence of crack cocaine in the residence by
virtue of his having been in the residence, the affidavit does
not give an adequate showing of the informant's reliability or
credibility. Tate presented conclusory statements that his
informant had given reliable information in the past and failed
to articulate how the sheriff's office confirmed the reliability
of the informant's information by indicating whether the
information led to arrests or was corroborated by further
investigation. Tate also failed to establish how recently in
the past the informant proved to be reliable.
Additionally, Tate failed to show any corroboration of the
informant's information about appellant's residence. Stating
that the sheriff's office had received numerous complaints of
narcotic activity at the residence did not provide adequate
probable cause or credible corroboration of the information.
See id. at 286, 163 S.E.2d at 598. Therefore, the magistrate
did not have sufficient probable cause from the affidavit to
have issued the search warrant.
However, "suppression of evidence obtained pursuant to a
warrant should be ordered only on a case-by-case basis and only
in those unusual cases in which exclusion will further the
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COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Agee and Senior Judge Coleman Argued at Salem, Virginia
SYLVESTER AARON BAKER MEMORANDUM OPINION * BY v. Record No. 1142-00-3 JUDGE SAM W. COLEMAN, III JUNE 19, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. Strauss, Judge
J. Patterson Rogers, III, for appellant.
Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Sylvester Aaron Baker, appellant, appeals his felony
conviction of possession of a firearm by a convicted felon, in
violation of Code § 18.2-308.2. Appellant presents three issues
for review: (1) whether the search warrant's affidavit
contained adequate indicia of the informer's reliability to
establish probable cause; (2) whether the good faith exception
to the exclusionary rule applies; and (3) whether the evidence
was sufficient to find appellant in possession of the firearm.
Although the affidavit did not provide adequate indicia of the
informer's reliability to establish probable cause, the officers
acted in good faith reliance on the validity of the search
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. warrant. Further, the evidence supported the finding that
appellant was in possession of the firearm. Therefore, the
judgment of the trial court is affirmed.
BACKGROUND
In support of a request for a search warrant for
appellant's residence, Investigator Jesse Tate cited the
following material facts in his affidavit to establish probable
cause:
Within the past forty-eight hours, an informant visited the residence . . . and saw crack cocaine on the premises. Crack cocaine remained on the premises when the informant left the residence. The informant also stated that the persons at the residence also keep cocaine on there [sic] person.
To establish the informer's reliability, the affidavit stated:
The informant . . . has provided information to the Pittsylvania County Sheriffs [sic] Office in the past that has been true and reliable[.] This informant also is aware of what crack cocaine is and knows what it looks like. The Pittsylvania County Sheriffs [sic] Office has received numerous complaints in the past regarding narcotic activity at the residence . . . .
When Tate, and eight members of a S.W.A.T. team, executed
the search warrant, Tate found appellant lying in his bed.
Appellant told Tate he did not have any weapons in the room.
Tate directed another deputy sheriff to search appellant, who is
a paraplegic. Appellant then told Tate he was lying on a gun.
-2- They retrieved a 9 mm handgun that was under a pad, below
appellant's right hip, and within his reach.
Appellant's stepson, Kevin Coleman, testified he owned the
handgun found in appellant's bed. He stated he had been to the
residence the day before the search warrant was executed and had
taken a nap in appellant's bed. He testified he placed the gun
under the bedding near the foot of the bed. When he left for
work, he forgot about the gun. He called appellant later that
evening to tell him about the gun and that he would come the
next day to retrieve it.
Appellant testified that Coleman called him to tell him
about the gun. He conceded he "probably" touched the gun and
looked at it, but that he could not put it out of his reach
because he is paralyzed from the upper chest down to his lower
extremities. Although he had relatives who lived nearby, he did
not trust them to take possession of the gun and decided to wait
for Coleman to come the next day to get it. He initially forgot
about the gun when the deputies arrived, but told Tate about the
weapon when he remembered.
ANALYSIS
The Search Warrant
"The fourth amendment requires that a warrant to search
shall issue only on probable cause supported by oath or
affirmation." Boyd v. Commonwealth, 12 Va. App. 179, 185,
402 S.E.2d 914, 918 (1991). -3- The probable cause inquiry conducted by the magistrate entails "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Appellate review of a magistrate's probable cause determination is deferential in nature. [A] reviewing court must decide "whether the evidence viewed as a whole provided a 'substantial basis' for the [m]agistrate's finding of probable cause."
Id. at 185-86, 402 S.E.2d at 918 (citations omitted). "A
probable cause determination breaks down into 'the informant's
veracity or reliability and his basis of knowledge.'" Corey v.
Commonwealth, 8 Va. App. 281, 287, 381 S.E.2d 19, 22 (1989)
(citation omitted).
"The reliability of any informant . . . can be demonstrated
if the affidavit states that the informant has given information
which has proven correct, if there is corroboration of other
information supplied by the informant, or if the informant makes
a declaration against his own penal interests." Id. at 288,
381 S.E.2d at 23 (citations omitted). "A mere allegation that
the affiant has 'received information from a reliable informant'
is insufficient to show that an informant is credible, or that
his information is reliable." Id. (citation omitted). The
magistrate cannot rely on the conclusory averments of the
affiant, or those of the informant, id. at 288, 381 S.E.2d at
22, without a showing of why the informant is reliable and how
-4- recently he has given information that proved to be reliable.
See Wiles v. Commonwealth, 209 Va. 282, 163 S.E.2d 595 (1968).
While the affidavit suggested the informant had personal
knowledge of the presence of crack cocaine in the residence by
virtue of his having been in the residence, the affidavit does
not give an adequate showing of the informant's reliability or
credibility. Tate presented conclusory statements that his
informant had given reliable information in the past and failed
to articulate how the sheriff's office confirmed the reliability
of the informant's information by indicating whether the
information led to arrests or was corroborated by further
investigation. Tate also failed to establish how recently in
the past the informant proved to be reliable.
Additionally, Tate failed to show any corroboration of the
informant's information about appellant's residence. Stating
that the sheriff's office had received numerous complaints of
narcotic activity at the residence did not provide adequate
probable cause or credible corroboration of the information.
See id. at 286, 163 S.E.2d at 598. Therefore, the magistrate
did not have sufficient probable cause from the affidavit to
have issued the search warrant.
However, "suppression of evidence obtained pursuant to a
warrant should be ordered only on a case-by-case basis and only
in those unusual cases in which exclusion will further the
purposes of the exclusionary rule." United States v. Leon, -5- 468 U.S. 897, 918 (1984). "The purpose of the exclusionary rule
historically was to deter police misconduct rather than to
punish the errors of magistrates. This deterrent 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." Derr v. Commonwealth, 242 Va. 413, 422,
410 S.E.2d 662, 667 (1991) (citation omitted). "Unless a
magistrate has abandoned his detached and neutral role,
suppression is only appropriate if an officer is dishonest or
reckless in preparing his affidavit or could not have 'harbored
an objectively reasonable belief in the existence of probable
cause.'" Corey, 8 Va. App. at 288, 381 S.E.2d at 23 (citation
omitted).
The record does not suggest that Tate acted dishonestly or
recklessly in obtaining the search warrant. Tate was familiar
with his informant and articulated facts he thought sufficient
to establish probable cause.
It is the magistrate's responsibility to determine whether the officer's allegations establish probable cause and, if so, to issue a warrant comporting in form to the Fourth Amendment. 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. "[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law."
-6- Leon, 468 U.S. at 921 (citation omitted). Tate, therefore,
warrant and the trial court did not err by refusing to suppress
the firearm.
Sufficiency of the Evidence
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). "The credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995). "In its role of judging
witness credibility, the fact finder is entitled to disbelieve
the self-serving testimony of the accused . . . ." Marable v.
Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235
(1998). The trier of fact is not required to accept a party's
evidence in its entirety, Barrett v. Commonwealth, 231 Va. 102,
107, 341 S.E.2d 190, 193 (1986), but is free to believe and
disbelieve in part or in whole the testimony of any witness,
Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823,
830 (1991).
In the light most favorable to the Commonwealth, the
evidence proved appellant denied having any weapons until Tate -7- advised appellant he would be searched. At that point,
appellant told Tate he was lying on a gun. The officer
retrieved a gun from underneath a pad beneath appellant's right
hip.
Under a theory of constructive possession, "the
Commonwealth must point to evidence of acts, statements, or
conduct of the accused or other facts or circumstances which
tend to show that the defendant was aware of both the presence
and character of the [contraband] and that it was subject to his
dominion and control." Powers v. Commonwealth, 227 Va. 474,
476, 316 S.E.2d 739, 740 (1984). Appellant conceded knowledge
by revealing to Tate the presence and location of the gun.
Appellant also conceded exercise of dominion and control when he
admitted that he "probably" retrieved the gun and looked at it.
Code § 18.2-308.2 also requires a finding that the
possession be intentional. Even assuming the trial court found
appellant's evidence to be credible, the evidence, nevertheless,
proved intentional possession of the firearm. While appellant's
paralysis may have precluded him from personally dispossessing
himself of the gun, nothing prevented him from calling friends,
family or neighbors to remove the gun or demanding that his
stepson immediately return to retrieve the gun. Nor does his
paralysis explain why he secreted the gun with its ammunition
back under the bedding. These facts show appellant
intentionally maintained possession of the firearm. Therefore, -8- the evidence established beyond a reasonable doubt that
appellant, a convicted felon, possessed a firearm.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
-9- MEMORANDUM
TO: Cynthia L. McCoy, Clerk Court of Appeals of Virginia
FROM: Judge Coleman
DATE: May 31, 2001
RE: Sylvester Aaron Baker v. Commonwealth of Virginia Record No. 1142-00-3 (April 4, 2001 -- Salem Panel)
Attached is a final memorandum opinion in the above-styled case. The record and briefs are also enclosed.
Sincerely,
Sam W. Coleman
(M1142003.Mem)
-10-