Sowers v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Clements
Argued at Salem, Virginia

JOHN EUGENE SOWERS, JR.
OPINION BY
v. Record No. 2233-05-3 JUDGE JAMES W. BENTON, JR.
APRIL 24, 2007
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge

Sidney H. Kirstein for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General; Josephine F. Whalen, Assistant
Attorney General, on brief), for appellee.

John Eugene Sowers, Jr., appeals his conviction for possession of cocaine with the intent to

distribute. Sowers contends the trial judge erred in refusing his pre-trial motion to suppress

evidence found in his residence pursuant to a search warrant. We hold that the trial judge did not err

in applying the good faith exception of United States v. Leon, 468 U.S. 897 (1984), and, thus, we

affirm the conviction.

I.

Under well-established principles, when reviewing the trial judge’s denial of a motion to

suppress evidence, we must consider the evidence in the light most favorable to the

Commonwealth, the prevailing party at trial. See Jackson v. Commonwealth, 267 Va. 666, 672,

594 S.E.2d 595, 598 (2004). So viewed, the evidence proved that on September 25, 2004, police

officers stopped John Eugene Sowers, Jr., for driving in the City of Lynchburg while his driver’s

license was suspended. After a trained dog alerted to the car Sowers was driving, the police
searched the car and found a plastic bag of white substance on the floorboard at the driver’s seat.

The police tested the substance and then arrested Sowers for possession of cocaine. They also

found a cell phone and $1,263 in cash, and, during a later search of the car, they found another

bag of cocaine hidden in a cigarette package.

At the police station, the police advised Sowers of his Miranda rights. Officer Riley

testified Sowers said “the cocaine wasn’t his” and Sowers explained the cocaine must have been

left in his car by a friend who borrowed the car a week earlier. Sowers also said that “he did see

the cocaine when he got in the car . . . and that he should have moved it.” In addition, Sowers

told the officer “he was coming from his residence” when the police stopped him and had

“smoked marijuana at his house . . . in the past.”

Officer Riley submitted an affidavit for a warrant to search Sowers’s residence for

“Cocaine, U.S. Currency and paraphernalia associated with the distribution of Cocaine, and any

fruits associated with the distribution of Cocaine, marijuana.” In support of the request, the

affidavit recited the following:

On 9-24-04 at approx. 2135 hrs., I assisted in a traffic stop . . .
in the City of Lynchburg for a traffic infraction. (Driving
Suspended). Ofc. R. Zuidema made the traffic stop and made
contact with the driver, a John E. Sowers Jr. Ofc. Zuidema had his
canine run the veh. and it alerted on the drivers side door of the
veh. I began to search the veh. and immediately found a small bag
of white powder which tested positive for Cocaine. A cell phone
was found on the floorboard of the veh. and $53.00 in currency
was found in the center console. A search of his person revealed
$900.00 in currency from his wallet and $310.00 in currency from
his front pocket. A second bag of white powder was found in the
drivers door of the veh. by Ofc. M.R. Soyars. This affiant
interviewed Mr. Sowers (after reading Miranda) and Sowers
advised me that he did not use Cocaine and that he left his
residence . . . and was heading to Amherst Cty Mr. Sowers also
stated that he had used Marijuana at this residence also in the past.

It is this affiants experience that Marijuana and Cocaine can
easily be hidden inside of a residence. It is also this affiants
experience that persons involved in using and Distributing
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 narcotics will not always take everything they have with them
when they travel. It is also this affiants experience that narcotics
and the paraphernalia Associated with the use of Narcotics are
often hidden inside the user’s residence for safe keeping.

Officer Riley testified that “[t]he magistrate read the affidavit thoroughly and then went

ahead and started filling out the paperwork.” After the magistrate issued the search warrant,

Officer Riley informed Sowers they had obtained a warrant to search his house. He testified

Sowers then said he had “five or six grams” of drugs in his kitchen and some marijuana on his

couch. Sowers also admitted that he had sold cocaine for three to four months. Sowers then

gave the officer the keys to his residence and identified the lock each key opened.

When executing the search warrant, police seized a plastic bag of marijuana, a plastic bag

of cocaine, two digital scales, a box of plastic sandwich bags, a marijuana cigarette, and a box of

baking soda. After the police seized these items, they obtained a warrant to arrest Sowers for

possession of cocaine with intent to distribute.

At trial, Sowers argued that the facts in the affidavit did not provide probable cause to

issue a search warrant and were so lacking in probable cause that the good faith exception did

not apply. The trial judge denied the motion, ruling probable cause existed and, alternatively,

ruling the magistrate did not abandon his judicial role and the officer relied upon the warrant in

good faith. At the conclusion of the evidence, the trial judge convicted Sowers of possession of

narcotics with the intent to distribute and denied his request for post-conviction bail, finding him

“a danger to himself and to the community.”1

1
Sowers initially appealed the trial court’s denial of his request for bail. A panel of
judges of this Court denied that appeal. Now he asks this Court to reconsider that appeal, to
issue him a “supersedeas bond,” and to release him from incarceration. This Court only
exercises appellate jurisdiction on bail issues. See Code § 19.2-319 (allowing the court that
issued judgment to postpone the execution of the sentence and to consider bail, if the defendant
seeks an appeal); Commonwealth v. Smith, 230 Va. 354, 337 S.E.2d 278 (1985); Askew v.
Commonwealth, 49 Va. App. 127, 638 S.E.2d 118 (2006). In any event, the request has become
immaterial because we affirm this conviction.
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 II.

In view of the significant disputes about whether the search warrant was based upon

probable cause and whether the officer could have relied upon the magistrate’s decision to issue

the search warrant, we conclude we must first address the probable cause issue. We do so

because, if police officers are to “harbor an objectively reasonable belief in the existence of

probable cause,” Leon, 468 U.S. at 926, they and magistrates must be informed about the

individualized and fact-specific inquiry of probable cause. Wong Sun v. United States, 371 U.S.

471, 479 (1963).

If the resolution of a particular Fourth Amendment question is
necessary to guide future action by law enforcement officers and
magistrates, nothing will prevent reviewing courts from deciding
that question before turning to the good-faith issue. Indeed, it
frequently will be difficult to determine whether the officers acted
reasonably without resolving the Fourth Amendment issue. Even
if the Fourth Amendment question is not one of broad import,
reviewing courts could decide in particular cases that magistrates
under their supervision need to be informed of their errors and so
evaluate the officers’ good faith only after finding a violation. In
other circumstances, those courts could reject suppression motions
posing no important Fourth Amendment questions by turning
immediately to a consideration of the officers’ good faith. We
have no reason to believe that our Fourth Amendment
jurisprudence would suffer by allowing reviewing courts to
exercise an informed discretion in making this choice.

Leon, 468 U.S. at 925 (footnote omitted); see also Illinois v. Gates, 462 U.S. 213, 239 (1983)

(noting that to ensure the magistrate’s action is not “a mere ratification of the bare conclusions of

others . . . , courts must continue to conscientiously review the sufficiency of affidavits on which

warrants are issued”).

Probable Cause

Sowers contends the search warrant is invalid because the affidavit supporting it failed to

provide specific facts connecting the drugs to his home. He further contends the Leon good faith

exception does not apply because the magistrate abandoned his judicial role and the warrant was
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based on an affidavit so lacking in indicia of probable cause that any official belief in its

existence was unreasonable. The Commonwealth responds that the affidavit established

probable cause due to the evidence of drug distribution found in the car and the police officer’s

knowledge of where drug distributors stow their supply. The Commonwealth alternatively

contends that the good faith exception applies.

The Fourth Amendment of the United States Constitution requires that a search warrant

be based upon probable cause. Massachusetts v. Upton, 466 U.S. 727, 728 (1984). “The task of

the issuing magistrate is simply to make a practical, common-sense decision whether, given all

the circumstances set forth in the affidavit before him, . . . there is a fair probability that

contraband or evidence of a particular crime will be found in a particular place.” Gates, 462 U.S.

at 238. This determination of probable cause must be based on objective facts, United States v.

Ross, 456 U.S. 798, 808 (1982), and reasonable inferences drawn from those facts. Gates, 462

U.S. at 240.

As the appellant, Sowers bears the burden of showing that the trial judge’s denial of his

motion to suppress evidence seized pursuant to a search warrant constituted reversible error.

Anzualda v. Commonwealth, 44 Va. App. 764, 774, 607 S.E.2d 749, 754 (2005) (en banc). On

review, we must determine whether “the magistrate had a ‘substantial basis for . . . conclud[ing]’

that a search would uncover evidence of wrongdoing.” Gates, 462 U.S. at 236 (quoting Jones v.

United States, 362 U.S. 257, 271 (1960)). In considering this issue, we “must grant ‘great

deference’ to the magistrate’s interpretation of the predicate facts supporting the issuance . . . 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 (1996).

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

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that the items to be seized will be found in the place to be searched.” United States v. Lalor, 996

F.2d 1578, 1582 (4th Cir. 1993). An affidavit must provide a nexus between the contraband

sought and the place to be searched pursuant to the warrant. Janis, 22 Va. App. at 652, 472

S.E.2d at 652. Thus, to support probable cause for a warrant to search a residence, an affidavit

must establish, with a fair probability, a link between contraband and the residence to be

searched.

In the present case, the affidavit alleged several pertinent facts: Sowers had an

unspecified amount of cocaine in two bags in his car, a cell phone, and $1,263 in currency. It

asserted Sowers said he left his residence, did not use cocaine, and had used marijuana at his

residence in the past. The affidavit also alleged that the warrant was requested to search for

cocaine and paraphernalia associated with the distribution of cocaine, indicating that in the

officer’s experience “persons involved in using and distributing narcotics” keep items associated

with those activities in the residence.

Sowers contends the magistrate erroneously relied upon the officer’s training and

experience. While a magistrate may consider a police officer’s statement of experience, it is not

sufficient by itself to provide a basis for probable cause. The officer’s statements of experience

set forth generalizations about the behavior of drug users and distributors, rather than specific

facts. See Cunningham v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (April

24, 2007); see also United States v. Feliz, 20 F. Supp. 2d 97, 102 (D. Me. 1998); United States v.

Rosario, 918 F. Supp. 524, 531 (D.R.I. 1996). A factual nexus must connect the illegal activity

to the place to be searched; otherwise police would have unfettered discretion to avow that

criminals often keep contraband at home and then search the home of every suspect. See Gwinn

v. Commonwealth, 16 Va. App. 972, 975, 439 S.E.2d 901, 903 (1993) (stating that probable

cause must be based on “objective facts and reasonable inferences drawn therefrom”); see also

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United States v. Schultz, 14 F.3d 1093, 1097 (6th Cir. 1994) (“While an officer’s ‘training and

experience’ may be considered in determining probable cause, it cannot substitute for the lack of

evidentiary nexus.” (citations omitted)); Feliz, 20 F. Supp. 2d at 103 (holding that “more of a

factual predicate than a law enforcement officer’s expert opinion is required to establish the

necessary nexus for a finding of probable cause to search a defendant’s home”); Rosario, 918

F. Supp. at 531 (“To permit a search warrant based solely upon the self-avowed expertise of a

law enforcement agent, without any other factual nexus to the subject property, would be an

open invitation to vague warrants authorizing virtually automatic searches of any property used

by a criminal suspect.”); United States v. Gomez, 652 F. Supp. 461, 463 (E.D.N.Y. 1987)

(“[W]here as here, there is nothing to connect the illegal activities with the arrested person’s

apartment, to issue a warrant based solely on the agent’s expert opinion would be to license

virtually automatic searches of residences of persons arrested for narcotics offenses.”).

The government argues, however, the magistrate could reasonably infer from the facts in

the affidavit that Sowers “was engaged in the sale of illicit drugs and that evidence of such

criminal activity would probably be found in his home.” As demonstrated by Gwinn, we have

held that this inference can be permissibly drawn in some cases and provide the necessary factual

nexus between the crime and place to be searched. In Gwinn, the police observed seven drug

transactions where a drug seller went to Gwinn’s store, returned with the cocaine, and went back

to the store after the sale. 16 Va. App. at 974, 434 S.E.2d at 903. Shortly before several of those

transactions, Gwinn’s automobile arrived at the store from Gwinn’s residence. Gwinn was

present at the store for several of these occasions, and one time he and the seller left the store

simultaneously in different automobiles and met at a separate location. Id. We recognized that

“[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.” Id. at

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975-76, 434 S.E.2d at 904. Thus, we concluded that the magistrate was entitled to infer from the

evidence that Gwinn was supplying the seller with cocaine and to further infer “the probability

that drugs . . . or other evidence of Gwinn’s suspected drug-related activity would be found in his

residence.” Id. at 976, 434 S.E.2d at 904.

In Anzualda, 44 Va. App. 764, 607 S.E.2d 749, where the evidence did not show a

pattern of transactions, the plurality opinion reached a different conclusion. There, the police

obtained a warrant to search Anzualda’s residence for a gun, which they suspected was a murder

weapon in another case and which they had been told was traded to Anzualda for marijuana. Id.

at 771, 607 S.E.2d at 752. We held in a plurality opinion that the affidavit “fail[ed] to provide a

sufficient nexus between the item sought (the pistol) and the premises to be searched.” Id. at

777, 607 S.E.2d at 755. We noted, however, that generally evidence is likely to be found where

“drug dealers” live, but that the affidavit for Anzualda’s residence only contained an account of

an isolated drug transaction and did not suggest that Anzualda was a known drug dealer. Id. at

777-78, 607 S.E.2d at 755-56; see also Lalor, 996 F.2d at 1579-83 (holding that the affidavit in

support of the warrant lacked probable cause even though it included facts indicating Lalor sold

cocaine regularly, because it did not “describe circumstances that indicate[d] such evidence was

likely to be stored at Lalor’s residence”).

Thus, evidence of a single drug transaction does not by itself raise the inference that the

suspect has evidence of illegal drug activity at home. See also Cunningham, ___ Va. App. at

___, ___ S.E.2d at ___ (evidence only of one instance of possession of marijuana did not support

probable cause to search Cunningham’s residence). In contrast, evidence that a person is

engaged in an ongoing drug scheme or conducting multiple drug sales can permissibly raise the

inference that the person keeps evidence of that illicit business in his or her residence. This

distinction logically arises from the differences between a continuous drug scheme and an

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isolated drug transaction. An individual engaging in multiple drug sales is far more likely to

possess and store the typical “tools of the trade,” such as customer lists, sales records, weapons,

and large quantities of drugs. See generally State v. O’Keefe, 141 P.3d 1147, 1157-58 (Idaho

2006) (listing items associated with the drug trade and affirming the inference that O’Keefe had

evidence of his drug business in his residence because the application for the warrant revealed a

large-scale, sophisticated narcotics operation).

In this case, the affidavit did not assert that Sowers had sold cocaine and did not

specifically allege that he possessed the cocaine with the intent to distribute. The affidavit

contained some facts, however, supporting the inference that Sowers possessed the cocaine with

the intent to distribute. The facts in the affidavit supporting the inference of intent to distribute

were Sowers’s possession of the cocaine in conjunction with his possession of $1,263 in

currency and a mobile phone, and his statement that he did not use cocaine.2 See Askew v.

Commonwealth, 40 Va. App. 104, 108-11, 578 S.E.2d 58, 60-62 (2003) (listing circumstances

that may support a trier of fact’s finding of intent to distribute, including possession of cash and

equipment such as pagers and the suspect’s lack of drug use). Unlike Gwinn, the affidavit did

not provide facts connecting Sowers to multiple drug transactions. 16 Va. App. at 974, 434

S.E.2d at 903. The affidavit did not contain information suggesting that Sowers was a repeat or

experienced drug dealer. See United States v. Hodge, 246 F.3d 301, 306 (3rd Cir. 2001)

(allowing the search warrant to stand where an informant’s foreknowledge of Hodge’s drug

delivery, use of a rental car, and transportation of the drugs “in the front of his pants as is

common to avoid detection” all suggested that “Hodge was an experienced and repeat drug

2
We note that the officer’s testimony differed from the affidavit to the extent that he
testified that Sowers completely denied ownership of the cocaine, not that Sowers directly
disclaimed use of the drug as asserted in the affidavit. However, Sowers did not challenge this
discrepancy in the affidavit at trial under Franks v. Delaware, 438 U.S. 154 (1978), nor does he
make an argument under Franks on appeal.
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dealer who would need to store evidence of his illicit activities somewhere”); United States v.

Williams, 974 F.2d 480, 480-81 (4th Cir. 1992) (where Williams was wanted in Maryland for

possession with intent to distribute, he had seven prior drug-related arrests, the police considered

him “to be a major importer of liquid phencyclidine and marijuana,” and he used aliases and

alternative social security numbers). As in Anzualda, the affidavit in this case did not connect

Sowers to more than a single drug transaction. 44 Va. App. 777-78, 607 S.E.2d at 755-56.

Furthermore, the affidavit did not provide a timeframe for Sowers’s past use of marijuana

at his residence. Probable cause may be diminished by the passage of time between when the

supporting facts occurred and when the police issue the affidavit. Anzualda, 44 Va. App. at 776,

607 S.E.2d at 755. As we noted, an appellate court “‘must look to all the facts and circumstances

of the case, including the nature of the unlawful activity alleged, the length of the activity, and

the nature of the property to be seized.’” Id. (quoting Perez v. Commonwealth, 25 Va. App. 137,

142, 486 S.E.2d 578, 581 (1997)). “[A] warrant will be tested for ‘staleness’ by considering

whether the facts alleged in the warrant provided probable cause to believe, at the time the search

actually was conducted, that the search conducted pursuant to the warrant would lead to the

discovery of evidence of criminal activity.” Johnson v. Commonwealth, 259 Va. 654, 671, 529

S.E.2d 769, 778 (2000). This affidavit did not provide probable cause to search for marijuana

because it failed to provide a temporal context for the marijuana use.

Accordingly, we conclude the totality of the circumstances presented in the affidavit did

not provide a substantial basis to conclude that the search would “uncover evidence of

wrongdoing.” Gates, 462 U.S. at 236. This conclusion, however, does not resolve the issue of

whether the trial judge erred in refusing the motion to suppress, because we must now address

whether the Leon good faith exception to the exclusionary rule applies.

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 The Good Faith Exception

“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.’” Polston v.

Commonwealth, 255 Va. 500, 503, 498 S.E.2d 924, 925 (1998) (quoting Leon, 468 U.S. at 918).

The United States Supreme Court reasoned as follows:

[T]he exclusionary rule is designed to deter police misconduct
rather than to punish the errors of judges and magistrates.

* * * * * * *

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.

Leon, 468 U.S. at 916, 921. Under the good faith exception, “[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.” Colaw v. Commonwealth, 32 Va. App. 806, 810, 531 S.E.2d 31,

33 (2000)).

There are four circumstances where an officer cannot have an objectively reasonable

belief that probable cause exists for the search and suppression is an appropriate remedy:

“(1) Where 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 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.”

Id. at 811, 531 S.E.2d at 33 (quoting Atkins v. Commonwealth, 9 Va. App. 462, 464, 389 S.E.2d

179, 180 (1990)); see also Leon, 468 U.S. at 923.

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 Sowers contends the Leon exception does not apply to this affidavit because it is “bare

bones” and because, he argues, the magistrate abandoned his judicial rule when acting on the

officer’s affidavit. We disagree.

As the Supreme Court noted in Leon, “‘[s]ufficient information must be presented to the

magistrate to allow that official to determine probable cause; his action cannot be a mere

ratification of the bare conclusions of others.’” 468 U.S. at 915 (quoting Gates, 462 U.S. at 239).

In other words, an affidavit that is devoid of material facts and sets forth only conclusory

allegations is “bare bones” and insufficient to support probable cause. Id. The affidavit in this

case, however, contained facts indicating Sowers possessed cocaine, had a large sum of money,

and denied he was a user of cocaine. Our cases indicate these facts could support inferences

about his intent. See, e.g., Askew, 40 Va. App. at 108-09, 578 S.E.2d at 60-61 (citing cases).

Therefore, we cannot say this was a “bare bones” affidavit.

Furthermore, the record contained no evidence that the magistrate did not “purport to

‘perform his “neutral and detached” function and . . . serve[d] merely as a rubber stamp for the

police.’” Leon, 468 U.S. at 914 (quoting Aguilar v. Texas, 378 U.S. 108, 111 (1964)). A

showing that the magistrate abandoned the role of a neutral and detached judicial officer requires

more than inadequacy of the affidavit. United States v. McKneely, 6 F.3d 1447, 1456 (10th Cir.

1993) (citing cases from the Seventh and Eight Judicial Circuits that also rejected that

proposition). Indeed, in this case, the officer-affiant testified that the magistrate “read the

affidavit thoroughly,” which indicates that he considered the merits of the affidavit rather than

blindly issuing the warrant.

Sowers also argues this is an instance where the police officer does not “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.’” Leon, 468

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U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 591, 610-11 (1975) (Powell, J., concurring in

part)). We have held, however, that “as long as there is some indicia of probable cause in the

underlying affidavit, we will apply the good faith exception [provided that] a reasonable police

officer, after assessing the facts set forth in the affidavit, could have believed the warrant was

valid.” Anzualda, 44 Va. App. at 781, 607 S.E.2d at 757. For the good faith rule to apply, the

affidavit must provide some nexus between the evidence sought and the place to be searched.

Janis, 22 Va. App. at 653-54, 472 S.E.2d at 653.

The pivotal question for the good faith exception analysis is whether a reasonable police

officer could have believed the warrant was valid based on the facts in the affidavit. As we have

noted above, the affidavit is not a “bare bones” affidavit setting forth only conclusory allegations

without supporting facts. Even though the affidavit failed to provide a sufficient nexus between

the drugs and Sowers’s residence to support probable cause, it provided some nexus. See

Anzualda, 44 Va. App. at 785-86, 607 S.E.2d at 759-60 (contrasting Janis, 22 Va. App. 646, 472

S.E.2d 649). In view of our case decisions, the affidavit contained some facts that could lead to

the inference that Sowers was in the business of selling drugs. See Askew, 40 Va. App. at

108-09, 578 S.E.2d at 60-61 (citing cases noting circumstances that can give rise to an inference

of intent to distribute narcotics). The affidavit described the items sought and the place to be

searched. Under these circumstances, a reasonable police officer could have believed the

warrant was valid. Thus, the affidavit was not so lacking in probable cause as to render official

belief in the warrant objectively unreasonable, and the good faith exception prevents application

of the exclusionary rule.

For these reasons, we hold the trial judge did not err in holding that the Leon good faith

exception applied, and we affirm the conviction.

Affirmed.

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