Archie Laree Dawkins v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Humphreys
Argued at Richmond, Virginia
ARCHIE LAREE DAWKINS
MEMORANDUM OPINION * BY
v. Record No. 1079-00-2 JUDGE LARRY G. ELDER
APRIL 17, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Christopher H. Macturk (Barnes & Batzli, on
briefs), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Archie Laree Dawkins (appellant) appeals from his bench trial
convictions for possession of heroin and possession of a firearm
while simultaneously possessing heroin. On appeal, he contends
the trial court erroneously denied his motion to suppress because
the search warrant pursuant to which the heroin and firearm were
found was not supported by probable cause and because the good
faith exception to the warrant requirement did not apply.
Assuming without deciding that the facts recited in the warrant
were insufficient to provide probable cause, we hold that the
evidence supports the conclusions that the magistrate was not
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
misled by information in the affidavit which the officer knew or
should have known was false and that the warrant was not so
lacking in indicia of probable cause as to render the officer's
reliance on the warrant unreasonable. Therefore, we hold that the
trial court's denial of appellant's suppression motion was not
erroneous, and we affirm appellant's convictions,1 subject to
remand to correct a clerical error. 2
The Fourth Amendment protects people from unreasonable
searches and seizures. U.S. Const. amend. IV. "[T]he Fourth
Amendment has drawn a firm line at the entrance to the house.
Absent exigent circumstances, that threshold may not reasonably
be crossed without a warrant" issued on probable cause. Payton
v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 1382, 63
1
This Court raised, sua sponte, the issue of whether the
order from which appellant appealed was actually a final
appealable order in light of the fact that the trial court found
appellant guilty of the charged offenses but suspended
imposition of sentence on appellant's conviction of possession
of heroin. For the reasons discussed in our recent decision in
Oliver v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (2001),
we hold the order was appealable, and we do not consider this
issue further.
2
The parties agree the conviction order of March 24, 2000,
erroneously indicates that appellant pled guilty to the charged
offenses. The transcript of the proceedings held that same date
makes clear that appellant entered pleas of not guilty but
"stipulat[ed] that the evidence is sufficient for a finding of
guilty on both charges." Therefore, we remand the matter to the
trial court for the sole purpose of correcting the clerical
error in that order. See Tatum v. Commonwealth, 17 Va. App.
585, 592, 440 S.E.2d 133, 138 (1994); see also Code
§ 8.01-428(B).
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L. Ed. 2d 639 (1980). Probable cause for issuance of a search
warrant exists when, "given all the circumstances set forth in
the affidavit . . . , there is a fair probability that
contraband or evidence of a crime will be found in a particular
place." Tart v. Commonwealth, 17 Va. App. 384, 387, 437 S.E.2d
219, 221 (1993) (quoting Illinois v. Gates, 462 U.S. 213, 238,
103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983)). In deciding
whether probable cause exists to issue a warrant, a magistrate
may draw reasonable inferences from the facts supplied to him.
Williams v. Commonwealth, 4 Va. App. 53, 68, 354 S.E.2d 79, 87
(1987).
The exclusionary rule is a judicial creation which, under
certain circumstances, prevents evidence obtained in violation
of one's Fourth Amendment rights from being admitted into
evidence against him in a criminal prosecution. See
Commonwealth v. Ealy, 12 Va. App. 744, 750, 407 S.E.2d 681, 685
(1991).
In [United States v. Leon, 468 U.S. 897, 104
S. Ct. 3405, 82 L. Ed. 2d 677 (1984)], the
United States Supreme Court held that
"suppression of evidence obtained pursuant
to a warrant should be ordered only on a
case-by-case basis and only in those unusual
cases in which exclusion will further the
purposes of the exclusionary rule." The
Supreme Court also stated that "the
exclusionary rule is designed to deter
police misconduct . . . ." This deterrent
is not present when a police officer, acting
in objective good faith, obtains a search
warrant from a magistrate and conducts a
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search within the scope of the warrant. We
have embraced and applied the good faith
exception to the exclusionary rule.
Polston v. Commonwealth, 255 Va. 500, 503, 498 S.E.2d 924,
925-26 (1998) (quoting Leon, 468 U.S. at 916, 918, 104 S. Ct. at
3417, 3418) (other citations omitted).
In keeping with the goal of deterring police misconduct,
Leon provides that the good faith exception to the exclusionary
rule is unavailable in four specific instances:
where [(1)] 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) . . . the warrant was so
facially deficient that an executing officer
could not reasonably have assumed it was
valid.
Miles v. Commonwealth, 13 Va. App. 64, 71, 408 S.E.2d 602, 606
(1991) (quoting Atkins v. Commonwealth, 9 Va. App. 462, 464, 389
S.E.2d 179, 180 (1990)), aff'd on reh'g en banc, 14 Va. App. 82,
414 S.E.2d 619 (1992). In determining whether the good faith
exception applies, the court is limited to the four corners of
the affidavit and may not consider evidence known to the officer
but not included therein. See Janis v. Commonwealth, 22 Va.
App. 646, 654, 472 S.E.2d 649, 653, aff'd on reh'g en banc, 24
Va. App. 207, 481 S.E.2d 473 (1996).
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At a hearing on a defendant's motion to suppress, the
Commonwealth has the burden of proving that a warrantless search
or seizure did not violate the defendant's Fourth Amendment
rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 380
S.E.2d 656, 659 (1989). In attempting to meet this burden, the
Commonwealth is entitled to rely on "a presumption of validity
with respect to the affidavit supporting the search warrant."
Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57
L. Ed. 2d (1978). On appeal, we view the evidence in the light
most favorable to the prevailing party, here the Commonwealth,
granting to it all reasonable inferences fairly 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, 116 S. Ct. 1657,
1663, 134 L. Ed. 2d 911 (1996)). However, we review de novo the
trial court's application of defined legal standards such as
probable cause and reasonable suspicion to the particular facts
of the case. See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.
We use this same standard in determining whether the good faith
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exception to the exclusionary rule applies. See, e.g., United
States v. Hendricks, 743 F.2d 653, 656 (9th Cir. 1984).
Assuming without deciding that the search warrant was not
supported by probable cause, the items seized from appellant's
residence nevertheless were admissible in their entirety under
the good faith exception. 3
Appellant argues on appeal that the good faith exception
does not apply both (1) because the magistrate was misled by
information in the affidavit which the affiant knew was false or
should have known was false and (2) because the warrant was
based on an affidavit "so lacking in indicia of probable cause"
as to render official belief in its existence unreasonable. We
assume without deciding that appellant properly preserved both
arguments for appeal but hold that the evidence supports
application of the good faith exception.
First, the affidavit was entitled to a presumption of
validity, see Franks, 438 U.S. at 171, 98 S. Ct. at 2684, and
the record, viewed in the light most favorable to the
Commonwealth, fails to establish that the challenged statement
in the affidavit was false. The affidavit indicated that the
3
The precise basis for the trial court's denial of the
suppression motion does not appear in the record. However, in
the trial court, the Commonwealth apparently conceded its belief
that the warrant was not supported by probable cause. We
presume, therefore, that the trial court's denial of the motion
resulted from its application of the good faith exception to the
exclusionary rule.
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officer saw appellant "drop green plant material on the floor
board" of the vehicle, and the officer indicated at the
suppression hearing that he observed appellant drop to the floor
a brown handrolled marijuana cigar. Although appellant argues
that these statements are inherently at odds, we disagree, for
the brown cigar presumably contained "green plant material."
Appellant conceded at the motion hearing that, for purposes of
determining the existence of probable cause to issue the search
warrant, the magistrate could infer the "green plant material"
was marijuana, and he did not contest the officer's
representation that the cigar contained marijuana. Both the
information in the affidavit and the officer's testimony at
trial indicate that appellant threw to the floor a substance
which likely was marijuana. That his trial testimony was more
specific does not render the affidavit's recitation false.
Second, even if the statement in the warrant were false,
the good faith exception still applies unless the affiant knew
the statement was false or should have known it was false.
Miles, 13 Va. App. at 71, 408 S.E.2d at 606. This prong of Leon
preserves the earlier holding in Franks, see Leon, 468 U.S. at
923, 104 S. Ct. at 3421; see also Lanier v. Commonwealth, 10 Va.
App. 541, 547-48, 394 S.E.2d 495, 499-500 (1990); 1 Wayne R.
LaFave, Search and Seizure § 1.3(f), at 71-72 (3d ed. 1996), in
which the Court held that proof of a false statement resulting
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from "negligence or innocent mistake [is] insufficient" to
require exclusion of the resulting evidence, Franks, 438 U.S. at
171, 98 S. Ct. at 2684. Appellant presented no evidence to the
trial court that the statement, if false, was intentional or
reckless and conceded in oral argument before this Court that
the error could have been negligence. Further, viewing the
evidence in the light most favorable to the Commonwealth, the
trial court, in refusing to apply the exclusionary rule,
implicitly found the officer's inclusion of a false statement
was not intentional or reckless. See Lanier, 10 Va. App. at
549-50, 394 S.E.2d at 500-01. We cannot say this finding was
plainly wrong or without evidence to support it.
Finally, we reject appellant's argument that the allegedly
false statement likely misled the magistrate to infer the "green
plant material" was a bag indicative of distribution. This
inference is not supported by the record. The affidavit does
not state whether the green plant material was in any sort of
container or how much green plant material the officer observed,
and the magistrate did not question the officer affiant about
these issues.
For these reasons, we reject appellant's argument that
prong one of Leon required the trial court to grant his motion
to suppress.
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We also conclude the evidence supports the trial court's
implicit holding that the affidavit was not "so lacking in
indicia of probable cause" as to render official belief in its
existence unreasonable. Appellant contends the affidavit
provides an insufficient nexus between the marijuana and the
premises to be searched and an insufficient basis to support the
broad scope of the warrant to search for evidence of
distribution of drugs rather than mere possession. We disagree.
Probable cause "'does not require actual knowledge. "Only the
probability, and not a prima facie showing, of criminal activity
is the standard of probable cause."'" Quigley v. Commonwealth,
14 Va. App. 28, 34, 414 S.E.2d 851, 855 (1992) (quoting Wescott
v. Commonwealth, 216 Va. 123, 126, 216 S.E.2d 60, 63 (1975))
(other citations omitted).
Contrary to appellant's assertions, this case is
distinguishable from Janis, 22 Va. App. 646, 472 S.E.2d 649, in
which we held the challenged affidavit contained an insufficient
nexus between marijuana being cultivated in Dinwiddie County and
the Hopewell residence for which the search warrant was issued.
Id. at 653-55, 472 S.E.2d at 653-54. The affidavit in Janis
indicated that Janis was seen on property in Dinwiddie on which
marijuana was being cultivated, but it gave no indication as to
how Janis was linked to the residence to be searched. See id.
at 652-53, 472 S.E.2d at 653.
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In appellant's case, by contrast, the affidavit indicated
that appellant's mother confirmed he resided in the residence to
be searched and that the officer had observed appellant leave
the residence only moments before the officer found marijuana in
appellant's possession. Further, the information in the
affidavit was sufficient to indicate that appellant likely had
marijuana in his possession inside the residence. Officer
Musselwhite swore that when appellant exited the residence, "he
appeared to have an object cupped in his [left] hand, he got
into the car and I walked over to him and I asked him to step
out because I [believed] he may have a weapon[.] [A]s the car
door opened I observed him drop green plant material on the
floor board." A reasonable inference from this recitation of
events is that the green plant material appellant dropped to the
floor was the same substance he had cupped in his left hand when
he exited his residence only moments before. Thus, as to the
nexus between the marijuana and appellant's residence, we cannot
say the trial court erred in concluding that the affidavit was
not "so lacking in indicia of probable cause" as to render
official belief in its existence unreasonable.
We similarly reject appellant's argument that a reasonable
officer should have known the affidavit provided an insufficient
basis to support a search for items indicative of distribution.
In addition to marijuana, the affidavit indicated appellant
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possessed over $2,000 in five, ten and twenty-dollar bills, and
a cellular telephone. The magistrate was entitled to draw
reasonable inferences from these facts. Although possession of
these non-contraband items could have been innocent and may not,
in fact, have provided probable cause to believe appellant was
distributing drugs, we cannot say the evidence of possible
distribution was "so lacking in indicia of probable cause" as to
render the officer's belief in it unreasonable.
For these reasons, we affirm both the trial court's denial
of the suppression motion and the challenged convictions.
However, in keeping with footnote 2, supra, we remand to the
trial court for the sole purpose of amending the conviction
order to correct a clerical error.
Affirmed on the merits
and remanded with
instructions.
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