Polston v. Commonwealth

Present:   All the Justices

SHERRI ANN POLSTON, s/k/a
SHERRI ANNE POLSTON
                       OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 971536               April 17, 1998

COMMONWEALTH OF VIRGINIA

               FROM THE COURT OF APPEALS OF VIRGINIA

     Sherri Ann Polston entered a conditional plea of guilty

to the crime of possession of marijuana with intent to

distribute in violation of Code § 18.2-248.   Pursuant to Code

§ 19.2-254, she reserved her right to appeal that portion of

the Chesterfield Circuit Court’s judgment denying her motion

to suppress the marijuana which she claims was the fruit of an

unlawful search.   The trial court accepted her guilty plea and

fixed her punishment at 10 years’ imprisonment, which was

suspended subject to certain conditions.   The Court of Appeals

affirmed the judgment of the circuit court, Polston v.

Commonwealth, 24 Va. App. 738, 485 S.E.2d 632 (1997), and we

awarded the defendant an appeal.

     The following facts are relevant to our disposition of

this appeal.   Stuart G. Powell, a Chesterfield County

detective, along with an unidentified informant, appeared

before a magistrate on January 6, 1995.    Detective Powell

submitted an affidavit to the magistrate which stated in

relevant part:
     “On this date 1-6-95, a citizen appeared before the
     magistrate of the Twelth [sic] Judicial District
     Court and stated the following facts under oath and
     the penalty of purgery [sic]. This citizen stated
     that within the past 72 hours he/she observed a
     quantity of marijuana being stored and being offered
     for sale at the apartment mentioned in section two
     of this document.

                              * * *

     “I was advised of the facts set forth in this
     affidavit, in whole or in part, by an informer.
     This informer’s credibility or the reliability of
     the information may be determined from the following
     facts:

     “The citizen mention[ed] in section 4 of this
     document made these statements while under oath and
     after being advised of the penalty of purgery [sic]
     by your affiant. Your affiant has been a police
     officer for over six years and is currently employed
     in the Vice and Narcotics Unit of the Chesterfield
     County Police Department. Your affiant has made
     several drug arrests and is familiar with the drug
     culture in and around Chesterfield County. The
     citizen has decided to remain anonymous for fear of
     retaliation.”

     The magistrate questioned the informant under oath, and

the informant stated that he was familiar with the local drug

culture and that he had used marijuana at least once per week

for a number of years.   The magistrate or Detective Powell

added the following sentence to the affidavit:   “This citizen

is a self-admitted drug user and is familiar with the drug

culture in and around Chestserfield [sic] County.”

     The magistrate issued a warrant authorizing a search of

the defendant’s apartment.   When Detective Powell, along with



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Chesterfield County police officers, conducted the search, the

defendant directed them to a dresser in her bedroom which

contained approximately one pound of marijuana.      The officers

also found a “bong” in the defendant’s apartment, and the

defendant told the officers that she sold marijuana.

     The defendant argues that the magistrate did not have a

substantial basis to find probable cause necessary for the

issuance of the search warrant.       The defendant observes that

the “citizen” referred to in the affidavit was actually an

individual who had been arrested by police officers earlier on

the day that the search warrant was issued.      Continuing, the

defendant says that Detective Powell “conceded that he had

made no effort of any kind to investigate or verify either the

informant’s credibility or the reliability of the information”

contained in the affidavit.   Responding, the Commonwealth

asserts that the magistrate did have a substantial basis for

finding that probable cause existed for the issuance of the

warrant and that the evidence seized pursuant to the warrant

was also admissible on another basis, the good faith exception

to the warrant requirement established in United States v.

Leon, 468 U.S. 897 (1984).

     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


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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).

     The Supreme Court stated the following test which we must

apply to determine whether suppression of evidence is an

appropriate remedy:

          “Suppression therefore remains an appropriate
     remedy if the magistrate or judge in issuing a
     warrant 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. . . . The exception we recognize today will
     also not apply in cases where the issuing magistrate
     wholly abandoned his judicial role. . . . [I]n such
     circumstances, no reasonably well trained officer
     should rely on the warrant. Nor would an officer
     manifest objective good faith in relying on a
     warrant based on an affidavit ‘so lacking in indicia
     of probable cause as to render official belief in
     its existence entirely unreasonable’ . . . .
     Finally, depending on the circumstances of the


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     particular case, a warrant may be 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 U.S. at 923
     (citations omitted).

     We hold that, regardless of the actual validity of the

search warrant, the evidence seized during the search of the

defendant’s apartment is admissible because of the good faith

exception to the exclusionary rule.   The evils identified in

the Leon test are simply not present here.   When the police

officers conducted the search of the defendant’s apartment,

they acted in good faith, reasonably, and under the authority

of an apparently valid search warrant.   The magistrate was not

misled by any information in the affidavit, and he did not

abandon his judicial role.   Rather, acting in his judicial

role, the magistrate questioned the informant about the

informant’s knowledge of drug activity in Chesterfield County.

Additionally, the warrant is not so lacking in indicia of

probable cause as to render official belief in its existence

entirely unreasonable, and the warrant is not facially

deficient.

     Accordingly, we will affirm the judgment of the Court of

Appeals.

                                                         Affirmed.




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