Perez v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia

ANTONIO PEREZ
OPINION
v. Record No. 1235-96-1 BY JUDGE JOSEPH E. BAKER
JULY 1, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John E. Clarkson, Judge
Douglas Fredericks for appellant.

Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Antonio Perez (appellant) appeals from his bench trial

convictions by the Circuit Court of the City of Norfolk (trial

court) for possession of cocaine with intent to distribute and

possession of a firearm while in possession of cocaine with

intent to distribute. At trial, appellant pled guilty to the

charges. However, he reserved the right to appeal to this Court

on the sole issue of whether the trial court erred in refusing to
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suppress evidence found in appellant's apartment following a
search conducted pursuant to a search warrant issued eleven days

after the police first acquired probable cause to make the

search.

Appellant contends that the search warrant was issued in
1
Appellant possessed 7.6 grams of cocaine, packaging materials,
digital scales, a pistol, a rifle, a pager, a police scanner, and
several dogs, including a Pit Bull, a Rottweiler, a Chow and three
puppies.
violation of his rights granted by the Fourth Amendment to the

Constitution of the United States because it was based upon stale

information (eleven days old). 2 See United States v. McCall, 740

F.2d 1331 (4th Cir. 1984) (evidence seized pursuant to a warrant

supported by "stale" probable cause is not admissible in a

criminal trial to establish the defendant's guilt). We must

decide whether the facts alleged in the warrant furnished

probable cause to believe that criminal activity existed at

appellant's residence when the magistrate issued the warrant.

Viewing the totality of the evidence presented to the trial

court, we find no error in the trial court's refusal to suppress

the evidence.
On appeal from a magistrate's probable cause determination,

the standard of review is "whether, considering the totality of

the circumstances, the magistrate had a substantial basis for

concluding that probable cause existed." Williams v.

Commonwealth, 4 Va. App. 53, 68, 354 S.E.2d 79, 87 (1987). The

record discloses that on December 9, 1994, Norfolk Police

Officers Hoggard and Alvarez were at the Chesapeake Manor

apartment complex attempting to serve John Zavala with an

2
In his petition for appeal, appellant raised only this issue.
This Court granted review solely on this issue. In his brief,
however, appellant raises three additional issues. Rule 5A:12(c)
provides that "[o]nly questions presented in the petition for
appeal will be noticed by the Court of Appeals." See Cruz v.
Commonwealth, 12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1
(1991). We did not grant appellant an appeal on the additional
issues raised in his brief and will not address them.

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outstanding capias when Zavala broke away from them. Zavala ran

to apartment A at 868 Denison Avenue. Zavala opened the

apartment screen door and coaxed a Pit Bull housed inside the

apartment to attack the officers. The officers repelled the Pit

Bull attack until an unknown person called the Pit Bull away from

them. The officers also observed a Rottweiler and a Chow inside

the apartment.

Hoggard reported the incident to Humane Officer Kumpf of the

Animal Control Bureau, who removed and impounded the Pit Bull,

Rottweiler, and Chow on the same day. Kumpf impounded the three

dogs because they had no defined owner. While at the apartment,

Kumpf observed five puppies confined in a closet. The puppies

were standing in their own feces with no food or water. However,

Kumpf did not impound the puppies.
On December 10, 1994, appellant appeared at the S.P.C.A.

where the dogs were confined, acknowledged ownership of the dogs,

and provided proof thereof. Kumpf permitted appellant to take

the dogs with him. On either December 12 or 13, Kumpf advised

Hoggard that he had released the dogs because without an

outstanding arrest warrant charging appellant with a dog-related

offense, Kumpf was not authorized to retain them.

On December 15, 1994, Hoggard procured an arrest warrant

that charged appellant with permitting a vicious dog to run at

large. Hoggard did not obtain the arrest warrant until December

15 because he was handling other cases or had days off during the

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period between December 10 and December 15. Hoggard testified

that his "command doesn't approve of us coming in on days off to

execute a misdemeanor warrant." On December 17, Hoggard and

Kumpf discussed the viciousness of the Pit Bull and the arrest

warrant Hoggard had obtained. Kumpf informed Hoggard that he

would obtain a search warrant for the premises where the vicious

Pit Bull was housed.

Kumpf swore out an affidavit to obtain the search warrant

which alleged "[m]aintaining a vicious dog" and "[f]ailure to

perform the duties of dog ownership." It contained the following

statement as probable cause for its issuance:
On 12/9/94, Inv. G.S. Hoggard was
attempting to arrest an individual in the 800
block of Denison Avenue Norfolk Virginia.
The subject attempted to enter 868 #A Denison
Avenue where the subject incited a pitbull
[sic] inside the dwelling to attack the
officer. The dog was restrained by another
subject inside the dwelling. The incident
accured [sic] at 2:15 PM 12/9/94. At 4:15,
your affiant, Humane Officer II M.T. Kumpf,
went to the residence at 868 #A Denison
Avenue Norfolk Virginia 23513 to determine if
the dog in question was licensed and
vaccinated against rabies. A total of eight
dogs were inside the residence at 868 #A
Denison Avenue. A pitbull [sic], Chow, and a
Rottweiler mix were free roaming inside the
residence and charged at the screendoor [sic]
attempting to attack this officer. The
custodian of the dogs identified the owner as
Anotonio [sic] Perez. After being given
consent to inspect the residence, the
remaining five dogs were observed contained
in a closet space. The dogs appeared to be
approximately 8-9 week old pitbull [sic]
puppies. No food or water was evident. The
floor of the closet had numerous piles of
feces which the puppies were standing in. In
this officer's experience, these conditions

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 and breeds of dogs are commonly used for
fighting and training to fight.

On 12/15/94, Inv. G.S. Hoggard secured a
viciousdog [sic] warrant for Antonio Perez.
(attached).

Based upon the evidence presented, the trial court refused to

suppress the evidence obtained as a result of the search.

United States v. McCall, 740 F.2d 1331 (4th Cir. 1984),

cited by appellant, supports the judgment of the trial court. In

McCall, a seven- to eight-month delay occurred between the

observance of facts constituting a basis for determining probable

cause to obtain the search warrant and the time the search

warrant affidavit was executed. Id. at 1334. In holding that

the facts supporting the search warrant were not so "stale" as to

present an impropriety rising to the level of a Fourth Amendment

violation, the Court said:
Cases in which staleness becomes an issue
arise in two different contexts. First, the
facts alleged in the warrant may have been
sufficient to establish probable cause when
the warrant was issued, but the government's
delay in executing the warrant possibly
tainted the search. (Citations omitted).
Second, the warrant itself may be suspect because
the information on which it rested was arguably
too old to furnish "present" probable cause.
(Citations omitted.) A reviewing court's task in
each category of cases is slightly different. In
testing a warrant in the first category, it must
decide whether a valid warrant became invalid due
to the lapse of time; when considering those in
the second category, it must determine whether
information sufficient to constitute probable
cause was ever presented. The court's fundamental
concern, however, is always the same: did the
facts alleged in the warrant furnish probable
cause to believe, at the time the search was
actually conducted, that evidence of criminal

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 activity was located at the premises searched?

This question is not resolved by reference
to pat formulas or simple rules. "[T]he
vitality of probable cause cannot be
quantified by simply counting the number of
days between the occurrence of the facts
supplied and the issuance of the affidavit."
United States v. Johnson, 461 F.2d 285, 287
(10th Cir. 1972). Rather, we 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.

Id. at 1336.
In the case before us, appellant's sole contention is that

the eleven days that passed between the initial sighting of the

vicious dog and the procurement of the warrant per se requires

this Court to declare the search warrant invalid. Appellant

asserts that the evidence presented to the magistrate was "too

stale" to furnish probable cause to believe the criminal

activities of maintaining or allowing a vicious dog to run at

large and failure to perform the duties of dog ownership still

existed when the warrant was issued. We disagree. Nothing in

the nature of the activity or the property to be seized suggests

that the mere passage of eleven days dissipated the probable

cause which existed on December 9. The facts contained in

Kumpf's affidavit provided a substantial basis for the magistrate

to conclude on December 20, 1994, that probable cause existed to

search the 868 #A Denison Avenue apartment.

Upon consideration of all the facts and circumstances, we

find that the magistrate's issuance of the search warrant was

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supported by probable cause. Accordingly, the judgment of the

trial court in refusing to suppress the evidence discovered

pursuant to the authority of the search warrant is affirmed.

Affirmed.

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