COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Chief Judge Decker, Judges Beales and Lorish
Argued by videoconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION* BY
v. Record No. 1528-23-2 CHIEF JUDGE MARLA GRAFF DECKER
JANUARY 30, 2024
CHRISTIAN JASON ROWE
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
David E. Johnson, Judge
Justin B. Hill, Assistant Attorney General (Jason S. Miyares,
Attorney General, on briefs), for appellant.
Steven D. Benjamin; Betty Layne DesPortes (Benjamin &
DesPortes, P.C., on brief), for appellee.
Christian Jason Rowe was indicted for possession of more than five pounds of marijuana
with the intent to distribute and simultaneous possession of a firearm. See Code
§§ 18.2-248.1(a)(3), -308.4(C). Rowe filed a pretrial motion to suppress evidence, which he
alleged was obtained as the result of an unlawful entry into his home. After a hearing, the circuit
court granted the motion and suppressed the evidence. Pursuant to Code §§ 19.2-398 and -400,
the Commonwealth appeals that ruling. The appellee cross-appeals.
The Commonwealth argues that the discovery of the evidence was permissible under the
Fourth Amendment to the United States Constitution because, although the police did not have
an arrest warrant, they had a capias for Rowe’s detention that was the functional equivalent of an
arrest warrant and permitted them to enter his residence. The Commonwealth contends in the
*
This opinion is not designated for publication. See Code § 17.1-413(A).
alternative that the good-faith exception to the exclusionary rule applies. For the reasons that
follow, we affirm the judgment of the circuit court.
BACKGROUND1
As part of an investigation of a 2020 homicide, police identified Rowe, a
nineteen-year-old, as a suspect. Detectives Lynn Gleason and Brian Waggoner with the
Chesterfield County Police Department worked together to prepare “the documents needed” to
obtain a capias to take Rowe into custody. After those documents were submitted, a petition was
filed in the county juvenile and domestic relations district court for a capias against Rowe. The
petition did not contain Waggoner’s signature, nor was anything attached to the petition.
Instead, an intake officer signed the petition “for Detective Brian Waggoner.” The same intake
officer issued a capias to take Rowe into custody for second-degree murder and use of a firearm
in the commission of a felony.
On July 26, 2022, the Chesterfield County Police Department and U.S. Marshals Task
Force executed the capias at Rowe’s home. Detectives Waggoner, Joseph Partin, Jeff Whitlock,
and N. Crowe of the Chesterfield County Police Department participated in executing the capias
and the subsequent search warrant.
Before law enforcement arrived at Rowe’s home to execute the capias, Detective
Whitlock watched the house for thirty to sixty minutes. After the other officers arrived,
1
On review of a ruling on a motion to suppress, an appellate court “consider[s] the facts
in the light most favorable to . . . the prevailing party” below, in this case, Rowe. Jones v.
Commonwealth, 279 Va. 521, 527-28 (2010) (quoting Malbrough v. Commonwealth, 275 Va.
163, 168 (2008)). “We are bound by the [circuit] court’s factual findings unless those findings
are plainly wrong or unsupported by the evidence.” Id. at 528 (quoting Malbrough, 275 Va. at
168); see McGee v. Commonwealth, 25 Va. App. 193, 198 (1997) (en banc). To the extent that
the circuit court did not make express findings of fact, we view the evidence and the inferences
deducible from it in the light most favorable to the defendant, who prevailed below. See Satchell
v. Commonwealth, 20 Va. App. 641, 648 (1995) (en banc); see also Brooks v. Commonwealth,
282 Va. 90, 95 (2011) (interpreting the record in favor of the Commonwealth, the prevailing
party at trial).
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Detective Partin knocked on the door and announced himself loudly several times. Partin waited
about four minutes, but no one answered the door. Consequently, officers breached the front
door. After they entered the house, they found Rowe, who was normally in a wheelchair,
upstairs on the floor. They then took him into custody.
To make sure no one else was in the home, law enforcement conducted a protective
sweep of the house itself. While conducting the sweep, Detective Partin saw marijuana in a
bedroom closet.
Based on Partin’s observation, Detective Crowe obtained a search warrant for the house.
While executing the warrant, detectives found almost eight pounds of marijuana and a handgun.
In his motion to suppress the marijuana and the firearm, Rowe argued, in relevant part,
that the law enforcement officers unconstitutionally entered the house because they did not have
an arrest warrant. The prosecutor responded that the capias was issued based on probable cause
and met the constitutional standard for arrest warrants. She alternatively suggested that the
good-faith exception to the exclusionary rule applied.
The circuit court took the case under advisement and later issued a written decision.
Citing Payton v. New York, 445 U.S. 573 (1980), the court held that the capias was not an arrest
warrant or its equivalent and, accordingly, that the entry was presumptively unreasonable. It
held that no exigent circumstances existed justifying the forced entry. As a result, the court
applied the exclusionary rule and granted the motion to suppress. The case is now before this
Court on appeal.
ANALYSIS
On appeal of a ruling granting a defendant’s motion to suppress, the Commonwealth has
the burden to show that the circuit court’s ruling constituted reversible error. See Cole v.
Commonwealth, 294 Va. 342, 354 (2017); Commonwealth v. Benjamin, 28 Va. App. 548, 552-54
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(1998) (en banc). A Fourth Amendment challenge presents a mixed question of law and fact,
and we review “the [circuit] court’s application of the law de novo.” Hicks v. Commonwealth,
281 Va. 353, 359 (2011) (quoting Whitehead v. Commonwealth, 278 Va. 300, 307 (2009)).
Although a reviewing court “give[s] deference to the factual findings of the circuit court, . . . we
independently determine whether the manner in which the evidence was obtained meets the
requirements of the Fourth Amendment.” See McCain v. Commonwealth, 275 Va. 546, 552
(2008).
It is well established that “[t]he Fourth Amendment prohibits unreasonable searches and
seizures.” Collins v. Commonwealth, 297 Va. 207, 212 (2019). And warrantless searches and
seizures are “presumptively unreasonable.” See Williams v. Commonwealth, 49 Va. App. 439,
447 (2007). The circuit court held that the entry into Rowe’s home was unreasonable because it
was not supported by a warrant or exigent circumstances. This ruling forms the basis of the
present appeal.
I. Capias
The Commonwealth first argues that the capias essentially constituted a valid arrest
warrant because it is the legal and functional equivalent for constitutional purposes.
To address this argument, we begin with the state law relevant to the capias issued in this
case. The Virginia Code provides certain procedures for prosecuting crimes committed by
minors. “Proceedings in cases of adults under the age of 21 who are alleged to have committed,
before attaining the age of 18, an offense that would be a crime if committed by an adult shall be
commenced by the filing of a petition.” Code § 16.1-259(C). “[T]he processing of petitions to
initiate a case” are “the responsibility of the intake officer.” Code § 16.1-260(A). “An intake
officer shall have the authority to issue a capias for an adult under the age of 21 who is alleged to
have committed, before attaining the age of 18, an offense that would be a crime if committed by
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an adult.” Code § 16.1-247(K) (noting that an adult may also be “taken into custody pursuant to
a warrant, detention order, or capias alleging a delinquent act committed when he was a
juvenile”). The “function” of a capias in general “is to authorize a law enforcement officer” to
take a particular individual “into custody.” Price v. Commonwealth, 51 Va. App. 443, 447
(2008) (considering a capias issued for a probation violation).
The question presented in this case is whether the capias against Rowe provided a
constitutional basis for law enforcement to forcibly enter his home. In other words, the relevant
inquiry is whether the capias, since it was not an arrest warrant, was the functional equivalent of
one so as to authorize the entry.
“[T]he ‘physical entry of the home is the chief evil against which the wording of the
Fourth Amendment is directed.’” Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (quoting United
States v. United States District Court, 407 U.S. 297, 313 (1972)). “Among the many interests
served by the Fourth Amendment, the privacy interest in one’s home has few equals.” Ross v.
Commonwealth, 61 Va. App. 752, 759 (2013) (quoting Kyer v. Commonwealth, 45 Va. App.
473, 480 (2005) (en banc)). It is well established that law enforcement can force entry into a
home only with a warrant based on probable cause or under exigent circumstances. Payton, 445
U.S. at 588-89 (“[A]n entry to arrest and an entry to search for and to seize property implicate
the same interest in preserving the privacy and sanctity of the home[] and justify the same level
of constitutional protection.”); Commonwealth v. Campbell, 294 Va. 486, 493 (2017) (“Despite
the absence of a warrant, . . . police may lawfully enter a home . . . if they have probable cause
coupled with exigent circumstances.”).
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A capias is not a warrant, but in analyzing whether the capias at issue was the functional
equivalent of an arrest warrant, we must turn to the law governing warrants.2 “The arrest warrant
procedure serves to insure that the deliberate, impartial judgment of a judicial officer will be
interposed between the citizen and the police, to assess the weight and credibility of the
information which the complaining officer adduces as probable cause.” Wong Sun v. United
States, 371 U.S. 471, 481-82 (1963). For a warrant to be valid, the issuing judicial officer must
“be supplied with sufficient information to support an independent judgment that probable cause
exists for the warrant.” Whiteley v. Warden, 401 U.S. 560, 564 (1971). The particular job title
of the person issuing the warrant does not determine its validity. Shadwick v. Tampa, 407 U.S.
345, 349-50 (1972). The person issuing it, however, must be “neutral and detached” as well as
“capable of determining whether probable cause exists for the requested arrest.” Id. at 350.
In addition, “an arrest warrant for an individual accused of violating [a] criminal law”
must “be based on sworn statements establishing probable cause.” Pierce v. Commonwealth, 48
Va. App. 660, 666-67 (2006) (distinguishing between an arrest warrant and a capias for the arrest
of an individual accused of a probation violation). Although a sworn statement must support a
probable cause determination upon which the issuance of a warrant is based, the Fourth
Amendment does not require that statement to be in writing. Derr v. Commonwealth, 242 Va.
413, 420 (1991). Nevertheless, whether oral or in writing, it must be presented to a neutral and
detached officer and support a finding of probable cause. McCary v. Commonwealth, 228 Va.
219, 231 (1984).
Here, the circuit court concluded that the capias did not meet Fourth Amendment
scrutiny. It held broadly that a capias issued pursuant to Code § 16.1-247(K) differs “from an
2
The parties have not cited any Virginia appellate case law analyzing a juvenile capias
under Title 16.1, and the Court is not aware of any.
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arrest warrant, a bench warrant, or a probation violation capias” because those are issued by “a
judge or magistrate.” The court reasoned that in contrast, an intake officer is an employee of the
Department of Juvenile Justice, part of the executive branch. See Va. Dep’t of Juv. Just., Court
Service Units, https://www.djj.virginia.gov/pages/community/court-service-units.htm
[https://perma.cc/JZR8-7M3V]. The court further noted both that the intake officer issuing the
capias signed as the petitioner requesting it and that Code § 16.1-247(K) does not require a
capias to be based on sworn statements establishing probable cause. It ultimately concluded that
“[n]owhere in the process of obtaining” the capias was “a magistrate’s determination of probable
cause interposed between the officer and the citizen.”
The circuit court’s analysis raises three pivotal issues. The first issue is whether the
intake officer acted as a neutral and impartial judicial officer “interposed between the citizen and
the police.” See Wong Sun, 371 U.S. at 481-82. The second issue is whether Detective
Waggoner supplied the intake officer “with sufficient information to support an independent
judgment that probable cause exist[ed] for the warrant” or, in this case, the capias. See Whiteley,
401 U.S. at 564. The third issue is whether the intake officer received that information in the
form of a sworn statement available for review as part of the record.
Examining these overlapping issues, we note that the intake officer signed as the
petitioner “for Detective Brian Waggoner.” Waggoner did not sign the petition. The intake
officer who signed as the petitioner then issued the capias himself. The petition contains no
indication of the information Detective Waggoner provided to the intake officer supporting the
belief that Rowe committed the alleged crimes. And there was no testimony about what was
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presented to the intake officer.3 See, e.g., id. at 564-65 (holding that the complaint containing
only the conclusion that the suspects committed the alleged crime was not sufficient to support
the arrest warrant). The capias here contains only language that it “appears from the petition . . .
that there is probable cause to believe that” Rowe “committed the act alleged.” (Emphasis
added). The record contains no information about why Gleason and Waggoner developed Rowe
as a suspect in the murder. Without evidence in the record supporting probable cause, the
reviewing court does not merely assume it existed. See Janis v. Commonwealth, 22 Va. App.
646, 652, adopted upon reh’g en banc, 23 Va. App. 696 (1996); see also Cole, 294 Va. at 354
(noting that at a hearing on a motion to suppress, the Commonwealth bears the burden of
establishing that evidence was obtained within the bounds of the Constitution). Last, nothing in
the record indicates that Detective Waggoner made a sworn statement to the intake officer.
It is clear that the same intake officer filed the bare-bones petition for the capias,
presumably made the probable cause determination, and then issued the capias. No facts in the
record support a finding of probable cause, and the record lacks any indication of a sworn
statement made to the intake officer. These facts do not show that the intake officer acted in an
“impartial” role “interposed between the citizen and the police.” See Wong Sun, 371 U.S. at
481-82. There is simply no evidence here of what information the intake officer received other
than the mere assertion that Rowe committed the alleged offenses. See generally Adams v.
Commonwealth, 275 Va. 260, 276 (2008) (noting that an affidavit is “bare bones” if it provides
“suspicions, beliefs, or conclusions, without providing some underlying factual circumstances
regarding veracity, reliability, and basis of knowledge” (quoting United States v. Weaver, 99
3
Detective Gleason testified that she and Detective Waggoner worked together to prepare
“the documents needed to be submitted” in order to obtain a capias for Rowe’s arrest. Those
documents were not entered into evidence, and neither Waggoner nor the juvenile intake officer
testified at the hearing.
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F.3d 1372, 1378 (6th Cir. 1996))). As already noted, neither the detective nor the intake officer
testified in the circuit court, despite the fact that the issue of the entry into the home based only
on the capias was squarely before that court. Based on all of this, we hold that the circuit court
correctly concluded that the capias at issue did not meet the Fourth Amendment requirements to
qualify as an arrest warrant or the functional equivalent of one. Consequently, the capias did not
support the breach into Rowe’s home.4
II. Application of the Exclusionary Rule
The Commonwealth alternatively contends that the circuit court erred by not applying the
good-faith exception to the exclusionary rule.5
The judicially created exclusionary rule “prevents evidence obtained in violation of the
[F]ourth [A]mendment from being used against an accused.” Redmond v. Commonwealth, 57
Va. App. 254, 261 (2010) (quoting Commonwealth v. Ealy, 12 Va. App. 744, 750
(1991)). This rule, however, is an extreme remedy that courts do not apply lightly. The
Supreme Court of the United States has made clear that the “exclusion [of evidence] ‘has always
been our last resort, not our first impulse.’” Herring v. United States, 555 U.S. 135, 140 (2009)
(quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006)). Accordingly, “[t]he rule’s costly toll
upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its]
4
In light of this holding, we do not consider the circuit court’s broad ruling that no capias
issued under Code § 16.1-247(K) can meet Fourth Amendment standards for an arrest warrant.
See Commonwealth v. White, 293 Va. 411, 419 (2017) (citing the doctrine of judicial restraint);
Armstead v. Commonwealth, 56 Va. App. 569, 576 (2010) (recognizing that an appellate court must
decide cases on “the best and narrowest ground available” (quoting Kirby v. Commonwealth, 50
Va. App. 691, 698 n.2 (2007))).
5
Rowe argues that the Commonwealth failed to adequately raise this argument below.
See Rule 5A:18 (“No ruling of the trial court . . . will be considered as a basis for reversal unless
an objection was stated with reasonable certainty at the time of the ruling . . . .”). After
reviewing the record, we conclude that the Commonwealth invoked the good-faith exception to
the exclusionary rule sufficiently to preserve the issue for appeal.
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application.” Id. at 141 (second alteration in original) (quoting Pa. Bd. of Prob. & Parole v.
Scott, 524 U.S. 357, 364-65 (1998)).
The traditional test regarding application of the exclusionary rule has two prongs.6 To
trigger the rule, “police conduct must be sufficiently deliberate that exclusion can meaningfully
deter it[] and sufficiently culpable that such deterrence is worth the price paid by the justice
system.” Parady v. Commonwealth, 78 Va. App. 18, 38 (2023) (quoting Collins, 297 Va. at
215). It “serves to deter deliberate, reckless, or grossly negligent conduct, or in some
circumstances recurring or systemic negligence.” Herring, 555 U.S. at 144.
This inquiry looks to the totality of the circumstances to determine whether officer
reliance on the warrant—or in this case, the capias—was objectively reasonable. Id. at 145. In
doing so, a court considers the viewpoint of the officers who executed it as well as those “who
originally obtained it or who provided information material to the probable-cause
determination.” United States v. Leon, 468 U.S. 897, 923 n.24 (1984) (noting that the Court was
not “suggest[ing] . . . that an officer could obtain a warrant on the basis of a ‘bare bones’
affidavit and then rely on colleagues who are ignorant of the circumstances under which the
warrant was obtained to conduct the search”).
Case law makes clear that the exclusionary rule should apply if “the warrant was so
facially deficient that an . . . officer could not reasonably have assumed it was valid.” Lynch v.
Commonwealth, 39 Va. App. 89, 93 (2002) (quoting Atkins v. Commonwealth, 9 Va. App. 462,
464 (1990)). Similarly, the good-faith exception will “not apply in cases where the issuing
magistrate wholly abandoned his judicial role,” because “no reasonably well[-]trained officer
should rely on the warrant.” Derr, 242 Va. at 423 (quoting Leon, 468 U.S. at 923). An officer
6
For purposes of this appeal, we assume without deciding that the good-faith analysis
applies to the execution of a capias.
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does not “manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking
in probable cause as to render official belief in its existence entirely unreasonable.’” Id. (quoting
Leon, 468 U.S. at 923).
In conducting our analysis, we look to the capias at issue and what the officers knew. See
Adams, 275 Va. at 270 (holding that the totality of the circumstances when evaluating good faith
includes information the police officers knew). We turn again to the record in the circuit court
and reiterate some key points. Here, the capias was not accompanied by any information
supporting probable cause. It provided simply that it “appears from the petition or warrant filed
. . . that there is probable cause to believe” that Rowe committed the alleged offenses.
(Emphasis added). Cf. Midkiff v. Commonwealth, 54 Va. App. 323, 332 (2009) (“[A]s long as
there is some indicia of probable cause in the underlying affidavit, we will apply the good faith
exception . . . .” (quoting Anzualda v. Commonwealth, 44 Va. App. 764, 781 (2005) (en banc))).
In the instant case, no evidence in the record reflects what information Detective
Waggoner presented to the intake officer to establish probable cause. The record contains no
relevant written information, and neither Waggoner nor the intake officer testified. Detective
Gleason also did not testify about the information she prepared for Waggoner to give to the
intake officer. The record simply does not demonstrate why Detectives Waggoner and Gleason
suspected Rowe of murder or use of a firearm in the commission of a felony.
The capias is also devoid of any indication that it was based on a sworn statement. It
contains no supporting facts and provides only that probable cause appeared to exist based on the
petition. The petition also does not contain any supporting facts, providing simply that Rowe
committed second-degree murder. “Only by blindly accepting the [petition]’s conclusory
statement could one believe” that Rowe had committed the murder and accompanying firearm
charge. See Colaw v. Commonwealth, 32 Va. App. 806, 814 (2000) (analyzing a search warrant
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issued based on conclusory allegations). In fact, the intake officer signed the petition as the
petitioner on behalf of the detective, further suggesting that he was not acting as an impartial
judicial officer. The confluence of these circumstances rendered reliance on the capias
objectively unreasonable. Simply put, a reasonable law enforcement officer would not believe
that this capias was a valid arrest warrant or the functional equivalent of one. See Janis, 22
Va. App. at 653 (holding that the affidavit supporting the search warrant was so deficient that
any reliance on it was unreasonable).
Therefore, under these circumstances, the circuit court did not err by rejecting application
of the good-faith exception to the exclusionary rule.7
CONCLUSION
The record does not show that the intake officer acted impartially or received a sworn
statement supporting an independent determination of probable cause to believe that Rowe
committed the murder and the accompanying firearm offense. On these facts, the circuit court
correctly held that the capias did not meet the Fourth Amendment requirements for an arrest
warrant or its functional equivalent. Further, the court did not err by applying the exclusionary
rule here. For these reasons, we affirm the decision of the circuit court and remand for further
proceedings consistent with this opinion.
Affirmed and remanded.
7
In light of our holding that the court did not err in granting the motion to suppress, we
do not reach Rowe’s assignments of cross-error. See Armstead, 56 Va. App. at 576.
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