COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Felton and Kelsey
Argued at Chesapeake, Virginia
LAVAR A. SLADE
OPINION BY
v. Record No. 1529-03-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 18, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Edward L. Hubbard, Judge
Jeffrey C. Rountree for appellant.
Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
In this criminal appeal, Lavar A. Slade (appellant) contends that: 1) the trial court erred in
overruling his motion to suppress evidence obtained pursuant to a search warrant issued without
probable cause, and 2) the evidence was insufficient to convict him of possession with intent to
distribute cocaine. We affirm the judgment of the trial court.
I. BACKGROUND
Under familiar principles of appellate review, we examine the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on December 7, 2002 the Newport News police
executed a search warrant at Apartment 7, 438 Tara Court. The warrant was issued based on a
controlled purchase of cocaine instigated by a confidential informant whom appellant stipulated
to be reliable. The informant asked an “unwitting informant” where he could purchase cocaine,
and the unwitting informant took him to the Tara Court home. The confidential informant saw
the unwitting informant take cash given to him by the confidential informant into the home,
return and give him the drugs purchased. The unwitting informant stated that there was more
cocaine available for sale inside. The affidavit stated that this happened on several occasions.
Inside the apartment, the police found approximately two and a half grams of cocaine on
the living room coffee table, ten and a half grams of cocaine on top of a sliding door, digital
scales and plastic baggies in the kitchen, $900 in appellant’s pants pocket separated into smaller
denominations, and a cell phone. Detective Nesbitt (Nesbitt) testified that appellant admitted the
cocaine on the table was his. When he was asked about the large stash of cocaine, appellant
replied, “Times are tough. I’m just trying to support my family.” Nesbitt also testified that
appellant repeated this statement in front of the magistrate at the bail hearing. Appellant denied
making this statement at trial.
II. MOTION TO SUPPRESS
“The burden to establish that the denial of the motion to suppress constituted reversible
error rests with the defendant.” King v. Commonwealth, 39 Va. App. 306, 308, 572 S.E.2d 518,
519 (2002) (citations omitted). “We 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 (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; Hayes v. Commonwealth, 29
Va. App. 647, 652, 514 S.E.2d 357, 359 (1999); Shears v. Commonwealth, 23 Va. App. 394,
398, 477 S.E.2d 309, 311 (1996).
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Appellant contends that the affidavit failed to sufficiently establish the reliability of the
unwitting informant, and thus the magistrate did not have probable cause to issue the search
warrant. We disagree and affirm the judgment of the trial court.
The affidavit stated, in pertinent part:
On December 4, 2002, this affiant received information from a
confidential reliable informant that he/she and a [sic] unwitting
informant had been to an apartment known as 438 Tara Court, # 7.
The reliable informant advised that he/she observed the unwitting
informant knock on the door of 438 Tara Court #7 and walk in
with the U.S. currency. The reliable informant advised that the
unwitting informant returned and handed the reliable informant a
quantity of cocaine and stated that there is more cocaine for sale
inside 438 Tara Court #7 when the reliable informant wanted
more. The reliable informant advised he/she had taken the
unwitting informant to 438 Tara Court #7 several times in the past
and has given U.S. currency to the unwitting informant to purchase
cocaine from inside 438 Tara Court #7 and the unwitting informant
has stated that there is more cocaine for sale inside 438 Tara Court
#7 when the reliable informant wanted more.
Defense counsel stipulated to the reliability of the confidential informant, but moved to
suppress the evidence obtained during the search, contending that the affidavit and warrant
contained no facts to support the reliability of the unwitting informant and that it contained his
hearsay statements about the cocaine purchase inside the suspect residence. He argues:
On the face of the warrant, the magistrate looking at it, we don’t
know how long this person was in there, and for another thing, this
has been done a number of times in the past. We don’t know how
many. Moreover, and most important, we don’t know anything
about the unwitting informant. We don’t know if that person is
reliable or telling the truth. We don’t – I think you can presume
from the warrant, but we don’t know exactly anything about their
reliability. We move to suppress the warrant, and the evidence that
stems from it.
The trial court overruled appellant’s motion to suppress as follows:
The act speaks for itself, and I think the observance of that act by
the reliable informant certainly is sufficient to get probable cause,
and even if it didn’t, I agree with the Commonwealth that the
good-faith exception applies. Overrule the motion.
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“Whether a warrant is supported by probable cause is determined from the
‘totality-of-the-circumstances.’” Corey v. Commonwealth, 8 Va. App. 281, 286, 381 S.E.2d 19,
21 (1989) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)).
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 . . . [concluding]” that probable cause existed.
Gates, 462 U.S. at 239 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).
While we have not specifically addressed the issue of whether an unwitting informant is
subject to the same reliability requirements as a confidential informant, other jurisdictions have
done so. In Delgado v. Florida, 556 So.2d 514 (Fla. Dist. Ct. App. 1990), a factually similar
case, the Florida Court of Appeals analyzed the use of an unwitting informant in a drug buy.
Delgado appealed the denial of his motion to suppress the evidence because the affidavit in
support of the warrant failed to “include information revealing a basis for the ‘unwitting
informant’s’ knowledge or his veracity.” Id. at 516. An undercover officer attempted to
purchase cocaine from an unwitting informant who in turn purchased cocaine for the officer at a
nearby apartment. The officer saw the unwitting informant enter the residence, return with
cocaine, and heard him say that there was more cocaine in the residence. The officer obtained a
search warrant ten days later. See id. at 515. In finding the affidavit sufficient, the court noted
that “the affiant observed the ‘unwitting informant’ enter the residence” to purchase the cocaine.
Id. The court held that it was not fatal to an affidavit to fail to include a basis for the unwitting
informant’s knowledge. Rather, the proper analysis is a consideration of the totality of the
circumstances as set out in Gates. See id. at 516; see also United States v. Jordan, 999 F.2d 11,
14 (1st Cir. 1993) (holding that an unwitting informant’s statements to a confidential informant
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that he had purchased cocaine in a residence during a controlled purchase constituted probable
cause to issue a search warrant); Reyes v. Florida, 541 So.2d 772 (Fla. Dist. Ct. App. 1989)
(holding that probable cause justified the issuance of a search warrant when officers observed an
unwitting informant disappear into a house to make a controlled buy and return having
completed the transaction); New Mexico v. Lovato, 868 P.2d 1293 (N.M. 1993) (holding that use
of an unwitting informant does not trigger a reliability analysis because his actions are not
“hearsay”); Minnesota v. Valento, 405 N.W.2d 914 (Minn. Ct. App. 1987) (holding that probable
cause justified the issuance of a search warrant where officers observed a confidential informant
use an unwitting informant to purchase cocaine).
Because appellant stipulated to the reliability of the confidential informant, we need only
address whether the totality of the circumstances surrounding the cocaine purchase provided the
magistrate with a substantial basis for concluding that probable cause existed. Here, the totality
of the circumstances provided the magistrate with a substantial basis to conclude that probable
cause justified the search. “Ordinarily, an informant’s controlled buy may constitute probable
cause sufficient for a magistrate judge to issue a warrant.” McGuire v. Commonwealth, 31
Va. App. 584, 596, 525 S.E.2d 43, 49 (2000). The affidavit provided a detailed description of
the reliable informant who, after giving “buy money” to the unwitting informant, saw him knock
on the door of the Tara Court residence, walk in with U.S. currency, and return to hand the
confidential informant cocaine that he had purchased. The reliable informant stated that he had
taken the unwitting informant to the same address several times with the same result. Appellant
stipulated that the confidential informant was reliable, and it is his credibility that forms the basis
for the warrant. The unwitting informant was merely an instrument of the controlled buy. We
therefore hold that the totality of the circumstances provided the magistrate with a substantial
basis to find that probable cause justified the search.
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II. SUFFICIENCY OF THE EVIDENCE
Appellant next contends that the evidence was insufficient to convict him of possession
with intent to distribute cocaine. He argues that he should have been believed when he denied
that he sold drugs, and without such testimony the Commonwealth’s evidence shows mere
possession. This argument is without merit.
“When the sufficiency of the evidence is challenged on appeal, we determine whether the
evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the
reasonable inferences fairly deducible from that evidence support each and every element of the
charged offense.” Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779
(1999). “In so doing, we must discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences that may be drawn therefrom.” Watkins v. Commonwealth, 26 Va. App. 335,
348, 494 S.E.2d 859, 866 (1998). “Witness credibility, the weight accorded the testimony and
the inferences to be drawn from proven facts are matters to be determined by the fact finder. The
trial court’s judgment will not be set aside unless it appears that the judgment is plainly wrong or
without supporting evidence.” Foster v. Commonwealth, 38 Va. App. 549, 554, 567 S.E.2d 547,
549 (2002) (internal citations and quotations omitted).
Detective Nesbitt testified that when he asked appellant why he was selling cocaine,
appellant responded, “Times are tough. I’m just trying to support my family.”
The credibility of a witness and the inferences to be drawn from
proven facts are matters solely for the fact finder’s determination.
In its role of judging witness credibility, the fact finder is entitled
to disbelieve the self-serving testimony of the accused and to
conclude that the accused is lying to conceal his guilt.
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Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998) (internal citation
omitted). The trial judge was not required to believe appellant’s denial that he confessed to
distributing cocaine.
Additionally, the police recovered over two and a half grams of cocaine on appellant’s
coffee table, and over ten and a half grams of cocaine hidden over a sliding glass door to
appellant’s apartment, digital scales and packing materials including plastic baggies in the
kitchen, and $900 in U.S. currency in appellant’s front pocket. See Servis v. Commonwealth, 6
Va. App. 507, 524, 371 S.E.2d 156, 165 (1988) (circumstantial evidence may be used to indicate
intent to distribute); McCain v. Commonwealth, 261 Va. 483, 493, 545 S.E.2d 541, 547 (2001)
(the quantity of the drugs seized, the manner in which they are packaged, and the presence of
equipment related to drug distribution are indicia of distribution); Hunter v. Commonwealth, 213
Va. 569, 570, 193 S.E.2d 779, 780 (1973) (proof that quantity possessed exceeds that normally
intended for personal use, without more, is sufficient to show intent to distribute); Welshman v.
Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d 122, 130 (1998) (en banc) (possession of a
quantity greater than that ordinarily possessed for personal use may be sufficient to establish an
intent to distribute); Gregory v. Commonwealth, 22 Va. App. 100, 110, 468 S.E.2d 117, 122
(1996) (finding sufficient evidence of intent to distribute based on several baggies containing 3.7
grams of cocaine). We cannot say that the trial court was plainly wrong in finding this evidence
sufficient to convict appellant of possession with intent to distribute cocaine.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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