Phillip C. BAY, S/K/A Philip C. Bay v. COMMONWEALTH of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia
PHILLIP C. BAY, S/K/A
PHILIP C. BAY
OPINION BY
v. Record No. 0585-11-1 JUDGE ROBERT P. FRANK
AUGUST 7, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
William R. O’Brien, Judge1
James O. Broccoletti (Zoby, Broccoletti & Normile, P.C., on brief),
for appellant.
Jennifer C. Williamson, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Phillip C. Bay, appellant, was convicted of eleven counts of manufacturing or possession
of a fire bomb or explosive device with intent to manufacture, in violation of Code § 18.2-85,
possession of a weapon of terrorism with intent to terrorize, in violation of Code § 18.2-46.6, two
counts of acts of terrorism, in violation of Code § 18.2-46.5, two counts of soliciting or recruiting
another for acts of terrorism, in violation of Code § 18.2-46.5, and two counts of possession or
use of a sawed-off shotgun or rifle, in violation of Code § 18.2-300. On appeal, he contends the
trial court erred in denying his motion for a change of venue, because all the citizens of Virginia
Beach, as the victims of the alleged crimes, were presumptively prejudiced and incapable of
serving as impartial jurors. He also alleged the trial court erred in denying his motion to
suppress, because police lacked valid consent to search his residence, and because the affidavit
1
While Judge Edward W. Hanson, Jr. ruled on the motion to suppress and the motion for
a change of venue, Judge O’Brien presided over the jury trial and sentencing hearing.
was insufficient to justify a second, more expansive search of the residence. For the reasons
stated, we affirm the judgment of the trial court.
BACKGROUND
On April 5, 2009, Investigator Donald Moss of the Virginia Beach Fire Department
received information that appellant was making pipe bombs at his home and was planning a
Columbine-type attack on a local high school. 2 Based on that information, Moss went to
appellant’s home in Virginia Beach, joining several police officers already at the scene. Moss
met appellant’s mother and told her why he was at the home. Moss asked Mrs. Bay if officers
could interview her son, who was seventeen at the time. She gave permission, and the officers
went inside the home with her.
Moss, Mrs. Bay, and appellant went into the kitchen/dining room area. Moss questioned
appellant about the alleged pipe bombs, and appellant admitted that he had made some pipe
bombs. Appellant also said he had been doing some experimentation and blew up some pipe
bombs in the woods near his home. Later in the interview, Moss asked if there were “any other
things” in the house. Appellant stated that he had a container of sulphur and possibly red cannon
fuse in his room.
After this discussion, Moss asked Mrs. Bay if he could search appellant’s room for these
items and retrieve these items, and to determine if there was anything else that would be
dangerous. Appellant interjected, “Mom, just say no.” When Mrs. Bay asked why, appellant
responded that he would tell her later. The two continued in a loud and heated exchange. Moss
2
Columbine High School in Colorado was the scene of a shooting in 1999, in which two
students shot and killed thirteen people and then killed themselves. Greg Toppo, 10 years later,
the real story behind Columbine (Apr. 14, 2009), http://www.usatoday.com/news/nation/2009-
04-13-columbine-myths_N.htm.
-2-
told Mrs. Bay that he at least wanted to retrieve the two items appellant mentioned. Mrs. Bay
told Moss to do what he had to do, as long as the areas he searched were agreeable to appellant.
Appellant then agreed and said to Moss, “come on up to my room and I will give you the
sulphur and fuse.” For safety reasons, Moss accompanied appellant to his room, along with
Officers Martinez and Binder. The officers recovered the red cannon fuse from appellant’s
closet. The sulphur container was on top of a piano in appellant’s room. As Moss recovered the
sulphur, he looked down and saw a plastic case under appellant’s bed. Moss was not sure if it
was a gun case. He asked appellant what was in the case. Appellant then quickly flipped up his
mattress, revealing a six-inch pipe. Appellant said he forgot it was there. Moss retrieved the
pipe. As Moss turned to leave the room, he saw three or four clear plastic, stackable drawers. In
one of the drawers, Moss could see two nipples and a container marked Pyrodex. 3 Moss asked
appellant about it, and appellant said it was his “stuff” with which he experimented. Moss
observed other containers labeled shot shrapnel, shredded glass, and BBs. There was also a bag
containing a white substance. Appellant said it was soap, which Moss knew could be used to
make napalm.
The officers and appellant took the drawer downstairs. Moss asked Mrs. Bay if he could
take the drawer outside for safety reasons. Mrs. Bay consented but said she wanted her drawer
back. Moss took the drawer to his car, put the contents in his trunk, and returned the drawer to
Mrs. Bay. 4 Moss told Mrs. Bay he would get back to her later. At that point, Moss wanted to
get a second opinion on the items he had taken from the house.
3
Pyrodex® is a propellant designed for use in muzzleloading and black powder cartridge
arms. See http://www.hodgdon.com/pyrodex.html (last visited July 9, 2012).
4
When Moss came inside, either appellant or Mrs. Bay asked him if he wanted to search
the shed. That search produced nothing of value.
-3-
Moss called Investigator Newton to review the items recovered from appellant’s house.
Newton is highly trained in the subject of pipe bombs and other explosives. Moss and Newton
met the next morning, and Newton determined that there was enough to charge appellant with
manufacturing and possession of explosive devices.
Also that morning, Newton learned from Virginia Beach Police Detective Frederick that
an informant reported appellant had eighteen additional pipe bombs hidden in his attic. Newton
executed an affidavit and received a search warrant for appellant’s house. Newton executed the
search warrant that day and found more fire bombs and explosive devices. When questioned,
appellant admitted that he had constructed the devices. Appellant also stated that he and another
juvenile were planning an attack on Landstown High School and that they were going to use the
devices to kill large numbers of people.
This appeal follows.
ANALYSIS
Change of Venue
Appellant contends the trial court erred in denying his motion for a change of venue. The
Commonwealth initially alleges that appellant has failed to provide an adequate record. We
disagree with the Commonwealth.
On appeal, we presume the judgment of the trial court is correct and the burden is on the
appellant to present to us a sufficient record from which we can determine whether the trial court
has erred in the respect alleged by appellant. Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255,
256 (1961). If appellant fails to do so, the judgment will be affirmed. Id.Rule 5A:8 provides that the transcript of any proceeding is a part of the record when it is
filed in the office of the clerk of the trial court within 60 days after entry of the final judgment.
In lieu of or to supplement a transcript, a party may submit a written statement of facts that has
-4-
been presented to and signed by the trial judge and filed by the clerk of the trial court in
accordance with Rule 5A:8(c).
If . . . the transcript [or statement of facts] is indispensable to the
determination of the case, then the requirements for making the
transcript [or statement of facts] a part of the record on appeal must
be strictly adhered to. This Court has no authority to make
exceptions to the filing requirements set out in the Rules.
Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986); see Anderson v.
Commonwealth, 13 Va. App. 506, 508-09, 413 S.E.2d 75, 77 (1992) (addressing statements of
facts in lieu of a transcript).
“When the appellant fails to ensure that the record contains transcripts or a written
statement of facts necessary to permit resolution of appellate issues, any assignments of error
affected by such omission shall not be considered.” Rule 5A:8(b)(4)(ii). Whether the record is
sufficiently complete to permit our review on appeal is a question of law subject to our de novo
review. See Turner, 2 Va. App. at 99, 341 S.E.2d at 402 (“If we determine that the transcript [or
statement of facts] is indispensable . . . , we must [conclude] that the record on appeal is
insufficient to fairly and accurately determine the issues presented.” (emphases added)).
In this case, appellant timely filed the transcript from the January 6, 2010 pretrial hearing,
at which he argued his motion to suppress and for a change of venue. Appellant did not file a
transcript or written statement of facts from the trial of November 22, 2010.
From the record available to us, it is evident that at the pretrial hearing, the trial court
denied appellant’s motion to suppress. However, the trial court did not rule on appellant’s
motion for a change of venue. Rather, the trial court found the motion premature, concluding
that “[w]hoever tries the case – whichever judge tries the case will have to determine after voir
dire whether or not it’s possible for both sides to get a fair and impartial trial in this city.” The
trial court clearly acted within its discretion, as “‘[a] court may refuse to summon a jury from
-5-
another county until an ineffectual effort has been made to obtain an impartial jury from the
county in which the trial is to take place.’” Ascher v. Commonwealth, 12 Va. App. 1105, 1114,
408 S.E.2d 906, 912 (1991) (quoting Coppola v. Commonwealth, 220 Va. 243, 248, 257 S.E.2d
797, 801 (1979)).
However, we find the transcript of the November 22, 2010 trial is not indispensable to
resolving this issue. Appellant argued below, as he does now, that all residents of Virginia
Beach are disqualified per se to sit on the jury, thus entitling him to a change in venue. Thus, the
voir dire conducted on November 22, 2010 is not relevant to a per se disqualification. 5 It is
evident from the record that the trial court did not change venue nor find every Virginia Beach
resident to be disqualified. Therefore, we will address the merits of this issue.
“An accused has a fundamental right to a trial by an impartial jury.
U.S. Const. amends. VI and XIV; Va. Const. Art. I, § 8.” Barker
v. Commonwealth, 230 Va. 370, 374, 337 S.E.2d 729, 732 (1985);
see also Martin v. Commonwealth, 221 Va. 436, 444, 271 S.E.2d
123, 128 (1980). It is the trial judge’s duty to empanel jurors who
are free from bias and prejudice against the parties. Scott v.
Commonwealth, 1 Va. App. 447, 451, 339 S.E.2d 899, 901 (1986).
The trial judge’s fulfillment of this duty involves the exercise of
sound judicial discretion, which ordinarily is binding on appeal
absent manifest error. Calhoun v. Commonwealth, 226 Va. 256,
258-59, 307 S.E.2d 896, 898 (1983).
Wilson v. Commonwealth, 2 Va. App. 134, 137, 342 S.E.2d 65, 67 (1986).
“‘It is presumed that a defendant can receive a fair trial in the locality where the offense
occurred, and the burden is on the accused to overcome the presumption by clearly
demonstrating widespread prejudice against him.’” Brown v. Commonwealth, 28 Va. App. 315,
336, 504 S.E.2d 399, 409 (1998) (quoting LaVasseur v. Commonwealth, 225 Va. 564, 577, 304
S.E.2d 644, 651 (1983)). “The trial court’s decision whether to grant a motion for change of
5
We note that appellant does not claim any proven bias or prejudice by any of the
veniremen because of their responses to voir dire. His challenge is to each venireman’s status as
a resident of Virginia Beach.
-6-
venue is reviewed for an abuse of discretion.” Cressel v. Commonwealth, 32 Va. App. 744, 753,
531 S.E.2d 1, 8 (2000).
Appellant refers to the definition of terrorism to further his disqualification argument.
Code § 18.2-46.4 defines terrorism:
“Act of terrorism” means an act of violence as defined in clause
(i) of subdivision A of § 19.2-297.1 committed with the intent to
(i) intimidate the civilian population at large; or (ii) influence the
conduct or activities of the government of the United States, a state
or locality through intimidation.
Thus, he contends that because each resident of Virginia Beach is a part of the “civilian
population at large,” the entire population of Virginia Beach could be appellant’s potential
victims. Appellant cites Jaques v. Commonwealth, 51 Va. (10 Gratt.) 690, 693 (1853), for the
proposition that per se disqualification is appropriate when a venireman stands in a near legal
relationship to the victim.
A trial court must excuse for cause a potential juror who “‘has any interest in the cause,
or is related to either party, or has expressed or formed any opinion, or is sensible of any bias or
prejudice’” regarding the action. Spangler v. Ashwell, 116 Va. 992, 996-97, 83 S.E. 930, 931
(1914) (quoting Richardson v. Planters Bank of Farmville, 94 Va. 130, 134, 26 S.E. 413, 414
(1896)). However, “per se rules of disqualification which are based on ‘a presumption of [juror]
bias or prejudice,’ are disfavored in Virginia.” McGann v. Commonwealth, 15 Va. App. 448,
454, 424 S.E.2d 706, 710 (1992) (quoting Scott v. Commonwealth, 1 Va. App. 447, 452, 339
S.E.2d 899, 901 (1986)).
There is no per se disqualification rule for a prospective juror related to a prosecution
witness, Barrett v. Commonwealth, 262 Va. 823, 826, 553 S.E.2d 731, 732 (2001), a current or
past acquaintance between a juror and a prosecution witness, Perez v. Commonwealth, 40
Va. App. 648, 656, 580 S.E.2d 507, 511 (2003), or an association with a law enforcement
-7-
officer, Clozza v. Commonwealth, 228 Va. 124, 135, 321 S.E.2d 273, 280 (1984). Further, there
is no per se disqualification for former clients of the Commonwealth’s Attorney, Elam v.
Commonwealth, 229 Va. 113, 116, 326 S.E.2d 685, 687 (1985), one employed by a corporate
victim, Scott v. Commonwealth, 1 Va. App. 447, 452, 339 S.E.2d 899, 902 (1986), one who has
been a victim of a like crime, Webb v. Commonwealth, 11 Va. App. 220, 223, 397 S.E.2d 539,
541 (1990), or one shares the risk of being a victim of the same crime because of having similar
financial interest as the victim in the case being tried, Melvin v. Commonwealth, 202 Va. 511,
512-13, 118 S.E.2d 679, 680 (1961).
However, there are limited instances where the status of a prospective juror creates a per
se disqualification. In Townsend v. Commonwealth, 270 Va. 325, 619 S.E.2d 71 (2005), the
Supreme Court of Virginia opined that per se disqualification applied when a venireman was a
current client of counsel, id. at 331, 619 S.E.2d at 74-75 (citing Cantrell v. Crews, 259 Va. 47,
49, 523 S.E.2d 502, 503 (2000); City of Virginia Beach v. Giant Square Shopping Ctr. Co., 255
Va. 467, 470-71, 498 S.E.2d 917, 918-19 (1998); Medici v. Commonwealth, 260 Va. 223,
226-27, 532 S.E.2d 28, 30-31 (2000)), or when a venireman’s brother, a police officer, would
testify as to the crime scene, id. (citing Barrett, 262 Va. at 826-27, 553 S.E.2d at 732).
The Supreme Court of Virginia has also found that a stockholder in a company which is a
party to the litigation would be automatically disqualified from serving as a juror, see Salina v.
Commonwealth, 217 Va. 92, 93-94, 225 S.E.2d 199, 200 (1976), as would a venireman who is
related within the ninth degree of affinity to the victim, see Gray v. Commonwealth, 226 Va.
591, 593, 311 S.E.2d 409, 410 (1984).
-8-
The rationale of a per se disqualification is that the prospective juror’s status alone
renders that juror incapable of being fair and impartial. See McGann, 15 Va. App. at 454, 424
S.E.2d at 710. 6
Code § 18.2-46.8 states: “Venue for any violation of this article may be had in the
county or city where such crime is alleged to have occurred or where any act in furtherance of an
act prohibited by this article was committed.” The indictments charging appellant with
numerous acts of terrorism all fall within Article 2.2, Code §§ 18.2-46.4 through 18.2-46.10. 7
It should be noted that in his motion to change venue, appellant asked only that venue be
transferred to another jurisdiction. He did not ask that a jury panel be brought in from another
jurisdiction.
Thus, under the narrow facts of appellant’s motion in this case, Code § 18.2-46.8
expresses the legislature’s intent that it is appropriate to have terrorism charges tried in the
county or city where the offense occurred, despite the fact that the acts of terrorism must be
accompanied by an intent to intimidate the civilian population. Had the legislature intended to
require a change of venue in a terrorism case, it certainly could have written the statute to reflect
that intent. Basic principles of statutory construction hold that “when a statute is plain and
unambiguous, a court may look only to the words of the statute to determine its meaning.”
Caprio v. Commonwealth, 254 Va. 507, 511-12, 493 S.E.2d 371, 374 (1997).
6
The Supreme Court of Virginia has acknowledged that a per se disqualification may
arise in order to maintain public confidence in the judicial system. While neither party raised
this concept, we discern no reason to believe that disqualifying the entire population of Virginia
Beach from sitting on this jury would maintain public confidence. See Townsend, 270 Va. at
332, 619 S.E.2d at 75.
7
Appellant does not base his disqualification argument on the non-terrorism indictments.
-9-
Further, the status of being a resident of Virginia Beach, even as a member of the civilian
population at-large, does not necessarily mean that such status prevents any and every resident of
Virginia Beach from being fair and impartial.
Appellant’s argument would lead to a result that impacts the efficient administration of
justice if a court was required to change venue for every terrorism charge under Article 2.2. We
acknowledge that some residents of Virginia Beach may not be impartial. The proper method to
insure an impartial jury would be to address this issue on voir dire, which the trial court did in
this case. We therefore conclude the trial court did not err in declining appellant’s motion to
change venue. 8
Motion to Suppress 9
Appellant next contends that the trial court erred in denying his motion to suppress
evidence. He argues that police and fire investigators did not have valid consent for the April 5,
2009 search of his residence. He also argues that the April 6, 2009 search was invalid, because
the supporting affidavit did not provide sufficient new facts to justify a warrant for a second,
more extensive search. Appellant contends there was no new probable cause from the previous
8
At oral argument, appellant conceded that his change of venue argument rises or falls on
the resolution of whether all residents of Virginia Beach should be disqualified.
9
Again, the Commonwealth contends appellant failed to provide an adequate record to
permit us to review his challenge to the denial of his suppression motion. Although the record
contains the transcript of the suppression hearing, the trial transcript is not part of the record on
appeal. When an appellate court reviews a suppression ruling, it considers all relevant evidence
adduced at both the suppression hearing and the trial. E.g., DePriest v. Commonwealth, 4
Va. App. 577, 583, 359 S.E.2d 540, 543 (1987). This is so even in a case challenging the
sufficiency of an affidavit supporting the issuance of a search warrant. See, e.g., Adams v.
Commonwealth, 275 Va. 260, 270-71, 657 S.E.2d 87, 93 (2008) (holding a reviewing court is
not limited to the four corners of the affidavit and should consider the totality of the
circumstances, including any sworn oral testimony presented to the issuing magistrate). Here,
because we hold infra in the text that the evidence admitted at the suppression hearing supports
the trial court’s ruling and because appellant does not rely on any evidence introduced at trial as
supporting his argument for a reversal, we reach the merits of his challenges to the suppression
ruling and affirm.
- 10 -
day. Essentially, appellant argues that because police conducted a full and complete search on
the first day, the affidavit provided no new information that additional items would be found
with the warrant for a second search. He further alleges that the affidavit contained no
information as to the reliability or basis of knowledge of the informant.
“A defendant’s claim that evidence was seized in violation of the
Fourth Amendment presents a mixed question of law and fact that
we review de novo on appeal. In making such a determination, we
give deference to the factual findings of the circuit court, but we
independently determine whether the manner in which the
evidence was obtained meets the requirements of the Fourth
Amendment. The defendant has the burden to show that,
considering the evidence in the light most favorable to the
Commonwealth, the trial court’s denial of his suppression motion
was reversible error.”
Brooks v. Commonwealth, 282 Va. 90, 94-95, 712 S.E.2d 464, 466 (2011) (quoting Jones v.
Commonwealth, 277 Va. 171, 177-78, 670 S.E.2d 727, 731 (2009) (internal citations omitted)).
Furthermore, conflicts in evidence present factual questions, to be resolved by the trial
court. Mills v. Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718, 723 (1992).
“The Fourth Amendment test for a valid consent to search is that the consent be
voluntary, and ‘voluntariness is a question of fact to be determined from all the circumstances.’”
Ohio v. Robinette, 519 U.S. 33, 40 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218,
248-49 (1973)). Appellant argues that the search of his bedroom was illegal because his consent
was coerced. However, his allegation is unsupported by evidence in the record.
The trial court found that the search and seizure of the items in appellant’s room was
consensual. Unless this finding was “clear error,” we will not reverse the trial court’s
conclusion. An appellate court “‘should take care both to review findings of historical fact only
for clear error and to give due weight to inferences drawn from those facts by resident judges and
local law enforcement officers.’” Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d
25, 27 (2000) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).
- 11 -
In this case, Investigator Moss testified that he explained to appellant’s mother, Mrs. Bay,
why he was at the residence. Mrs. Bay invited Moss and other officers into her home. Moss
further testified that while in the kitchen area, appellant admitted that he had explosive materials
in the house and that he had blown up some pipe bombs in the woods near his home. When
Moss asked Mrs. Bay for permission to search appellant’s room, appellant told his mother to
refuse. After a heated discussion between appellant and his mother, Moss asked Mrs. Bay if they
could at least retrieve the items appellant had admitted to having, in the interest of safety.
Mrs. Bay told Moss to do what he had to do. Appellant agreed to the search and then took the
officers to his room, where he willingly turned over contraband.
Both appellant and his mother consented to the search of appellant’s room, and the only
evidence of coercion came from appellant’s unsupported assertion that officers repeatedly asked
Mrs. Bay for consent to search after she had declined. As the trial court properly concluded, the
testimony of the officers, viewed in the light most favorable to the Commonwealth, clearly and
unequivocally established that Mrs. Bay was always cooperative with officers. After the police
spoke with Mrs. Bay and Mrs. Bay spoke with appellant, Mrs. Bay voiced her consent, and
appellant voluntarily took officers to his room.
Appellant premises his argument on his unsubstantiated claim that officers put pressure
on Mrs. Bay by making repeated requests for consent. There is no evidence of this in the record.
Mrs. Bay testified she did not consent to the search. However, the trial court specifically
declined to credit Mrs. Bay’s testimony, saying it could “best be termed as selective recall.” We
cannot say that the trial court was plainly wrong in doing so. “On appeal, great deference is
given to the factfinder who, having seen and heard the witnesses, assesses their credibility and
weighs their testimony.” Young v. Commonwealth, 275 Va. 587, 590, 659 S.E.2d 308, 310
(2008). We will not disturb the trial court’s judgment with regard to factual matters unless
- 12 -
plainly wrong or without evidence to support it. Id. Instead, we “‘discard the evidence of the
accused in conflict with that of the Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences to be drawn therefrom.’” Blow v.
Commonwealth, 52 Va. App. 533, 536, 665 S.E.2d 254, 256 (2008) (quoting Parks v.
Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)).
We conclude that the trial court correctly ruled that the search of appellant’s room and
the seizure of items found therein was consensual.
Appellant also contends that the trial court should have granted his motion to suppress,
because there was no new probable cause for issuance of the April 6, 2009 search warrant.
Appellant argues the supporting affidavit contained insufficient facts to find probable cause to
search appellant’s residence a second time. He also alleges the affidavit contained no
information as to the reliability or basis of knowledge of the informant.
“[P]robable cause exists when ‘there is a fair probability that contraband or evidence of a
crime will be found in a particular place.’” United States v. Grubbs, 547 U.S. 90, 95 (2006)
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). In determining whether an affidavit was
sufficient to support a search warrant, we look to the totality of the circumstances. Garza v.
Commonwealth, 228 Va. 559, 563, 323 S.E.2d 127, 129 (1984) (citing Gates, 462 U.S. at 230).
The Supreme Court has consistently held that “after-the-fact scrutiny by courts of the sufficiency
of an affidavit should not take the form of de novo review.” Gates, 462 U.S. at 236. “A
magistrate’s ‘determination of probable cause should be paid great deference by reviewing
courts.’” Id. (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969), overruled on other
grounds by Gates, 462 U.S. at 238).
Upon review, a search warrant will be upheld if the evidence, viewed as a whole,
provided the magistrate with a “‘substantial basis’” for concluding that probable cause existed to
- 13 -
issue the warrant. Boyd v. Commonwealth, 12 Va. App. 179, 185-86, 402 S.E.2d 914, 918
(1991) (quoting Gates, 462 U.S. at 239); see Tart v. Commonwealth, 17 Va. App. 384, 389, 437
S.E.2d 219, 222 (1993) (“‘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.’”
(quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)).
In this case, Investigator Moss recovered sulphur, red cannon fuse, a metal pipe that was
threaded on both ends, Pyrodex black powder, shot shrapnel, shredded glass, BBs, and soap,
which Moss knew could be used to make napalm. Appellant admitted to Moss that he had been
experimenting with the black powder and making pipe bombs. Further, Moss showed the items
to Investigator Newton, who had more expertise in pipe bombs and other explosives. After
looking at the items taken from appellant’s home, Newton concluded that there was probable
cause to charge appellant with manufacture and possession of an explosive device. Newton
subsequently wrote and presented an affidavit to a magistrate and received a warrant to search
appellant’s entire home for additional evidence of bomb making.
While the affidavit states that police obtained appellant’s consent to search his home on
April 5, nothing in the record suggests that police searched any parts of the house other than his
room and the outside shed on that date. All of the items seized on the first day were from
appellant’s bedroom, and the trial court so found.
It is reasonable to assume, based on the discovery of explosive devices and related
paraphernalia in appellant’s bedroom, there would also be documents and other materials used to
research and construct explosives in appellant’s bedroom or elsewhere in the home.
Furthermore, because appellant had admitted to police that he and another student were planning
a large-scale attack on their school, it was reasonable for police to search for communications
- 14 -
between appellant and the other student, as well as information on who else and what other
locations might be involved.
The trial court noted that “[h]aving obtained the items from only the defendant’s room, it
is reasonable that the authorities would proceed the next day to search the remaining rooms and
areas of the residence – without the last sentence of Paragraph 4 of the affidavit,” which
contained information received from an informant. The affidavit also indicated police knew
appellant was planning a Columbine-style attack on his high school. It was also clear, based on
the list of items to be seized, that police intended to search for items and evidence other than
what they had already recovered from appellant’s bedroom.
Even specifically excluding any evidence from an informant, the trial court found that the
remaining information in the affidavit was sufficient to sustain probable cause for the second
day’s search warrant. See Gwinn v. Commonwealth, 16 Va. App. 972, 976, 434 S.E.2d 901, 904
(1993) (“[W]hen other evidence exists in the affidavit, which independently establishes probable
cause without having to consider [‘a conclusory statement by an unidentified informant, whose
veracity and basis of knowledge were not established,’] the magistrate’s decision to issue a
search warrant will not be disturbed because the supporting affidavit contained some evidence,
which, standing alone, would be insufficient to establish probable cause.”). The first day’s
search resulted in officers recovering several pieces of threaded metal pipe, PVC pipe with end
caps and a fuse, powdered sulphur and black powder, and bags labeled shrapnel (metal and
glass). The affidavit for the second day’s search warrant indicated that officers were looking for
“components, chemical compounds, fuses, containers, devices, pipes, end caps, or other items
commonly used to construct an incendiary or explosive device, as well as any computer
equipment, printed, written, typed, or computer-generated material used to research or construct
explosive or incendiary devices.” (Emphasis added). The affidavit provided sufficient new
- 15 -
probable cause to support a second search of appellant’s home. Therefore, the evidence
supported the trial court’s denial of appellant’s motion to suppress.
Because the evidence, as found by the trial court, supports the conclusion that the
affidavit is more than adequate to show probable cause, we need not address the reliability of the
informant.
CONCLUSION
For the reasons stated herein, we affirm the trial court’s denial of appellant’s motions for
a change of venue and to suppress.
Affirmed.
- 16 -