Hicks v. Com.

Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Koontz, S.J. ∗

MICHAEL DEON HICKS

v. Record No. 100727 OPINION BY JUSTICE DONALD W. LEMONS
March 4, 2011
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

erred when it affirmed the conviction of Michael Deon Hicks

("Hicks") for possession of heroin which occurred after denial

of his motion to suppress evidence seized pursuant to

execution of a search warrant.

I. Facts and Proceedings Below

On September 11, 2008, Richmond Police Narcotics

Detective Sergeant Ronald Armstead ("Armstead") was involved

in an unrelated police drug investigation using a confidential

informant in a "control[led] buy operation." The informant

had been working with the police and making controlled buys

for a six month period, and he was considered reliable. His

information had helped police obtain search warrants, arrest

several individuals, and seize illegal narcotics. The

informant had used cocaine and heroin in the past, and he was

∗
Justice Koontz presided and participated in the hearing
and decision of this case prior to the effective date of his
retirement on February 1, 2011; Justice Kinser was sworn in as
Chief Justice on February 1, 2011.
familiar with their packaging and street-level distribution.

The informant was "wired" for audio and video recording.

While working on this unrelated operation, Armstead

observed four individuals enter a home at 2111 Richmond Street

(the "home") at different times and leave within 30 seconds.

The home is located in what police referred to as "a high drug

area." Armstead saw one man take money out of his pocket

before entering the home. After another person, a woman,

entered and exited the home, she was approached by the

informant. She opened a piece of folded paper and showed the

contents to the informant. The informant subsequently told

Armstead that the woman showed him what she said was heroin

that she had just purchased inside the "Dope House," referring

to the home. Armstead and the informant then met with

Detective Marvin Marsh ("Marsh") at a staging location and

told him what had occurred.

Based on this information, Marsh completed an affidavit

in support of a search warrant ("the affidavit"), in which he

additionally stated that "this activity is an indicator and is

consistent with foot traffic when purchasing illegal narcotics

from a drug house." In the affidavit, Marsh concluded that

"[he] believe[s] evidence supporting the involvement of [the

home] and those who frequent this residence solely to sell and

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or purchase heroin, will be recovered from the

residence. . . ."

Based on the information in the affidavit, Marsh secured

a search warrant ("the warrant") for the home on September 12,

2008. The warrant commanded the search of the home for the

following:

Heroin . . . and any paraphernalia used in the
preparation, packaging, and distribution of
Heroin. Any instruments of the illegal drug
trade and fruits from the sale of Heroin. Any
electronic devices used to aid the distribution
of Heroin. Any financial or written records or
documents identifying the owners involvlement
[sic] in the illegal drug trade. Any firearms
and/or ammunition found inside the residence.

The search warrant was not executed until 13 days later

on September 25, 2008. During the interim period, Marsh's

investigation revealed that the utilities at the home were

registered to Isis Trent, whose boyfriend, Hicks, had "been

involved in two pending drug transactions" that police

recorded on video, and he had a criminal record involving

robbery and heroin distribution.

Marsh testified that after the warrant was issued on

September 12, he conducted several "spot checks, mobile

surveillances, driving through the area, sitting for a while,

and [he] didn't at that point in time observe any foot traffic

in and out of the residence." Each time he drove by, "there

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was no one in the front yard, no one on the sidewalk areas, no

one out," and he considered the area "to be dead."

However, on September 25, Marsh testified that there was

an increase in activity, and within the span of 10 minutes he

saw "more than five" individuals enter the home, stay for 20-

30 seconds, and then leave. Marsh testified that this was

similar to the pattern of foot traffic observed by Armstead on

September 11th. He explained that the short visit time was

significant, stating that "because we are dealing with illegal

narcotics, they don't want to stay too long. They purchase

what they're going to purchase and they leave." Marsh also

observed men who appeared to be "posting up," "standing in the

front yard, [who] from time to time would glance to the left

and to the right as if being lookouts." He said that these

men appeared to be "very conscientious [sic] of their

whereabouts, their surroundings." Marsh testified that, in

his experience, when people "post up" as lookouts, it is "very

obvious" and their role is to "yell out" if they see the

police to warn others that law enforcement is in the area.

Marsh concluded that his observations were "consistent with

the sale of narcotics," and he left the area to assemble other

officers to execute the search warrant.

When the search warrant was executed that evening, police

found several individuals inside the home, including Hicks,

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Hicks' girlfriend, Hicks' cousin, and three young children.

After being advised of his rights, Hicks told Marsh that his

cousin had heroin hidden in his undergarments. When the

police searched the kitchen and rear porch area of the home,

Marsh observed that Hicks showed interest in the search,

appeared "real antsy," and "would maintain eye contact with

officers while they were in the kitchen area searching." On

the rear porch, police found a bag containing approximately 14

grams of heroin. In response to questioning, Hicks said that

his DNA may be on the bag, and he admitted that "I put up the

money and my cousin sells the stuff." From other areas of the

home, police also recovered 45 individually wrapped small

"baggies" of heroin, a digital scale, packaging materials, and

ammunition. Hicks admitted that the digital scale was used to

weigh the heroin.

In denying Hicks' motion to suppress the evidence, the

trial court held that "the affidavit in support of the search

warrant was sufficient in its statement of material facts

constituting probable cause for the magistrate to have issued

the warrant for the search of [the home]." The trial court

also held that the execution of the search warrant 13 days

after its issuance did not constitute undue delay because once

Marsh "observed the things that signaled to him as a drug

detective that there was dealing going on, again, and that

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dealing was probably heroin based on what happened on

September 11th, it was appropriate . . . for the warrant to be

executed at that time." A jury found Hicks guilty of

possession of heroin in violation of Code § 18.2-250. The

trial court imposed the jury's verdict and sentence of ten

years in prison.

In an unpublished order, the Court of Appeals denied

Hicks' petition for appeal. Hicks v. Commonwealth, Record No.

2183-09-2 (March 17, 2010). The Court of Appeals held that

the affidavit provided sufficient probable cause to justify

the issuance of the search warrant. Id., slip op. at 2-3.

The Court of Appeals further held that probable cause did not

dissipate during the 13-day period, as "the detectives

executed the warrant 'forthwith' within the meaning of Code

§ 19.2-56 and in compliance with the requirements of the

Fourth Amendment." Id., slip op. at 3-4. Hicks timely filed

his notice of appeal to this Court. We awarded an appeal on

the following assignments of error:

1. The Court of Appeals erred by affirming the trial court's
decision to deny Hicks' motion to suppress the evidence
when there was no probable cause to justify the search
warrant.

2. The Court of Appeals erred by affirming the trial court's
denial of Hicks' motion to suppress the evidence when the
probable cause, if any, had dissipated, and the police
did not execute the search warrant in a timely manner.

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 II. Analysis

A. Standard of Review

The standard of review in this case is well settled.

In reviewing the denial of a motion to suppress
evidence claiming a violation of a person's
Fourth Amendment rights, we consider the facts
in the light most favorable to the Commonwealth,
the prevailing party at trial. The burden is on
the defendant to show that the trial court
committed reversible error. We are bound by the
trial court's factual findings unless those
findings are plainly wrong or unsupported by the
evidence. We will review the trial court's
application of the law de novo.

Whitehead v. Commonwealth, 278 Va. 300, 306-07, 683 S.E.2d

299, 301 (2009) (quoting Malbrough v. Commonwealth, 275 Va.

163, 165, 665 S.E.2d 1, 3 (2008)).

B. Probable Cause to Support Issuance
of the Search Warrant

Hicks argues that the Court of Appeals erred in affirming

the trial court's decision to deny his motion to suppress the

evidence and holding that the affidavit was sufficient to

support probable cause for the issuance of the search warrant.

We must look to the totality of the circumstances in

order to determine whether the affidavit was sufficient to

support the search warrant. Garza v. Commonwealth, 228 Va.

559, 563, 323 S.E.2d 127, 129 (1984) (citing Illinois v.

Gates, 462 U.S. 213, 230 (1983)). Probable cause for issuance

of a search warrant exists when "there is a fair probability

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that contraband or evidence of a crime will be found in a

particular place." Jones v. Commonwealth, 277 Va. 171, 178,

670 S.E.2d 727, 731 (2009) (quoting United States v. Grubbs,

547 U.S. 90, 95 (2006)). In Gates, the United States Supreme

Court rejected any hypertechnical, rigid analyses when

reviewing probable cause determinations made by judges and

magistrates; rather, the proper approach is as follows:

The task of the issuing magistrate is simply to
make a practical, common-sense decision whether,
given all the circumstances set forth in the
affidavit before him, including the "veracity"
and "basis of knowledge" of persons supplying
hearsay information, there is a fair probability
that contraband or evidence of a crime will be
found in a particular place. And the duty of a
reviewing court is simply to ensure that the
magistrate had a "substantial basis for . . .
conclud[ing]" that probable cause existed.

462 U.S. at 238-39 (quoting Jones v. United States, 362 U.S.

257, 271 (1960)). Additionally, when we review the

magistrate's decision to issue the warrant, we must grant

"great deference" to the magistrate's finding of probable

cause. Garza, 228 Va. at 563, 323 S.E.2d at 129.

Here, the affidavit was sufficient on its face to support

probable cause for the search warrant. Armstead observed

several individuals enter the home at different times, each

exiting within 30 seconds, and one of the individuals had

money in his hand. The reliable confidential informant spoke

with a woman who had just exited the home, and she referred to

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the home as a "Dope House." Armstead also saw the woman open

a folded piece of paper to show the informant what she stated

was heroin she had just purchased inside the home.

Based on this information, as well as his training and

experience, Marsh completed the affidavit in which he

concluded that "this activity is an indicator and is

consistent with foot traffic when purchasing illegal narcotics

from a drug house." From this evidence, the magistrate had a

substantial basis for concluding that "there [was] a fair

probability that contraband or evidence of a crime [would] be

found" in the home. Consequently, the affidavit presented

sufficient probable cause for issuance of a search warrant.

Jones, 277 Va. at 178, 670 S.E.2d at 731 (quoting Gates, 462

U.S. at 238).

C. Dissipation of Probable Cause
Prior to Execution of the Warrant

Hicks further argues that the Court of Appeals erred in

holding that probable cause did not dissipate during the 13-

day period between issuance of the search warrant and its

execution. Hicks argues that even if probable cause to search

the home existed, it had dissipated by the time the search

warrant was executed in violation of Code § 19.2-56.

Code § 19.2-56 imposes a 15-day limitation period on the

execution of search warrants, stating that "[a]ny search

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warrant not executed within 15 days after issuance thereof

shall be returned to, and voided by, the officer who issued

such search warrant." Under this provision, no search warrant

may be executed more than 15 days after its issuance.

Additionally, the statute further provides that "the

[search] warrant shall command that the place be forthwith

searched." (Emphasis added.) The Court of Appeals has

previously observed that:

"Forthwith," within the context of Code § 19.2-
56, does not mean immediately or as soon as
physically possible. It does not mandate that
officers must immediately execute the search
warrant without regard to the circumstances that
obtain. The fact that the statute provides that
the warrant expires if not executed within
fifteen days means that some latitude is provided
for the time within which the search may be
conducted. But, under that statute, "it is . . .
necessary that search warrants be executed with
some promptness in order to lessen the
possibility that the facts upon which probable
cause was initially based do not become
dissipated."

Turner v. Commonwealth, 14 Va. App. 737, 742, 420 S.E.2d 235,

238 (1992) (citations omitted). We agree with the Court of

Appeals that "[t]he 'forthwith' requirement defines the policy

of the state that search warrants, which are the foremost

safeguard to protect against unreasonable searches proscribed

by the Fourth Amendment, are to be executed with reasonable

dispatch." Id. Therefore, "a warrant will be tested for

'staleness' by considering whether the facts alleged in the

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warrant provided probable cause to believe, at the time the

search actually was conducted, that the search conducted

pursuant to the warrant would lead to the discovery of

evidence of criminal activity." Johnson v. Commonwealth, 259

Va. 654, 671, 529 S.E.2d 769, 778 (2000).

Here, the search meets both the 15-day and "forthwith"

mandates of Code § 19.2-56. Hicks suggests that probable

cause had dissipated because Marsh waited to execute the

search warrant until he saw signs of activity around the home.

While we cannot know and will not speculate as to Marsh's

intentions, it is clear from the record that no dissipation

occurred over those 13 days as to the subject matter of the

search. The warrant commanded the search of the home not only

for heroin, but also for "paraphernalia," "instruments of the

illegal drug trade," "fruits from the sale of Heroin,"

"electronic devices used to aid the distribution of Heroin,"

"financial or written records or documents," "firearms," and

"ammunition." The probable cause that existed to support the

issuance of the search warrant for these items had not

dissipated when the search warrant was executed on September

25, 2008. Accordingly, the search warrant was timely executed

pursuant to the requirements of Code § 19.2-56 and was

conducted "forthwith" in compliance with the requirements of

that statute and the Fourth Amendment.

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 III. Conclusion

For the reasons stated, we hold that the Court of Appeals

did not err in affirming Hicks' conviction for possession of

heroin in violation of Code § 18.2-250. Accordingly, we will

affirm the judgment of the Court of Appeals.

Affirmed.

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