COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION** BY
v. Record No. 1471-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
NOVEMBER 25, 1997
SHARON McINTYRE
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Wiley R. Wright, Jr., Judge Designate
H. Elizabeth Shaffer, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellant.
Jonathan Shapiro (Law Offices of Jonathan
Shapiro, P.C., on brief), for appellee.
Sharon McIntyre (appellee) was indicted for possession of
cocaine and marijuana in violation of Code § 18.2-250. Appellee
filed a motion to suppress evidence seized as a result of a
search of 3201 Landover Street #1202 in Alexandria. The trial
court granted the suppression motion, and the Commonwealth noted
an appeal pursuant to Code § 19.2-398(2). On appeal, the
Commonwealth argues that the trial court erred (1) in finding
that the affidavit supporting the search warrant failed to
provide probable cause for the search; and (2) in refusing to
apply the good faith exception to justify the search. We hold
that the affidavit established a sufficient nexus between the
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
evidence sought and the place searched to justify the issuance of
the search warrant. For the following reasons, we reverse and
remand.
Background
Appellee lived in apartment #1202 at 3201 Landover Street
with her daughter, Lisa Lafay, the named lessee. On January 16,
1997, Detective Shawn Monaghan of the Fairfax County Narcotics
Division appeared before an Alexandria magistrate and obtained a
search warrant for "3201 Landover Street #1202, Alexandria,
Virginia, (City of Alexandria)." The purpose of the search was
to locate money, paraphernalia, records and documents related to
the distribution of cocaine. Although appellee was not the
target of the investigation, upon executing the warrant,
Detective Monaghan discovered cocaine and other evidence that
implicated appellee and led to her indictment. Because appellee
challenges the sufficiency of the affidavit supporting the search
warrant, we set out the contents in some detail.
In the seven-page affidavit, Detective Monaghan described
his investigation into the cocaine-related activities of
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Christopher Charles Lafay, appellee's son-in-law. Monaghan
spoke with two confidential informants who indicated that Lafay
distributed cocaine in Fairfax County, that he had been seen with
large amounts of cocaine, marijuana and cash, that Lafay had
1
The affidavit also described Detective Monaghan's training
and experience, including seven years of undercover work and four
years in the Narcotics Division.
2
previously stored large quantities of illegal controlled
substances in a storage bin at Shurgood Storage Centers, and that
he drove a Ford with Virginia license ZLZ-1773. Detective
Monaghan investigated the license plate number and learned that
it was registered to a Ford four-wheel drive vehicle owned by
Chris Lafay. He also obtained Lafay's Social Security number and
date of birth and used them to discover that Lafay pled guilty to
"trafficking cocaine by possession" in 1993. After he confirmed
that Chris Lafay owned unit #18 at Shurgood Storage, the
detective obtained and executed a search warrant on the storage
bin. 2 He discovered records in the name of Chris Lafay and a
baggie containing white powder-type residue that field-tested as
cocaine.
Further investigation revealed that Chris Lafay was married
to Lisa Lafay, who also pled guilty to "trafficking cocaine by
possession" in 1993, and whose current address was 3201 Landover
Street, Apartment #1202 in Alexandria. While conducting
surveillance, Monaghan observed Chris Lafay's Ford parked in
front of Lisa's apartment building. One concerned citizen in the
2
The affidavit for the storage bin search warrant stated, in
part, "it is the experience of your Affiant that, to avoid
detection and apprehension by law enforcement, habitual drug
dealers are aware of, study, and take measures to protect
themselves from the undercover operations undertaken by law
enforcement personnel. These measures include but are not
limited to, the use of storage facilities to house large amounts
of drugs/narcotics and cash. The storage facility is used to
keep the drugs and cash out of their immediate possession, but
still easily accessible and secure." This information was not
contained in the affidavit for the disputed search.
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management office of the apartment building told the detective
that Lisa lived in apartment #1202, that Chris had been coming
and going during the past few weeks, and that the citizen
believed Chris was staying in that apartment with Lisa. A second
concerned citizen told Detective Monaghan that he had seen a
black 1991 Explorer with Virginia license ZLZ-1773 parked in
front of the building.
The affidavit further stated:
It is the experience of your affiant that
persons who traffic in cocaine do keep
records and documents to insure a continued
supply of customers and source of supply, as
well as money, financial records reflecting
amounts and kinds of controlled substances
purchased with amounts paid and received.
These records include, but are not limited
to, telephone books, toll records, address
books, computers, computer disks, electronic
storage devices, and money lists showing
money paid and owed. Persons who regularly
traffic in controlled substances also keep
paraphernalia used in the sale of controlled
substances to include, but not limited to,
scales, baggies, measuring devices, aluminum
foil and other types of containers.
At the hearing on appellee's motion to suppress, the trial
court found that the affidavit failed to establish the requisite
nexus between the items sought and the place to be searched and
that the Leon good faith exception did not apply. The court
failed to reach appellee's contentions that the magistrate's
failure to comply with Code § 19.2-54 and the affiant's material
omission (see supra, note 2) also required suppression of the
evidence.
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Validity of the Warrant
"The task of the issuing magistrate is simply to make a
practical commonsense decision whether, given all the
circumstances set forth in the affidavit before him . . . there
is a fair probability that contraband or evidence of a crime will
be found in a particular place." Miles v. Commonwealth, 13 Va.
App. 64, 68-69, 408 S.E.2d 602, 604-05 (1991) (citing Illinois v.
Gates, 462 U.S. 213, 238 (1983)), aff'd en banc, 14 Va. App. 82,
414 S.E.2d 619 (1992). "The initial determination of probable
cause requires the magistrate to weigh the evidence presented in
light of the totality of the circumstances." Tart v.
Commonwealth, 17 Va. App. 384, 387, 437 S.E.2d 219, 221 (1993).
"'[A] magistrate may draw reasonable inferences from the material
supplied to him.'" Miles, 13 Va. App. at 69, 408 S.E.2d at 605
(quoting Williams v. Commonwealth, 4 Va. App. 53, 68, 354 S.E.2d
79, 87 (1987)).
"When reviewing a decision to issue a warrant, a reviewing
court must grant great deference to the magistrate's
interpretation of the predicate facts supporting the issuance of
a search warrant and to the determination of whether probable
cause supported the warrant." Janis v. Commonwealth, 22 Va. App.
646, 652, 472 S.E.2d 649, 652 (citation omitted), aff'd en banc,
23 Va. App. 696, 479 S.E.2d 534 (1996). See Ornelas v. United
States, ___ U.S. ___, 116 S. Ct. 1657, 1663 (1996) (stating that
"the scrutiny applied to a magistrate's probable-cause
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determination to issue a warrant is less than that for
warrantless searches"). "'A deferential standard of review is
appropriate to further the Fourth Amendment's strong preference
for searches conducted pursuant to a warrant.'" Tart, 17 Va.
App. at 388, 437 S.E.2d at 221 (quoting Williams, 4 Va. App. at
68, 354 S.E.2d at 87).
The underlying affidavit in the instant case provided the
magistrate with a substantial basis for determining probable
cause. The affidavit contained statements of confidential
informants that Chris Lafay sold cocaine and kept drugs and
drug-related paraphernalia in his rented storage bin. The
affidavit described in detail Detective Monaghan's investigation
and his corroboration of information provided by concerned
citizens. The detective discovered some records and evidence of
cocaine in Lafay's storage bin, and he learned that Lafay was
married, that his wife leased the apartment to be searched, and
that Lafay had frequented her apartment building recently.
Additionally, the affidavit reviewed Monaghan's extensive
training and experience in drug-related investigation and
described the detective's experience and knowledge that drug
dealers keep drug-related records and paraphernalia. The
affidavit reasonably supported the inference that Chris Lafay was
a drug dealer, that he was living with his wife at her apartment,
and that he kept drug-related records and paraphernalia.
"A magistrate is entitled to draw reasonable inferences
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about where incriminating evidence is likely to be found, based
on the nature of the evidence and the type of offense." Gwinn v.
Commonwealth, 16 Va. App. 972, 975, 434 S.E.2d 901, 904 (1993)
(citing United States v. Fannin, 817 F.2d 1379 (9th Cir. 1987)).
"In the case of drug dealers, evidence of that ongoing criminal
activity is likely to be found where the dealer resides." Gwinn,
16 Va. App. at 976, 434 S.E.2d at 904 (citation omitted). The
magistrate could reasonably infer that drug-related records or
paraphernalia would probably be found at 3201 Landover Street
#1202 in Alexandria. Therefore, we hold that the affidavit
provided an adequate nexus linking evidence of Chris Lafay's
drug-related activity to the premises searched.
Good Faith Exception
"Assuming, arguendo, that the warrant was not issued upon
probable cause, evidence seized pursuant to the warrant is
nevertheless admissible if the officer executing the warrant
reasonably believed that the warrant was valid." Tart, 17 Va.
App. at 389, 437 S.E.2d at 222 (citing United States v. Leon, 468
U.S. 897 (1984)) (other citations omitted). However, the good
faith exception is not available in the following four instances:
"(1)[W]here the magistrate was misled by
information in the affidavit which the
affiant knew was false or should have known
was false, (2) the issuing magistrate totally
abandoned his judicial role, (3) the warrant
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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."
Janis, 22 Va. App. at 653, 472 S.E.2d at 653 (citation omitted).
Appellee argues that this case is "identical" to Janis,
where this Court held that an affidavit supporting a search
warrant "gave absolutely no indication that the fruits of
criminal activity would probably be found at [the location
searched]." Id. Appellee's reliance is misplaced. The
affidavit at issue in Janis failed to indicate the address to be
searched or to explain why contraband would be found there. Id.
at 652, 472 S.E.2d at 653. The affidavit in the instant case
described Lafay's confirmed presence at the apartment building
where his wife maintained a residence and described why the
detective believed he would find drug-related evidence there.
This information, in the context of the detailed investigation,
provides sufficient indicia of probable cause to justify the
warrant under the good faith exception to the search warrant
requirement.
Reversed and remanded.
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Commonwealth of Virginia v. Sharon McIntyre
Combined Opinion