Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons,
and Agee, JJ., and Russell, S.J.
GERMAINE DELANO ADAMS
v. Record No. 062674 OPINION BY JUSTICE CYNTHIA D. KINSER
February 29, 2008
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
A jury convicted Germaine Delano Adams of the second-
degree murder of Christopher Junior Hairston and the use of
a firearm in the commission of a felony. The primary issue
in this appeal concerns the good-faith exception to the
exclusionary rule as set forth in United States v. Leon,
468 U.S. 897 (1984), and whether it applies in this case.
Because we conclude that a reasonably well trained police
officer would not have known that a search of Adams’
residence was illegal despite a magistrate’s issuance of a
search warrant, we will affirm the judgment of the Court of
Appeals of Virginia holding that the good-faith exception
applies and that the trial court therefore did not err in
admitting into evidence items seized during the search of
Adams’ residence.
I. RELEVANT FACTS AND PROCEEDINGS 1
1
Additional facts relevant to an issue unrelated to
the good-faith exception will be set forth under a separate
heading in this opinion.
In the early morning hours of June 18, 2004, James
Vaught, a sergeant with the Henry County Sheriff’s Office,
responded to a call concerning a shooting at the Virginia
Oaks Trailer Park. Upon arriving at the scene of the
shooting, Vaught discovered the body of Hairston lying face
down in the road to the trailer park. An autopsy of the
body revealed that the cause of death was a gunshot wound
to Hairston’s neck. Vaught also discovered four shell
casings near the body that were subsequently determined to
have been fired from a 9mm Glock pistol.
Later that day, Scott Barker, an investigator with the
Henry County Sheriff’s Office, prepared and signed under
oath a criminal complaint based on information received
from other police officers who had investigated the
shooting. In the complaint, Barker stated:
[T]he accused – Germaine Delano Adams shot the
victim Christopher Junior Hairston in the neck
which resulted in the death of the victim. The
incident occurred at approximately 0137 hrs on
Virginia Oaks Ct. in Henry County, Va. Just
prior to the shooting Germaine Delano Adams and
Christopher Junior Hairston were arguing over $20
that Christopher J. Hairston owed Germaine D.
Adams.
The complaint also listed Adams’ address as “101 Va. Oaks
Ct., Ridgeway, Va. 24148.”
About 19 minutes after executing the criminal
complaint before a magistrate, Barker signed an affidavit
2
for a search warrant before the same magistrate. In the
affidavit, Barker stated that Hairston had received a fatal
gunshot wound to his neck at approximately 1:37 a.m. on
June 18, 2004, “while he was on Virginia Oaks Ct.” Barker
further stated in the affidavit that “[b]ased on witness
statements, the victim Christopher Junior Hairston was in a
[sic] arguement [sic] with Germaine Delano Adams at the
time he was shot.” Barker described the place to be
searched by providing the following information:
Turn on to Virginia Oaks Ct. from Axton Rd. . . .
The trailor [sic] to be searched will be the
third trailor [sic] on the left on Virginia Oaks
Ct. The residence is light grey [sic] with dark
grey [sic] trim. The residence has a front wood
stoop with three steps and two rails. The
residence has a white front door and a satellite
dish on the roof at the rear. There are no
visible number markings on the residence. The
residence has what appears to be a video camera
on the outside.
Finally, Barker requested authorization to search for
videotapes, digital recordings, audio recordings, weapons
(including but not limited to a 9mm caliber weapon),
ammunition, and “any and all evidence relating to the
murder of Christopher Junior Hairston.”
Based on the information in the affidavit, a
magistrate issued a search warrant for “101 Virginia Oaks,
Ridgeway, VA 24148,” which the criminal complaint
identified as Adams’ address. The search warrant contained
3
the same detailed information describing the place to be
searched as that set forth in the affidavit and authorized
a search for the items sought in the affidavit. The search
warrant was executed about an hour after the magistrate
issued it. The items seized during the search included a
Hoppes pistol cleaning kit for various handguns including a
9mm pistol; an Uncle Mike’s shoulder holster, size 15; an
Uncle Mike’s shoulder holster size 0; seven 9mm cartridges
in a clear plastic baggie; a large gray Sentry safe; a
Taurus handgun box; a Federal Hydra-shok ammunition box
containing fifteen cartridges; and a packaging box for
personal checks bearing the name of “Germaine D. Adams.”
Prior to his jury trial in the Circuit Court of Henry
County, Adams filed a motion to suppress the evidence
seized at his residence pursuant to the search warrant. He
asserted that the affidavit for the search warrant lacked
probable cause because it failed to establish a nexus
between the residence to be searched and either Adams or
the shooting incident. At the hearing on the motion to
suppress, the Commonwealth conceded that the affidavit was
“lacking in probable cause.” In fact, the Commonwealth
admitted that “[t]he only nexus, reading this [affidavit]
in the most favorable light to the Commonwealth, is that
Christopher Junior Hairston was shot to death on Virginia
4
Oaks Court in Henry County” and “we don’t know from this
[affidavit] whose residence” was to be searched. The
Commonwealth, however, relied on the good-faith exception
to the exclusionary rule set forth in Leon and urged the
trial court to deny the motion to suppress.
Initially, the trial court sustained the motion to
suppress, deciding that the good-faith exception did not
apply because the “search warrant was based on an affidavit
so lacking in indicia of probable cause as to render
official belief in its existence as unreasonable.” The
court, however, subsequently granted the Commonwealth’s
motion to reconsider its ruling in light of the decision in
Anzualda v. Commonwealth, 44 Va. App. 764, 607 S.E.2d 749
(2005) (en banc). 2 Upon reconsideration, the trial court
applied the good-faith exception because it found some
indicia of probable cause in the affidavit for the search
warrant. According to the trial court, “[t]he officer
acted reasonably in believing the warrant to be valid.”
The circuit court thus denied Adams’ motion to suppress the
evidence seized during the search of his residence.
2
In Anzualda, the Court of Appeals applied the good-
faith exception, finding that, because the police officer
could infer that the defendant would keep a particular
pistol at his home, the affidavit “establish[ed] a nexus –
however slight - between the item sought and the premises
to be searched.” 44 Va. App. at 784, 607 S.E.2d at 759.
5
The Court of Appeals, in affirming the trial court’s
judgment denying the motion to suppress, held that “a
reasonable officer, acting in objective good faith,
reviewing the facts presented under oath to the magistrate,
could have believed the magistrate had probable cause to
issue the search warrant for Adams’[] residence and that he
could, therefore, rely on the warrant.” Adams v.
Commonwealth, 48 Va. App. 737, 749, 635 S.E.2d 20, 26
(2006). The Court of Appeals concluded “the officer relied
in good faith on evidence before the magistrate, as
indicated in the written facts sworn to under oath
contained in the complaint and affidavit.” Id. at 750, 635
S.E.2d at 26 (emphasis added).
We awarded Adams this appeal. Adams challenges the
holding of the Court of Appeals that the good-faith
exception to the exclusionary rule applies in this case,
its reliance on the criminal complaint in addition to the
search warrant affidavit, and the fact that the Court of
Appeals sua sponte considered the criminal complaint.
Adams also challenges the Court of Appeals’ additional
holding that the admission of certain hearsay testimony
6
concerning the contents of a gun and accessories catalogue
was harmless error. 3
II. ANALYSIS
“In reviewing the denial of a motion to suppress based
on the alleged violation of an individual’s Fourth
Amendment rights, we consider the facts in the light most
favorable to the Commonwealth.” Ward v. Commonwealth, 273
Va. 211, 218, 639 S.E.2d 269, 272 (2007) (citing Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731
(1980)). A defendant has the burden to show that a trial
court committed reversible error. Ward, 273 Va. at 218,
639 S.E.2d at 272. Because there are no facts in dispute
with regard to the motion to suppress, the applicability of
the Leon exception in this case is purely a legal
determination. See United States v. DeQuasie, 373 F.3d
509, 520 (4th Cir. 2004). We review a trial court’s
application of the law de novo. Brown v. Commonwealth, 270
Va. 414, 419, 620 S.E.2d 760, 762 (2005).
In light of Adams’ challenge to the Court of Appeals’
reliance on the criminal complaint along with the search
warrant affidavit, we will first address whether, when
making the good-faith inquiry, a court may consider the
3
As previously stated, the facts with regard to this
issue will be summarized in a separate section of this
7
totality of the circumstances surrounding the issuance and
execution of a search warrant. We will then determine
whether a reasonably well trained police officer would have
known that the search of Adams’ house was illegal despite
the magistrate’s issuance of the search warrant. Finally,
we will address Adams’ challenge to the admission of
certain hearsay testimony.
A. Totality of the Circumstances
In Leon, the Supreme Court of the United States
limited the application of the exclusionary rule “so as not
to bar the admission of evidence seized in reasonable,
good-faith reliance on a search warrant that is
subsequently held to be defective.” 468 U.S. at 905. The
“good-faith inquiry is confined to the objectively
ascertainable question whether a reasonably well trained
officer would have known that the search was illegal
despite the magistrate’s authorization.” 468 U.S. at 922
n.23. Adams, however, argues that the Court of Appeals
erred by relying on the criminal complaint in conjunction
with the search warrant affidavit in making its good-faith
determination. In other words, Adams contends that the
good-faith inquiry is limited to the sworn, written facts
opinion.
8
set forth in the four corners of the search warrant
affidavit. We do not agree.
The Supreme Court stated in Leon that its “evaluation
of the costs and benefits of suppressing reliable physical
evidence seized by officers reasonably relying on a warrant
issued by a detached and neutral magistrate leads to the
conclusion that such evidence should be admissible in the
prosecution’s case in chief.” 468 U.S. at 913. Although
“the officer’s reliance on the magistrate’s probable-cause
determination and on the technical sufficiency of the
warrant . . . must be objectively reasonable,” the Court
specifically held that “all of the circumstances –
including whether the warrant application had previously
been rejected by a different magistrate – may be
considered” when deciding whether a reasonable officer
“would have known that the search was illegal despite the
magistrate’s authorization.” Id. at 922 & n.23 (emphasis
added).
Indeed, the Court considered “all of the
circumstances” in Massachusetts v. Sheppard, 468 U.S. 981
(1984), decided the same day as Leon. There, a detective
needed to search a defendant’s residence for items
connected to a murder, but the detective used search
warrant forms designed for requests to search for
9
controlled substances. Id. at 984-85. The detective made
appropriate changes to the forms but failed to delete the
reference to “controlled substance[s]” on the warrant
application that, when executed, would constitute the
search warrant itself. Id. at 985. The detective
presented the search warrant application to a judge and
told the judge about not only the changes he had made on
the forms but also those on the warrant application that
were still needed. Id. at 986. The judge, after deciding
to issue the search warrant as requested, informed the
detective that he would make the additional, necessary
changes; however, the judge failed to “change the
substantive portion of the warrant, which continued to
authorize a search for controlled substances; nor did he
alter the form so as to incorporate the affidavit.” Id.
At a pretrial hearing, the defendant moved to suppress
the items seized during the search, asserting that the
search warrant was constitutionally defective because the
description of the items to be seized was totally
inaccurate. Id. at 987-88 n.5. The question before the
Supreme Court was “whether there was an objectively
reasonable basis for the officers’ mistaken belief” that
the search warrant as issued authorized the search they
conducted. Id. at 988. In concluding that “a reasonable
10
police officer would have concluded . . . that the warrant
authorized a search for the materials outlined in the
affidavit,” the Court considered several factors not
included in the four corners of the search warrant
affidavit:
[The detective] prepared an affidavit which was
reviewed and approved by the [prosecuting
attorney.] He presented that affidavit to a
neutral judge. The judge concluded that the
affidavit established probable cause to search
[the defendant’s] residence, and informed [the
detective] that he would authorize the search as
requested. [The detective] then produced the
warrant form and informed the judge that it might
need to be changed. He was told by the judge
that the necessary changes would be made. He
then observed the judge make some changes and
received the warrant.
Id. at 989. The Court rejected the defendant’s argument
that, since the detective knew the warrant form was
defective without the necessary changes, the detective
should have examined the search warrant to insure that the
required changes had been made. Id. at 989-90. The Court
“refuse[d] to rule that an officer is required to
disbelieve a judge who has just advised him . . . that the
warrant he possesses authorizes him to conduct the search
he has requested.” Id.
Similarly, in United States v. Dickerson, 166 F.3d 667
(4th Cir. 1999), rev’d on other grounds, 530 U.S. 428
(2000), the court considered the totality of the
11
circumstances in deciding whether a search warrant was “so
facially deficient as to preclude reasonable reliance upon
it.” Id. at 694. The search warrant supposedly lacked
sufficient particularities in describing the items to be
seized. Id. In making the good-faith inquiry, the court
considered, among other things, the fact that the lead
police officer during the search “was familiar not only
with the specifics of the bank robbery in question, but,
perhaps as important, had been investigating bank robberies
for seven years and thus was very familiar with the type of
evidence to look for.” Id. at 695.
Certainly, when deciding the question of probable
cause, we consider only those sworn, written facts stated
in the search warrant affidavit. See Whiteley v. Warden,
401 U.S. 560, 565 n.8 (1971). We may also use information
simultaneously presented to a magistrate by sworn oral
testimony, see McCary v. Commonwealth, 228 Va. 219, 231,
321 S.E.2d 637, 643 (1984), or in supplemental affidavits,
see Derr v. Commonwealth, 242 Va. 413, 420, 410 S.E.2d 662,
666 (1991). But, we can, and should, “look to the totality
of the circumstances including what [the executing police
officers] knew but did not include in [the] affidavit” when
conducting the good-faith analysis. United States v.
Martin, 833 F.2d 752, 756 (8th Cir. 1987); see Anderson v.
12
Creighton, 483 U.S. 635, 641 (1987) (explaining that when
assessing the good faith of a police officer who conducted
a warrantless search, “the determination whether it was
objectively legally reasonable to conclude that a given
search was supported by probable cause or exigent
circumstances will often require examination of the
information possessed by the searching officials” and that
the relevant question is objective though fact-specific).
Numerous courts have not confined their good-faith
inquiry to the four corners of a search warrant affidavit.
See, e.g., United States v. Frazier, 423 F.3d 526, 535-36
(6th Cir. 2005) (“[A] court reviewing an officer’s good
faith under Leon may look beyond the four corners of the
warrant affidavit to information that was known to the
officer and revealed to the issuing magistrate.”); United
States v. Procopio, 88 F.3d 21, 28 (1st Cir. 1996) (in
assessing a police officer’s good faith, the court looked
beyond the four corners of the affidavit); United States v.
Dickerson, 975 F.2d 1245, 1250 (7th Cir. 1992) (in applying
the good-faith exception, the court found that the officers
conducting the search had more than probable cause even
though certain information in their possession had not been
included in the affidavit for the search warrant); United
States v. Curry, 911 F.2d 72, 78 (8th Cir. 1990) (“[I]n
13
assessing whether reliance on a search warrant was
objectively reasonable under the totality of the
circumstances, it is appropriate to take into account the
knowledge that an officer in the searching officer’s
position would have possessed.”); United States v.
Taxacher, 902 F.2d 867, 872 (11th Cir. 1990) (in
ascertaining whether the good-faith exception applies, the
totality of the circumstances may be considered (citing
Leon, 468 U.S. at 922 n.23)); United States v. Buck, 813
F.2d 588, 592-93 (2d Cir. 1987) (court went beyond the four
corners of the affidavit in making the good-faith inquiry);
Sims v. State, 969 S.W.2d 657, 660 (Ark. 1998) (“[W]hen
assessing good faith, we can and must look to the totality
of the circumstances, including what the affiant knew, but
did not include in his affidavit.”); Williams v. State, 528
N.E.2d 496, 500 (Ind. Ct. App. 1988) (looking to the
totality of the circumstances when applying the good-faith
exception to determine reliability of an informant); Moore
v. Commonwealth, 159 S.W.3d 325, 328 (Ky. 2005)
(“Considering all of the circumstances, including
information known to the police officer and not set forth
in the affidavit, it is readily apparent that the officer
acted in good faith and in accordance with the [good-faith]
exception.”); State v. Varnado, 675 So.2d 268, 270 (La.
14
1996) (“The reasonableness inquiry under Leon is an
objective one which turns on the totality of the
circumstances surrounding the issuance of the warrant.”);
State v. Edmonson, 598 N.W.2d 450, 461 (Neb. 1999) (a
court, “in assessing the good faith of an officer’s
conducting a search pursuant to a warrant,. . . must look
to the totality of the circumstances surrounding the
issuance of the warrant, including information not
contained within the four corners of the affidavit”);
Moffett v. State, 716 S.W.2d 558, 566 (Tex. Ct. App. 1986)
(holding that the Leon test for whether evidence is
admissible “is an objective one; whether, considering all
the circumstances, a reasonably well-trained officer would
have known that the search was illegal despite the
magistrate’s authorization”).
A good-faith analysis that takes into account the
totality of the circumstances is entirely consistent with
the purposes of the exclusionary rule and the good-faith
exception. Edmonson, 598 N.W.2d at 460-61. The purpose of
the exclusionary rule is to “deter police misconduct rather
than to punish the errors of judges and magistrates.”
Leon, 468 U.S. at 916. “This deterrent is absent where an
officer, acting in objective good faith, obtains a search
warrant from a magistrate and acts within the scope of the
15
warrant.” Derr, 242 Va. at 422, 410 S.E.2d at 667; accord
Ward, 273 Va. at 222, 639 S.E.2d at 274; Polston v.
Commonwealth, 255 Va. 500, 503, 498 S.E.2d 924, 925 (1998).
“The deterrent purpose of the exclusionary rule
necessarily assumes that the police have engaged
in willful, or at the very least negligent,
conduct which has deprived the defendant of some
right. By refusing to admit evidence gained as a
result of such conduct, the courts hope to
instill in those particular investigating
officers, or in their future counterparts, a
greater degree of care toward the rights of an
accused. Where the official action was pursued
in complete good faith, however, the deterrence
rationale loses much of its force.”
United States v. Peltier, 422 U.S. 531, 539 (1975) (quoting
Michigan v. Tucker, 417 U.S. 433, 447 (1974)). “In short,
where the officer’s conduct is objectively reasonable,
‘excluding the evidence will not further the ends of the
exclusionary rule in any appreciable way; for it is
painfully apparent that . . . the officer is acting as a
reasonable officer would and should act in similar
circumstances.’ ” Leon, 468 U.S. at 919-20 (quoting Stone
v. Powell, 428 U.S. 465, 539-40 (1976) (White, J.,
dissenting)).
In recognition that the deterrent purpose of the
exclusionary rule is not well-served when a police officer
executes a search warrant in objective good faith, the Leon
exception was designed “to limit the application of the
16
exclusionary rule to those instances when it will most
effectively serve to deter police misconduct.” Edmonson,
598 N.W.2d at 461. The purpose of the good-faith exception
is, therefore, best accomplished by looking at the totality
of the circumstances surrounding the issuance and execution
of the search warrant. Id. While the totality of the
circumstances does not include the subjective beliefs of
police officers who seize evidence pursuant to a
subsequently invalidated search warrant, see Leon, 468 U.S.
at 922 n.23, it does, at a minimum, take into account
information known to police officers that was not included
in the search warrant affidavit. To confine the good-faith
analysis to the facts set forth in the four corners of the
search warrant affidavit (even if the analysis also
considers additional information presented to the
magistrate) changes the focus of the inquiry from the
objective good faith of a reasonably well-trained police
officer to a magistrate’s determination of probable cause.
It also leads to the exclusion of competent evidence in the
prosecution’s case in chief even though reasonably well-
trained police officers acted in objective good-faith
reliance on a search warrant. This approach undermines the
purposes of both the exclusionary rule and its good-faith
exception.
17
We thus conclude that the totality of the
circumstances should be considered when deciding the
question of good faith. In the case before us, those
circumstances include “the knowledge that an officer in the
searching officer’s position would have possessed,” Curry,
911 F.2d at 78, i.e., a police officer with knowledge of
the facts Barker possessed. Barker executed the criminal
complaint. Thus, he certainly knew what information the
complaint contained. He also participated in the search of
Adams’ residence. Thus, the sworn, written facts set forth
in the criminal complaint comprise part of the total
circumstances surrounding the issuance and execution of the
search warrant that we should consider in making the good-
faith inquiry. That brings us to the next question: Does
the Leon good-faith exception apply in this case?
B. Good-Faith Exception
“An officer’s decision to obtain a warrant is prima
facie evidence that he or she was acting in good faith.”
United States v. Koerth, 312 F.3d 862, 868 (7th Cir. 2002);
see also Leon, 468 U.S. at 921 n.21. “Searches pursuant to
a warrant will rarely require any deep inquiry into
reasonableness, for a warrant issued by a magistrate
normally suffices to establish that a law enforcement
officer has acted in good faith in conducting the search.”
18
Leon, 468 U.S. at 922 (internal quotation marks, citations
and brackets omitted); accord United States v. Carpenter,
341 F.3d 666, 669 (8th Cir. 2003). As we explained in
Polston, “[i]n Leon, 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.’ ” 255 Va. at 503,
498 S.E.2d at 925 (quoting Leon, 468 U.S. at 918); see also
Sheppard, 468 U.S. at 987-88.
Furthermore, the standard by which to decide whether
probable cause existed for a search warrant is considerably
different from the test to determine if an officer acted in
good faith. The showing of an “objectively reasonable
belief” that probable cause existed under the good-faith
exception is a significantly lesser standard than a showing
of a “substantial basis” for upholding a magistrate’s
determination of probable cause. See United States v.
Hython, 443 F.3d 480, 484 (6th Cir. 2006) (“The showing
required to establish that reliance was ‘objectively
reasonable’ is less than the ‘substantial basis’ showing
required to establish probable cause.”) (quoting United
States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004)).
“In fact, Leon states that the third circumstance[, the one
19
upon which the defendant relies,] prevents a finding of
objective good faith only when an officer’s affidavit is
‘so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.’ ”
United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002)
(quoting Leon, 468 U.S. at 923) (emphasis added).
“ ‘Entirely unreasonable’ is not a phrase often used by the
Supreme Court.” Carpenter, 341 F.3d at 670.
An officer also is not required to go behind a
magistrate’s probable cause determination to ascertain
whether probable cause actually existed. See Sheppard, 468
U.S. at 989-90 (“[W]e refuse to rule that an officer is
required to disbelieve a judge who has just advised him, by
word and by action, that the warrant he possesses
authorizes him to conduct the search he has requested.”);
Buck, 813 F.2d at 593 (“The exclusionary rule’s deterrent
function is not served by penalizing officers who rely upon
the objectively reasonable legal conclusions of an issuing
judge.”). The United States Supreme Court in Leon made
this point explicit:
It is the magistrate’s responsibility to
determine whether the officer’s allegations
establish probable cause and, if so, to issue a
warrant comporting in form with the requirements
of the Fourth Amendment. In the ordinary case,
an officer cannot be expected to question the
magistrate’s probable-cause determination or his
20
judgment that the form of the warrant is
technically sufficient. “[Once] the warrant
issues, there is literally nothing more the
policeman can do in seeking to comply with the
law.” Penalizing the officer for the
magistrate’s error, rather than his own, cannot
logically contribute to the deterrence of Fourth
Amendment violations.
Leon, 468 U.S. at 921 (alteration in original) (citation
omitted).
In this case, the Commonwealth conceded that the
affidavit for the search warrant lacked a sufficient
factual nexus between the items sought and the residence to
be searched to establish probable cause. Irrespective of
whether that concession was correct, the circuit court’s
legal conclusion to that effect is the law of this case.
However, the totality of the circumstances, meaning the
sworn, written facts in the criminal complaint along with
those in the search warrant affidavit, fully support a
finding that the executing officers acted in good-faith.
In other words, “the record does not reflect that the
executing officers knew or should have reasonably known
that their reliance on the warrant was objectively
unreasonable.” Ward, 273 Va. at 224, 639 S.E.2d at 275.
The search warrant affidavit described in detail the
residence to be searched and the items sought. It also
specifically stated that the residence was located in
21
“Virginia Oaks [Court]” and that “Christopher Junior
Hairston received [the] gunshot wound while he was on
Virginia Oaks [Court].” We know from the criminal
complaint that Adams shot Hairston and that the incident
occurred on Virginia Oaks Court. The criminal complaint
also lists Adams’ address as “101 Va. Oaks Ct. Ridgeway,
Va.” Notably, the search warrant authorized a search of
the residence located at “101 Virginia Oaks.” 4 Armed with
this information, “a reasonably well trained officer would
[not] have known that the search was illegal despite the
magistrate’s authorization.” Leon, 468 U.S. at 922 n.23.
Even if we restrict our analysis to the four corners
of the search warrant affidavit as Adams urges us to do, we
reach the same conclusion. The affidavit was not a “bare-
bones” affidavit. United States v. Weaver, 99 F.3d 1372,
1378 (6th Cir. 1996) (“An affidavit that states suspicions,
beliefs, or conclusions, without providing some underlying
4
The fact that the magistrate issued the search
warrant for the residence located at “101 Virginia Oaks”
demonstrates that the magistrate considered the information
in the criminal complaint when deciding whether probable
cause existed for issuance of the search warrant.
Approximately nineteen minutes after he executed the
criminal complaint, Barker submitted the affidavit for the
search warrant to the same magistrate. Common sense tells
us that the magistrate remained cognizant of the
information in the criminal complaint when determining
whether probable cause existed for issuance of the search
warrant.
22
factual circumstances regarding veracity, reliability, and
basis of knowledge, is a ‘bare-bones’ affidavit.”). The
affidavit stated facts, not mere suspicions or conclusions,
and provided a “minimally sufficient nexus between the
illegal activity and the place to be searched to support an
officer’s good-faith belief in the warrant’s validity.”
Carpenter, 360 F.3d at 596. 5 The affidavit described the
residence to be searched and the items sought with
particularity. It also recounted the fact that Adams and
Hairston were arguing when Hairston was fatally shot on
Virginia Oaks Court. And, the search warrant authorized a
search of the residence located at “101 Virginia Oaks.” It
is not difficult to read the affidavit and fail to realize
that Barker did not supply the one additional fact stating
that Adams resided at 101 Virginia Oaks Court. Thus, we
conclude that Barker and the other police officers
conducting the search had the objectively reasonable belief
that the affidavit established probable cause for the
5
In Carpenter, the court concluded that “[t]he facts
that marijuana was growing ‘near’ the residence and that a
road ran nearby [fell] short of establishing the required
nexus between the . . . residence [to be searched] and
evidence of marijuana manufacturing.” 360 F.3d at 594.
Nevertheless, the court concluded that “the affidavit was
not completely devoid of any nexus between the residence
and the marijuana” and that the good-faith exception
therefore applied. Id. at 595-96.
23
search. We cannot conclude that the affidavit was “so
lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable.” 6 Leon, 468
U.S. at 923.
To hold otherwise would require police officers to
possess the skills and understanding of a trained lawyer
and further require them to go behind a magistrate’s
determination of probable cause and make their own decision
as to whether probable cause in fact exists. But, “[w]e
realize that search warrants ‘are normally drafted by non-
lawyers in the midst and haste of a criminal
investigation.’ ” Drumheller v. Commonwealth, 223 Va. 695,
698, 292 S.E.2d 602, 604 (1982) (quoting United States v.
Ventresca, 380 U.S. 102, 108 (1965)). Furthermore, it is
beyond dispute that “police officers are not expected to be
lawyers” and thus are not required to possess the knowledge
of a trained attorney in making the objective determination
that an affidavit supports a finding of probable cause by a
magistrate. Scarbrough v. Myles, 245 F.3d 1299, 1303 n.8
(11th Cir. 2001); see also Davis v. Scherer, 468 U.S. 183,
6
In light of our conclusion that the search warrant
affidavit alone justifies application of the good-faith
exception, it is not necessary to address Adams’ assertion
that the Court of Appeals erred by sua sponte relying on
the criminal complaint along with the affidavit.
24
196 n.13 (1984) (stating that it is unfair and
impracticable to hold public officials to the same standard
of understanding as trained lawyers).
In sum, none of the evils identified in Leon that
render the good-faith exception inapplicable are present in
this case. See Polston, 255 Va. at 504, 498 S.E.2d at 926.
For these reasons, we conclude that the good-faith
exception to the exclusionary rule applies and that the
Court of Appeals therefore did not err in upholding the
trial court’s decision to admit into evidence the items
seized during the search of Adams’ residence. That
conclusion brings us to the last issue.
C. Hearsay Evidence
The trial court admitted, over Adams’ hearsay
objection, Barker’s testimony concerning information
contained in an “Uncle Mike’s” gun and accessories
catalogue. “Uncle Mike’s” was the manufacturer of the two
shoulder holsters seized during the search of Adams’
residence. Barker testified that, according to “Uncle
Mike’s,” the size 15 shoulder holster would fit a 9mm Glock
pistol, which was the type of weapon used to shoot
Hairston.
The Court of Appeals assumed, without deciding, that
the trial court erred in admitting the challenged
25
testimony, but concluded that such error was harmless.
Adams, 48 Va. App. at 753, 635 S.E.2d at 27. We agree. As
the Court of Appeals noted, an eyewitness testified that
Adams shot Hairston. Furthermore, 9mm cartridges matching
those found near Hairston’s body, along with a pistol
cleaning kit suitable for a firearm of the same type and
caliber used to shoot Hairston, were found during the
search of Adams’ residence.
The admission of the challenged testimony, if error,
was nonconstitutional harmless error. The test for
nonconstitutional harmless error states:
If, when all is said and done, the
conviction is sure that the error did not
influence the jury, or had but slight effect, the
verdict and the judgment should stand . . . .
But if one cannot say, with fair assurance, after
pondering all that happened without stripping the
erroneous action from the whole, that the
judgment was not substantially swayed by the
error, it is impossible to conclude that
substantial rights were not affected. . . . If
so, or if one is left in grave doubt, the
conviction cannot stand.
Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728,
731-32 (2001) (omissions in original) (quoting Kotteakos v.
United States, 328 U.S. 750, 764-65 (1946)); accord Billips
v. Commonwealth, 274 Va. 805, 810, 652 S.E.2d 99, 102
(2007). Applying this test, we can say with assurance that
26
the jury’s verdict was not influenced by Barker’s testimony
about the information contained in the catalogue.
III. CONCLUSION
For these reasons, we will affirm the judgment of the
Court of Appeals.
Affirmed.
JUSTICE KOONTZ, with whom CHIEF JUSTICE HASSELL and JUSTICE
KEENAN join, dissenting.
I respectfully dissent. The issue in this case
requires us to review the trial court’s application of the
good-faith exception to the exclusionary rule established
by the United States Supreme Court in United States v.
Leon, 468 U.S. 897 (1984). The specific focus of the
issue, as it was presented in the trial court, is whether
the affidavit supporting the search warrant in question was
“so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.”
Id. at 923. In my view, when the analysis properly is
restricted to the issue as it was presented in the trial
court, the result of the majority’s decision today permits
the search of a private residence solely because a crime
allegedly occurred on the same street where the home was
located. This result effectively strips the third
component of the Leon good-faith exception of any
27
substantive content, permitting the admission of evidence
obtained from a search warrant that contains no indicia of
probable cause.
The facts of the case are undisputed and adequately
recited in the majority opinion. Repetition of those facts
here would unnecessarily add length to this dissent.
Moreover, the parameters of the Leon good-faith exception
and the application of the “totality of the circumstances”
analysis of that exception are not my focus here. Indeed,
if this case properly presented the issue of whether “the
officer relied in good faith on evidence before the
magistrate, as indicated in the written facts sworn to
under oath contained in the [criminal] complaint and
affidavit [for the search warrant]” as addressed sua sponte
by the Court of Appeals, Adams v. Commonwealth, 48 Va. App.
737, 750, 635 S.E.2d 20, 26 (2006) (emphasis added), and
now by the majority here, we would have been presented with
an entirely different case.
However, such is simply not the case presented in this
appeal. During the suppression hearing, the Commonwealth
did not present any evidence that the magistrate had
considered the complaint in conjunction with the affidavit
when determining probable cause to issue the search
warrant. Nor did the Commonwealth ask the trial court to
28
consider either the magistrate’s or the officer’s knowledge
of the facts contained in the complaint in order to
determine whether the officer’ reliance on the warrant was
reasonable. Clearly, the Commonwealth did not choose to
argue that the criminal complaint was part of the “totality
of the circumstances” the trial court should consider in
undertaking the Leon good-faith analysis. In short, the
majority has essentially decided a case that is not before
this Court by considering an argument that was never made
to the trial court, cf. Jackson v. Commonwealth, 266 Va.
423, 436 n.1, 587 S.E.2d 532, 542 n.1 (2003) (holding that
the Commonwealth may not assert an argument not presented
below as a basis for upholding the trial court’s judgment),
and considering evidence that was not before the trial
court in making its ruling, cf. Ward v. Charlton, 177 Va.
101, 107, 12 S.E.2d 791, 792 (1941) (holding that on appeal
this Court is “limited to the record of the proceedings
which have taken place in the lower court and have been
there settled”). See also Woodfin v. Commonwealth, 236 Va.
89, 97-98, 372 S.E.2d 377, 382 (1988); Bryant v.
Commonwealth, 189 Va. 310, 320, 53 S.E.2d 54, 59 (1949).
The majority’s observation that “[c]ommon sense tells
us that the magistrate remained cognizant of the
information in the criminal complaint when determining
29
whether probable cause existed for issuance of the search
warrant” may be a valid observation of human nature.
However, an appellate court should not have to speculate
what “common sense” might suggest when the record
adequately demonstrates what evidence the trial court
actually considered. In this case, the trial court clearly
restricted its consideration of the affidavit in addressing
the Leon good-faith issue presented by the Commonwealth’s
evidence and supporting assertions.
In short, it is my view that the Court of Appeals
erred by relying sua sponte on the facts asserted in the
criminal complaint to support its determination that the
trial court did not err in finding that the Leon good-faith
exception should apply in this case. By asserting the
correctness of the Court of Appeals’ decision in that
regard, the Commonwealth now presents to this Court an
argument that perhaps it ought to have presented in the
trial court, but one which it failed to make there and in
the Court of Appeals. By giving heed to that argument, the
majority is deciding a case that is not supported by the
trial record to which we should confine our review. That
record restricts our consideration to the issue whether the
trial court erred in finding that evidence obtained through
a search warrant, defective on its face, was nonetheless
30
admissible because the affidavit supporting the search
warrant had sufficient indicia of probable cause to
reasonably support the officer’s belief in the warrant’s
validity.
When, as here, an officer executes a search warrant
that is not supported by probable cause, the officer’s
reliance on that warrant must be objectively reasonable for
a court to conclude that the evidence seized is admissible
because it was obtained in good faith. Leon, 468 U.S. at
922; Ward v. Commonwealth, 273 Va. 211, 223, 639 S.E.2d
269, 275 (2007); Polston v. Commonwealth, 255 Va. 500, 503-
04, 498 S.E.2d 924, 925-26 (1998); Derr v. Commonwealth,
242 Va. 413, 422-23, 410 S.E.2d 662, 667 (1991). However,
if an affidavit is “so lacking in indicia of probable cause
as to render official belief in its existence entirely
unreasonable,” a law enforcement officer may not claim that
he served the warrant in good faith. Leon, 468 U.S. at
923; accord Ward, 273 Va. at 222-23, 639 S.E.2d at 274;
Polston, 255 Va. at 503, 498 S.E.2d at 925-26; United
States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004);
United States v. Perez, 393 F.3d 457, 461 (4th Cir. 2004).
Thus, the issue before us is whether the law enforcement
officer executing the present search warrant had an
objectively reasonable basis for believing that the warrant
31
was issued properly. See Leon, 468 U.S. at 923; Ward, 273
Va. at 223-24, 639 S.E.2d at 275; Polston, 225 Va. at 503-
04, 498 S.E.2d at 926-26.
The majority concludes that the search warrant and
affidavit established a “minimally sufficient nexus”
between the crime and the place to be searched. Yet, apart
from stating this bare conclusion, the majority does not
attempt to explain the purported nexus or identify any
supporting factual basis for that conclusion.
The subjective beliefs or considerations of the
officer executing the search warrant are irrelevant to the
present analysis. As the Supreme Court stated in Leon,
courts must “eschew inquiries into the subjective beliefs
of law enforcement officers who seize evidence pursuant to
a subsequently invalidated warrant.” Id. at 923; see also
Ward, 273 Va. at 224, 639 S.E.2d at 275. Under the
majority’s application of the Leon good-faith exception,
however, officers would be permitted to act on supposition
and subjective belief, using a warrant and affidavit
lacking any stated nexus between a crime and a particular
home to search that home merely because it is located near
a crime scene.
In my view, the present affidavit is no better than a
prohibited “bare bones” affidavit because it fails to
32
provide any factual basis establishing a nexus between the
crime and the residence searched, and requires an officer
to rely on unstated suspicions, beliefs, and conclusions to
provide that missing nexus. See United States v. Pope, 467
F.3d 912, 920 (5th Cir. 2006)(explaining that “bare bones”
affidavits contain wholly conclusory statements and lack
facts and circumstances from which a magistrate can
independently determine probable cause); see also United
States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996);
United States v. Wilhelm, 80 F.3d 116, 121 (4th Cir. 1996).
A consideration of the particular information missing from
the present affidavit underscores this conclusion.
The affidavit does not allege that any particular
individual committed, or was suspected of having committed,
any crime. The affidavit also fails to state any
connection between Adams and the residence described in the
warrant. In addition, the affidavit fails to state any
facts tending to show that a search of the residence would
yield any items related to the crime that occurred at an
unspecified location on the street. The fact that the
residence was described as having what appeared to be a
video camera affixed outside did not provide the required
nexus, because the affidavit did not state that the
shooting, or other activity related to the crime, occurred
33
in front of the home or within a reasonable distance from
the purported video camera.
The only relationship established in the search
warrant and affidavit between the crime and the home
searched was the fact that Hairston was shot on the same
street where the residence was located. Although the
search ultimately revealed evidence suggesting that the
home was Adams’ residence, nothing in the warrant or the
affidavit indicated that a search of that residence would
yield any evidence relating to the crime. In the absence
of any such facts in the affidavit linking Adams to the
crime, or the crime to the described residence or its
contents, the affidavit was “so lacking in indicia of
probable cause as to render official belief in its
existence entirely unreasonable.” Leon, 468 U.S. at 923.
Thus, a law enforcement officer would lack an objectively
reasonable basis on which to conclude that the warrant was
properly issued. See id. at 923; Ward, 273 Va. at 223, 639
S.E.2d at 275; Polston, 255 Va. at 504, 498 S.E.2d at 926.
As the majority observes, this Court should not
require that law enforcement officers executing search
warrants have the legal skills and technical understanding
of lawyers. However, in accordance with the decision in
Leon, courts must hold law enforcement officers accountable
34
for applying the education and training they have received
as law enforcement officers when determining whether they
have acted in good faith in the execution of their duties.
See 468 U.S. at 920. Thus, I would hold that because the
record does not show that there was an objectively
reasonable basis on which a law enforcement officer could
conclude that the present warrant was properly issued, the
Court of Appeals erred in approving the circuit court’s
denial of Adams’ motion to suppress.
For these reasons, I would reverse the judgment of the
Court of Appeals, and hold that the trial court erred in
failing to suppress the evidence seized as a result of the
execution of the defective search warrant. I would remand
the case to the trial court for a new trial if the
Commonwealth be so advised.
35