COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
DAVID DONNELL WILLIAMS, S/K/A
DAVID D. WILLIAMS, SR.
OPINION BY
v. Record No. 2912-96-1 JUDGE RICHARD S. BRAY
FEBRUARY 17, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
James O. Broccoletti (Zoby & Broccoletti,
P.C., on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
David Donnell Williams (defendant) was convicted in the
trial court for possession of a firearm by a felon in violation
of Code § 18.2-308.2. Defendant complains on appeal that the
trial court erroneously declined to suppress evidence seized
during the execution of a search warrant at his residence.
Defendant argues that the affidavit given in support of the
warrant was tainted both by a material omission and with
information obtained unconstitutionally by the affiant, requiring
suppression of all evidence seized during the attendant search.
Finding no error, we affirm the conviction.
I.
In reviewing a trial court's ruling on a suppression motion,
we consider the evidence in the "light most favorable to . . .
the prevailing party below," the Commonwealth in this instance,
and the factual findings of the trial judge will be disturbed
only if plainly wrong. Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991). Our consideration of the
record includes evidence adduced at both the trial and the
suppression hearing, if any. DePriest v. Commonwealth, 4 Va.
App. 577, 583, 359 S.E.2d 540, 542-43 (1987). However, "as a
general matter, determinations of . . . probable cause should be
reviewed de novo on appeal," with deference to a trial court's
finding of "historical fact." Ornelas v. United States, 116
S. Ct. 1657, 1663 (1996). To prevail on appeal, the defendant
must "show . . . that the denial of [his] motion . . .
constitute[d] reversible error." Motley v. Commonwealth, 17 Va.
App. 439, 440-41, 437 S.E.2d 232, 233 (1993).
II.
On July 1, 1994, Norfolk Humane Officers Jody Shoulders and
Mark Kumpf visited defendant's residence to investigate an
"[animal] cruelty complaint." In defendant's absence, his wife
admitted the officers to the home and adjoining, fenced rear
yard, where they observed four adult pit bull dogs "[o]n very,
very heavy chains," a pit bull puppy confined in a "kennel
carrier," "quite a bit . . . of feces," and "no water." Inside
the residence, Shoulders noticed items "consistent with
individuals engaged in breeding and fighting pit bull dogs for
sport," including "injectable materials," a periodical entitled
"Game Dog Times," and canine pedigree documents. Because
- 2 -
defendant's wife was unable to locate vaccination certificates or
city licenses for the dogs, and none were found among city
records, Shoulders left a notice with defendant's wife, directing
that he contact Shoulders concerning licensure and care of the
animals.
When defendant failed to respond to the notice, Shoulders
resumed her investigation in January, 1995, learned that no dogs
had been licensed to defendant's residence following the July,
1994 visit, and returned to defendant's home on the morning of
January 31, 1995. On arrival, Shoulders noticed a car in the
driveway, and, while standing on the public sidewalk, saw "things
moving through the slats of the [back yard] fence." The odor of
animal waste and a cacophony of "multiple dogs barking" emanating
from the rear of the house were also detectable from the
sidewalk. Receiving no answer to her knock at defendant's front
door, Shoulders "stepped off the front porch . . . [and] went
down a very short driveway to the fence to see what the animals
were barking about, if they were okay and [if] someone was
possibly in the back yard." The "driveway area" was an "open
space," with no signs warning away trespassers, which afforded an
unobstructed view from the sidewalk to the fence. Shoulders
called, "hello, hello," but heard no response above the din of
"six Pit Bulls barking all at once." The rear yard was visible
to Shoulders through "large spaces between the [fence] slats,"
and she saw "six dogs . . . chained to different
- 3 -
structures[,] . . . no water . . . [,] and quite a bit of fecal
matter."
Based upon her observations, Shoulders immediately obtained
a warrant to search defendant's "residential dwelling, its
curtilage and its environs" for evidence of violations of several
city ordinances. The following "material facts constituting
probable cause" were set forth in the attendant affidavit:
On January 31, 1995, your affiant went to
2136 Ballentine Boulevard, Norfolk, VA 23509,
at approximately 11:15 a.m. I observed six
(6) adult dogs in the back yard on heavy
chains. No food or water was visible for the
animals. A check of 1994 and 1995 city
licenses showed no licenses on file for thqat
[sic] address. On July 1, 1994, your affiant
investigated a cruelty complaint at 2136
Ballentine Boulevard, Norfolk, VA 23509.
Your affiant was given consent to examine the
four (4) pitbulls and one (1) pitbull puppy
on the property. While on the property, your
affiant observed a bottle labeled injectable
Vitamin E and other unlabeled bottled
injectable substances. . . . Your affiant
also observed several periodicals including
"Game Dog Times." In theis [sic] officer's
experience, such documents and medications
are consistent with individuals engaged in
breeding and fighting pitbull dogs for sport.
A check of DMV files for Virginia ICE
MAN1, showed vehicle registration to David D.
Williams at 2316 Ballentine Blvd., Norfolk,
VA 23509. A check of Norfolk tracer
indicated previous arrests for use of a
firearm in the commission of a felony,
carrying concealed weapons, etc. 1
1
The affidavit referenced the following violations of the
Norfolk City Code: "[m]aintaining more than four dogs" in
violation of Code § 6-5(d); "[f]ailure to vaccinate for rabies"
in violation of Code § 6-102; "[f]ailure to pay city dog license
tax," in violation of Code § 6-79; and "[f]ailure to provide the
duties of ownership" in violation of Code § 6-11.
- 4 -
Shoulders, accompanied by several officers, executed the search
warrant on the afternoon of January 31, 1995, and discovered the
offending firearm, together with evidence of numerous other
crimes not in issue.
III.
Defendant first argues that the "primary basis in the
affidavit sworn to by Officer Shoulders" in support of probable
cause for the search warrant "was information she observed on
January 31, 1995 while trespassing onto" defendant's property.
He maintains that Shoulders' failure to advise the magistrate
that she saw the "six pit bulls" while unconstitutionally
invading the curtilage of his residence and gazing through his
"privacy fence" constituted a "material omission . . . made in
reckless disregard for the truth . . . ." 2 Relying upon Franks
v. Delaware, 438 U.S. 154 (1978), defendant reasons that such
"tainted information in the affidavit" must be "set aside,"
leaving the warrant without the requisite probable cause.
In Franks, the Supreme Court of the United States instructed
that
where the defendant makes a substantial
preliminary showing that a false statement
knowingly and intentionally, or with reckless
disregard for the truth, was included by the
affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the
finding of probable cause, the Fourth
Amendment requires that a hearing be held at
the defendant's request. In the event that
2
The trial judge concluded that the "enclosed back yard and
side yard were within the curtilage."
- 5 -
at that hearing the allegation of perjury or
reckless disregard is established by the
defendant by a preponderance of the evidence,
and, with the affidavit's false material set
to one side, the affidavit's remaining
content is insufficient to establish probable
cause, the search warrant must be voided and
the fruits of the search excluded to the same
extent as if probable cause was lacking on
the face of the affidavit.
Id. at 155-56, see also West v. Commonwealth, 16 Va. App. 679,
689, 432 S.E.2d 730, 736-37 (1993). For purposes of this appeal,
we treat the hearing on defendant's motion to suppress as a
Franks hearing, despite the absence of "any preliminary showing"
by defendant of police misconduct. West, 16 Va. App. at 689, 432
S.E.2d at 737 (emphasis added).
Defendant correctly asserts that "Franks protects against
omissions that are designed to mislead, or that are made in
reckless disregard of whether they would mislead, the
magistrate . . .[;] [however,] 'mere negligen[ce] in . . .
recording the facts relevant to a probable-cause determination'
is not enough." United States v. Colkley, 899 F.2d 297, 300 (4th
Cir. 1990) (quoting Franks, 438 U.S. at 171); see West, 16 Va.
App. at 689-90, 432 S.E.2d at 437. Thus, to prevail in a Franks
challenge, an accused must allege and prove "more than [an]
'intentional' omission." Colkley, 899 F.2d at 301. This
principle is consistent with the remedial purpose of the
exclusionary rule, "to deter police misconduct by denying
illegally obtained evidence from being admitted in [a]
defendant's criminal trial." Johnson v. Commonwealth, 21 Va.
- 6 -
App. 172, 175, 462 S.E.2d 907, 909 (1995) (emphasis added).
Here, defendant offered no evidence that established either
a design to deceive the magistrate or recklessness in Shoulders'
omission of "material" information from the affidavit, and
nothing in the record suggests such misconduct. Accordingly, in
denying defendant's motion to suppress, the trial court concluded
that "the officer neither intentionally nor recklessly misled the
magistrate," a factual finding supported by the record and which
renders defendant's Franks claim meritless. See West, 16 Va.
App. at 689, 432 S.E.2d at 737; Moats v. Commonwealth, 12 Va.
App. 349, 355, 404 S.E.2d 244, 247 (1991).
IV.
Defendant next urges that, irrespective of Franks, the
disputed search was dependent upon the authority of a warrant
supported by an affidavit "tainted by the prior illegal entry
onto defendant's property," a circumstance requiring suppression
of the resulting evidence as "fruit of the poisonous tree." See
Commonwealth v. Ealy, 12 Va. App. 744, 754-55, 407 S.E.2d 681,
688 (1991). Defendant acknowledges on brief that Shoulders
"lawfully obtained" information that dogs were present at the
residence "from their barking and . . . odor," conditions
"observable" from the public sidewalk, without invading the
curtilage. Hence, his challenge embraces only that information
gathered from Shoulders' view of the dogs through the fence.
It is well established that "[t]he inclusion of tainted
- 7 -
evidence does not invalidate a search warrant," United States v.
Wright, 991 F.2d 1182, 1186 (4th Cir. 1993) (citing United States
v. Whitehorn, 813 F.2d 646, 649 (4th Cir. 1987)), and suppression
is not required "if, excluding the illegally obtained
information, probable cause for the issuance of the warrant could
still be found." United States v. Apple, 915 F.2d 899, 910 (4th
Cir. 1990); United States v. Gillenwaters, 890 F.2d 679, 681 (4th
Cir. 1989); see also United States v. Hawkins, 788 F.2d 200,
203-04 (4th Cir. 1986) (court properly deleted challenged wiretap
information from the affidavit before making a probable cause
determination); cf. Derr v. Commonwealth, 6 Va. App. 215, 221-22,
368 S.E.2d 916, 919 (1988) (in assessing probable cause to
conduct a warrantless search under the "automobile exception,"
evidence properly obtained is admitted, while evidence resulting
from an unconstitutional search is suppressed).
Thus, if we adopt defendant's argument, any taint in
Shoulders' affidavit is cured by the following redactions: "I
observed six (6) adult dogs in the back yard on heavy chains. No
food or water was visible for the animals." The remainder of the
affidavit then recites that Shoulders visited defendant's home on
the morning of January 31, 1995, and "observed . . . dogs in the
back yard" of a residence to which no dog licenses were of record
with the city. Such circumstances, together with the information
gathered on July 1, 1994, also set forth in the affidavit,
clearly provided probable cause to believe that dogs were present
- 8 -
on the premises in violation of City Code §§ 6-11 and 6-79. See
Gwinn v. Commonwealth, 16 Va. App. 972, 975-76, 434 S.E.2d 901,
904 (1993). 3 Accordingly, we find no error in admitting the
disputed evidence and affirm the conviction.
Affirmed.
3
"In dealing with probable cause . . . as the very name
implies, we deal with probabilities. These are not technical;
they are the factual and practical considerations of everyday
life on which reasonable and prudent men, not legal technicians,
act . . . . The process does not deal with hard certainties, but
with probabilities." Boyd v. Commonwealth, 12 Va. App. 179,
186-87, 402 S.E.2d 914, 919 (1991) (quoting Illinois v. Gates,
462 U.S. 213, 231-32 (1983)).
- 9 -