CW v. Eric Randal Norman & Christopher Lane Walton

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Senior Judge Hodges
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 2497-00-2 JUDGE RUDOLPH BUMGARDNER, III
MARCH 15, 2001
ERIC RANDAL NORMAN AND
CHRISTOPHER LANE WALTON
FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY
William H. Shaw, III, Judge
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellant.
Joseph R. Caprio (Michael T. Soberick;
Dusewicz & Soberick, P.C., on brief), for
appellees.
Eric Randal Norman and Christopher Lane Walton filed
motions to suppress evidence seized during execution of a search
warrant. The trial court granted the motions and suppressed use
of the evidence in proving burglary and grand larceny by the
defendants. The Commonwealth contends the evidence was
admissible because the good faith exception to the exclusionary
rule applied. We agree, and reverse the ruling.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Captain Bruce A. Boles was investigating a burglary and
larceny at the home of Robert C. Pitts in Middlesex County on
January 21, 2000. On March 21, 2000, a deputy told him the
television set stolen from Pitts's home was in a wooded area in
the rear of the defendants' residence in King & Queen County.
Two days later, Captain Boles obtained a warrant 1 to search the
defendants' residence for items stolen January 21. It also
authorized a search for any pawn tickets or sales receipts that
indicated a transfer of any of the stolen property. The
defendants moved to suppress the evidence recovered during the
search.
The trial court ruled the affidavit did not establish
probable cause for a search warrant of the residence. It
characterized the affidavit as more than "bare bones" but found
it "so lacking in probable cause" that the good faith exception
was not applicable. United States v. Leon, 468 U.S. 897 (1984).
The trial court suppressed the evidence found pursuant to the
1
The affidavit recited these facts:
On Tuesday, 03-21-00 at approximately
3:20 pm I [Captain Boles] spoke with King &
Queen County Deputy Sheriff Tommy Atkinson
by telephone regarding identification of a
television which he had located in a wooded
area in the rear of the residence of Eric
Norman . . . in King & Queen County,
Virginia. Atkinson told me that [the]
serial number [on the television] matches
the television stolen from the residence of
Robert Pitts.
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warrant but admitted the television found "in a wooded area in
the rear" of the residence.
Ordinarily, an officer executing a search warrant "cannot
be expected to question the magistrate's probable-cause
determination or his judgment that the form of the warrant is
technically sufficient." Leon, 468 U.S. at 921. The good faith
exception does not apply if (1) there is evidence the magistrate
abandoned his judicial role, (2) the magistrate was misled by
information in the affidavit, (3) the warrant was 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 officer could not have reasonably assumed it
was valid. Leon, 468 U.S. at 923.
The Commonwealth did not appeal the ruling that the
affidavit did not provide probable cause for a search warrant.
The parties agree that only the third exception of Leon could
apply in this case. The issue is whether the officer could
reasonably presume the warrant was valid. Atkins v.
Commonwealth, 9 Va. App. 462, 464, 389 S.E.2d 179, 180 (1990).
Colaw v. Commonwealth, 32 Va. App. 806, 810-11, 531 S.E.2d
31, 33 (2000), refused to apply the good faith exception where
an informant provided sketchy information about a drug party to
be held at a residence. The affidavit was "bare bones" and
contained nothing more than conclusory declarations about a
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future event. It failed to provide a basis for the informant's
knowledge and did not even state when the party would be held.
Janis v. Commonwealth, 22 Va. App. 646, 652, 472 S.E.2d
649, 652, aff'd en banc, 23 Va. App. 696, 479 S.E.2d 534 (1996),
reversed an application of the good faith exception. The police
observed the defendants cultivating marijuana in a field in
Dinwiddie County. They obtained a search warrant for the
defendants' home in Hopewell. The affidavit failed to provide a
nexus between the marijuana found in Dinwiddie and the residence
in Hopewell. "[T]he affidavit gave absolutely no indication
that the fruits of the criminal activity would probably be
found" at the defendants' residence. 22 Va. App. at 653-54, 472
S.E.2d at 653.
In this case, the trial court found that the search warrant
was supported by more than a "bare bones" affidavit. The
information was not a conclusory declaration about a future
event at some unspecified time. It was a clear and succinct
statement of fact by a deputy sheriff who had identified the
precise television taken during the burglary. The deputy found
it in the woods behind the defendants' house. The officer
investigating the burglary compiled the information during his
continuing investigation of the burglary. The information came
from a deputy sheriff, not from an unconnected tip by an unknown
informer. A reasonable officer could infer that the stolen
television hidden in the woods behind a house was connected to
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the house or the people in it. The location of the stolen
television provided a nexus between the information in the
affidavit and the place to be searched. The television itself
was admitted into evidence.
"[T]he exclusionary rule is designed to deter police
misconduct rather than to punish the errors of judges and
magistrates." Leon, 468 U.S. at 916. Evidence seized pursuant
to a warrant should be suppressed "on a case-by-case basis and
only in those unusual cases in which exclusion will further the
purposes of the exclusionary rule." Leon, 468 U.S. at 918. If
none of the evils to be avoided in Leon are present, the
evidence should be admitted. Polston v. Commonwealth, 255 Va.
500, 504, 498 S.E.2d 924, 926 (1998); Derr v. Commonwealth, 242
Va. 413, 422, 410 S.E.2d 662, 667 (1991).
As in Leon, the information in the affidavit provided
"evidence sufficient to create disagreement among thoughtful and
competent judges as to the existence of probable cause." 468
U.S. at 926. The trial court found deficiencies in timeliness
of the information and the lack of detail about the proximity
and association of the woods with the house, but that was detail
for the magistrate to assay. We conclude the warrant was
sufficiently descriptive that the officer could reasonably
presume it was valid. He acted in good faith in executing the
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warrant and acted within its scope. Accordingly, the good faith
exception applied, and the evidence is admissible.
Reversed and remanded.
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