                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Chafin and Decker
PUBLISHED


            Argued in Bristol, Virginia


            RUDOLPH DAVID TAYLOR

            v.     Record No. 1330-15-3
                                                                                  OPINION BY
            COMMONWEALTH OF VIRGINIA                                       JUDGE TERESA M. CHAFIN
                                                                               SEPTEMBER 13, 2016
            RUDOLPH DAVID TAYLOR

            v.     Record No. 1340-15-3

            COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
                                           Jack S. Hurley, Jr., Judge

                           Carletta J. Faletti; James P. Carmody (Faletti Law Firm, on brief),
                           for appellant.

                           Victoria Johnson, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   The Circuit Court of Tazewell County convicted Rudolph David Taylor of one count of

            transporting controlled substances into the Commonwealth in violation of Code § 18.2-248.01,

            and two counts of possessing controlled substances with the intent to distribute them in violation

            of Code § 18.2-248. Although Taylor pled guilty to these offenses, he reserved his right to

            challenge the circuit court’s decision denying his motion to suppress certain evidence. Taylor

            contends that the warrant authorizing the search of his home following a controlled delivery of a

            package containing the substances at issue in this case was not supported by probable cause.

            Specifically, Taylor argues that:
               1. There was [an] insufficient nexus between the intended
               destination of the parcel and the address to which it was diverted
               by law enforcement.

               2. The conditioned anticipatory search warrant failed to state a
               triggering event which would satisfy the requirement that there
               would be a fair probability that contraband would be found inside
               of Taylor’s residence at the time the search warrant was served and
               the premises searched.

               3. The conclusions propounded by law enforcement to obtain the
               search warrant were not based upon the [affiant officer’s] personal
               knowledge as presented in the affidavit, but upon statements taken
               from an informant some sixty (60) days prior, whose credibility
               and reliability were untested and not supported as required within
               the affidavit.

               4. The information contained in the affidavit to secure the search
               warrant was too stale to be considered reliable by a magistrate.

For the reasons that follow, we affirm Taylor’s convictions.

                                       I. BACKGROUND

       “In accord with settled principles of appellate review, on appeal of the denial of a motion

to suppress, we review the evidence and all reasonable inferences fairly deducible from that

evidence in the light most favorable to the Commonwealth, the party prevailing [in the trial

court].” Anzualda v. Commonwealth, 44 Va. App. 764, 771, 607 S.E.2d 749, 752 (2005) (en

banc). So viewed, the evidence is as follows.

       On October 22, 2013, a Customs and Border Patrol agent intercepted a package

containing 116 grams of methylone, a substance commonly referred to as “bath salts,” at a

FedEx facility in Alaska. The package was sent from Shijazhaung, China, and addressed to

“Dave Taylor” at “106 Dial Rock Road” in Tazewell, Virginia. The Customs and Border Patrol

agent delivered the package to the Department of Homeland Security (“DHS”), and a DHS agent

agreed to attempt a controlled delivery of the package in Virginia.



                                                   -2-
              The DHS agent travelled to Tazewell and obtained a warrant to search the residence

located at 106 Dial Rock Road. This warrant was anticipatory in nature, and only allowed the

agent to search the premises if an individual accepted the package “into the residence.” On

October 28, 2013, the agent attempted to deliver the package while disguised as a FedEx

employee. A resident living at 106 Dial Rock Road informed him that Taylor did not live at that

address and refused to accept the package. Thus, the triggering condition of the anticipatory

warrant did not occur and the agent and other assisting police officers from the Town of

Tazewell did not search the residence.

              The DHS agent contacted the Tazewell County Sheriff’s Office (“Sheriff’s Office”) the

next day to inform them about the failed delivery. When the agent inquired about a possible

investigation of Taylor’s involvement in the distribution of narcotics, officers informed him that

they had been investigating Taylor for eight months. In February of 2013, the Sheriff’s Office

had received information that Taylor was buying bath salts online from a source located in a

foreign country, importing them into the United States through the postal system, and selling

them. Following this initial report, Taylor’s former girlfriend, Elizabeth Elswick, was arrested

for possessing bath salts. She claimed that she had received the drugs from Taylor and that he

ordered them through the mail.

              Elswick also provided the police with a packaging slip, or “waybill,” concerning one of

Taylor’s bath salt transactions. The waybill referred to a package addressed to “Rudolph Taylor”

at “6555 Pounding Mill Branch Road, Pounding Mill, Virginia,” that had been mailed on August

12, 2013.1 Like the package intercepted by DHS, the package described in the waybill had been




                                                            
              1
                  Pounding Mill is a community located in Tazewell County, Virginia.
                                                               -3-
sent from Shijazhuang, China. Records from the Department of Motor Vehicles (“DMV”)

confirmed that Taylor listed “6555 Pounding Mill Branch Road” as his address.

              Utilizing the supplemental information from the prior investigation of Taylor, Detective

Bill Perry of the Sheriff’s Office requested a warrant to search the residence located at 6555

Pounding Mill Branch Road. In his affidavit supporting his request for this warrant, Perry stated:

                             On October 29, 2013 an agent of the Tazewell County Narcotics
                             Task Force contacted . . . an agent of the Department of Homeland
                             Security. This agent advised that he contacted Tazewell Police
                             Department with a package that contained 116 grams of Methylone
                             “bath salts” [which] was intercepted in Anchorage[,] Alaska[,]
                             addressed to Dave Taylor at 106 Dial Rock Rd.[,] North
                             Tazewell[,] VA. On 10/28/13 they attempted a controlled delivery
                             of the package but the package was refused at this residence. An
                             on-going investigation over the past eight months has revealed by
                             this Detective that Dave Taylor has received on August 12, 2013 a
                             package from the same address from Hersei[,] China.2 Mr. Taylor
                             lives [at] 6555 Pounding Mill Branch Rd.[,] Pounding Mill[,] Va.
                             On October 30, 2013, this Task Force will be attempting a
                             controlled delivery of the package to Taylor’s address on Pounding
                             Mill [Branch] Rd.

In another section of the affidavit, Perry stated:

                             Customs has intercepted a package in Anchorage[,] Alaska[,] that
                             contains approximately 116 grams of Methylone addressed to
                             Dave Taylor at 106 Dial Rock Rd[,] North Tazewell[,] Va.
                             Mr. Taylor has received a package from the same address in China
                             to his residence at 6555 Pounding Mill Br. Rd.[,] Pounding Mill[,]
                             Va. Substance was tested by Homeland Security and determined
                             to be Methylone “bath salts.” Information received by this
                             detective has revealed that this substance is being ordered and
                             received by US mail, FedEx, and UPS from China.



                                                            
              2
          We note that the affidavit refers to a package sent from an address in “Hersei, China”
rather than an address in Shijazhuang. A review of the handwritten address on the waybill
suggests that Shijazhuang is a city located in the province of either “Hersei” or “Hebei.”
        We also note that the affidavit claims that Taylor received the package referenced in the
waybill on August 12, 2013. The waybill itself, however, suggests that the package was mailed
from China on that date. In such a case, Taylor would have received the package sometime after
August 12, 2013.
                                                     -4-
While Perry checked a box on the affidavit form indicating that he had personal knowledge of

the facts set forth in the affidavit, he provided “a synopsis of the investigation” of Taylor while

testifying under oath before the magistrate who reviewed the warrant application.

       Based on Perry’s affidavit and testimony, the reviewing magistrate issued a warrant

allowing the police to search Taylor’s residence at 6555 Pounding Mill Branch Road for

evidence of drug distribution. This warrant was similar to the prior warrant authorizing a search

of the residence located at 106 Dial Rock Road. Although the warrant did not require the

intercepted package to be taken into the residence, it was conditioned on Taylor’s acceptance of

the package.

       On October 30, 2013, the Tazewell County Narcotics Task Force executed the search

warrant at 6555 Pounding Mill Branch Road. Disguised as a UPS employee, Detective Greg

Layne delivered the package addressed to 106 Dial Rock Road to Taylor as he was leaving his

residence in Pounding Mill. While Layne did not point out the address discrepancy to Taylor, he

told him that “he was a hard man to get up with.” Taylor accepted the package in his driveway

approximately six feet away from the front door of the residence, placed it in the waistband of

his pants, and turned to go back into the house. As Taylor was walking toward the house, Layne

signaled for other officers hiding in a nearby delivery van to arrest him before he entered the

residence with the package.

       When the officers executed the warrant, they seized the package containing the bath salts,

documents referencing drug transactions, and other items potentially linked to the distribution of

controlled substances. Notably, two documents found on the coffee table of Taylor’s living

room contained the tracking number for the package the police had just delivered. The officers

also seized “various items of narcotics paraphernalia” from the house, including a set of digital



                                                    -5-
scales, two used syringes, and two metal spoons and a glass smoking pipe containing the residue

of an unknown substance.

              After Taylor was charged with numerous drug offenses,3 he filed a motion to suppress the

evidence the police obtained following the controlled delivery of the intercepted package.

The circuit court denied Taylor’s suppression motion in a detailed opinion letter. The circuit

court concluded that the totality of the circumstances of this particular case established a nexus

between the intercepted package and Taylor’s residence in Pounding Mill, explaining that the

evidence implied that Taylor would have eventually received the package at his home despite its

intended delivery to Dial Rock Road. The circuit court explained that the evidence gathered by

Perry in his investigation of Taylor established probable cause to believe that Taylor was

engaged in ongoing criminal activity and that contraband and evidence of drug distribution

would be found inside of his residence at 6555 Pounding Mill Branch Road when the police

executed the warrant.

              Taylor pled guilty to three charges based on the contraband contained in the intercepted

package and reserved the right to appeal the circuit court’s decision regarding his motion to

suppress.4 The circuit court sentenced Taylor to serve a seventy-five-year period of incarceration

and suspended sixty-two years of that sentence, resulting in a period of thirteen years of active

incarceration. These appeals followed.

                                                               II. ANALYSIS

              On appeal, Taylor presents four arguments challenging the warrant authorizing a search

of the residence at 6555 Pounding Mill Branch Road. First, he argues that the warrant was
                                                            
              3
         Most of these charges were dismissed on the Commonwealth’s motion after Taylor
agreed to plead guilty to the charges at issue in this case.
              4
       Taylor pled guilty to the charges with the following corresponding case numbers:
CR14-683-00, CR14-684-00, and CR14-685-00.
                                                                      -6-
facially invalid because the facts alleged in Perry’s affidavit failed to establish a sufficient nexus

between the intercepted package and his residence in Pounding Mill. Second, he claims that the

triggering condition in the anticipatory warrant failed to establish a reasonable probability that

evidence would be found in his home when the warrant was executed. Third, Taylor contends

that Perry failed to reveal that he obtained information from an informant to support his

application for the warrant and that he failed to establish her credibility or reliability. Fourth,

Taylor contends that the affidavit supporting Perry’s request for the anticipatory warrant relied

on stale information.

       Upon review, we conclude that the anticipatory warrant authorizing the search of

Taylor’s residence in Pounding Mill was supported by probable cause. The totality of the

circumstances of this particular case established a nexus between the package and Taylor’s

residence. Furthermore, while we acknowledge that the affidavit supporting the application for

the warrant was not the model of clarity, we conclude that any potential omission as to the source

of the information in the affidavit was not fatal to the warrant. Additionally, we find that the

affidavit supporting the warrant was not based entirely on stale information. The totality of the

circumstances established the probability of ongoing criminal activity at 6555 Pounding Mill

Branch Road.

      A. STANDARD OF REVIEW

       An appellant’s claim that evidence was seized in violation of the Fourth Amendment

presents a mixed question of law and fact on appeal. King v. Commonwealth, 49 Va. App. 717,

721, 644 S.E.2d 391, 393 (2007). While we apply a de novo standard of review to the trial

court’s application of the law, “[w]e are bound by the trial court’s factual findings unless those

findings are ‘plainly wrong or unsupported by the evidence.’” Ward v. Commonwealth, 273 Va.

211, 218, 639 S.E.2d 269, 272 (2007) (quoting Pyramid Dev., L.L.C. v. D & J Assocs., 262 Va.
                                                     -7-
750, 753, 553 S.E.2d 725, 727 (2001)). When a trial court’s decision to deny a motion to

suppress is challenged on appeal, “[t]he burden is on the [appellant] to show that the trial court

committed reversible error.” Id.

              “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.’” Id. (quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)). This deferential standard “is

appropriate to further the Fourth Amendment’s strong preference for searches conducted

pursuant to a warrant.” Anzualda, 44 Va. App. at 775, 607 S.E.2d at 754 (quoting Tart v.

Commonwealth, 17 Va. App. 384, 388, 437 S.E.2d 219, 221 (1993)); see also United States v.

Leon, 468 U.S. 897, 914 (1984) (“Reasonable minds frequently may differ on the question

whether a particular affidavit establishes probable cause, and we have thus concluded that the

preference for warrants is most appropriately effectuated by according ‘great deference’ to a

magistrate’s determination.”); United States v. Ventresca, 380 U.S. 102, 109 (1965) (reasoning

that “the resolution of doubtful or marginal cases in this area should be largely determined by the

preference to be accorded to warrants”).

            B. THE PROBABLE CAUSE REQUIREMENT FOR ANTICIPATORY
               SEARCH WARRANTS

              As a preliminary matter, we must address the interplay between a case from the Supreme

Court of the United States and Virginia precedent involving the probable cause required to

support anticipatory search warrants.5 The Supreme Court addressed anticipatory search


                                                            
              5
          Decisions from the Supreme Court of the United States involving the analysis of the
Fourth Amendment impact our prior decisions involving similar issues despite the fact that
Article I, Section 10 of the Virginia Constitution also prohibits unlawful searches and seizures.
See Lowe v. Commonwealth, 230 Va. 346, 348 n.1, 337 S.E.2d 273, 274 n.1 (1985) (explaining
that the rights protected by the Virginia Constitution are co-extensive with the rights protected by
similar provisions of the United States Constitution).
                                                               -8-
warrants in United States v. Grubbs, 547 U.S. 90 (2006). In that case, the Supreme Court

explained that “[a]n anticipatory warrant is ‘a warrant based upon an affidavit showing probable

cause that at some future time (but not presently) certain evidence of crime will be located at a

specified place.’” Id. at 94 (quoting 2 Wayne R. LaFave, Search and Seizure § 3.7(c), at 398

(4th ed. 2004)). “Anticipatory warrants are . . . no different in principle from ordinary warrants.”

Id. at 96. Like all warrants, the Fourth Amendment requires anticipatory search warrants to be

supported by probable cause. See U.S. Const. amend. IV (stating “no Warrants shall issue, but

upon probable cause” (emphasis added)). “Because the probable-cause requirement looks to

whether evidence will be found when the search is conducted, all warrants are, in a sense,

‘anticipatory.’” Grubbs, 547 U.S. at 95 (emphasis in original).

       “[W]hen 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 96 (quoting United

States v. Garcia, 882 F.2d 699, 702 (2d Cir. 1989)). “Most anticipatory warrants subject their

execution to some condition precedent other than the mere passage of time--a so-called

‘triggering condition,’” such as the delivery of a parcel to a specified individual at a specified

address. Id. at 94.

               If the government were to execute an anticipatory warrant before
               the triggering condition occurred, there would be no reason to
               believe the item described in the warrant could be found at the
               searched location [because,] by definition, the triggering condition
               which establishes probable cause has not yet been satisfied when
               the warrant is issued.

Id.

       The Supreme Court described the probable cause determination required for the issuance

of an anticipatory search warrant as a two-pronged inquiry.


                                                    -9-
                             [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,” 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.

Id. at 96-97 (quoting Gates, 462 U.S. at 238).

              Before Grubbs, this Court held that “an anticipatory warrant is valid so long as there is

probable cause to believe that the contraband will be located on the premises at the time the

warrant is executed.” McNeill v. Commonwealth, 10 Va. App. 674, 680, 395 S.E.2d 460, 463

(1990). This Court explained that the probable cause required to support an anticipatory warrant

may be established by showing that the contraband to be seized under the warrant is on a “sure

course” to the premises to be searched. Id. at 680, 395 S.E.2d at 463-64. Under such

circumstances, police involvement in the delivery of the contraband does “nothing to create or

enhance the crime.” Id. at 678, 395 S.E.2d at 462.

              Based on the “sure course” analysis outlined in McNeill, Taylor contends that Perry’s

affidavit failed to establish a sufficient nexus between his residence at 6555 Pounding Mill

Branch Road and the intercepted package of bath salts. Taylor argues that the package was

initially sent to a house with a dissimilar address in a different community, and he maintains that

the contraband at issue in this case would have never reached his home in Pounding Mill if the

police had not intervened and diverted the package.

              Virginia courts have not addressed how the Grubbs decision affects the “sure course”

analysis previously applied in our precedent.6 We observe, however, that Grubbs did not


                                                            
              6
         The Supreme Court of Virginia previously noted that this Court addressed the “sure
course” requirement in Ward v. Commonwealth, 47 Va. App. 733, 746, 627 S.E.2d 520, 526
                                               - 10 -
expressly impose a “sure course” requirement. Grubbs does not mention “sure course” analysis

anywhere in the decision, despite the fact that many jurisdictions applied “sure course” analysis

at the time. See, e.g., United States v. Dennis, 115 F.3d 524, 530 (7th Cir. 1997); United States

v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir. 1988); United States v. Hale, 784 F.2d 1465, 1468

(9th Cir. 1986); McNeill, 10 Va. App. at 680, 395 S.E.2d at 463-64.

              We conclude that Grubbs does not require a package to be on a “sure course” to the

premises to be searched as a condition precedent to the issuance of an anticipatory search

warrant. Rather, Grubbs only requires anticipatory search warrants to be supported by probable

cause. Specifically, Grubbs requires anticipatory warrants to be supported by probable cause

establishing: (1) that the triggering condition of the warrant is likely to occur, and (2) that

contraband or evidence of crime will likely be found on or in the premises to be searched upon

the occurrence of the triggering condition. See Grubbs, 547 U.S. at 96-97.

              While the “sure course” analysis outlined in McNeill may be sufficient to establish

probable cause regarding the two conditions set forth in Grubbs, we conclude that it is merely

one way of establishing a constitutionally sufficient nexus between a package and the premises

to be searched. In certain circumstances, a sufficient nexus between a package containing

contraband and a specified location may be established even when the package is not on a “sure

course” to that destination. Having set forth these principles, we turn to the facts of the present

case to determine whether the warrant at issue was supported by sufficient probable cause.




                                                            
(2006), on the same day of the Grubbs decision. See Ward, 273 Va. at 221, 639 S.E.2d at 274.
The Supreme Court, however, declined to “resolve whether the Court of Appeals analysis [met]
the requirements of Grubbs” and decided the case based on the application of the good faith
exception outlined in Leon. See id.
                                                               - 11 -
      C. PROBABLE CAUSE SUPPORTED THE ANTICIPATORY SEARCH WARRANT
         ISSUED IN THIS CASE

          “[T]he existence of probable cause is determined by examining the

totality-of-the-circumstances.” Anzualda, 44 Va. App. at 774, 607 S.E.2d at 754 (quoting Janis

v. Commonwealth, 22 Va. App. 646, 651-52, 472 S.E.2d 649, 652 (1996)). Probable cause for

the issuance of a search warrant exists when, “given all the circumstances . . . , there is a fair

probability that contraband or evidence of a crime will be found in a particular place.” Tart, 17

Va. App. at 387, 437 S.E.2d at 221. “When determining whether probable cause exists, the

magistrate may draw reasonable inferences from the material supplied to him.” Anzualda, 44

Va. App. at 775, 607 S.E.2d at 754. In addition to the “sworn, written facts stated in the search

warrant affidavit,” a magistrate may also consider the “information simultaneously presented . . .

by sworn oral testimony.” Adams v. Commonwealth, 275 Va. 260, 270, 657 S.E.2d 87, 93

(2008).

          As previously stated, an application for an anticipatory search warrant must establish

that: (1) the triggering condition of the warrant is likely to occur, and (2) contraband or evidence

of crime will likely be found on or in the premises to be searched upon the occurrence of the

triggering condition. See Grubbs, 547 U.S. at 96-97. The warrant at issue in the present case is

somewhat of a “hybrid” warrant. The warrant is not entirely an anticipatory search warrant

because it was partially based on information that implied contraband would be found at Taylor’s

residence at the time the warrant was issued (i.e. before the police delivered the intercepted

package). The warrant, however, was conditioned on Taylor’s acceptance of the package, and

therefore, based partially on the occurrence of a future event. Thus, the warrant is, in part, an

anticipatory warrant. In light of the condition placed on the warrant and the fact that the charges




                                                    - 12 -
to which Taylor pled guilty were based on the contraband contained in the intercepted package,

we view the warrant as an anticipatory search warrant in our analysis of this case.

       While the contraband in the present case may or may not have been on a “sure course” to

Taylor’s residence in Pounding Mill, the totality of the circumstances established a nexus

between the contraband contained in the intercepted package and Taylor’s home. The package

itself was addressed to “Dave Taylor,” and DMV records established that “Rudolph David

Taylor” lived at 6555 Pounding Mill Branch Road in Pounding Mill, Virginia. Therefore, the

intended recipient listed on the intercepted package directly linked it to the residence in

Pounding Mill.

       More importantly, the waybill that Elswick provided to the police showed that Taylor had

received a similar package at his residence in Pounding Mill approximately two months earlier.

Like the intercepted package, the package referenced in the waybill was sent to Tazewell County

from Shijazhuang, China. That package was delivered to 6555 Pounding Mill Branch Road, and

accepted by an individual who signed as “R. Taylor.” 

       Taylor was also linked to the contents of the intercepted package. The intercepted

package contained bath salts, and police from the Sheriff’s Office had been investigating Taylor

for his involvement in the distribution of bath salts in the area for eight months. When Elswick

was arrested for possessing bath salts, she told the police that she had received them from Taylor.

She also told the police that Taylor ordered the bath salts online and received them in the mail.

The waybill provided by Elswick suggested that Taylor received bath salts from a supplier in a

foreign country.

       These circumstances provided sufficient probable cause to support the issuance of an

anticipatory search warrant. The intercepted package was linked to Taylor’s residence in

Pounding Mill by both its contents and Taylor’s past actions. The nexus established between the
                                                   - 13 -
package and Taylor’s residence satisfied both conditions required by Grubbs. Based on Taylor’s

alleged involvement in the distribution of bath salts and his prior receipt of a similar package at

his residence, the magistrate issuing the anticipatory warrant could reasonably conclude that

Taylor would accept the intercepted package when it was delivered by the police and that

contraband would be found inside of his home when the search warrant was executed.

            D. TAYLOR’S ARGUMENT CONCERNING THE TRIGGERING CONDITION
               OF THE ANTICIPATORY SEARCH WARRANT

              On appeal, Taylor contends that the occurrence of the triggering condition set forth in the

anticipatory warrant did not establish sufficient probable cause to support a search of his

residence. As the warrant was conditioned on Taylor’s mere acceptance of the package, Taylor

argues that the occurrence of the triggering condition failed to establish probable cause to believe

that contraband or other evidence of criminal activity would be found inside of his house. While

the magistrate issuing the warrant and the police executing it could have reasonably believed that

Taylor would possess contraband on his person if he accepted the package, Taylor maintains that

the same inference did not extend to inside of his residence because he was arrested before he

took the package into his home.7

              This argument assumes that the probable cause supporting the anticipatory warrant was

limited to the occurrence of the triggering condition. As previously discussed, the totality of the

circumstances of the present case established sufficient probable cause to support the search

warrant. The investigation of Taylor by the Sheriff’s Office implied that he was involved in an


                                                            
              7
         At the suppression hearing, the officers participating in the search testified that they
arrested Taylor outside of his residence due to concerns for their personal safety. The officers
noted that Taylor had numerous video cameras positioned around his house that provided live
video feeds into a console that was visible in his living room. Additionally, the officers
explained that individuals acting under the influence of bath salts may potentially act
aggressively or become violent. 
                                                               - 14 -
ongoing criminal enterprise of distributing bath salts and that he had previously received a

package at his home in Pounding Mill that was similar to the intercepted package known to

possess those substances.

               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. In the case of drug
               dealers, evidence of that on-going criminal activity is likely to be
               found where the dealer resides.

Cunningham v. Commonwealth, 49 Va. App. 605, 613, 643 S.E.2d 514, 518 (2007) (quoting

Gwinn v. Commonwealth, 16 Va. App. 972, 975-76, 434 S.E.2d 901, 904 (1993)). Accordingly,

a magistrate may reasonably infer that drugs, drug paraphernalia, or other evidence of

drug-related activity will be found in a suspected drug dealer’s residence. Id.

       We conclude that the totality of the circumstances of this particular case established a

reasonable probability that contraband and evidence pertaining to the distribution of bath salts

would be found inside of Taylor’s house.

      E. SOURCE OF THE INFORMATION CONTAINED IN PERRY’S AFFIDAVIT

       Taylor contends that the warrant was defective because Perry failed to reveal the source

of the information contained in his affidavit or provide the magistrate with any information

establishing the credibility and reliability of his informant. We acknowledge that Perry’s

affidavit was not drafted with precision. After reviewing the record, however, we conclude that

Taylor’s arguments concerning these issues are without merit.

       Taylor maintains that Perry’s affidavit was based on information obtained from a third

party rather than his personal knowledge. Despite this fact, Taylor contends that Perry

erroneously indicated that he had personal knowledge of the facts supporting the warrant by

checking a box on the affidavit form. Taylor argues that Perry failed to inform the magistrate



                                                  - 15 -
that the facts supporting the affidavit were obtained from Elswick and that he failed to supply the

magistrate with any information establishing her credibility and reliability.8

              Taylor’s argument fails when Perry’s statements in the affidavit are considered along

with his testimony at the suppression hearing. In the affidavit, Perry states that some of the

information presented to support the warrant was obtained through “[a]n on-going investigation

over the past eight months.” Thus, the affidavit indicated that it was based on more than Perry’s

personal knowledge.

              Moreover, at the suppression hearing, Perry explained that he provided a synopsis of the

investigation when he testified under oath before the reviewing magistrate. When deciding the

question of whether probable cause supports the issuance of a search warrant, we may consider

the “sworn, written facts stated in the search warrant affidavit” and the “information

simultaneously presented to a magistrate by sworn oral testimony.” Adams, 275 Va. at 270, 657

S.E.2d at 93. “[A]n insufficient affidavit may be supplemented or rehabilitated by information

disclosed to the issuing magistrate upon application for the search warrant.” McCary v.

Commonwealth, 228 Va. 219, 231, 321 S.E.2d 637, 643 (1984).

              Although Perry’s testimony at the suppression hearing did not provide the details of his

synopsis of the investigation, we can reasonably conclude that his synopsis included the

information obtained from Elswick and explained its source. The information that Elswick


                                                            
              8
                   We note that most of the statements contained in Perry’s affidavit were not based solely
on information obtained from Elswick. His statements concerning the intercepted package came
directly from the DHS agent participating in the investigation. Additionally, his statement
concerning the delivery of a similar package to Taylor’s residence in August of 2013 was based
on both Elswick’s statements to the police and the consideration of the waybill that she provided.
Similarly, Perry verified Taylor’s address through DMV records rather than the information
provided by Elswick. The only information provided by Elswick that was not verified by
additional documentary evidence concerned Taylor’s ongoing distribution of bath salts from his
home in Pounding Mill. 
                                                               - 16 -
provided to the police was central to their investigation of Taylor, and Perry’s affidavit expressly

referenced information obtained from the waybill provided by Elswick. Under these

circumstances, we can reasonably infer that Perry’s testimony before the magistrate described

Elswick’s role in the investigation.

       Additionally, we note that the information that Elswick provided to the police was

corroborated by the intercepted package. Elswick told the police that Taylor distributed bath

salts that he received in the mail, and she gave the police a waybill referencing a package of bath

salts that Taylor had received. The intercepted package contained bath salts, it named Taylor as

its intended recipient, and it was sent from the same city in China as the package referenced in

the waybill provided by Elswick. Thus, the package provided corroborating evidence supporting

the credibility of Elswick’s statements.

       Applying our deferential standard of appellate review, we conclude that Perry informed

the magistrate of Elswick’s role in the investigation when he testified before her under oath. We

also find that the intercepted package corroborated Elswick’s statements to the police.

Accordingly, we reject Taylor’s arguments concerning the inadequacies surrounding the source

of the information in Perry’s affidavit.

      F. THE ANTICIPATORY SEARCH WARRANT WAS NOT BASED ENTIRELY
         ON STALE INFORMATION

       Taylor contends that the search warrant was based on information that was too stale to

establish a reasonable probability that contraband would be found in his residence when the

police performed the search. We disagree.

       Taylor’s argument is based primarily on the statements that Elswick made to the police

and the waybill that she provided concerning the package that Taylor previously received from

China at his residence in Pounding Mill. The waybill established that the package was sent to


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Taylor from China on August 12, 2013. Although Perry did not specify if Elswick made

statements to the police on multiple occasions, he testified at the suppression hearing that he and

another officer interviewed her about Taylor’s involvement in the distribution of bath salts on

August 21, 2013. As the anticipatory search warrant involved in this case was issued on October

30, 2013, the waybill and Elswick’s statements referenced events that were over two months old

at the time of the magistrate’s probable cause determination. Taylor contends that this stale

information could not establish sufficient probable cause to support the warrant.

       “[A] finding of probable cause to search must be based upon facts reasonably related in

time to the date of the issuance of the warrant[.]” Huff v. Commonwealth, 213 Va. 710, 716,

194 S.E.2d 690, 695 (1973). “‘[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.’” Anzualda, 44 Va. App. at 776, 607 S.E.2d at 755 (quoting

Johnson v. Commonwealth, 259 Va. 654, 671, 529 S.E.2d 769, 778 (2000)). “Generally, ‘there

is no fixed standard or formula establishing a maximum allowable interval between the date of

events recited in an affidavit and the date of a search warrant.’” Id. “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” to determine whether a warrant

was impermissibly based on stale information. Id. (quoting Perez v. Commonwealth, 25

Va. App. 137, 142, 486 S.E.2d 578, 581 (1997)).

       Taylor’s argument fails to consider the totality of the circumstances supporting the

issuance of the search warrant in the present case. Additional facts supported the warrant beyond

Elswick’s statements about Taylor’s criminal activity and the waybill that she provided to the

police, namely the interception of the package containing bath salts that listed Taylor as its
                                                   - 18 -
intended recipient. Unlike Elswick’s statements and the waybill, the interception of the package

occurred shortly before the warrant was issued and executed. Customs and Border Patrol agents

intercepted the package eight days before it was delivered to Taylor’s residence.

       When Elswick’s statements and the waybill were considered along with the intercepted

package and the contraband that it contained, the magistrate could have inferred that Taylor was

engaged in a continuing criminal enterprise involving the distribution of bath salts at the time the

warrant was issued. From this inference, the magistrate could have reasonably concluded that

contraband and evidence pertaining to Taylor’s criminal activity would be found inside of his

home when the police executed the warrant.  

                                       III. CONCLUSION

       In summary, we conclude that the search warrant authorizing the search of Taylor’s

residence at 6555 Pounding Mill Branch Road was supported by probable cause. The facts

alleged by Perry in his affidavit supporting his request for the warrant and in his sworn testimony

before the magistrate established a probability that Taylor would accept the package upon

delivery and that contraband and evidence of criminal activity would be found in his home.




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For these reasons, we affirm the circuit court’s decision denying Taylor’s motion to suppress the

evidence found at his residence.9

                                                                                       Affirmed.




                                                            
              9
         Although both parties addressed the application of the good faith exception outlined in
Leon, 468 U.S. 897, in their appellate briefs, our resolution of this case does not require us to
address this issue. While we express no opinion as to the applicability of the good faith
exception under the facts of this case, we acknowledge that a decision concerning that exception
may have provided a narrower holding. See Johnson v. Commonwealth, 45 Va. App. 113, 117
n.3, 609 S.E.2d 58, 60 n.3 (2005) (noting our “desire to decide [cases] on the best and narrowest
ground available”). “However, we also believe that consistently sidestepping the issue of
probable cause in favor of applying the good faith exception will inevitably permit the exception
to swallow the rule.” Anzualda, 44 Va. App. at 774 n.3, 607 S.E.2d at 754 n.3. As the present
case involved a “novel question of law,” we elected to address the merits of this case to provide
guidance to magistrates and law enforcement officers who may be confronted with this issue in
the future. See id.
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