Anzualda v. Commonwealth , 42 Va. App. 481 ( 2004 )

BENTON, JR., Judge.

The sole issue granted for review is whether the circuit court judge erred when he denied a motion to suppress evidence seized pursuant to a search warrant. Delio Anzualda, Jr. contends that the search warrant was not supported by probable cause and further that the warrant was deficient under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We agree, and we reverse the convictions.

I.

The evidence at the suppression hearing proved that on September 15, 2000, a deputy sheriff from the Northampton County Sheriffs office obtained a warrant to search the home of Delio Anzualda, Jr. The affidavit supporting the search warrant contained the following recital of the “material facts constituting probable cause”:

On March 17, 2000, Carlos Tolentito and Hildeberto Velasco were shot to death with 9 millimeter rounds on Occohannock Neck Road. An individual incarcerated in the Northampton County Jail has become a suspect in the offense in that he has made incriminating statements to at least three persons. An intimate friend of the suspect has informed the undersigned that the suspect informed the intimate friend that he had traded a pistol to an individual .known as “Cowboy” for marijuana, “Cowboy” being known to her as residing at the place to be searched. The undersigned has personal knowledge that “Cowboy” is Delio Anzualda.

A separate paragraph in the affidavit identified the “thing to be searched for” as a “9 millimeter pistol and/or ammunition.”

During the search of the residence, the deputy sheriffs discovered cocaine, marijuana, two rifles, and a shotgun. No pistol was listed among the items seized. A grand jury indicted Anzualda on several charges including possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and possession of a firearm while possessing cocaine. At a hearing on a motion to suppress the evidence prior to trial on these offenses, Anzualda’s attorney argued the affidavit was defective because it “fail[ed] to set sufficient facts on its face to cause a reasonably detached magistrate to believe that the subject matter of the search for a pistol was at [Anzualda’s] home.” He further argued that the affidavit failed to indicate when the gun was traded, that the time between the affidavit and the events spanned months, and that the affidavit lacked any nexus between the information given by the informant and the place to be searched.

In response, the prosecutor argued as follows:

Well, Your Honor, the nexus between the item to be searched for and the house to be searched is the fact that the defendant, to whom the gun was traded, lives in the house to be searched. To me it’s pretty simple and pretty straightforward. I would also say ... that United States versus Leon says that the policeman relies in good faith on a — a search warrant issued by a detached magistrate, which is surely the case in this — that it’s not going to be suppressed anyway unless it’s so ridiculous on its face that the policeman couldn’t rely on it; and this surely is not that.

The circuit court judge agreed with the prosecutor’s argument and denied the motion to suppress. Later, another judge convicted Delio Anzualda, Jr., on his conditional guilty plea, of possessing a firearm while possessing cocaine, possessing cocaine with intent to distribute in violation of Code § 18.2-248, and “possession of cocaine” in violation of “[Code § ] 18.2-248.1.”¹

II.

The principle is well established that a magistrate may issue a search warrant only upon allegations of “facts so closely related to the time of issue of the warrant as to justify a finding of probable cause at that time.” Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932). Applying this principle, the Supreme Court of Virginia has held that a search warrant “affidavit can be sustained only if the allegations pertaining to [the critical event] were sufficient to show the probability that the ... conduct continued up to the time of the issuance of the search warrant.” Stovall v. Commonwealth, 213 Va. 67, 70, 189 S.E.2d 353, 356 (1972).

The timing nexus is particularly deficient in this affidavit. Without specifying any dates, the affidavit relates that an unidentified suspect told a friend, who was an unidentified informant, that he (the suspect) traded a pistol to Anzualda. The affidavit does not disclose when the suspect had the conversation with the informant. Furthermore, the substance of the conversation does not convey any time frame or other facts which would suggest when the suspect had the conversation. Indeed, the conversation just as likely could have occurred a year prior to the date of the affidavit as at any other hypothesized time.

Likewise, the affidavit does not disclose when the suspect traded the pistol. It does not disclose whether the suspect transferred the pistol before or after the homicides. Furthermore, the affidavit does not assert the pistol was ever seen in the residence or even where the trade occurred. Indeed, the affidavit’s statement of material facts does not even disclose whether the pistol the suspect traded was a “9 millimeter” firearm or was believed to be a weapon capable of discharging “9 millimeter rounds.” Thus, the information communicated by the suspect does not disclose a reasonable probability that the pistol the suspect traded would be at the residence on September 15, when the warrant was issued and executed. The affidavit also does not allege that the traded pistol was connected with the homicide. Code § 19.2-53; Derr v. Commonwealth, 6 Va.App. 215, 221, 368 S.E.2d 916, 919 (1988) (a seizable item must be “evidence of or an instrumentality of a crime”). As the Supreme Court noted in Stovall, “there should have been set forth some factual allegations which, when added to the earlier information, would have led the reasonable mind to believe that criminal conduct probably continued until the time the search warrant issued.” 213 Va. at 71, 189 S.E.2d at 356.

The only date or time reference contained in the affidavit is March 17, 2000, the date of the homicides. Significantly, however, the affidavit leaves vague and undisclosed the connection of the “suspect” to the homicides. It notes only that a individual incarcerated in jail “has become a suspect in the offense in that he has made incriminating statements to at least three persons.” By leaving unstated whether the suspect’s statements suggest that he was present during the homicides or that he knew the identity of the killer or that he implicated himself as the killer, the affidavit renders speculative when the transfer of the pistol occurred. Indeed, if the individual has become a suspect merely because he told the informant and others that he traded a pistol to Anzualda, then probable cause is non-existent because nothing in the affidavit links the March 17, 2000 killings and the pistol. Only by assuming that the suspect’s statements suggested he was the killer could the magistrate conclude the transfer of the pistol occurred after March 17, 2000. Such an assumption, however, is grounded in no fact that is recited in the affidavit. For these reasons, we hold that the affidavit was defectively vague and was insufficient to establish probable cause.

III.

The Commonwealth contends that we should nevertheless affirm the refusal to suppress the evidence because of the good faith exception announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We disagree.

“Under the good faith exception evidence illegally seized is admissible if the officer conducting the search reasonably relied on a search warrant issued by a detached and neutral magistrate.” Atkins v. Commonwealth, 9 Va.App. 462, 464, 389 S.E.2d 179, 180 (1990). Applying Leon, we held in Janis v. Commonwealth, 22 Va.App. 646, 472 S.E.2d 649 (1996), aff'd on reh’g en banc, 23 Va.App. 696, 479 S.E.2d 534 (1996), that the good faith exception is not available in the following instances:

“(1) [WJhere 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.”

22 Va.App. at 653, 472 S.E.2d at 653 (citation omitted). As the Supreme Court noted in Leon, the magistrate cannot merely ratify “ ‘the bare conclusions of others,’ ” 468 U.S. at 915, 104 S.Ct. at 3416 (citation omitted), and, thus, “[njothing in [Leon\ suggests ... that an officer could obtain a warrant on the basis of a ‘bare bones’ affidavit.” Id. at 923, n. 24, 104 S.Ct. at 3420.

As we have explained in Part II, the affidavit required the magistrate to speculate as to a nexus between the homicides and the pistol that was the object of the search warrant. The affidavit contained no claim that the pistol alleged to have been traded to Anzualda was the weapon used to commit the homicides or even would discharge the same caliber of ammunition as the weapon used in the homicides. In addition, the affidavit contained not even a suggestion that the pistol was traded inside the residence or that the pistol was seen at the residence at any time prior to the search. In short, the “warrant [was] based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence as entirely unreasonable.’ ” Id. at 923, 104 S.Ct. at 3408 (citation omitted).

For these reasons, we hold the circuit court judge erred in refusing to suppress the evidence. Accordingly, we reverse the convictions and remand for a new trial.

Reversed and remanded.

1 . The conviction order erroneously references a conviction for possession of cocaine in violation of Code § 18.2-248.1. That statute relates to possession of marijuana with the intent to distribute, which was the charge contained in the indictment.