Present: All the Justices
SHERRI ANN POLSTON, s/k/a
SHERRI ANNE POLSTON
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 971536 April 17, 1998
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Sherri Ann Polston entered a conditional plea of guilty
to the crime of possession of marijuana with intent to
distribute in violation of Code § 18.2-248. Pursuant to Code
§ 19.2-254, she reserved her right to appeal that portion of
the Chesterfield Circuit Court’s judgment denying her motion
to suppress the marijuana which she claims was the fruit of an
unlawful search. The trial court accepted her guilty plea and
fixed her punishment at 10 years’ imprisonment, which was
suspended subject to certain conditions. The Court of Appeals
affirmed the judgment of the circuit court, Polston v.
Commonwealth, 24 Va. App. 738, 485 S.E.2d 632 (1997), and we
awarded the defendant an appeal.
The following facts are relevant to our disposition of
this appeal. Stuart G. Powell, a Chesterfield County
detective, along with an unidentified informant, appeared
before a magistrate on January 6, 1995. Detective Powell
submitted an affidavit to the magistrate which stated in
relevant part:
“On this date 1-6-95, a citizen appeared before the
magistrate of the Twelth [sic] Judicial District
Court and stated the following facts under oath and
the penalty of purgery [sic]. This citizen stated
that within the past 72 hours he/she observed a
quantity of marijuana being stored and being offered
for sale at the apartment mentioned in section two
of this document.
* * *
“I was advised of the facts set forth in this
affidavit, in whole or in part, by an informer.
This informer’s credibility or the reliability of
the information may be determined from the following
facts:
“The citizen mention[ed] in section 4 of this
document made these statements while under oath and
after being advised of the penalty of purgery [sic]
by your affiant. Your affiant has been a police
officer for over six years and is currently employed
in the Vice and Narcotics Unit of the Chesterfield
County Police Department. Your affiant has made
several drug arrests and is familiar with the drug
culture in and around Chesterfield County. The
citizen has decided to remain anonymous for fear of
retaliation.”
The magistrate questioned the informant under oath, and
the informant stated that he was familiar with the local drug
culture and that he had used marijuana at least once per week
for a number of years. The magistrate or Detective Powell
added the following sentence to the affidavit: “This citizen
is a self-admitted drug user and is familiar with the drug
culture in and around Chestserfield [sic] County.”
The magistrate issued a warrant authorizing a search of
the defendant’s apartment. When Detective Powell, along with
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Chesterfield County police officers, conducted the search, the
defendant directed them to a dresser in her bedroom which
contained approximately one pound of marijuana. The officers
also found a “bong” in the defendant’s apartment, and the
defendant told the officers that she sold marijuana.
The defendant argues that the magistrate did not have a
substantial basis to find probable cause necessary for the
issuance of the search warrant. The defendant observes that
the “citizen” referred to in the affidavit was actually an
individual who had been arrested by police officers earlier on
the day that the search warrant was issued. Continuing, the
defendant says that Detective Powell “conceded that he had
made no effort of any kind to investigate or verify either the
informant’s credibility or the reliability of the information”
contained in the affidavit. Responding, the Commonwealth
asserts that the magistrate did have a substantial basis for
finding that probable cause existed for the issuance of the
warrant and that the evidence seized pursuant to the warrant
was also admissible on another basis, the good faith exception
to the warrant requirement established in United States v.
Leon, 468 U.S. 897 (1984).
In 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
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unusual cases in which exclusion will further the purposes of
the exclusionary rule.” 468 U.S. at 918; see also
Massachusetts v. Sheppard, 468 U.S. 981, 987-88 (1984). The
Supreme Court also stated that “the exclusionary rule is
designed to deter police misconduct . . . .” Leon, 468 U.S.
at 916. This deterrent is not present when a police officer,
acting in objective good faith, obtains a search warrant from
a magistrate and conducts a search within the scope of the
warrant. Derr v. Commonwealth, 242 Va. 413, 422, 410 S.E.2d
662, 667 (1991). We have embraced and applied the good faith
exception to the exclusionary rule. Id. at 422-23, 410 S.E.2d
at 667; McCary v. Commonwealth, 228 Va. 219, 232, 321 S.E.2d
637, 644 (1984).
The Supreme Court stated the following test which we must
apply to determine whether suppression of evidence is an
appropriate remedy:
“Suppression therefore remains an appropriate
remedy if the magistrate or judge in issuing a
warrant was misled by information in an affidavit
that the affiant knew was false or would have known
was false except for his reckless disregard of the
truth. . . . The exception we recognize today will
also not apply in cases where the issuing magistrate
wholly abandoned his judicial role. . . . [I]n such
circumstances, no reasonably well trained officer
should rely on the warrant. Nor would an officer
manifest objective good faith in relying on a
warrant based on an affidavit ‘so lacking in indicia
of probable cause as to render official belief in
its existence entirely unreasonable’ . . . .
Finally, depending on the circumstances of the
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particular case, a warrant may be so facially
deficient -- i.e., in failing to particularize the
place to be searched or the things to be seized --
that the executing officers cannot reasonably
presume it to be valid.” Leon, 468 U.S. at 923
(citations omitted).
We hold that, regardless of the actual validity of the
search warrant, the evidence seized during the search of the
defendant’s apartment is admissible because of the good faith
exception to the exclusionary rule. The evils identified in
the Leon test are simply not present here. When the police
officers conducted the search of the defendant’s apartment,
they acted in good faith, reasonably, and under the authority
of an apparently valid search warrant. The magistrate was not
misled by any information in the affidavit, and he did not
abandon his judicial role. Rather, acting in his judicial
role, the magistrate questioned the informant about the
informant’s knowledge of drug activity in Chesterfield County.
Additionally, the warrant is not so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable, and the warrant is not facially
deficient.
Accordingly, we will affirm the judgment of the Court of
Appeals.
Affirmed.
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