Tart v. Commonwealth

437 S.E.2d 219, 17 Va. App. 384, 10 Va. Law Rep. 599, 1993 Va. App. LEXIS 566

• Court: Court of Appeals of Virginia
• Decided: November 23, 1993
• Docket: Record No. 0456-92-2
• Status: Published

Opinions

Opinion

FITZPATRICK, J.

Charles E. Tart (appellant) was convicted after a bench trial of possession with intent to distribute heroin in violation of Code § 18.2-248. The sole issue raised in this appeal is whether the information provided as the basis for the issuance of the search warrant was stale so as to render the warrant facially invalid. Finding no error, we affirm.

On September 6, 1991, at approximately 4:08 a.m., Officer Robert C. Woodburn and several other police officers executed a search warrant on Room 30 of the Town Motel in Henrico County. Appellant and a female companion were in the room. The search revealéd a bag of cocaine in “the jalousie glass window in the bathroom over the tub.” After appellant was placed under arrest, the police found in a pouch attached to his belt, a pager and several packages of heroin wrapped in tinfoil.

The affidavit accompanying the search warrant states as follows:

On September 6, 1991 your affiant investigator R.C. Woodburn of the Henrico County Division of Police was contacted by Officer Paul Ronca of the Richmond Bureau of Police who related the following facts. Ronca advised your affiant that on this date Ronca spoke with a confidential and reliable informant, here after referred to in this affidavit as CI(1) who is presently cooperating with the Richmond Bureau of Police. Ronca advised that CI(1) stated that within seventy two (72) hours of CI(1) contacting Ronca that CI(1) was in person at Room 4 and Room 30 located at the Town Motel, 5214 Brook Rd. Richmond, Virginia. 0(1) further stated that 0(1) observed what 0(1) knows to be “crack” cocaine in the possession of a black male from the New York area. 0(1) further described the black male as having a scar along his cheek. 0(1) went on to advise Ronca that this 0(1) was also within this seventy two (72) of contacting Ronca that this 0(1) was also in person at Room 30 of the Town Motel located at 5214 Brook and observed a quanity [sic] of what this 0(1) knows to be “crack” cocaine, cut up into small rocks. 0(1) advised that a black male, light skinned [sic] wearing two (2) gold chains and two (2) gold rings was in possession of the “crack” cocaine in Room 30. 0(1) advised that the [sic] above described subjects in Rooms 4 and 30 of the Town Motel were associated in regard to the illegal possession of the cocaine.

0(1) openly admits to having both abused and sold “crack” cocaine in the past and has moved among the illegal drug cultures in the Richmond metropolitan area and is completely familiar with “crack” cocaine and its appearance.

It is for the above stated facts that your affiant firmly believes that there is now being illegally stored a quanity [sic] of “crack” cocaine in Room 4 and Room 30, located at the Town Motel, 5214 Brook Road, Henrico County, Virginia.

Based upon this information, the magistrate issued a search warrant for Room 30 of the Town Motel for the seizure of “cocaine and any and all items related to, or indicative of the possession, use, transportation or storage . . . thereof.” The warrant was issued on September 6, 1991 at 3:35 a.m., and the police executed it approximately thirty minutes later.

Appellant filed a pre-trial motion to suppress the evidence seized pursuant to the search claiming that, because of the potential transient nature of motel room occupants, the allegation that “within 72 hours” drugs were seen in the room was “stale” and so “lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”

At the conclusion of the suppression hearing, the trial judge specifically found:

that the affidavit does in fact provide probable cause, and if not, no question in my mind from the totality of it that the police officers were acting in good faith under [United States v. Leon, 468 U.S. 897 (1984)], and I do not feel the facts presented in this affidavit would in any way present to a reasonable police officer the situation that he would not reasonably believe that this was in fact a valid search warrant issued on probable cause.

“The task of the issuing magistrate is simply to make 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.” Illinois v. Gates, 462 U.S. 213, 238 (1983) (citation omitted); Garza v. Commonwealth, 228 Va. 559, 563, 323 S.E.2d 127, 129 (1984). The initial determination of probable cause requires the magistrate to weigh the evidence presented in light of the totality of the circumstances. In contrast, “the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concluding]’ that probable cause existed.” Gates, 462 U.S. at 238-39 (citation omitted); Garza, 228 Va. at 563, 323 S.E.2d at 129.

It is well settled “that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’ ” Gates, 462 U.S. at 236 (citation omitted); see also United States v. Settegast, 755 F.2d 1117, 1121 (5th Cir. 1985). “A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.” Williams v. Commonwealth, 4 Va. App. 53, 68, 354 S.E.2d 79, 87 (1987) (quoting Massachusetts v. Upton, 466 U.S. 727, 733 (1984)).

The underlying affidavit in this case was specific in the description of the individuals involved in each room to be searched; that the individuals were associated in an ongoing criminal enterprise; that the confidential informant had been in the rooms within the past seventy-two hour period and had personally seen the drugs in Rooms 4 and 30 of the motel. From this information, a magistrate could reasonably conclude that the two men described in the affidavit were involved in the sale of drugs and that there was a “fair probability” that drugs were being stored in these rooms.

Appellant argues that the character of a motel is transient and, as such, a seventy-two hour time frame is too long a period for a magistrate to have reasonably concluded that drugs would remain in the room. The police did not check whether the same people were still registered in the room to be searched nor did they conduct any additional surveillance of the room. Admittedly, had the police taken these simple steps to ascertain whether or not the occupants of the targeted rooms had changed after the time the confidential informant observed the drugs or had the police proffered reasons why such additional information was not reasonably ascertainable, that information would have significantly bolstered the affidavit. We conclude, however, that the location searched, a motel room, is merely one factor to be considered in light of the totality of the circumstances. The search warrant issued in this case was for the search of drugs stored in the motel room, specifically: “cocaine and any and all items related to, or indicative of the possession, use, transportation or storage of thereof including but not limited to, pipes, vials, baggies and packaging.” As such, we find that the affidavit provided sufficient information to justify the magistrate’s determination of probable cause.

The affidavit indicates “that within seventy two (72) hours” of [the confidential informant’s] contacting [the police] that [the confidential informant] was in person at Room 4 and Room 30 located at the Town Motel, 5214 Brook Rd. Richmond, Virginia.” (emphasis added). The trial judge succinctly pointed out the import of the phrase “within seventy two (72) hours,” as follows:

within the past 72 hours, not 72 hours, but within the last 72 hours. So, I mean, that, as you said, could be anytime as the magistrate had presented to him that this information could have been immediately prior to the affiant being there in front of him, all the way back to 72 hours.

The Commonwealth’s Attorney informed the trial judge that this phrase was often used to protect the identity of confidential informants. Further, the affidavit indicates that two rooms contained illegal drugs, that the occupants of the rooms were associated with one another and that “a quanity [sic] of. . . ‘crack’ cocaine, [was] cut up into small rocks.” From this information, it is reasonable to infer that the occupants were engaged in an ongoing criminal enterprise of drug distribution. We have held that “[t]he selling of drugs, by its nature, is an ongoing activity.” Turner v. Commonwealth, 14 Va. App. 737, 746, 420 S.E.2d 235, 240 (1992) (citing Donaldson v. State, 46 Md. App. 521, 420 A.2d 281 (1980)). In addition, there was almost no delay between the issuance of the warrant and its execution. “Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” United States v. Ventresca, 380 U.S. 102, 109 (1965) (citation omitted). Accordingly, based on the facts of this case, we find that the information was not rendered stale by the time frame presented and, as such, that a substantial basis existed for the magistrate’s determination of probable cause.

Assuming, arguendo, that “the warrant was not issued upon probable cause, evidence seized pursuant to the warrant is nevertheless admissible if the officer executing the warrant reasonably believed that the warrant was valid.” Lanier v. Commonwealth, 10 Va. App. 541, 547, 394 S.E.2d 495, 499 (1990) (citing Leon, 468 U.S. at 918-21) (other citations omitted). In this case, there is no evidence that the police acted other than in good faith. The trial judge specifically found that:

no question in my mind from the totality of it that the police officers were acting in good faith under Leon, and I do not feel the facts presented in this affidavit would in any way present to a reasonable police officer the situation that he would not reasonably believe that this was in fact a valid search warrant issued on probable cause.

This finding is amply supported by the 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. “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.” Id. at 921. The evidence shows that the officers’ conduct was “objectively reasonable”; accordingly, the purposes of the exclusionary rule would not be served by excluding this evidence.

We conclude that the search warrant was not ‘“so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’” Id. at 923 (citation omitted). As in Leon, the warrant here was not a “bare bones” affidavit. See id. at 926. An objectively reasonable belief that probable cause existed was provided by Officer Woodburn’s sworn statement that a reliable and confidential informant visited the motel room within the past seventy-two hours and observed a quantity of “crack” cocaine “cut up into small rocks”; that the confidential informant had contact with the occupants of Room 4 and Room 30 of the. motel; and that these occupants “were associated in regard to the illegal possession of the cocaine.” As in Leon, the affidavit “provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause.” Id. Therefore, we cannot say that the officers could not have “harbored an objectively reasonable belief in the existence of probable cause.” Corey v. Commonwealth, 8 Va. App. 281, 289, 381 S.E.2d 19, 23 (1989) (quoting Leon, 468 U.S. at 923); see also Miles v. Commonwealth, 13 Va. App. 64, 71, 408 S.E.2d 602, 606 (1991), aff’d en banc, 14 Va. App. 82, 414 S.E.2d 619 (1992).

The dissent raises three issues that must be addressed: (1) the appropriate standard of appellate review; (2) the application of Rule 5A:18; and (3) the established Virginia precedent applying the Leon “good faith” exception.

It is well established that on appeal the burden is on the appellant to show, considering the evidence in the light most favorable to the Commonwealth, that the denial of a motion to suppress constitutes reversible error. Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017 (1980). In this case, the dissent construes the facts in the light least favorable to the Commonwealth. The dissent, for example, asserts that the warrant was issued “three days after an informant reported being in the room,” when, in fact, the record shows that the time frame at issue was “within 72 hours.” In addition, the dissent states that “the facts alleged in the affidavit are consistent with the informant observing two people who used three pieces of ‘crack’ cocaine in the motel room on the day the room was being vacated.” Although we view such an interpretation of the facts as strained, this dissent ignores all other reasonable inferences of ongoing criminal activity that could be drawn from these same facts. Further, the dissent inaccurately asserts that “[t]he Commonwealth also does not suggest that Tart was one of the men seen in the room three days earlier or that he resembled the description of either of the two men.” Appellant’s counsel stated to the trial court that “there’s a mention of someone who admittedly fits my client’s description as having been in that room within the last three days.”

The dissent also disagrees with our reliance on Leon and argues, sua sponte, that “the Virginia suppression statute does not contain a ‘good faith’ exception.” As the dissent acknowledges, at no point in these proceedings, at trial, on brief to this Court, or in oral argument, was a violation of Code § 19.2-60 ever raised.¹ Accordingly, our consideration of this argument is barred by Rule 5A:18. The dissent, however, would have us invoke the ends of justice exception to the rule “to prevent the denial of an essential right.”

“The ‘ends of justice’ provision is a narrow one that allows consideration when the record affirmatively shows [clear error or] that a miscarriage of justice has occurred.” Reed v. Commonwealth, 6 Va. App. 65, 70, 366 S.E.2d 274, 277 (1988). We find nothing in the record that satisfies this requirement. The record amply supports appellant’s conviction for possession with intent to distribute heroin in violation of Code § 18.2-248.

In addition, the dissent argues that Virginia does not recognize a “good faith” exception to the probable cause requirement and, therefore, the Leon exception does not apply. We disagree. Both the Supreme Court of Virginia and this Court have embraced and applied the Leon “good faith” exception in circumstances similar to the case at bar. See McCary v. Commonwealth, 228 Va. 219, 321 S.E.2d 637 (1984) (discussing the requirements of Code § 19.2-54 and holding that “the search was valid for another reason. We embrace the recently announced ‘good faith’ exception to the exclusionary rule”) (citing Leon, 468 U.S. 897; Massachusetts v. Sheppard, 468 U.S. 981 (1984)); see also Derr v. Commonwealth, 242 Va. 413, 410 S.E.2d 662 (1991); West v. Commonwealth, 16 Va. App. 679, 693 n.5, 432 S.E.2d 730, 739 n.5 (1993); Miles v. Commonwealth, 13 Va. App. 64, 408 S.E.2d 602 (1991), aff'd en banc, 14 Va. App. 82, 414 S.E.2d 619 (1992); Atkins v. Commonwealth, 9 Va. App. 462, 389 S.E.2d 179 (1990); Corey v. Commonwealth, 8 Va. App. 281, 381 S.E.2d 19 (1989). “[W]e are bound by decisions of the Supreme Court of Virginia and are without authority to overrule [them].” Roane v. Roane, 12 Va. App. 989, 993, 407 S.E.2d 698, 700 (1991). In addition, “[u]nder the rule of stare decisis, a decision by a panel of this court is an established precedent.” Robinson v. Commonwealth, 13 Va. App. 540, 543, 413 S.E.2d 661, 662 (1992) (citations omitted). Accordingly, we conclude that the Leon “good faith” exception is an accepted component of Virginia law.

For the reasons set forth above, we find no error in the trial court’s refusal to suppress the evidence. Accordingly, we affirm.

Affirmed.

Moon, C.J., concurred.

1 At trial, appellant’s motion to suppress was based on two separate grounds. First, that the police failed to comply with the “knock and announce” doctrine prior to forcibly entering the room occupied by appellant. Second, appellant argued that the information in the affidavit was so stale that “even well-trained officers could not in good faith rely upon [the search warrant] as being validly issued.” Appellant did not argue that Leon did not apply in Virginia, but rather, that Leon was not available to these officers because “the affidavit on its face is so deficient in probable cause as to not even allow an officer the good faith exception.”