Commonwealth of Virginia v. Harold Wayne Huffman ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1150-00-3 JUDGE LARRY G. ELDER
SEPTEMBER 26, 2000
HAROLD WAYNE HUFFMAN
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
B. A. Davis, III, Judge Designate
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellant.
Jesse W. Meadows, III, for appellee.
Harold Wayne Huffman (defendant) stands indicted for
possessing a firearm after having been convicted of a felony.
The Commonwealth appeals a pretrial ruling granting defendant's
motion to suppress all evidence seized pursuant to a search
warrant on the ground that the warrant was invalid because it
was not based on the personal knowledge of the affiant. On
appeal, the Commonwealth contends the trial court erroneously
suppressed the evidence because the warrant was based on
probable cause and, even if it was not, the officer executing
the warrant acted in good faith. We hold, based on the trial
court's findings of fact, that the search was valid because the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
affiant deputy did not make the incorrect statement knowingly
and intentionally or with a reckless disregard for the truth.
Therefore, we reverse the trial court's suppression of the
evidence and remand for further proceedings consistent with this
opinion.
I.
BACKGROUND
On October 1, 1999, Corporal Suzanne Divine, a deputy with
the Pittsylvania County Sheriff's Department, saw defendant, her
next-door neighbor, firing a shotgun or rifle in his yard for
about thirty minutes. About a week earlier, Divine had been
involved in serving some outstanding warrants on defendant, and
she thought, based on her involvement in that process, that
defendant had a prior felony conviction. As a result, she
called her dispatcher and had him run a criminal history. "The
dispatcher advised [her] reading from the criminal history while
[she] was on the phone with him that [defendant] had been
convicted of" at least one prior felony, and Divine thought she
recalled being told he had three prior felony convictions.
Divine testified that this method of obtaining information about
a person's prior convictions was "standard procedure."
Based on this information, Divine prepared an affidavit and
requested a search warrant. The affidavit described the offense
as a "violation of [Code §] 18.2-308.2" and represented that
"[defendant] has prior felony convictions and was standing in
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his backyard shooting a gun on [10-01-99] from approx[imately]
1850 pm until 1920 pm." The affidavit also indicated that
Divine became aware of the incident when she heard shots fired
and went outside, where she observed defendant firing a shotgun
or rifle as she described. In section 6 of the affidavit,
Divine had the choice of indicating that she "[had] personal
knowledge of the facts set forth in this affidavit OR [that she]
was advised of the facts . . . in whole or in part by an
informer[, whose] credibility or . . . reliability of . . .
information may be determined from the following facts." She
checked the first box, indicating personal knowledge of the
facts contained in the affidavit. The magistrate issued the
warrant, pursuant to which officers seized seven different
firearms.
Defendant moved to suppress the fruits of the search,
contending the warrant was invalid because it was issued without
probable cause. At the hearing on the motion to suppress,
Divine testified in keeping with the above. The trial court
questioned whether Divine could rely on the information she
obtained from the dispatcher without verifying the convictions
by obtaining conviction orders. It noted that the warrant
represented Divine had personal knowledge of its contents but
that her testimony indicated the information about defendant's
prior convictions was actually hearsay from the dispatcher. The
court then continued the matter to allow the parties to submit
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legal memoranda on the issue. Additional information received
by the court indicated that not all dispatchers were employees
of the sheriff's department, and nothing in the record
established whether they were employees of any branch of law
enforcement. Defendant argued, based on this lack of proof,
that Divine was not entitled to rely on the dispatcher's
representations about defendant's prior convictions.
At a subsequent hearing on the motion, the trial court
found Divine did not have personal knowledge of defendant's
prior felony convictions but agreed with the Commonwealth's
attorney's representation that Divine did not "in any way
intentionally mis[lead] the Court," responding, "Oh, I'm sure of
that." The court then ruled the search invalid without further
elaboration.
II.
ANALYSIS
At a hearing on a defendant's motion to suppress evidence
seized pursuant to a judicially sanctioned warrant, the warrant
is presumed valid, and the accused bears the burden of proving
the warrant is illegal or invalid. See Lebedun v. Commonwealth,
27 Va. App. 697, 711, 501 S.E.2d 427, 434 (1998). On appeal, we
view the evidence in the light most favorable to the party
prevailing below, here the defendant, granting him all
reasonable inferences fairly deducible therefrom. See
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
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47, 48 (1991); see also Ornelas v. United States, 517 U.S. 690,
699, 116 S. Ct. 1657, 1659, 134 L. Ed. 2d 911 (1996). We review
de novo the trial court's application of defined legal standards
such as probable cause to the particular facts of the case. See
Shears v. Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309,
311 (1996); see also Ornelas, 517 U.S. at 699, 116 S. Ct. at
1659.
Per the United States Supreme Court's holding in Franks v.
Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978),
a "presumption of validity [accompanies an] affidavit supporting
[a] search warrant." Id. at 171, 98 S. Ct. at 2684. A
defendant may challenge the validity of a warrant by making "a
substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit." 1 Id. at
1
Under Franks,
if the allegedly false statement is
necessary to a finding of probable cause,
the Fourth Amendment requires that a hearing
be held at the defendant's request. In the
event that at that hearing the allegation of
perjury or reckless disregard is established
by the defendant by a preponderance of the
evidence, and, with the affidavit's false
material set to one side, the affidavit's
remaining content is insufficient to
establish probable cause, the search warrant
must be voided and the fruits of the search
excluded to the same extent as if probable
cause was lacking on the face of the
affidavit.
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155-56, 98 S. Ct. at 2676. The supporting affidavit "'is to be
"truthful" in the sense that the information put forth is
believed or appropriately accepted by the affiant as true,'"
keeping in mind that "'probable cause may be founded upon
hearsay and upon information received from informants, as well
as information within the affiant's own knowledge that sometimes
must be garnered hastily.'" Id. at 165, 98 S. Ct. at 2681
(quoting United States v. Halsey, 257 F. Supp. 1002, 1005
(S.D.N.Y. 1966), aff'd, No. 31369 (2d Cir. June 12, 1967)).
"Allegations of negligence or innocent mistake are insufficient"
to require a Franks hearing or invalidate a warrant. Id. at
171, 98 S. Ct. at 2684. "[W]here police have been merely
negligent in checking or recording the facts relevant to a
probable-cause determination," no violation has occurred, and no
Franks hearing is required. Id. at 170, 98 S. Ct. at 2683.
These standards are in keeping with the principle that "the
Fourth Amendment 'probable cause' test requires not absolute
certainty but only that the government have good reason for
believing in the existence of the necessary facts." 2 Wayne R.
LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure
§ 3.4(d), at 129 (2d ed. 1999). They also are "consistent with
the remedial purpose of the exclusionary rule, 'to deter police
Id. at 155-56, 98 S. Ct. at 2676. Because we hold the inclusion
of the incorrect material did not result from perjury or
reckless disregard, we do not consider whether the affidavit's
remaining content was sufficient to establish probable cause.
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misconduct by [preventing] illegally obtained evidence from
being admitted in [a] defendant's criminal trial.'" Williams v.
Commonwealth, 26 Va. App. 612, 618, 496 S.E.2d 113, 116 (1998)
(quoting Johnson v. Commonwealth, 21 Va. App. 172, 175, 462
S.E.2d 907, 909 (1995) (emphasis added)).
As we have done in numerous prior cases, "we treat the
hearing on defendant's motion to suppress as a Franks hearing,
despite the absence of 'any preliminary showing' by defendant of
police misconduct" in this case. Id. at 617, 496 S.E.2d at 115
(quoting West v. Commonwealth, 16 Va. App. 679, 689, 432 S.E.2d
730, 737 (1993) (emphasis added)).
Under the Franks standard, the evidence here is
insufficient to support the trial court's granting of
defendant's motion to suppress. The trial court found the
affidavit contained incorrect information in that Deputy Divine
did not have first-hand knowledge of defendant's prior felony
convictions. Deputy Divine admitted as much at the suppression
hearing. 2 However, no evidence established that Divine included
2
In other contexts, law enforcement officers are allowed to
rely on hearsay information received from other law enforcement
officers as if the information were within their personal
knowledge. See, e.g., Code § 19.2-81 (requiring that officer
arresting individual for misdemeanor offense must have observed
the offense being committed but providing certain exceptions,
including one which permits officer to arrest individual for
misdemeanor offense committed outside the officer's presence if
the officer receives a radio message from his department or
other Virginia law enforcement agency that a warrant for that
offense is on file). These principles do not, however, support
a determination that Deputy Divine's information concerning
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this information in the affidavit either knowingly and
intentionally or with a reckless disregard for the truth, as is
required for exclusion under Franks. The trial court
specifically found Divine did not act with an intent to mislead,
and no evidence supports a finding that she acted recklessly.
Rather, the evidence established no more than a "negligent . . .
recording [of] the facts relevant to a probable-cause
determination," which is insufficient to support invalidation of
the warrant. Franks, 438 U.S. at 170, 98 S. Ct. at 2683.
Divine did not directly represent that she had personal or
first-hand knowledge of defendant's prior felony convictions.
This interpretation comes from reading the first and last
sections of the warrant together. In paragraph 1, which
required the affiant to describe the offense for which the
warrant was sought, Divine indicated, "Violation of
18.2-308.2--accused has prior felony convictions and was
standing in his backyard shooting a gun . . . ." Paragraph 6 of
defendant's prior convictions was based on personal knowledge
rather than hearsay, however reliable that hearsay information
may have been. See also Penn v. Commonwealth, 13 Va. App. 399,
402-06, 412 S.E.2d 189, 190-93 (1991) (rejecting theory that
information relayed by police officer who observes individual
commit misdemeanor to second officer who did not observe
commission of offense is sufficient under Code § 19.2-81 to
permit second officer to effect arrest because "'police team'
approach of 'combin[ing] [officers'] collective
perceptions'. . . is inconsistent with the prior holdings of the
Supreme Court and this Court and the plain meaning of Code
§ 19.2-81" (quoting People v. Dixon, 222 N.W.2d 749, 751 (Mich.
1979))).
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the affidavit required Divine to choose between indicating that
she had "personal knowledge of the facts set forth in [the]
affidavit" or that she was "advised of the facts . . . , in
whole or in part, by an informer," whose credibility or
reliability was based on facts enumerated in the affidavit by
the affiant. We hold, as a matter of law, that one does not act
with reckless disregard for the truth in representing, in such
an indirect fashion, that information about a suspect's criminal
history received from one's dispatcher in the ordinary course of
one's law enforcement duties is information more akin to
"personal knowledge" than it is to information received from "an
informer." Such a representation amounts, at most, to a
"negligent . . . recording [of] the facts relevant to a
probable-cause determination." Id.
For these reasons, we hold the evidence was insufficient as
a matter of law to establish a misrepresentation which was made
knowingly and intentionally or with reckless disregard for the
truth. Therefore, we reverse the trial court's suppression of
the evidence on this ground and remand to the trial court for
further proceedings consistent with this opinion.
Reversed and remanded.
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