                   COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia


SYLVESTER AARON BAKER
                                         MEMORANDUM OPINION * BY
v.   Record No. 1142-00-3               JUDGE SAM W. COLEMAN, III
                                              JUNE 19, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                    Charles J. Strauss, Judge

          J. Patterson Rogers, III, for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Sylvester Aaron Baker, appellant, appeals his felony

conviction of possession of a firearm by a convicted felon, in

violation of Code § 18.2-308.2.   Appellant presents three issues

for review:   (1) whether the search warrant's affidavit

contained adequate indicia of the informer's reliability to

establish probable cause; (2) whether the good faith exception

to the exclusionary rule applies; and (3) whether the evidence

was sufficient to find appellant in possession of the firearm.

Although the affidavit did not provide adequate indicia of the

informer's reliability to establish probable cause, the officers

acted in good faith reliance on the validity of the search

     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
warrant.   Further, the evidence supported the finding that

appellant was in possession of the firearm.   Therefore, the

judgment of the trial court is affirmed.

                            BACKGROUND

     In support of a request for a search warrant for

appellant's residence, Investigator Jesse Tate cited the

following material facts in his affidavit to establish probable

cause:

           Within the past forty-eight hours, an
           informant visited the residence . . . and
           saw crack cocaine on the premises. Crack
           cocaine remained on the premises when the
           informant left the residence. The informant
           also stated that the persons at the
           residence also keep cocaine on there [sic]
           person.

To establish the informer's reliability, the affidavit stated:

           The informant . . . has provided information
           to the Pittsylvania County Sheriffs [sic]
           Office in the past that has been true and
           reliable[.] This informant also is aware of
           what crack cocaine is and knows what it
           looks like. The Pittsylvania County
           Sheriffs [sic] Office has received numerous
           complaints in the past regarding narcotic
           activity at the residence . . . .

     When Tate, and eight members of a S.W.A.T. team, executed

the search warrant, Tate found appellant lying in his bed.

Appellant told Tate he did not have any weapons in the room.

Tate directed another deputy sheriff to search appellant, who is

a paraplegic.   Appellant then told Tate he was lying on a gun.



                                -2-
They retrieved a 9 mm handgun that was under a pad, below

appellant's right hip, and within his reach.

     Appellant's stepson, Kevin Coleman, testified he owned the

handgun found in appellant's bed.       He stated he had been to the

residence the day before the search warrant was executed and had

taken a nap in appellant's bed.    He testified he placed the gun

under the bedding near the foot of the bed.      When he left for

work, he forgot about the gun.    He called appellant later that

evening to tell him about the gun and that he would come the

next day to retrieve it.

     Appellant testified that Coleman called him to tell him

about the gun.   He conceded he "probably" touched the gun and

looked at it, but that he could not put it out of his reach

because he is paralyzed from the upper chest down to his lower

extremities.    Although he had relatives who lived nearby, he did

not trust them to take possession of the gun and decided to wait

for Coleman to come the next day to get it.      He initially forgot

about the gun when the deputies arrived, but told Tate about the

weapon when he remembered.

                              ANALYSIS

                         The Search Warrant

     "The fourth amendment requires that a warrant to search

shall issue only on probable cause supported by oath or

affirmation."    Boyd v. Commonwealth, 12 Va. App. 179, 185,

402 S.E.2d 914, 918 (1991).
                                  -3-
          The probable cause inquiry conducted by the
          magistrate entails "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 crime will
          be found in a particular place." Appellate
          review of a magistrate's probable cause
          determination is deferential in nature. [A]
          reviewing court must decide "whether the
          evidence viewed as a whole provided a
          'substantial basis' for the [m]agistrate's
          finding of probable cause."

Id. at 185-86, 402 S.E.2d at 918 (citations omitted).     "A

probable cause determination breaks down into 'the informant's

veracity or reliability and his basis of knowledge.'"     Corey v.

Commonwealth, 8 Va. App. 281, 287, 381 S.E.2d 19, 22 (1989)

(citation omitted).

     "The reliability of any informant . . . can be demonstrated

if the affidavit states that the informant has given information

which has proven correct, if there is corroboration of other

information supplied by the informant, or if the informant makes

a declaration against his own penal interests."   Id. at 288,

381 S.E.2d at 23 (citations omitted).   "A mere allegation that

the affiant has 'received information from a reliable informant'

is insufficient to show that an informant is credible, or that

his information is reliable."   Id. (citation omitted).    The

magistrate cannot rely on the conclusory averments of the

affiant, or those of the informant, id. at 288, 381 S.E.2d at

22, without a showing of why the informant is reliable and how


                                -4-
recently he has given information that proved to be reliable.

See Wiles v. Commonwealth, 209 Va. 282, 163 S.E.2d 595 (1968).

     While the affidavit suggested the informant had personal

knowledge of the presence of crack cocaine in the residence by

virtue of his having been in the residence, the affidavit does

not give an adequate showing of the informant's reliability or

credibility.   Tate presented conclusory statements that his

informant had given reliable information in the past and failed

to articulate how the sheriff's office confirmed the reliability

of the informant's information by indicating whether the

information led to arrests or was corroborated by further

investigation.   Tate also failed to establish how recently in

the past the informant proved to be reliable.

     Additionally, Tate failed to show any corroboration of the

informant's information about appellant's residence.   Stating

that the sheriff's office had received numerous complaints of

narcotic activity at the residence did not provide adequate

probable cause or credible corroboration of the information.

See id. at 286, 163 S.E.2d at 598.    Therefore, the magistrate

did not have sufficient probable cause from the affidavit to

have issued the search warrant.

     However, "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."    United States v. Leon,
                               -5-
468 U.S. 897, 918 (1984).   "The purpose of the exclusionary rule

historically was to deter police misconduct rather than to

punish the errors of magistrates.      This deterrent is absent

where an officer, acting in objective good faith, obtains a

search warrant from a magistrate and acts within the scope of

the warrant."    Derr v. Commonwealth, 242 Va. 413, 422,

410 S.E.2d 662, 667 (1991) (citation omitted).     "Unless a

magistrate has abandoned his detached and neutral role,

suppression is only appropriate if an officer is dishonest or

reckless in preparing his affidavit or could not have 'harbored

an objectively reasonable belief in the existence of probable

cause.'"    Corey, 8 Va. App. at 288, 381 S.E.2d at 23 (citation

omitted).

     The record does not suggest that Tate acted dishonestly or

recklessly in obtaining the search warrant.     Tate was familiar

with his informant and articulated facts he thought sufficient

to establish probable cause.

            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 to 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. "[O]nce the warrant
            issues, there is literally nothing more the
            policeman can do in seeking to comply with
            the law."



                                 -6-
Leon, 468 U.S. at 921 (citation omitted).    Tate, therefore,

acted in good faith reliance on the validity of the search

warrant and the trial court did not err by refusing to suppress

the firearm.

                      Sufficiency of the Evidence

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"     Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).    "The credibility of the witnesses and the

weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as

it is presented."     Sandoval v. Commonwealth, 20 Va. App. 133,

138, 455 S.E.2d 730, 732 (1995).    "In its role of judging

witness credibility, the fact finder is entitled to disbelieve

the self-serving testimony of the accused . . . ."       Marable v.

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235

(1998).   The trier of fact is not required to accept a party's

evidence in its entirety, Barrett v. Commonwealth, 231 Va. 102,

107, 341 S.E.2d 190, 193 (1986), but is free to believe and

disbelieve in part or in whole the testimony of any witness,

Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823,

830 (1991).

     In the light most favorable to the Commonwealth, the

evidence proved appellant denied having any weapons until Tate
                               -7-
advised appellant he would be searched.   At that point,

appellant told Tate he was lying on a gun.   The officer

retrieved a gun from underneath a pad beneath appellant's right

hip.

       Under a theory of constructive possession, "the

Commonwealth must point to evidence of acts, statements, or

conduct of the accused or other facts or circumstances which

tend to show that the defendant was aware of both the presence

and character of the [contraband] and that it was subject to his

dominion and control."    Powers v. Commonwealth, 227 Va. 474,

476, 316 S.E.2d 739, 740 (1984).   Appellant conceded knowledge

by revealing to Tate the presence and location of the gun.

Appellant also conceded exercise of dominion and control when he

admitted that he "probably" retrieved the gun and looked at it.

       Code § 18.2-308.2 also requires a finding that the

possession be intentional.   Even assuming the trial court found

appellant's evidence to be credible, the evidence, nevertheless,

proved intentional possession of the firearm.   While appellant's

paralysis may have precluded him from personally dispossessing

himself of the gun, nothing prevented him from calling friends,

family or neighbors to remove the gun or demanding that his

stepson immediately return to retrieve the gun.   Nor does his

paralysis explain why he secreted the gun with its ammunition

back under the bedding.   These facts show appellant

intentionally maintained possession of the firearm.      Therefore,
                               -8-
the evidence established beyond a reasonable doubt that

appellant, a convicted felon, possessed a firearm.

     For the foregoing reasons, the judgment of the trial court

is affirmed.

                                        Affirmed.




                               -9-
                              MEMORANDUM


TO:        Cynthia L. McCoy, Clerk
           Court of Appeals of Virginia

FROM:      Judge Coleman

DATE:      May 31, 2001

RE:        Sylvester Aaron Baker
           v. Commonwealth of Virginia
           Record No. 1142-00-3
           (April 4, 2001 -- Salem Panel)


      Attached is a final memorandum opinion in the above-styled case. The
record and briefs are also enclosed.

                                            Sincerely,

                                            Sam W. Coleman

(M1142003.Mem)




                                    -10-
