COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia
PAULA COLAW, S/K/A
PAULA LAVON COLAW
OPINION BY
v. Record No. 2990-98-3 JUDGE SAM W. COLEMAN III
JULY 18, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HIGHLAND COUNTY
Duncan M. Byrd, Jr., Judge
Gordon W. Poindexter, Jr. (Poindexter &
Schorsch, P.C., on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Paula Colaw was convicted in a bench trial of possession of
cocaine. The sole issue on appeal is whether the trial court
erred by denying Colaw's motion to suppress the cocaine found in
the search of a friend's house where she was staying as an
overnight guest. Colaw argues the trial court erred in finding
the seized cocaine admissible under the "good faith exception" to
the warrant requirement as established in United States v. Leon,
468 U.S. 897 (1984). We agree and reverse the conviction.
BACKGROUND
On September 12, 1997 at approximately 10:00 p.m., a
confidential informant telephoned Highland County Deputy Sheriff
Robert Kelly and informed him that a party would take place at
Steve Wimer's residence where the people "will be using and
selling drugs." Kelly testified that the informant had been
providing information to the sheriff's department for more than
six years and that the information resulted in arrests on two
occasions. The record did not reflect whether the information or
arrests resulted in convictions.
Based on the information, Kelly sought and obtained a search
warrant authorizing a search of Wimer's residence for drugs. The
affidavit supporting the warrant stated that "[o]n September 12th
1997 a reliable informant called me by phone and noticed me of a
party at Steven Wimer[']s residence that the people there will be
using and selling narcotics." The confidential informant was
described as someone who has "displayed knowledge of drug use and
distribution on numerous occasions. This informant has given
information in the past that has led to 2 arrests." A magistrate
issued the warrant on September 13, 1997 at 12:46 a.m. Kelly
executed the warrant at 2:10 a.m. on September 13.
When Kelly arrived at the Wimer residence, he observed
several people standing outside in the yard as well as several
people inside the house. Kelly served the warrant on Wimer and
searched the residence. In the second floor bedroom, which Paula
Colaw was occupying with a companion, Kelly discovered cocaine and
a small scale in Colaw's overnight bag. Kelly also found
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packaging material and a metal spoon under a towel on the table
where Colaw's bag was placed.
Colaw moved to suppress the cocaine found in the bedroom she
was occupying on the basis that the affidavit did not provide the
magistrate with probable cause to believe that drugs were at the
Wimer residence. The trial court denied the motion, finding that,
although the affidavit did not establish probable cause, the
evidence was admissible under the "good faith" exception to the
exclusionary rule.
ANALYSIS
Colaw argues that the affidavit underlying the warrant was a
"bare-bones affidavit" and that it was "so lacking in indicia of
probable cause as to render official belief in its existence
entirely unreasonable."
Where law enforcement officers illegally search private
premises or seize property without probable cause in violation
of the Fourth Amendment, the illegally seized evidence will be
excluded from evidence. See Mapp v. Ohio, 367 U.S. 643, 655
(1961). "'[T]he exclusionary rule is designed to deter police
misconduct rather than to punish the errors of judges and
magistrates. In the ordinary case, an officer cannot be
expected to question the magistrate's probable-cause
determination or his judgment that the form of the warrant is
technically sufficient.'" Tart v. Commonwealth, 17 Va. App. 384,
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390, 437 S.E.2d 219, 222 (1993) (citation omitted). Where a
police officer has an objectively reasonable belief that the
issuing magistrate had probable cause to issue the search warrant,
the officer may rely upon the magistrate's probable cause
determination and the evidence will not be excluded, even though
the affidavit may not have provided the magistrate, in fact, with
probable cause to issue the warrant. See Leon, 468 U.S. at
918-22. "Under the good faith exception [to the exclusionary
rule] evidence illegally seized is admissible if the officer
conducting the search reasonably relied on a search warrant issued
by a detached and neutral magistrate." Atkins v. Commonwealth, 9
Va. App. 462, 464, 389 S.E.2d 179, 180 (1990) (citations omitted).
"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
unusual cases in which exclusion will further the purposes of
the exclusionary rule.'" Polston v. Commonwealth, 255 Va. 500,
503, 498 S.E.2d 924, 925 (1998) (quoting Leon, 468 U.S. at 918).
Where the officer's conduct is not objectively reasonable,
suppression is the appropriate remedy. See Leon, 468 U.S. at
923.
The good faith exception to the exclusionary rule is not
available in the following four instances:
(1) Where the magistrate was misled by
information in the affidavit which the
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affiant knew was false or should have known
was false, (2) the issuing magistrate
totally abandoned his judicial role, (3) the
warrant was based on an affidavit "so
lacking in indicia of probable cause" as to
render official belief in its existence
unreasonable or (4) where the warrant was so
facially deficient that an executing officer
could not reasonably have assumed it was
valid.
Atkins, 9 Va. App. at 464, 389 S.E.2d at 180 (citation omitted).
When we review a trial court's denial of a suppression
motion, "[w]e view the evidence in a light most favorable to
. . . the prevailing party below, and we grant all reasonable
inferences fairly deducible from that evidence." Commonwealth
v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
Although the facts underlying the suppression ruling are
basically undisputed, we view the facts, including those in
dispute, in the light most favorable to the Commonwealth.
We affirm the trial court's finding that the affidavit
failed to establish probable cause and, therefore, was
deficient. The trial court found that the affidavit failed to
establish probable cause because it failed to provide a basis
for the source of the affiant's knowledge. Moreover, it appears
the warrant was an invalid anticipatory search warrant. The
warrant was issued on September 13, but the affidavit failed to
allege the date or time the criminal activity would occur. The
affidavit also failed to provide a reason or explanation for the
informant's knowledge that the criminal activity would occur.
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See McNeill v. Commonwealth, 10 Va. App. 674, 677 n.1, 395
S.E.2d 460, 462 n.1 (1990) (stating that an anticipatory search
warrant is "'a warrant based upon an affidavit showing probable
cause that at some future time (but not presently) certain
evidence of crime will be located at a specified place'"
(quoting 1 Wayne R. LaFave, Search and Seizure § 3.7(c), at 698
(1978))). An anticipatory search warrant is valid only when
"'probable cause [exists] to believe that the items to be seized
will be at the place to be searched at the time the warrant is
executed.'" McNeill, 10 Va. App. at 677, 395 S.E.2d at 462
(quoting State v. Gutman, 670 P.2d 1166, 1172 (Alaska Ct. App.
1983)). Here, the affidavit failed to articulate the basis for
the informant's knowledge that the party would be occurring at
the Wimer residence or that it would occur on September 13.
Further, it failed to state the basis for his knowledge that
drugs would be present at the residence. No evidence indicated
that the informant had been told of a party planned at the Wimer
residence September 13 or that he had been invited to a party
there. Insofar as the record shows, the informant may have only
been aware that parties were regularly held at the Wimer
residence, and the warrant was issued on September 13 in
anticipation that a party would be held there.
The trial court found that, notwithstanding the deficient
search warrant, the good faith exception to the exclusionary
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rule applied and denied the motion to suppress. We hold that
the "good faith" exception to the warrant requirement does not
apply because "the warrant was based on an affidavit 'so lacking
in indicia of probable cause' as to render official belief in
its existence unreasonable."
Here, the same police officer was both the affiant and the
executing officer. However, the affidavit contains no facts,
and presumably the affiant was aware of none, that would support
the conclusion that people were at the residence to be searched
or would be there on September 13 or that they would be "using
and selling drugs." The affidavit merely stated a conclusory
declaration by a third party informant that people at the
residence "will be using and selling narcotics." A police
officer could not reasonably have believed that the warrant was
properly issued when it was based on a "bare bones" affidavit
that contained only conclusory assertions by a third-party
informant about a future event without supporting facts to
constitute probable cause. See People v. Young, 987 P.2d 889,
893 (Colo. Ct. App. 1999) (stating that "[a] bare bones
affidavit is one that contains only conclusory statements devoid
of facts from which a magistrate can independently determine
probable cause"); State v. Rodriguez, 580 N.E.2d 1127, 1130-31
(Ohio Ct. App. 1989) (finding that affidavit which simply stated
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a conclusory allegation of criminal activity without stating the
basis for the informant's knowledge is "bare bones").
An executing officer, making an objective assessment of the
warrant, would find no facts in the warrant to support a
reasonable, "good faith" belief that drugs would be at the
residence at a future time. The affidavit states, in effect,
that an undisclosed informant said drugs would be at a certain
residence at an unspecified future date and time. Based on the
affidavit, the informant did not report having been inside the
residence, having seen anyone purchase or sell drugs inside the
residence, or having seen anyone using drugs inside the
residence. Neither the affiant nor the informant reported
having witnessed a drug transaction in the residence or a drug
transaction involving anyone who was there or resided there.
The affidavit contains no statement which asserts that anyone
saw drugs in the residence or on a person at the residence. See
Janis v. Commonwealth, 22 Va. App. 646, 653-54, 472 S.E.2d 649,
653 (1996) (holding that the "affidavit gave absolutely no
indication that the fruits of criminal activity would probably
be found at that location, rendering [the officer's] belief in
probable cause, based solely on the affidavit, objectively
unreasonable"), aff'd en banc, 23 Va. App. 696, 479 S.E.2d 534
(1996); see also Atkins, 9 Va. App. at 464, 389 S.E.2d at 180
(holding that evidence was admissible under the good faith
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exception where the affidavit contained "a detailed description
of the nature of the offense, the premises to be searched, the
items for which they were searching, and the transaction which
led the informant to believe that the drugs would be in this
apartment"). Only by blindly accepting the informant's
conclusory statement could one believe that drugs would be at
the residence. Accordingly, we find that the affidavit was "so
lacking in an indicia of probable cause as to render official
belief in its existence entirely unreasonable."
We hold that the evidence seized as a result of the search
warrant was inadmissible under the good faith exception to the
exclusionary rule and hold that the seized cocaine should have
been suppressed. We, therefore, reverse the trial court's
ruling. Because the seized cocaine is essential to the
Commonwealth's case, we reverse Colaw's conviction and dismiss the
indictment.
Reversed and dismissed.
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