George Antoinio Brandon v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia
GEORGE ANTONIO BRANDON
MEMORANDUM OPINION * BY
v. Record No. 1700-01-2 JUDGE G. STEVEN AGEE
SEPTEMBER 17, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Learned D. Barry, Judge
Elliott B. Bender for appellant.
Marla Graff Decker, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
George Antonio Brandon (Brandon) was convicted in the City
of Richmond Circuit Court of possession of cocaine with intent
to distribute, in violation of Code § 18.2-248, possession of
cocaine with intent to distribute near school property, in
violation of Code § 18.2-255.2, and possession of marijuana, in
violation of Code § 18.2-250.1. He was sentenced to a prison
term of five years, the time to be suspended upon the completion
of a "boot camp" program. Brandon now appeals his convictions
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
contending the trial court erred by denying his motion to
suppress. 1
ANALYSIS
On appeal of a ruling on a motion to suppress, we view the
evidence in the light most favorable to the prevailing party
below, here the Commonwealth, granting to it all reasonable
inferences deducible therefrom. See Commonwealth v. Grimstead,
12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e are
bound by the trial court's findings of historical fact unless
'plainly wrong' or without evidence to support them[,] and we
give due weight to the inferences drawn from those facts by
resident judges and local law enforcement officers." McGee v.
Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997)
(en banc) (citing Ornelas v. United States, 517 U.S. 690, 699
(1996)). However, we review de novo the trial court's
application of defined legal standards to the particular facts
of the case. See Ornelas, 517 U.S. at 699.
Relying principally upon Franks v. Delaware, 438 U.S. 154
(1978), Brandon contends that the search warrant was issued upon
information in the affidavit that Officer Flornoy knew was false
or which he included with a reckless disregard of the truth.
1
As the parties are fully conversant with the record in
this case and because this memorandum opinion carries no
precedential value, only those facts necessary to a disposition
of this appeal are recited.
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Accordingly, Brandon avers the trial court erred in refusing to
suppress evidence gathered pursuant to the warrant. We
disagree.
In Franks, the United States Supreme Court held as follows:
[W]here the defendant makes 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, and if the allegedly false
statement is necessary to the 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.
438 U.S. at 155-56. See also West v. Commonwealth, 16 Va. App.
679, 689, 432 S.E.2d 730, 736-37 (1993); Neustadter v.
Commonwealth, 12 Va. App. 273, 274, 403 S.E.2d 391, 392, aff'd
en banc, 13 Va. App. 283, 411 S.E.2d 228 (1991).
The trial court granted Brandon a Franks hearing on his
motion but made no finding of a substantial preliminary showing
that the warrant contained false information. Assuming, without
deciding, the trial court properly granted a Franks hearing, we
hold that the trial court did not err in denying the motion to
suppress because Brandon failed to establish by a preponderance
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of the evidence his "allegation of perjury or reckless
disregard."
Brandon failed to present any evidence, direct or
otherwise, that Officer Flornoy was knowingly or recklessly
untruthful in the search warrant affidavit when he stated
Officer Misiano observed Brandon reaching into a plastic bag and
removing a "small white object." While Brandon presented the
preliminary hearing testimony of Officer Misiano in which the
officer described the transactions he observed as involving a
"small object" rather than a "small white object," a reading of
the entire preliminary hearing transcript shows that the officer
was never asked about the color of the "small object." Officer
Flornoy's affidavit statement differed from Officer Misiano's
testimony only in minute detail and does not represent any
conflicting facts. The difference between the two versions is
neither significant nor material. Brandon failed to establish
by a preponderance of the evidence that Officer Flornoy
intentionally or recklessly misrepresented the truth in his
affidavit when he described a "small white object." See Lanier
v. Commonwealth, 10 Va. App. 541, 549, 394 S.E.2d 495, 500
(1990). 2
2
Brandon elected to proceed in the Franks hearing solely on
Officer Flornoy's affidavit and the transcript of Officer
Misiano's preliminary hearing testimony. Having chosen not to
call the officers to testify, or present any other evidence, the
record is limited to these items for purposes of this appeal.
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Similarly, Brandon's contention that Officer Flornoy lied
or misrepresented a transaction involving a gray van is an
unsupported allegation. Brandon claims that Officer Misiano's
preliminary hearing testimony refutes the warrant affidavit
statement. This testimony, however, does not prove the
information stated in Officer Flornoy's warrant affidavit to be
false or reckless. While Officer Misiano testified that he did
not see Brandon approach any cars, the officer did testify that
he observed individuals approach Brandon in the street.
Further, the officer was questioned only about "cars" and not
about any other motor vehicles such as trucks or vans. Again,
Brandon failed to establish a material false or reckless
statement by a preponderance of the evidence.
Even if we assume the statement regarding a transaction
involving a "gray van" was unfounded, the trial court did not
err by denying the motion to suppress. Officer Misiano's
observation of Brandon exchanging small objects for cash on the
street in an active open air drug market provided the magistrate
with sufficient probable cause to issue the 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 the unfounded statement, the magistrate's decision to
issue a search warrant will not be disturbed because the
supporting affidavit contained some evidence which, standing
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alone, would be insufficient to establish probable cause.");
Neustadter, 12 Va. App. at 278, 403 S.E.2d at 394 (citing
Franks, 438 U.S. at 171-72).
The trial court did not err by denying Brandon's motion to
suppress. Accordingly, we affirm Brandon's convictions.
Affirmed.
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