                                               COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Alston and Decker
              Argued by teleconference
UNPUBLISHED




              COMMONWEALTH OF VIRGINIA
                                                                                MEMORANDUM OPINION* BY
              v.      Record No. 1841-17-2                                     JUDGE MARLA GRAFF DECKER
                                                                                      MAY 1, 2018
              CLINT WAYNE COCKRILL


                                  FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                                                  Joseph J. Ellis, Judge

                                 Liam A. Curry, Assistant Attorney General (Mark R. Herring,
                                 Attorney General, on briefs), for appellant.

                                 Stuart C. Sullivan, III (Stuart C. Sullivan & Carolyn S. Seklii,
                                 Attorneys at Law, P.L.C., on brief), for appellee.


                      Clint Wayne Cockrill (the defendant) was indicted for conspiracy to manufacture marijuana

              and possession of marijuana with the intent to manufacture in violation of Code §§ 18.2-248.1(c)

              and -256.1 The defendant filed a pretrial motion to suppress evidence, which he alleged was

              obtained during an unlawful search. After a hearing, the circuit court granted the motion and

              suppressed the evidence. Pursuant to Code §§ 19.2-398 and -400, the Commonwealth appeals that

              pretrial ruling.

                      The Commonwealth contends, among other things, that the discovery of the evidence was

              reasonable under the Fourth Amendment to the United States Constitution because the defendant

              did not challenge the presumption that the search warrant was valid and supported by probable


                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                      1
                        The Commonwealth also appeals the suppression order issued in the case concerning
              the co-defendant, Sarah Beth Smith. See Commonwealth v. Smith, No. 1840-17-2 (Va. Ct. App.
              Jan. 9, 2018). The Court resolves the appeals in separate, simultaneously issued opinions.
cause. The record, viewed under the appropriate legal standard, supports the conclusion that the

circuit court erred because the evidence against the defendant was obtained through an unchallenged

search warrant. Consequently, we reverse the circuit court’s ruling suppressing the evidence and

remand the case for further proceedings consistent with this opinion.

                                       I. BACKGROUND2

       On March 29, 2016, Detective Kelly Mills, an investigator with the Spotsylvania County

Sheriff’s Office, received information from an anonymous caller. The caller claimed that the

defendant was growing marijuana, convicted of sex crimes against a child, and possibly living

with children at a certain address. Through her investigation, Mills learned that the defendant

and Smith were married, Smith lived at the given address, and she had children. In addition, a

guardian ad litem informed Mills of concerns over the welfare of Smith’s children and possible

marijuana in the home. The children’s father told Mills that the children had described

marijuana growing in the basement of the residence. The detective decided to conduct a

“welfare check” with the “Narcotics Unit . . . on standby.”

       On April 14, 2016, Detective Mills, six narcotics investigators, Joanna Abe (the guardian

ad litem assigned to the case), and Amanda Ball from Child Protective Services went to Smith’s

listed residence. When law enforcement parked in front of the home, the smell of marijuana

emanated from the open front door of the house to the street. As the officers approached the

front door on foot the smell got stronger.




       2
         On review of a ruling on a motion to suppress, this Court views the evidence in the light
most favorable to the party who prevailed below, in this case the defendant. See Commonwealth
v. Smith, 281 Va. 582, 588, 709 S.E.2d 139, 141 (2011); Commonwealth v. Peterson, 15
Va. App. 486, 487, 424 S.E.2d 722, 723 (1992). This Court is “bound by the trial court’s
findings of historical fact unless ‘plainly wrong’ or without evidence to support them.” Scott v.
Commonwealth, 68 Va. App. 452, 458, 809 S.E.2d 254, 257 (2018) (quoting McGee v.
Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc)).
                                                -2-
          Detective Mills spoke with Smith at the front door. She asked about the defendant, and

Smith informed her that he was not at home. Mills, Abe, Ball, and at least four narcotics officers

entered the home. Law enforcement had no specific information that Cockrill was present and

did not hear sounds indicating anyone moving around in the house hidden from view.

Nonetheless, the officers conducted a “sweep” of the rooms looking for anyone there with a gun.

While doing so, they came upon a locked door to a room in the basement.

          At that point, one law enforcement officer remained at the locked door while Detective

Gregory Hamilton, with the Spotsylvania County Sheriff’s Office, obtained a search warrant.

Once Hamilton returned with the search warrant, law enforcement searched the house and in the

locked room found marijuana plants and growing equipment consisting of a hose, power

inverters, grow lights, light bulbs, and a book about hydroponics. As a result, the defendant was

indicted for conspiracy to manufacture marijuana and possession of marijuana with the intent to

manufacture it.

          The defendant filed a pretrial motion to suppress evidence. In his motion, he argued that

law enforcement’s entry into the home and protective sweep were unconstitutional. The

defendant suggested that “any evidence seized from the home as a result of these several

violations of his constitutional rights” should be suppressed. The defendant did not challenge the

search warrant.3 The circuit court granted the motion to suppress, which resulted in this pretrial

appeal.

                                            II. ANALYSIS

          On appeal of an order granting a defendant’s motion to suppress evidence, the

Commonwealth has the burden to show that the ruling constituted reversible error. See Murphy v.



          3
        Indeed, the prosecutor pointed this out during argument, and the defendant still did not
challenge the warrant’s validity during rebuttal.
                                                -3-
Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). When reviewing this ruling, the

appellate court is bound by the circuit court’s findings of fact unless “plainly wrong or without

evidence to support them.” Gregory v. Commonwealth, 64 Va. App. 87, 93, 764 S.E.2d 732, 735

(2014) (citing Code § 8.01-680). Further, we “give due weight to the inferences drawn from [the]

facts” by the circuit court judge and law enforcement. Scott v. Commonwealth, 68 Va. App. 452,

458, 809 S.E.2d 254, 257 (2018) (quoting McGee v. Commonwealth, 25 Va. App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc)). Ultimately, however, the Court reviews de novo the overarching

question of whether a search or seizure violated the Fourth Amendment. Glenn v. Commonwealth,

275 Va. 123, 130, 654 S.E.2d 910, 913 (2008).

       The Commonwealth argues that the marijuana and related evidence discovered pursuant to

the search warrant were admissible because the defendant did not challenge the warrant below.4

Applying the proper standard of review to the facts in the record, we hold that the circuit court erred

in granting the motion to suppress because the officers obtained the marijuana and other inculpatory

evidence through the unchallenged search warrant. Therefore, we reverse the circuit court’s ruling.

       The defendant’s motion to suppress challenged only the police entry into the house and the

protective sweep. See, e.g., Russell v. Commonwealth, 33 Va. App. 604, 609, 535 S.E.2d 699, 701

(2000) (“At a hearing on a defendant’s motion to suppress, the Commonwealth has the burden of

proving the challenged action did not violate the defendant’s constitutional rights.” (Emphasis

added)). As far as we can discern, law enforcement did not observe “any contraband” or seize

anything during the initial entry or protective sweep. In contrast, the search conducted pursuant to

the warrant yielded marijuana plants and equipment indicating that the plants were being grown at


       4
          The Commonwealth argues in the alternative that the protective sweep was
constitutional, the good-faith exception to the exclusionary rule should apply, and the
suppression order was erroneously broader than the letter opinion’s holding. We do not consider
these arguments in light of our holding that the challenged evidence was discovered pursuant to
the unchallenged search warrant.
                                                -4-
the residence. The defendant did not challenge the search warrant and specifically conceded that

probable cause for a search warrant existed before law enforcement approached the house. See

generally Logan v. Commonwealth, 47 Va. App. 168, 172 n.4, 622 S.E.2d 771, 773 n.4 (2005)

(noting that a concession can constitute waiver).

          The law is well established that we presume the validity of a search conducted by law

enforcement “pursuant to a warrant issued by a magistrate.” Felton v. Commonwealth, 56 Va. App.

43, 48, 690 S.E.2d 318, 321 (2010). “[T]he inclusion of tainted evidence does not [necessarily]

invalidate” the warrant. Williams v. Commonwealth, 26 Va. App. 612, 619, 496 S.E.2d 113, 116

(1998) (quoting United States v. Wright, 991 F.2d 1182, 1186 (4th Cir. 1993)). “[S]uppression is

not required ‘if, excluding the illegally obtained information, probable cause for the issuance of the

warrant could still be found.’” Id. (quoting United States v. Apple, 915 F.2d 899, 910 (4th Cir.

1990)).

          In determining whether an “affidavit was sufficient to support the search warrant,” the

reviewing court “must look to the totality of the circumstances.” Hicks v. Commonwealth, 281 Va.

353, 359, 706 S.E.2d 339, 342 (2011). “[W]hen ‘there is a fair probability that contraband or

evidence of a crime will be found in a particular place,’” probable cause exists to support the

warrant. Id. (quoting Jones v. Commonwealth, 277 Va. 171, 178, 670 S.E.2d 727, 731 (2009)).

          Although the defendant challenged the entry and protective sweep as unconstitutional, he

was not precluded from also challenging the search warrant as lacking sufficient probable cause to

justify the search after redacting references to information obtained due to the allegedly

impermissible conduct. The defendant, however, did not make such a challenge, either in his

written motion or during the hearing. See Code § 19.2-266.2 (requiring a defense motion to

suppress evidence on Fourth Amendment grounds to be in writing); see also McGhee v.

Commonwealth, 280 Va. 620, 625 n.3, 701 S.E.2d 58, 60 n.3 (2010) (noting that a trial court “may,

                                                  -5-
for good cause shown and in the interest of justice, grant leave for a defendant to amend a motion to

suppress”). The record before us makes clear that the defendant did not challenge the magistrate’s

determination of probable cause, as reflected by issuance of the search warrant. See generally

Gregory, 64 Va. App. at 91, 94-95, 764 S.E.2d at 734-36 (holding that the appellant’s general

allegation of a violation of her Fifth Amendment rights in her motion to suppress did not sufficiently

raise the claim of an unlawful custodial interrogation under Miranda v. Arizona, 384 U.S. 436

(1966)). Accordingly, the defendant did not rebut the presumption of validity of the warrant, and

the circuit court erred by granting the motion to suppress the evidence obtained pursuant to the

search warrant.5

                                         III. CONCLUSION

        We hold that the record, viewed under the appropriate legal standard, establishes that the

inculpatory evidence was discovered pursuant to a search warrant. The defendant did not challenge

the validity of the warrant in the circuit court. Consequently, we reverse the circuit court’s ruling

suppressing the challenged evidence, and we remand the case for further proceedings consistent

with this opinion.

                                                                              Reversed and remanded.




        5
          At this time, we are not asked to decide whether the defendant would be precluded from
filing an additional motion to suppress the evidence on remand. See generally Cole v.
Commonwealth, 294 Va. 342, 353, 806 S.E.2d 387, 393 (2017) (holding that this Court is
authorized to reconsider a constitutional issue raised in a pretrial appeal later on direct appeal
following a conviction).
                                                  -6-
