COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Alston and Chafin
UNPUBLISHED
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION* BY
v. Record No. 2017-13-3 CHIEF JUDGE WALTER S. FELTON, JR.
MARCH 11, 2014
CHARLES LESLIE HENRY, JR.
FROM THE CIRCUIT COURT OF WISE COUNTY
Chadwick S. Dotson, Judge
Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellant.
No brief or argument for appellee.
Pursuant to Code § 19.2-398(A)(2), the Commonwealth appeals the pretrial order of the
Circuit Court of Wise County (“trial court”) granting Charles Leslie Henry, Jr.’s (“appellee”)
motion to suppress evidence found in appellee’s home pursuant to a search warrant. On appeal,
the Commonwealth asserts that the trial court erred in suppressing evidence found by the officers
who relied on the search warrant in good faith and that the trial court erred in ruling that there
was no probable cause to issue the search warrant. For the following reasons, we hold the trial
court erred in granting appellee’s motion to suppress the evidence located within his residence.
I. BACKGROUND
On September 24, 2012, Officer Clint Johnson of the Big Stone Gap Police Department
was assigned to the Drug Task Force. That morning, an anonymous tipster called Officer
Johnson and told him that appellee had marijuana on his property where he was growing and
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
selling it. The anonymous tipster also gave Officer Johnson appellee’s address. In response to
that information, Officer Johnson and Virginia State Police Special Agent Christopher Gilley left
for appellee’s residence. They proceeded to property adjacent to appellee’s property. They
obtained permission from a neighbor of appellee, whom Officer Johnson knew, to walk through
her property to the wood line behind her property in the direction of appellee’s residence. As the
officers walked through the woods, they saw marijuana growing in pots along the wood line
approximately 15 feet from the area of the yard behind appellee’s residence where the grass was
mown.1 Officer Gilley testified that the police never identified the property lines.
The officers observed a worn path from the potted marijuana plants to a camper and “a
little place they would do a fire.” The officers also saw pots, similar to those that the marijuana
was growing in, beside an outbuilding 10 to 15 feet from appellee’s residence. The two
buildings, the outbuilding and the residence, were built in a similar style, with the same siding.
After making these observations, Officer Johnson walked to the residence to talk with the
owner. At that time, he discovered appellee was not there. Officer Johnson asked several
workmen who were inside the house to leave. The officers then secured the house, without
entering, while one of the officers left to obtain a search warrant to search the residence.
The affidavit for the search warrant presented to the magistrate stated that based on the
tip, the officers had found 10 pots of marijuana
growing within 10 feet of the curtilage of this property and within
60 feet of the residents [sic] . . . . A well used and worn path lead
[sic] from the marijuana plants to the curtilage of this property.
Pots in which the marijuana was growing where [sic] also found in
plain view in and around the residents [sic].
1
Officers took photographs depicting what they observed and showed them to the trial
court during the suppression hearing.
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The magistrate issued a search warrant to the officers to search the residence and outbuildings
for evidence relating to the cultivation of marijuana, scales, marijuana, weapons, etc. Relying on
the search warrant, the officers returned to appellee’s residence and proceeded to execute the
search warrant. The officers found marijuana being processed inside appellee’s residence.
At the end of the suppression hearing, the trial court specifically found the officers “were
acting in good faith.” However, the trial court held that it could not find any probable cause or
“one shred of reliable evidence that sort of links [the marijuana] up to the actual home.” The
trial court then granted appellee’s motion to suppress evidence found within the residence. The
trial court did not suppress “evidence obtained outside the home, in outbuildings or the things
that were seen on the property,” stating, “there was probable cause to search around the
outbuilding and the property there.” The trial court also found:
The affidavit presented to the magistrate contained no
probable cause because there was not a sufficient nexus that would
justify the application of the good-faith exception. Keep in mind:
The only evidence upon which the officers relied were (a) an
anonymous tip -- which is inherently unreliable; (b) marijuana
growing on the property next door; (c) a path that did not lead to
[appellee’s] personal residence; and (d) buckets on [appellee’s]
property that were similar to those with the marijuana.
II. ANALYSIS
In an appeal by the Commonwealth of an order of the trial court
suppressing evidence, the evidence must be viewed in the light
most favorable to the defendant and findings of fact are entitled to
a presumption of correctness unless they are plainly wrong or
without evidence to support them.
Commonwealth v. Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992). 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.” Cherry v. Commonwealth, 44 Va. App.
347, 356, 605 S.E.2d 297, 301 (2004).
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A.
On appeal, the Commonwealth asserts that the trial court erred in finding that the officers
knew the marijuana was not on appellee’s property. The trial court stated that “the officers
conceded that they knew the property was not owned by the [appellee].” (Emphasis added).
After reviewing the testimony of the officers at the suppression hearing, we find no such
concession in the record. Officer Johnson testified that he did not “know the deeds on” the
property where he saw the marijuana growing. He testified that he assumed the camper and fire
pit, from which a path led to the marijuana plants, were on appellee’s property. Officer Johnson
also noted that there was a worn path that led from the marijuana plants to the mowed area of
appellee’s yard and toward an outbuilding that was 10 to 15 feet from appellee’s residence where
pots similar to those in which the marijuana was growing at the wood line. On
cross-examination, Officer Johnson testified that the marijuana plants were growing
approximately 10 to 15 feet from the edge of where the grass was mown.
Special Agent Gilley testified that he could not identify where appellee’s property lines
were in relation to the marijuana growing in pots at the wood line. He also stated that the
marijuana plants were found 15 feet from the curtilage (at the end of the mown part of the yard)
of the residence.
Here, the trial court erred in making its findings of fact that the officers knew where the
property lines were and knew the marijuana was not growing on appellee’s property. Neither
officer conceded that they knew the marijuana was not on appellee’s property. Accordingly, the
trial court’s finding of fact was “plainly wrong or without evidence to support” it. Venable v.
Commonwealth, 12 Va. App. 358, 360, 404 S.E.2d 74, 75 (1991).
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B.
On appeal, the Commonwealth also asserts that the search warrant was supported by
probable cause and relied upon, in good faith, by the officers. When reviewing the validity of a
search warrant, the Court applies a “‘totality of the circumstances analysis’ to a magistrate’s
consideration of a warrant application.” Cunningham v. Commonwealth, 49 Va. App. 605, 612,
643 S.E.2d 514, 518 (2007) (citation omitted).
“Finely tuned standards such as proof beyond a reasonable doubt
or by a preponderance of the evidence, useful in formal trials, have
no place in the probable-cause decision.” Maryland v. Pringle, 540
U.S. 366, 371 (2003) (citation and internal brackets omitted). Not
even a “prima facie showing” of criminality is required. Illinois v.
Gates, 462 U.S. 213, 235 (1983) (citation omitted). Instead,
probable cause “requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity.” Id. at
243 n.13 (emphasis added). “The Constitution does not guarantee
that only the guilty will be arrested.” Baker v. McCollan, 443 U.S.
137, 145 (1979).
Joyce v. Commonwealth, 56 Va. App. 646, 659, 696 S.E.2d 237, 243 (2010) (footnote omitted).
“‘A grudging or negative attitude by reviewing courts toward warrants’ is inconsistent
with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant;
‘courts should not invalidate [warrants] by interpreting [affidavits] in a hypertechnical, rather
than a commonsense, manner.’” Gates, 462 U.S. at 236 (alterations in original) (quoting United
States v. Ventresca, 380 U.S. 102, 108, 109 (1965)). “As an articulated legal standard, probable
cause deals with probabilities concerning the factual and practical considerations in everyday life
as perceived by reasonable and prudent persons. It is not predicated upon a clinical analysis
applied by legal technicians.” Lawson v. Commonwealth, 217 Va. 354, 358, 228 S.E.2d 685,
687 (1976).
“[O]ur cases indicate that a sufficient nexus can exist between a defendant’s criminal
conduct and his residence even when the affidavit supporting the warrant ‘contains no factual
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assertions directly linking the items sought to the defendant’s residence.’” United States v.
Grossman, 400 F.3d 212, 217 (4th Cir. 2005) (quoting United States v. Servance, 394 F.3d 222,
230 (4th Cir. 2005)). “In determining whether the affidavit provides a sufficient nexus, ‘the
nexus between the place to be searched and the items to be seized may be established by the
nature of the item and the normal inferences of where one would likely keep such evidence.’”
Gregory v. Commonwealth, 46 Va. App. 683, 691, 621 S.E.2d 162, 166 (2005) (quoting United
States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988)).
Here, the trial court found that there was no “indicia of probable cause either in the
affidavit or the admissions by the officers to the magistrates [sic] that would permit the issuance
of a search warrant for [appellee’s] residence.” In its ruling, the trial court relied on United
States v. Buffer, 529 Fed. Appx. 482, 2013 U.S. App. LEXIS 13171 (6th Cir. 2013), for the
proposition that the officers failed to sufficiently corroborate the anonymous tip. However, in
Buffer, the officer merely observed “several visits” to the suspected drug house and found
marijuana on a passenger in one of the vehicles leaving the suspected drug house. Id. at 483,
2013 U.S. App. LEXIS 13171, at *2.
This case is distinguishable because the officers had probable cause to believe marijuana
was being grown on appellee’s property. Here, the marijuana plants were found growing in pots
within 10-15 feet of the mowed lawn surrounding appellee’s house. Pots, similar to those the
marijuana plants were growing in, were seen next to the outbuilding near the residence. These
observations by the officers, coupled with the anonymous tip that appellee was growing and
distributing marijuana from his property, established probable cause for the magistrate to issue
the search warrant. It was objectively reasonable for the magistrate to infer from the information
provided in the search warrant affidavit that the officers would likely find marijuana and other
evidence of marijuana distribution inside the residence.
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As this Court has previously stated:
A magistrate is entitled to draw reasonable inferences about
where incriminating evidence is likely to be found, based on the
nature of the evidence and the type of the offense. In the case of
drug dealers, evidence of that on-going criminal activity is likely to
be found where the dealer resides. Thus, the magistrate reasonably
could infer the probability that drugs, or drug paraphernalia, or
records, or other evidence of [the suspect]’s suspected drug-related
activity would be found in his residence. Gwinn v.
Commonwealth, 16 Va. App. 972, 975-76, 434 S.E.2d 901, 904
(1993) (citations omitted); see, e.g., United States v. Williams, 974
F.2d 480, 481 (4th Cir. 1992) (upholding the search warrant
because there was a fair probability that drugs would be found in
the motel room where a drug dealer resided); United States v.
Baldwin, 987 F.2d 1432, 1435-36 (9th Cir. 1993) (recognizing that
“in the case of drug dealers, evidence is likely to be found where
the dealers live” and that objective facts “established . . . Baldwin
was involved in cocaine distribution”).
Cunningham v. Commonwealth, 49 Va. App. 605, 613-14, 643 S.E.2d 514, 518 (2007)
(alteration in original).
We conclude that the officers clearly acted in good faith in obtaining and executing the
search warrant for appellee’s residence. The trial court found from the evidence presented that
the officers acted in good faith, yet it failed to apply the good faith exception contained in United
States v. Leon, 468 U.S. 897 (1984). Here, the officers properly relied “upon the magistrate’s
probable cause determination and the evidence will not be excluded, even though the affidavit
may not have provided the magistrate . . . with probable cause to issue the warrant.” Colaw v.
Commonwealth, 32 Va. App. 806, 810-11, 531 S.E.2d 31, 33 (2000).
III. CONCLUSION
For the foregoing reasons, the judgment of the trial court is reversed and the case is
remanded for trial.
Reversed and remanded.
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Alston, J., dissenting.
I respectfully dissent.2
In my view, the search warrant was devoid of any nexus between appellee’s residence
and the marijuana plants found growing outside on property, the ownership of which was never
established. As a result, the search warrant lacked any “‘indicia of probable cause’” and the
officers could not have objectively and reasonably relied on the magistrate’s determination.
Anzualda v. Commonwealth, 44 Va. App. 764, 788, 607 S.E.2d 749, 761 (2005) (quoting United
States v. Craig, 861 F.2d 818, 822 (5th Cir. 1988)). Therefore, I would affirm the trial court and
hold that there was no probable cause to search the residence and that the good faith exception to
the exclusionary rule does not apply.
First, I agree with Part A of the majority opinion that the trial court’s factual finding that
the marijuana plants were growing on a third party’s property, not appellee’s, was plainly wrong.
The record is clear that all parties agreed that no one knew on whose property the marijuana
plants, the outbuilding, or the camper and fire site were located. As a corollary, there was no
basis for the officers or magistrate to believe that the marijuana plants were located on appellee’s
property either. The trial court’s factual error as to the ownership of the land where the
marijuana plants were growing does not affect the fact that in my opinion, the search warrant
(and more particularly the underlying affidavit purporting to articulate probable cause supporting
the search warrant) failed to establish the requisite nexus between the marijuana plants and
appellee’s residence.
2
“Dissent” is such a strong term, more often than not suggesting discontent rather than
disagreement. While I disagree with my colleagues in this case, I do so appreciative that this
beautiful thing we call jurisprudence can inspire us all to achieve the ends of justice through
discrete dialogue, respectful exchanges, and earnest professionalism.
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The United States Supreme Court has repeatedly recognized that, “‘the overriding respect
for the sanctity of the home [] has been embedded in our traditions since the origins of the
Republic.’” Oliver v. United States, 466 U.S. 170, 178 (1984) (quoting Payton v. New York,
445 U.S. 573, 601 (1980)). Indeed, “[t]he privacy and sanctity of the home have been primary
tenets of our moral, philosophical, and judicial beliefs.” United States v. Verdugo-Urquidez, 494
U.S. 259, 285-86 (1990) (Brennan and Marshall, JJ., dissenting). The Fourth Amendment
protects these core values by requiring a warrant, supported by probable cause, to issue before
the government may search a man’s home.
This guarantee of protection against unreasonable searches and
seizures extends to the innocent and guilty alike. It marks the right
of privacy as one of the unique values of our civilization and, with
few exceptions, stays the hands of the police unless they have a
search warrant issued by a magistrate on probable cause supported
by oath or affirmation. And the law provides as a sanction against
the flouting of this constitutional safeguard the suppression of
evidence secured as a result of the violation, when it is tendered in
a federal court . . . .
McDonald v. United States, 335 U.S. 451, 453 (1948) (citing Weeks v. United States, 232 U.S.
383 (1914)).
“For a search warrant to be supported by probable cause, ‘the crucial element is not
whether the target of the search is suspected of a crime, but whether it is reasonable to believe
that the items to be seized will be found in the place to be searched.’” Cunningham v.
Commonwealth, 49 Va. App. 605, 613, 643 S.E.2d 514, 518 (2007) (quoting United States v.
Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993)). “Thus, the affidavit supporting the issuance of the
warrant for a residence must provide a nexus between the contraband sought and the place to be
searched.” Id. (citing Janis v. Commonwealth, 22 Va. App. 646, 652, 472 S.E.2d 649, 652
(1996)). “When an affidavit fails to establish, with a fair probability, a link between contraband
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and the appellant’s residence, a warrant to search the residence is not supported by probable
cause.” Id.
To determine whether probable cause existed, the first inquiry must be to examine the
affidavit purporting to set forth sufficient facts for the magistrate to find probable cause to issue
the search warrant, in this case, for appellee’s home. “The Fourth Amendment requires that the
magistrate receive sufficient information, under oath or affirmation, to support a finding of
probable cause.” McCary v. Commonwealth, 228 Va. 219, 231, 321 S.E.2d 637, 643 (1984)
(citing Illinois v. Gates, 462 U.S. 213, 236 (1983)). While an affidavit insufficient on its face for
a probable cause finding may be supplemented by sworn testimony from an officer during the
warrant proceedings, facts not disclosed under oath or affirmation to the magistrate will not
rehabilitate a deficient affidavit. Id. (citations omitted).
Though not binding authority on this Court, the Sixth Circuit Court of Appeals’ decision
in United States v. Carpenter, 360 F.3d 591 (6th Cir. 2004), cited by this Court in Anzualda, 44
Va. App. at 786, 607 S.E.2d at 760, is instructive, particularly due to the factual similarities to
this case. In Carpenter, while conducting helicopter surveillance, an officer observed patches of
marijuana growing in a field about 900 feet away from defendant’s residence and “beaten paths”
leading from the back door of the defendant’s residence to the marijuana patches. Id. at 593.
The officer also observed two men walking from the patches to the residence. Id. Another
officer sought and obtained a search warrant for defendant’s residence, however the affidavit
only stated that the officer saw marijuana plants growing near a residence and that a road
connected the residence to the plants. Id.
The Sixth Circuit Court of Appeals held that “[t]he facts that marijuana was growing
‘near’ the residence and that a road ran nearby fall short of establishing the required nexus
between the [defendant’s] residence and evidence of marijuana manufacturing.” Id. at 594.
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However, the court affirmed the trial court’s denial of defendant’s motion to suppress and held
that the good faith exception applied because, though the affidavit failed to provide the requisite
nexus between the contraband and the residence, it “was not completely devoid of any nexus
between the residence and the marijuana that the police observed.” Id. at 595-96 (emphasis
added). The court therefore concluded that “the affidavit contained a minimally sufficient nexus
between the illegal activity and the place to be searched to support an officer’s good-faith belief
in the warrant’s validity,” notwithstanding that these facts “were too vague to provide a
substantial basis for the determination of probable cause.” Id. at 596.
In this case, the affidavit failed to set forth any facts connecting the residence to the
marijuana plants. Officer Johnson received an anonymous tip that appellee was growing
marijuana on his property and selling it. It was reasonable for Officer Johnson to follow up on
that tip by walking a neighbor’s property with permission. Once Officer Johnson observed the
marijuana plants, it was reasonable to knock on appellee’s door while Officer Gilley went to
obtain a search warrant. The facts set forth in the affidavit for the search warrant, however,
prove fatal to the subsequent search and any evidence recovered as a result, in my opinion.
The search warrant merely states that based on an anonymous tip, the officers walked
through the woods and discovered marijuana plants growing a certain number of feet from the
curtilage of appellee’s residence (presumably then also a certain number of feet from the
neighbor’s property on which the officers walked to observe the wood line) and that a “well used
and worn path” led from the plants to the curtilage of appellee’s property. The warrant also
stated that pots similar to those in which the marijuana plants were growing were found “in and
around” the residence.
The affidavit neither sets forth the content of the anonymous tip nor any attestation as to
the reliability of the informant. “An informant’s reliability and basis of knowledge are two key
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factors in determining whether, under the totality of the circumstances, probable cause exists.”
United States v. Gary, 420 F. Supp. 2d 470, 478 (E.D. Va. 2006) (citing United States v.
Wilhelm, 80 F.3d 116, 119 (4th Cir. 1996)). “‘In evaluating whether an informant’s tip
establishes probable cause, the degree to which the report is corroborated is an important
consideration.’” Id. (quoting Wilhelm, 80 F.3d at 119). In this case, the officers had no
knowledge of the basis of the informant’s tip and failed to corroborate any aspect of the tip or
supply the magistrate with any information as to the tipster’s reliability. In my humble opinion,
the tip held no weight in the assessment of whether the affidavit provided probable cause to
search appellee’s home.
Aside from the anonymous tip, the content of which was not even set forth in the
affidavit, the only other facts stated in the affidavit were that marijuana plants and pots were
found in proximity to the curtilage of appellee’s property. Importantly, the affidavit provided no
information as to the ownership of the property on which the marijuana was growing or where
the pots were stored. While the majority points out that the affidavit states that the marijuana
was growing 15 feet from the curtilage (at the end of the mown part of the yard) of appellee’s
residence, without knowledge of the property lines or any other link to appellee, it could just as
easily have been growing on a neighbor’s property. Indeed, the officers observed the marijuana
plants from a neighbor’s property. Proximity to the curtilage of an individual’s backyard cannot
possibly provide probable cause to search an individual’s home, on its own. Even the cases cited
by my learned colleagues support this premise.
The officers could have taken any number of steps to corroborate the anonymous tip or
otherwise link the marijuana plants to appellee’s home sufficient to provide the magistrate with
probable cause. They did not take any. There was no assertion that the officers smelled
marijuana emitting from inside the residence, saw paraphernalia in plain view inside the
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residence from their vantage points around the property, or that they observed anything
whatsoever linking the marijuana to the inside of the residence when the officers knocked on
appellee’s door and secured the residence. Unlike in Carpenter, the affidavit neither provided
that the path led from the marijuana plants up to appellee’s residence, nor that the officers
observed anyone walking from the marijuana plants to appellee’s residence. For these reasons,
and as particularly observed by the trial court, the search warrant lacked any air of legitimacy at
all.
Because the warrant was wholly defective, I further agree with the trial court that the
good faith exception should not apply in this case. The good faith exception to the exclusionary
rule provides in part that “‘[w]here 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.’”
Cunningham, 49 Va. App. at 618, 643 S.E.2d at 521 (quoting Colaw v. Commonwealth, 32
Va. App. 806, 810, 531 S.E.2d 31, 33 (2000)). An objectively reasonable belief that probable
cause exists does not exist however, where “the warrant was based on an affidavit ‘so lacking in
indicia of probable cause’ as to render official belief in its existence unreasonable.” Id. at 619,
643 S.E.2d at 521 (quoting Colaw, 32 Va. App. at 811, 531 S.E.2d at 33). “[F]or the good faith
rule to apply, the affidavit must provide some nexus between the evidence sought and the place
to be searched.” Id. (citing Janis, 22 Va. App. at 653-54, 472 S.E.2d at 653). In Anzualda, we
held that the good faith exception could apply as long as the affidavit for a search warrant set
forth any nexus between the place to be searched and the item sought. 44 Va. App. at 784, 607
S.E.2d at 759.
The majority notes that the trial court found that the officers acted in good faith yet failed
to apply the good faith exception to justify the legitimacy of the search. I respectfully disagree
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with this review of the record. In my opinion, the trial court found the officers acted in good
faith in following up on the tip, not in executing the search warrant for the residence after
following up on the tip; a subtle but very important distinction in my view. Indeed, the trial
court said as much in its letter opinion, which “clarif[ied] and expound[ed] upon the [trial
court]’s [previous oral] ruling.” J.A. at 62. In its letter opinion, the trial court explicitly found
that “a reasonably trained police officer should have been able to look at the affidavit and
determine[] that it was not reasonable to believe probable cause existed,” and declined to apply
the good faith exception. J.A. at 65. I agree with the trial court.
In my opinion, the affidavit in this case failed to provide even the faintest nexus between
the marijuana plants and appellee’s residence. This is not to suggest that there may have been
more information available to the officers or that the officers were not attempting as best they
could to effectuate a legitimate objective. However, because the search warrant for the residence
was “so lacking in indicia of probable cause,” I find the officers’ official belief in its legitimacy
for their objective unreasonable and I would not apply the good faith exception to the
exclusionary rule. See Colaw, 32 Va. App. at 812, 531 S.E.2d at 34.
While classically and succinctly analyzed, I am concerned that the majority’s holding
might be interpreted as sanctioning the search of a home based on contraband growing outside
on what could be a neighbor’s property without anything else linking the contraband to the
home. To be sure, the Fourth Amendment requires more. Indeed, if we are to maintain the core
values the Fourth Amendment was designed to protect, particularly the sanctity and privacy of
the home, we must require more. Our current jurisprudence justly expects the government to
simply meet a minimal burden of providing through sworn submission “any nexus” between the
item sought and the place to be searched. The interdiction of crime demands that law
enforcement be given the tools to successfully prevent and impede unlawful activity. Did the
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government suggest that illegal activity was likely being conducted around the residence sought
to be searched herein? Absolutely. But did the government provide a verifiable and sworn
nexus between the contraband sought and the place to be searched? I respectfully submit;
absolutely not. And the trial court agreed. In this case, in the affidavit supporting the search
warrant for the residence, the government failed to provide any nexus between what had been
observed around the residence and inside the residence itself and, therefore, I would affirm the
trial court’s decision to grant appellee’s motion to suppress evidence seized in the residence. For
these reasons, I respectfully “disagree” with the majority while at the same time remain content
in the reasonable dialogue we have achieved.
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