Ward v. Com.

PRESENT: All the Justices

MICHAEL DONNELL WARD
OPINION BY
v. Record Number 060788 JUSTICE G. STEVEN AGEE
January 12, 2007
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Michael Donnell Ward appeals from the judgment of the Court

of Appeals of Virginia, which affirmed his convictions for

possession of cocaine with intent to distribute and possession

of marijuana with intent to distribute, in violation of Code

§§ 18.2-248.1 and 18.2-250.1. Ward contends that the Court of

Appeals erred in approving the trial court’s refusal to grant

his motion to suppress evidence obtained pursuant to an

anticipatory search warrant. For the reasons set forth below,

we will affirm the judgment of the Court of Appeals.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

On November 19, 2003, United States Postal Inspector Evelyn

Cross obtained a federal search warrant to investigate a

suspicious package at the Petersburg, Virginia, post office.

Cross found the package contained 2 pounds 1.2 ounces of

marijuana, and 2.35 ounces of cocaine. The drugs were heat

sealed in plastic and the package contained carbon paper. Cross

testified that drug traffickers commonly use these measures in

an attempt to avoid detection by drug-sniffing dogs. The

address on the package read: Ms. Anna Wilson, 129 Church St.,
Petersburg, Va., with a return address of: John Wilson, Building

1737, Fort Bliss, Texas, and was sent by priority mail. Cross

could find no record of an Anna Wilson living at 129 Church

Street.

Shirlon Saunders, a mail carrier, testified at a hearing on

Ward’s motion to suppress that he had twice delivered similar

packages to an address on his route, 129 South Old Church

Street. (Emphasis added.) Saunders also testified that these

packages were received in person by Ward, whom he identified in

the courtroom. The prior deliveries had been packaged in a

similar manner, bore the same return address, had both been

addressed to Anna Wilson, and had also been mailed by priority

mail.

On November 20, 2003, a judge of the Circuit Court of the

City of Petersburg issued the search warrant at issue in this

case upon the affidavit of Detective J. K. Riley of the

Petersburg police department. The affidavit listed the address

to be searched as “129 S[outh] Old Church St[reet],” and

contained a detailed description of the house at that address.

However, the affidavit “did not recite any facts concerning

appellant’s prior acceptance of similar packages addressed to

Anna Wilson at 129 South Old Church Street” as mail carrier

Saunders would later testify. Ward v. Commonwealth, 47 Va. App.

733, 740, 627 S.E.2d 520, 524 (2006). The record does not

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indicate the police gave the trial court, prior to issuance of

the warrant, “any information concerning why they believed a

nexus existed between appellant’s address and the address on the

package.” Id.

The affidavit submitted by Detective Riley for the search

warrant specified the objects of the search as cocaine,

marijuana, paraphernalia and money. The affidavit stated, in

part:

The package is addressed to: Ms. Anna Wilson, 129
Church St., Petersburg, Va. On 11-19-03 agent Evelyn
Cross applied for and received a search warrant for
the above mentioned package. During the search of the
box approx. 1 lb. 3.6 oz of marijuana was contained in
a shoe box and 13.6 oz of marijuana and 2.4 oz of
cocaine was contained in a second shoe box. . . .
Agents from the US Postal Service acting in an
undercover capacity will pose as a delivery person for
the post office and will attempt to deliver the
package. The Petersburg Police Department working in
conjunction with the US Postal Service will attempt to
deliver the package on today’s date. The search
warrant will only be executed on the residence if the
following occurs: The package and its contents are
accepted and/or the package enters the residence
itself, or the police observe the package exiting the
residence, or the security of the controlled samples
are at risk, or if the undercover officer’s safety is
at risk.

Upon issuance of the search warrant, Postal Inspector

Cross, posing as a mail carrier, conducted a controlled delivery

of the package at 129 South Old Church Street later that day.

Ward, who was in the yard of the residence when Cross arrived,

met her outside the front door. Cross handed the package to

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Ward and told him that she had attempted to deliver it at

another address the week before, and “the lady said it wasn’t

hers.” She then asked Ward if Anna Wilson lived at his address

and whether the package was for him. After “holding the package

and studying it,” Ward answered that the package was his. In

addition to the package, Cross also handed Ward some letter

mail. While Cross was walking away, Ward called to her and said

that one of the pieces of mail was not his, and that “the person

didn’t live there.” The letter that Ward passed back to Cross

was addressed to “Barbara Robinson.”

Immediately following the controlled delivery, police

officers executed the search warrant and found the package

unopened on a kitchen table inside Ward’s residence. Police

officers found 62 small plastic bags in Ward’s bedroom, of the

type used to package marijuana in $10 to $20 amounts, along with

$250 in currency underneath Ward’s mattress. After being

advised of his Miranda rights, Ward told police that the package

was not his, but had initially thought it was because he was

expecting some tapes to be delivered to his house.

Prior to trial, Ward moved to suppress the drug evidence

obtained during the search of his residence. He argued that the

search warrant was facially invalid because neither the warrant

nor the supporting affidavit provided any nexus between the name

and address on the package – Anna Wilson at 129 Church Street –

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and the address of the residence that was to be searched – 129

South Old Church Street. The Commonwealth responded that any

deficiencies in the nexus requirement were cured by the fact

that the package was known to contain drugs and that the search

was conditioned upon a recipient at that address accepting the

package. The trial court denied Ward’s motion and found him

guilty of both charges.

In affirming the judgment of the trial court, the Court of

Appeals noted that anticipatory search warrants, such as in the

case at bar, pose a heightened concern of “misunderstanding or

manipulation by government agents” (quoting United States v.

Garcia, 882 F.2d 699, 703-04 (2d Cir. 1989). 47 Va. App. at

745, 627 S.E.2d at 526. The Court of Appeals explained:

Most notably, the government or a third party, acting
either intentionally or accidentally, could mail a
controlled substance to a residence to create probable
cause to search the premises where it otherwise would
not exist. Thus, to prevent law enforcement
authorities from creating the circumstances which give
rise to probable cause to search, [courts have] held
that probable cause to support an anticipatory warrant
does not exist unless a sufficient nexus between the
parcel and the place to be searched exists. For
example, . . . a showing that the contraband was on a
“sure course” to the destination to be searched[, as a
result of circumstances not set in motion by law
enforcement personnel, has been held to] demonstrate a
sufficient nexus.

Ward, 47 Va. App. at 745-46, 627 S.E.2d at 526 (quoting United

States v. Dennis, 115 F.3d 524, 529-30 (7th Cir. 1997)).

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 The Court of Appeals held Ward’s Fourth Amendment rights

were not violated because his knowing acceptance of the package

was sufficient to overcome any deficiency under a “sure course”

analysis. Id. at 747, 627 S.E.2d at 527. The Court of Appeals

did not address the Commonwealth’s alternative argument that the

“good faith” exception under United States v. Leon, 468 U.S. 897

(1984), applied in this case.

We awarded Ward an appeal but also accepted the

Commonwealth’s assignment of cross error that the “Court of

Appeals erred in failing to address the good faith exception to

the exclusionary rule.”

II. ANALYSIS

A. Standard of Review

In reviewing the denial of a motion to suppress based on

the alleged violation of an individual’s Fourth Amendment

rights, we consider the facts in the light most favorable to the

Commonwealth. Fore v. Commonwealth, 220 Va. 1007, 1010, 265

S.E.2d 729, 731 (1980). The burden is on the defendant to show

that the trial court committed reversible error. Id. We are

bound by the trial court’s factual findings unless those

findings are “plainly wrong or unsupported by the evidence.”

Pyramid Development, L.L.C. v. D & J Associates, 262 Va. 750,

753, 553 S.E.2d 725, 727 (2001). However, the trial court’s

application of the law is reviewed de novo. Brown v.

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Commonwealth, 270 Va. 414, 419, 620 S.E.2d 760, 762 (2005).

Furthermore, when reviewing the validity of a warrant and its

supporting affidavit, the “magistrate’s determination of

probable cause should be paid great deference by reviewing

courts.” Illinois v. Gates, 462 U.S. 213, 236 (1983) (quoting

Spinelli v. United States, 393 U.S. 410, 419 (1969)) (internal

quotation marks omitted).

B. United States v. Grubbs

Ward contended at trial, and on appeal, that the affidavit

tendered to the trial judge who issued the search warrant was

facially invalid because it failed to establish a “nexus”

between the address on the package, “129 Church Street” and the

address to be searched, “129 South Old Church Street.”

Specifically, Ward contends “[w]here there are two distinctly

different addresses, the failure of the affidavit to include any

information supporting a conclusion that the package was

incorrectly addressed renders that affidavit facially invalid

because there is insufficient probable cause to sustain the

issuance of a warrant for 129 S. Old Church St.”

Ward argues that a controlled delivery by police raises the

possibility of government abuse because government agents could

direct the evidence that is the object of the warrant to be sent

to the address to be searched and thereby place contraband at a

location where it would otherwise not be.

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 Courts have addressed this problem by holding that probable

cause to issue an anticipatory search warrant does not exist

unless the government can demonstrate a sufficient nexus between

the parcel and the address to be searched. E.g., Dennis, 115

F.3d at 530; United States v. Hendricks, 743 F.2d 653, 654 n.1,

655 (9th Cir. 1984). This nexus requirement may be fulfilled by

showing that the package was initially placed on a “sure course”

to the address to be searched by actors other than law

enforcement personnel. Dennis, 115 F.3d at 530; see also

Hendricks, 743 F.2d at 655; United States v. Dornhofer, 859 F.2d

1195, 1198 (4th Cir. 1988).

Ward contends that the package in the instant case was not

on a sure course to his home because the address on the package

was different from his own. He argues that the only reason the

package was delivered to his home was that the police “diverted”

it there. Furthermore, Ward asserts that “an affidavit offered

in support of a request for a search warrant, must ‘provide the

magistrate with a substantial basis for determining the

existence of probable cause.’” Because there was no nexus

between the address on the package and the address listed in the

warrant, Ward contends the requisite probable cause was lacking

and the warrant was therefore invalid when issued.

The Court of Appeals determined that “the ‘sure course’

analysis does not require that law enforcement officials had no

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involvement whatever in placing the package in the mail or in

effecting its delivery to the particular location to be

searched.” Ward, 47 Va. App. at 746, 627 S.E.2d at 527. Citing

federal appeals court decisions,1 the Court of Appeals opined

that “in determining the validity of an anticipatory warrant, a

court may consider the facts surrounding its execution.” Id. at

744, 627 S.E.2d at 526. Specifically addressing the failure of

Detective Riley’s affidavit to establish a nexus between “129

Church Street” and “129 South Old Church Street”, the Court of

Appeals stated:

We hold that, in a case involving such an address
discrepancy, conditioning execution of a warrant for
the search of the residence on knowing acceptance of
the package by someone at that address – acceptance by
someone who has had the address discrepancy pointed
out to him or her – and the taking of the item into
the residence adequately protects individuals residing
at that address from Fourth Amendment abuses that
might otherwise result from execution of an
anticipatory warrant. The warrant and search
challenged in appellant’s case met these conditions.

Id. at 747, 627 S.E.2d at 527.2

1
E.g., United States v. Moetamedi, 46 F.3d 225, 229 (2d
Cir. 1995); United States v. Leidner, 99 F.3d 1423, 1429 (7th
Cir. 1996); see also McCary v. Commonwealth, 228 Va. 219, 231,
321 S.E.2d 637, 643 (1984).
2
Before reaching this conclusion, the Court of Appeals
acknowledged the decision of the United States Supreme Court in
Whiteley v. Warden, 401 U.S. 560 (1971), where the Court
observed:
Under the cases of this Court, an otherwise
insufficient affidavit cannot be rehabilitated by
testimony concerning information possessed by the
affiant when he sought the warrant but not disclosed

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 In retrospect, had Detective Riley’s affidavit contained

the mail delivery history as explained by mailman Saunders, any

claimed “sure course” infirmity in the issuance of the search

warrant would likely be moot. However, the Court of Appeals did

not rely on Saunders’ statements to assuage any nexus defect in

the sure course of the package for probable cause purposes.

Instead, it relied on the events ex post the issuance of the

search warrant. In particular, the Court of Appeals relied upon

the actual satisfaction of the affidavit’s triggering condition,

the acceptance of the package at 129 South Old Church Street.

On the same date the Court of Appeals opinion in Ward was

issued, the United States Supreme Court issued its opinion in

United States v. Grubbs, ___ U.S. ___, 126 S.Ct. 1494 (2006).

The Court there defined an anticipatory search warrant as “a

warrant based upon an affidavit showing probable cause that at

some future time (but not presently) certain evidence of a crime

will be located at a specified place.” Id. at ___, 126 S.Ct. at

1498 (quoting 2 W. LaFave, Search and Seizure § 3.7(c), p. 398

(4th ed. 2004)). The warrant before us in this case is such an

anticipatory search warrant.

The Supreme Court then noted that

to the issuing magistrate. See Aguilar v. Texas, 378
U.S. 108, 109 n.1 [(1964)]. A contrary rule would, of
course, render the warrant requirements of the Fourth
Amendment meaningless.
Whiteley, 401 U.S. at 565.

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 when an anticipatory warrant is issued, “the fact that
the contraband is not presently located at the place
described in the warrant is immaterial, so long as
there is probable cause to believe that it will be
there when the search warrant is executed.”

Id. at ___, 126 S.Ct. at 1499 (citations and internal quotation

marks omitted).

This probable cause determination, sufficient to authorize

the issuance of an anticipatory search warrant, was then

described by the Supreme Court as a two-pronged inquiry by the

issuing magistrate:

[F]or a conditioned anticipatory warrant to comply
with the Fourth Amendment’s requirement of probable
cause, two prerequisites of probability must be
satisfied. It must be true not only that if the
triggering condition occurs “there is a fair
probability that contraband or evidence of a crime
will be found in a particular place,” Gates, [462 U.S.
at 238], but also that there is probable cause to
believe the triggering condition will occur. The
supporting affidavit must provide the magistrate with
sufficient information to evaluate both aspects of the
probable-cause determination. See Garcia, [882 F.2d]
at 703.

Grubbs, ___ U.S. at ___, 126 S.Ct. at 1500.

In the present case, it appears self-evident that the first

prong of the Grubbs inquiry, the probability that the package

would be found at 129 South Old Church Street, was satisfied by

the terms of Detective Riley’s affidavit. The second prong of

the Grubbs probable cause analysis, where the magistrate

determines if “there is probable cause to believe the triggering

condition will occur,” is not so easily answered. Grubbs may

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limit the probable cause analysis only to that information

before the magistrate at the time the decision to issue the

warrant is made: “The supporting affidavit must provide the

magistrate with sufficient information to evaluate both aspects

of the probable-cause determination.” If that is so, then

events ex post the issuance of an anticipatory search warrant

could not be used to satisfy the probable cause requirement.

However, it is unnecessary for us to resolve whether the

Court of Appeals analysis meets the requirements of Grubbs

because the Commonwealth’s assignment of cross error is

dispositive in this case. Accordingly, we will assume, but

expressly do not decide, that the search warrant in this case

failed to meet the second prong of the probable cause analysis

in Grubbs and turn our attention to the assignment of cross

error.

C. United States v. Leon

In United States v. Leon, 468 U.S. 897 (1984), the United

States Supreme Court established a good-faith exception to the

exclusionary rule, applicable when a search is conducted

pursuant to a warrant subsequently determined to be defective

for Fourth Amendment purposes. 468 U.S. at 913-25. We

explained the basis and application of the “Leon exception” in

Polston v. Commonwealth, 255 Va. 500, 498 S.E.2d 924 (1998):

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 In Leon, the United States Supreme Court held that
“suppression of evidence obtained pursuant to a
warrant should be ordered only on a case-by-case basis
and only in those unusual cases in which exclusion
will further the purposes of the exclusionary rule.”
468 U.S. at 918; see also Massachusetts v. Sheppard,
468 U.S. 981, 987-88 (1984). The Supreme Court also
stated that “the exclusionary rule is designed to
deter police misconduct . . . .” Leon, 468 U.S. at
916. This deterrent is not present when a police
officer, acting in objective good faith, obtains a
search warrant from a magistrate and conducts a search
within the scope of the warrant. Derr v.
Commonwealth, 242 Va. 413, 422, 410 S.E.2d 662, 667
(1991). We have embraced and applied the good faith
exception to the exclusionary rule. Id. at 422-23,
410 S.E.2d at 667; McCary v. Commonwealth, 228 Va.
219, 232, 321 S.E.2d 637, 644 (1984).

Polston, 255 Va. at 503, 498 S.E.2d at 925-26.

The good-faith exception is not without limitations. In

Leon, the Supreme Court outlined four circumstances in which the

good-faith exception to the exclusionary rule would not apply.

468 U.S. at 923. These situations have been summarized by the

United States Court of Appeals for the Fourth Circuit:

(1) [W]hen the [magistrate] “was misled by
information in an affidavit that the affiant knew was
false or would have known was false except for his
reckless disregard of the truth”; (2) when “the
issuing magistrate wholly abandoned his judicial role
in the manner condemned in Lo-Ji Sales, Inc. v. New
York, 442 U.S. 319 (1979)”; (3) when “an affidavit
[is] so lacking in indicia of probable cause as to
render official belief in its existence entirely
unreasonable”; or (4) when “a warrant [is] so facially
deficient . . . that the executing officers cannot
reasonably presume it to be valid.”

United States v. Perez, 393 F.3d 457, 461 (4th Cir. 2004)

(quoting Leon, 468 U.S. at 923). Our review of the record shows

13
that none of these circumstances were present in the case at bar

and that exclusion of the evidence obtained by the search

warrant would not “further the purposes of the exclusionary

rule.”

In Leon, the Supreme Court first noted that evidence should

be excluded where the issuing magistrate or judge, in making his

probable cause determination, relied on information that an

affiant knew to be false or, save for his “reckless disregard

for the truth,” should have known to be false. 468 U.S. at 923.

Ward has never alleged that any of the information contained in

the affidavit was false, or that Detective Riley in any way

misled the judge issuing the search warrant.

Second, the Supreme Court stated “the exception . . . will

also not apply in cases where the issuing magistrate wholly

abandoned his judicial role in the manner condemned in Lo-Ji

Sales, Inc. v. New York, 442 U.S. 319 (1979).” Leon, 468 U.S.

at 923. In Lo-Ji Sales, the United States Supreme Court held

that search warrants that left the decision of what items were

to be seized entirely up to the discretion of the executing

officers were invalid, and further held that open-ended warrants

– to be completed during the search itself – were similarly

invalid. 442 U.S. at 325. In contrast, the search warrant in

the case at bar placed a definite limit on the discretion

provided the executing officers by clearly enumerating the

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specific categories of items for which a search was authorized.

The search warrant did not leave the decision of the search

items to the discretion of the executing officers. Accordingly,

the search warrant issued here does not fall within this portion

of the exclusions from the Leon rule.

The third limitation to the Leon good-faith exception

conditions reliance on the magistrate’s probable-cause

determination by police officers to those circumstances where

that reliance is objectively reasonable. 468 U.S. at 922-23 &

n.23. The Leon Court based this third exemption, in part, on

Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982), in which the

Supreme Court found that qualified sovereign immunity based on

good faith reliance on a magistrate’s finding would be defeated

only if the official “knew or reasonably should have known that

the action he took within his sphere of official responsibility

would violate the constitutional rights of the [plaintiff], or

if he took the action with the malicious intention to cause a

deprivation of constitutional rights or other injury . . . .”

Id. at 815. Although the Supreme Court recognized in Leon that

the “situations are not perfectly analogous,” it drew upon

Harlow’s test to additionally “eschew inquiries into the

subjective beliefs of law enforcement officers who seize

evidence pursuant to a subsequently invalidated warrant.” Leon,

368 U.S. at 923.

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 In the present case, the record does not reflect that the

executing officers knew or should have reasonably known that

their reliance on the warrant was objectively unreasonable. The

address listed on the package was very similar to the address

searched. Furthermore, the actions of the executing officers in

this case were analogous to those described in Polston and Derr.

In both cases, the defendant contended the affidavit relied upon

by the magistrate lacked a substantial basis to find probable

cause to issue the search warrant. Polston, 255 Va. at 502, 498

S.E.2d at 925; Derr, 242 Va. at 419-20, 410 S.E.2d at 665.

Nonetheless, the Court held the evidence seized during the

search conducted pursuant to the warrants was admissible under

the good-faith exception because the officers “acted in good

faith, reasonably, and under the authority of an apparently

valid search warrant.” Polston, 255 Va. at 504, 498 S.E.2d at

926; Derr, 242 Va. at 422-23, 410 S.E.2d at 667. The officers

who conducted the search in the case at bar similarly acted in

good faith, based on the authority of an apparently valid search

warrant.

Lastly, the Supreme Court in Leon stated the good-faith

exception will not apply where a warrant is “so facially

deficient – i.e., in failing to particularize the place to be

searched or the things to be seized – that the executing

officers cannot reasonably presume it to be valid.” Leon, 468

16
U.S. at 923 (citing Massachusetts v. Sheppard, 468 U.S. 981,

988-991 (1984)). Clearly, this exclusionary circumstance does

not apply as the affidavit and search warrant in the case at bar

were explicit as to the place to be searched and the items for

which a search was to be conducted.

None of the circumstances described in Leon as exclusions

to the application of the good-faith exception apply in this

case. Moreover, exclusion of the evidence obtained by the

search warrant would not further the purposes of the

exclusionary rule.

“If the purpose of the exclusionary rule is to deter
unlawful police conduct, then evidence obtained from a
search should be suppressed only if it can be said
that the law enforcement officer had knowledge, or may
properly be charged with knowledge, that the search
was unconstitutional under the Fourth Amendment.”
. . . In short, where the officer’s conduct is
objectively reasonable, “excluding the evidence will
not further the ends of the exclusionary rule in any
appreciable way” . . . . This is particularly true, we
believe, when an officer acting with objective good
faith has obtained a search warrant from a judge or
magistrate and acted within its scope. In most such
cases, there is no police illegality and thus nothing
to deter. It is the magistrate’s responsibility to
determine whether the officer’s allegations establish
probable cause and, if so, to issue a warrant
comporting in form with the requirements of the Fourth
Amendment. In the ordinary case, an officer cannot be
expected to question the magistrate’s probable-cause
determination or his judgment that the form of the
warrant is technically sufficient. . . . Penalizing
the officer for the magistrate’s error, rather than
his own, cannot logically contribute to the deterrence
of Fourth Amendment violations.

17
Leon, 468 U.S. at 919-21 (internal citations omitted); see also

Polston, 255 Va. at 503, 498 S.E.2d at 925-26.

In the case at bar, Detective Riley sought and was issued a

search warrant. The magistrate determined that the information

provided by the detective’s affidavit supported issuing the

warrant, and the detective had no reason to doubt this

conclusion. Once the conditions of the anticipatory search

warrant were met, the police officers conducted a search limited

to the scope of the warrant. The officers therefore acted in

good faith, and the deterrent function of the exclusionary rule

would not be served by excluding the evidence seized.

Accordingly, the good-faith exception of Leon applies in this

case and the trial court did not commit reversible error in

refusing to grant Ward’s motion to suppress.

III. CONCLUSION

We will therefore affirm the judgment of the Court of

Appeals.

Affirmed.

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