COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia
ANTONIO PEREZ
OPINION
v. Record No. 1235-96-1 BY JUDGE JOSEPH E. BAKER
JULY 1, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John E. Clarkson, Judge
Douglas Fredericks for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Antonio Perez (appellant) appeals from his bench trial
convictions by the Circuit Court of the City of Norfolk (trial
court) for possession of cocaine with intent to distribute and
possession of a firearm while in possession of cocaine with
intent to distribute. At trial, appellant pled guilty to the
charges. However, he reserved the right to appeal to this Court
on the sole issue of whether the trial court erred in refusing to
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suppress evidence found in appellant's apartment following a
search conducted pursuant to a search warrant issued eleven days
after the police first acquired probable cause to make the
search.
Appellant contends that the search warrant was issued in
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Appellant possessed 7.6 grams of cocaine, packaging materials,
digital scales, a pistol, a rifle, a pager, a police scanner, and
several dogs, including a Pit Bull, a Rottweiler, a Chow and three
puppies.
violation of his rights granted by the Fourth Amendment to the
Constitution of the United States because it was based upon stale
information (eleven days old). 2 See United States v. McCall, 740
F.2d 1331 (4th Cir. 1984) (evidence seized pursuant to a warrant
supported by "stale" probable cause is not admissible in a
criminal trial to establish the defendant's guilt). We must
decide whether the facts alleged in the warrant furnished
probable cause to believe that criminal activity existed at
appellant's residence when the magistrate issued the warrant.
Viewing the totality of the evidence presented to the trial
court, we find no error in the trial court's refusal to suppress
the evidence.
On appeal from a magistrate's probable cause determination,
the standard of review is "whether, considering the totality of
the circumstances, the magistrate had a substantial basis for
concluding that probable cause existed." Williams v.
Commonwealth, 4 Va. App. 53, 68, 354 S.E.2d 79, 87 (1987). The
record discloses that on December 9, 1994, Norfolk Police
Officers Hoggard and Alvarez were at the Chesapeake Manor
apartment complex attempting to serve John Zavala with an
2
In his petition for appeal, appellant raised only this issue.
This Court granted review solely on this issue. In his brief,
however, appellant raises three additional issues. Rule 5A:12(c)
provides that "[o]nly questions presented in the petition for
appeal will be noticed by the Court of Appeals." See Cruz v.
Commonwealth, 12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1
(1991). We did not grant appellant an appeal on the additional
issues raised in his brief and will not address them.
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outstanding capias when Zavala broke away from them. Zavala ran
to apartment A at 868 Denison Avenue. Zavala opened the
apartment screen door and coaxed a Pit Bull housed inside the
apartment to attack the officers. The officers repelled the Pit
Bull attack until an unknown person called the Pit Bull away from
them. The officers also observed a Rottweiler and a Chow inside
the apartment.
Hoggard reported the incident to Humane Officer Kumpf of the
Animal Control Bureau, who removed and impounded the Pit Bull,
Rottweiler, and Chow on the same day. Kumpf impounded the three
dogs because they had no defined owner. While at the apartment,
Kumpf observed five puppies confined in a closet. The puppies
were standing in their own feces with no food or water. However,
Kumpf did not impound the puppies.
On December 10, 1994, appellant appeared at the S.P.C.A.
where the dogs were confined, acknowledged ownership of the dogs,
and provided proof thereof. Kumpf permitted appellant to take
the dogs with him. On either December 12 or 13, Kumpf advised
Hoggard that he had released the dogs because without an
outstanding arrest warrant charging appellant with a dog-related
offense, Kumpf was not authorized to retain them.
On December 15, 1994, Hoggard procured an arrest warrant
that charged appellant with permitting a vicious dog to run at
large. Hoggard did not obtain the arrest warrant until December
15 because he was handling other cases or had days off during the
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period between December 10 and December 15. Hoggard testified
that his "command doesn't approve of us coming in on days off to
execute a misdemeanor warrant." On December 17, Hoggard and
Kumpf discussed the viciousness of the Pit Bull and the arrest
warrant Hoggard had obtained. Kumpf informed Hoggard that he
would obtain a search warrant for the premises where the vicious
Pit Bull was housed.
Kumpf swore out an affidavit to obtain the search warrant
which alleged "[m]aintaining a vicious dog" and "[f]ailure to
perform the duties of dog ownership." It contained the following
statement as probable cause for its issuance:
On 12/9/94, Inv. G.S. Hoggard was
attempting to arrest an individual in the 800
block of Denison Avenue Norfolk Virginia.
The subject attempted to enter 868 #A Denison
Avenue where the subject incited a pitbull
[sic] inside the dwelling to attack the
officer. The dog was restrained by another
subject inside the dwelling. The incident
accured [sic] at 2:15 PM 12/9/94. At 4:15,
your affiant, Humane Officer II M.T. Kumpf,
went to the residence at 868 #A Denison
Avenue Norfolk Virginia 23513 to determine if
the dog in question was licensed and
vaccinated against rabies. A total of eight
dogs were inside the residence at 868 #A
Denison Avenue. A pitbull [sic], Chow, and a
Rottweiler mix were free roaming inside the
residence and charged at the screendoor [sic]
attempting to attack this officer. The
custodian of the dogs identified the owner as
Anotonio [sic] Perez. After being given
consent to inspect the residence, the
remaining five dogs were observed contained
in a closet space. The dogs appeared to be
approximately 8-9 week old pitbull [sic]
puppies. No food or water was evident. The
floor of the closet had numerous piles of
feces which the puppies were standing in. In
this officer's experience, these conditions
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and breeds of dogs are commonly used for
fighting and training to fight.
On 12/15/94, Inv. G.S. Hoggard secured a
viciousdog [sic] warrant for Antonio Perez.
(attached).
Based upon the evidence presented, the trial court refused to
suppress the evidence obtained as a result of the search.
United States v. McCall, 740 F.2d 1331 (4th Cir. 1984),
cited by appellant, supports the judgment of the trial court. In
McCall, a seven- to eight-month delay occurred between the
observance of facts constituting a basis for determining probable
cause to obtain the search warrant and the time the search
warrant affidavit was executed. Id. at 1334. In holding that
the facts supporting the search warrant were not so "stale" as to
present an impropriety rising to the level of a Fourth Amendment
violation, the Court said:
Cases in which staleness becomes an issue
arise in two different contexts. First, the
facts alleged in the warrant may have been
sufficient to establish probable cause when
the warrant was issued, but the government's
delay in executing the warrant possibly
tainted the search. (Citations omitted).
Second, the warrant itself may be suspect because
the information on which it rested was arguably
too old to furnish "present" probable cause.
(Citations omitted.) A reviewing court's task in
each category of cases is slightly different. In
testing a warrant in the first category, it must
decide whether a valid warrant became invalid due
to the lapse of time; when considering those in
the second category, it must determine whether
information sufficient to constitute probable
cause was ever presented. The court's fundamental
concern, however, is always the same: did the
facts alleged in the warrant furnish probable
cause to believe, at the time the search was
actually conducted, that evidence of criminal
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activity was located at the premises searched?
This question is not resolved by reference
to pat formulas or simple rules. "[T]he
vitality of probable cause cannot be
quantified by simply counting the number of
days between the occurrence of the facts
supplied and the issuance of the affidavit."
United States v. Johnson, 461 F.2d 285, 287
(10th Cir. 1972). Rather, we must look to
all the facts and circumstances of the case,
including the nature of the unlawful activity
alleged, the length of the activity, and the
nature of the property to be seized. Id.
Id. at 1336.
In the case before us, appellant's sole contention is that
the eleven days that passed between the initial sighting of the
vicious dog and the procurement of the warrant per se requires
this Court to declare the search warrant invalid. Appellant
asserts that the evidence presented to the magistrate was "too
stale" to furnish probable cause to believe the criminal
activities of maintaining or allowing a vicious dog to run at
large and failure to perform the duties of dog ownership still
existed when the warrant was issued. We disagree. Nothing in
the nature of the activity or the property to be seized suggests
that the mere passage of eleven days dissipated the probable
cause which existed on December 9. The facts contained in
Kumpf's affidavit provided a substantial basis for the magistrate
to conclude on December 20, 1994, that probable cause existed to
search the 868 #A Denison Avenue apartment.
Upon consideration of all the facts and circumstances, we
find that the magistrate's issuance of the search warrant was
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supported by probable cause. Accordingly, the judgment of the
trial court in refusing to suppress the evidence discovered
pursuant to the authority of the search warrant is affirmed.
Affirmed.
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