                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Kelsey, McCullough and Senior Judge Haley
UNPUBLISHED


              Argued at Salem, Virginia


              COMMONWEALTH OF VIRGINIA
                                                                              MEMORANDUM OPINION * BY
              v.     Record No. 1672-12-2                                    JUDGE STEPHEN R. McCULLOUGH
                                                                                  FEBRUARY 26, 2013
              FRANCISCO BECERRA-OCHOA


                                  FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                                                 Jay T. Swett, Judge

                               Rosemary V. Bourne, Assistant Attorney General III (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellant.

                               Adam C. Rhea for appellee.


                     The Commonwealth appeals from an order granting a motion to suppress the fruits of a

              search of Francisco Becerra-Ochoa’s home. We conclude that the judgment below must be

              reversed by virtue of the good faith exception to the exclusionary rule.

                                                         BACKGROUND

                     Two Albemarle County police officers, one of whom was Officer Matthew McCall, arrested

              an individual at a local motel. This individual, Reuben C., 1 had one quarter ounce of marijuana on

              his person. Reuben C. told the officers that he had purchased this marijuana earlier in the day from

              a man he knew as “J.B.” and that J.B. lived in the Greenfield Trailer Park. According to Officer

              McCall, Reuben C. described the location of J.B.’s trailer and further described the trailer as having

              “a glass screen door, a large window in the front, and a small wood fence to the left side of the



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                         Reuben C.’s full name is listed in the affidavit.
trailer.” App. at 103. Reuben C. stated that “he had seen a large amount of marijuana in the trailer

earlier in the day” and that “he had purchased marijuana from J.B. at that location for the past seven

years.” Id. at 103-04.

        Officer McCall prepared an affidavit for a search warrant. He typed the following

paragraph on a preprinted form:

                        On December 31st 2011, Officer Joe Richards and I, Officer
               Matt McCall, arrested an individual name[d] Reuben C[.] on
               several outstanding warrants at the Super 8 motel in Albemarle
               County. At the time of his arrest, Reuben was in possession of a
               small bag of marijuana and a smoking device. Reuben stated that
               he purchased the marijuana today from a subject named “J.B.” at a
               mobile home in the Greenfield trailer park. Reuben described the
               trailer and stated that it was the second trailer on the right just as
               you drive in from Berkmar Drive. Reuben stated that he purchased
               the quarter ounce of marijuana for $40 and observed a large
               amount of marijuana in plain view. Reuben went on to describe
               the trailer, stating that it had a large window in the front, had a
               glass screen door, and there was a small wooden fence around the
               left side of the trailer. Reuben stated that he has been purchasing
               marijuana from J.B. at the same trailer for over seven years. Your
               affiant has over thirteen years of law enforcement experience and
               has made over 100 narcotic related arrests.

Id. at 101.

        The form contained two boxes to be checked. One box was to be checked for situations

where the officer has “personal knowledge of the facts set forth in this affidavit.” The other box

was to be checked when the officer had been “advised of the facts set forth in this affidavit in

whole or in part, by an informer.” In that situation, the form provided that “[t]his informer’s

credibility or the reliability of the information may be determined from the following facts.” Id.

Beneath that sentence was a space for the officer to add text detailing the credibility of the

informant or the reliability of the information supplied by the informant. Officer McCall

checked only the box indicating that he had personal knowledge of the facts set forth in the




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affidavit. He left blank the space provided in the warrant application to set forth a basis for the

credibility of the informant or the reliability of the information supplied by the informant.

       A search of Becerra-Ochoa’s trailer yielded, among other things, a bag of marijuana, a

digital scale, a plant grinder, and a number of smoking devices. Becerra-Ochoa was charged

with possessing more than one-half ounce but less than five pounds of marijuana. He filed a

motion to suppress, contending, among other things, that the search warrant should not have

been issued because Officer McCall, in fact, did not have personal knowledge of the facts set

forth in the affidavit and the informant’s statements were not corroborated.

       At a hearing on the motion to suppress, Officer McCall explained that he personally

arrested the informant named in the affidavit and that it was from this informant that McCall

received the information conveyed in the application for the search warrant. McCall

acknowledged that he did not have personal knowledge of the facts conveyed to him by Reuben

C. He explained that he did not check the box indicating the information was supplied by an

informant because he believed that this box was reserved for confidential informants who are not

named, whereas this informant was named in the affidavit. McCall had not met the informant

prior to arresting him for possession of marijuana. There is no evidence to indicate that Officer

McCall took any steps to corroborate the information supplied to him by the informant. The trial

court found that the factual information conveyed in the affidavit “was all based on what [the

informant] told Officer McCall when he was arrested.”

       Officer McCall further testified that the informant was shown a Google Earth photograph

of the Greenfield Trailer Park, and the informant identified the defendant’s trailer as the one

from which he had purchased marijuana for a period of seven years. Officer McCall stated that

he told the informant that offering information might help reduce a prison sentence. McCall,

however, made no promises of leniency. This fact is not mentioned in the search warrant

                                                -3-
affidavit. Finally, Officer McCall admitted that, although the informant had identified the

trailer’s color as blue, it was actually green.

        The trial court concluded that Officer McCall did not intentionally mislead the magistrate

in filling out the affidavit. The court observed that Officer McCall had not had any prior contact

with Reuben C., nor did the officer conduct an investigation to verify the facts that Reuben C.

provided. The court found that the officer “should have known” that he needed to indicate that

the information was not from his personal knowledge and should have known to provide

information in the affidavit to allow the magistrate to assess the reliability of the informant.

        The court further reasoned that

                        The troubling issue here is the inability of this court to
                determine the basis for the magistrate’s decision to issue the
                warrant. Did the magistrate rely on the fact that the officer
                represented in the affidavit that the officer had personal knowledge
                of the facts that were set forth in the affidavit? Or, did the
                magistrate conclude that the only basis for the facts in the affidavit
                came from [Reuben C.] and since the officer believed that [Reuben
                C.] was credible, then that was sufficient for the magistrate to issue
                the warrant. Or, did the magistrate read the affidavit and make an
                independent determination that although the facts set forth were
                not based on the personal knowledge of Officer McCall, rather
                only on statements from [Reuben C.], the magistrate nevertheless
                made an independent determination that [Reuben C.] was credible
                and that the information he gave was reliable.

                         It is this court’s conclusion that it is not up to a reviewing
                court to guess why a magistrate chose to issue a search warrant
                based on an affidavit that on its face incorrectly states that the facts
                were based on the personal knowledge of the applicant. It is not
                for this court to assume the magistrate overlooked the error and
                made an independent finding of probable cause that included a
                consideration of the reliability and credibility of [Reuben C.].
                Accordingly, the court finds that the warrant was improperly
                issued by the magistrate.

App. at 106-07.

        The court rejected the application of the good faith exception to the exclusionary rule on

two grounds. First, the court noted, the officer
                                                  -4-
               should have known that the information in the affidavit was
               incorrect as to the basis for the facts. Further, the magistrate did
               not perform his or her responsibility to require facts in the affidavit
               to either be personally known to the affiant or that the affiant
               provide information to allow the magistrate to perform an essential
               function of the office[:] to evaluate the credibility of the informant
               and the reliability of the information provided.

Id. at 108. The court granted the motion to suppress, from which order the Commonwealth

appeals.

                                            ANALYSIS

       When the Commonwealth appeals a circuit court’s decision to grant a motion to suppress,

we review the evidence in the light most favorable to the defendant, the party who prevailed

before the circuit court. See Commonwealth v. Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722,

723 (1992). In the context of reviewing the reasonableness of a search under the Fourth

Amendment, we defer to the factual findings of the trial court but “independently determine

whether those findings satisfy the requirements of the Fourth Amendment.” Kyer v.

Commonwealth, 45 Va. App. 473, 479, 612 S.E.2d 213, 216-17 (2005) (en banc). We review de

novo the “ultimate question” whether the officers violated the Fourth Amendment. Slayton v.

Commonwealth, 41 Va. App. 101, 105, 582 S.E.2d 448, 449-50 (2003). Included in this de novo

review is the legal determination of whether the good faith exception to the exclusionary rule

applies. Adams v. Commonwealth, 48 Va. App. 737, 745, 635 S.E.2d 20, 24 (2006).

       The Commonwealth argues that the affidavit in support of the search warrant establishes

probable cause, but, even if it does not, the “good faith” exception the United States Supreme Court

recognized in United States v. Leon, 468 U.S. 897 (1984), applies, and permits the prosecution to

introduce the fruits of the search into evidence. We need not determine whether the affidavit




                                                -5-
establishes probable cause. 2 We will assume, for purposes of argument, that it does not, and we

proceed to examine the case under the good faith exception.

                                   THE “GOOD FAITH” FRAMEWORK

       Under the good faith exception to the general rule excluding unconstitutionally seized

evidence, “the officer may rely upon the magistrate’s probable cause determination and the

evidence will not be excluded, even though the affidavit may not have provided the magistrate . . .

with probable cause to issue the warrant.” Colaw v. Commonwealth, 32 Va. App. 806, 810-11, 531

S.E.2d 31, 33 (2000) (citing Leon, 468 U.S. at 918-22).

       As the Supreme Court has noted, however, “[t]he good-faith exception is not without

limitations.” Ward v. Commonwealth, 273 Va. 211, 222, 639 S.E.2d 269, 274 (2007). The

exception does not apply

               (1) [W]hen the [magistrate] “was misled by information in an
               affidavit that the affiant knew was false or would have known was
               false except for his reckless disregard of the truth”; (2) when “the
               issuing magistrate wholly abandoned his judicial role in the manner
               condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979)”;
               (3) when “an affidavit [is] so lacking in indicia of probable cause as
               to render official belief in its existence entirely unreasonable”; or
               (4) when “a warrant [is] so facially deficient . . . that the executing
               officers cannot reasonably presume it to be valid.”

Id. at 222-23, 639 S.E.2d at 274 (citations omitted). At trial and on appeal, Becerra-Ochoa relies on

exceptions (1) and (2).

                  A. THE RECORD ESTABLISHES NEITHER DELIBERATE FALSEHOOD
                          NOR A RECKLESS DISREGARD FOR THE TRUTH.

       The trial court rejected any suggestion that the officer deliberately misled the magistrate.

Therefore, we first address whether the officer acted in “reckless disregard of the truth,” thereby


       2
          A reviewing court certainly may first determine whether probable cause exists and then
proceed to analyze whether the good faith exception applies. Leon, 468 U.S. at 924-25. Because
this opinion is unpublished, we discern little value in addressing as a threshold matter whether
the affidavit sufficed to establish probable cause to search.
                                                -6-
precluding application of the good faith exception. Whether an officer acted in reckless disregard

for the truth is a question of fact, and we will not reverse the trial court’s finding unless it is “plainly

wrong” or without evidence to support it. West v. Commonwealth, 16 Va. App. 679, 690, 432

S.E.2d 730, 737 (1993). The trial court reasoned that while it “does not find that the affiant

intentionally misled the magistrate in stating he had personal knowledge of the facts, he should have

known what it meant to indicate that he did.” The court also noted that the officer “should have

known that in the case of an informant, he had to provide the necessary information on the affidavit

to allow the magistrate to determine the reliability of the informant.” Assuming the trial court

intended to make a finding of “reckless disregard,” such a finding is plainly wrong.

        It is true that Officer McCall did not check the box to indicate that the information came

from an informant. The affidavit itself, however, indicates the source of the information. In the

affidavit, the officer indicated that he arrested Reuben C. and that Reuben C. had marijuana on his

person. Significantly, Officer McCall repeatedly included the qualifiers “Reuben described,”

“Reuben stated,” “Reuben went on to describe,” and again “Reuben stated.” App. at 34. At no

point did the officer signal that he was the source of the information. There is no reason to believe

the magistrate would have been misled to conclude that the officer was the source of the

information. The affidavit gives no indication that the officers conducted an investigation to

corroborate the information they received from Reuben C. There is, therefore, no reason to

conclude that the magistrate would have erroneously believed that the officer corroborated the

information that came from Reuben C. Finally, Officer McCall did have personal knowledge of the

arrest of Reuben C., that the arrest resulted in seizing marijuana from Reuben C., and that Reuben

C. then provided information to Officer McCall about the source of the marijuana. Under these

circumstances, the mistake by the officer in filling out the affidavit form does not rise to the level of

a reckless disregard for the truth.

                                                   -7-
        In Miller v. Prince George’s County, 475 F.3d 621 (4th Cir. 2007), the United States

Court of Appeals for the Fourth Circuit indicated that

                        “[r]eckless disregard” can be established by evidence that an
                officer acted “with a high degree of awareness of [a statement’s]
                probable falsity,” that is, “when viewing all the evidence, the affiant
                must have entertained serious doubts as to the truth of his statements
                or had obvious reasons to doubt the accuracy of the information he
                reported.”

Id. at 627 (quoting Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000)). See also Hart v. O’Brien,

127 F.3d 424, 449 (5th Cir. 1997) (for purposes of proving “reckless disregard for the truth,”

requiring evidence the officer “in fact entertained serious doubts as to the truth” of the information

provided in the affidavit); Salmon v. Schwarz, 948 F.2d 1131, 1140 (10th Cir. 1991) (same).3

These cases persuasively establish a higher threshold for reckless disregard than what this record

establishes in the light most favorable to the defendant.

        The officer may have been negligent in completing the affidavit, but negligence by an

officer is not enough to place the fruits of the search outside of the good faith exception. See Franks

v. Delaware, 438 U.S. 154, 171 (1978) (“[a]llegations of negligence or innocent mistake are

insufficient” to establish reckless disregard); see also Leon, 468 U.S. at 914 (the deference

accorded to a magistrate’s finding of probable cause does not preclude inquiry into the knowing

or reckless falsity of the affidavit on which that determination was based and citing Franks).

        In Herring v. United States, 555 U.S. 135, 144 (2009), the United States Supreme Court

noted that “[t]o trigger the exclusionary rule, police [misconduct] must be sufficiently deliberate that

exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price

paid by the justice system.” Since neither intentional misconduct nor reckless disregard is present


        3
         The standard for “reckless disregard for the truth” in a defamation action by a public
figure requires that “the defendant in fact entertained serious doubts as to the truth of his
publication,” or “had a high degree of awareness of . . . probable falsity.” Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989).
                                                 -8-
here, suppression of the evidence is not warranted on that ground – and, as a consequence, the good

faith exception applies.

                           B. NO EVIDENCE ESTABLISHES THAT THE MAGISTRATE
                                WHOLLY ABANDONED HER JUDICIAL ROLE.

        We also find no basis upon which to conclude that the magistrate wholly abandoned her

judicial role. From an absence of evidence about what the magistrate may have done or thought, the

trial court concluded that the magistrate must have departed from her judicial role. This legal

conclusion was in error. First, there is no presumption that magistrates have acted in dereliction of

their duties. To the contrary, “[t]here is a presumption that public officials will obey the law.”

Hinderliter v. Humphries, 224 Va. 439, 448, 297 S.E.2d 684, 689 (1982). Second, the reach of the

exclusionary rule is sharply limited with regard to judicial officers like magistrates. See Leon, 468

U.S. at 916-17 (citing three reasons why reliance on the exclusionary rule’s “behavioral effects on

judges and magistrates” is misplaced). It applies where, in fact, the magistrate has wholly

abandoned her judicial role, not where there exists a mere supposition that she may have done so.

Third, where, as here, the search has been conducted pursuant to a warrant, the defendant bears the

burden of proving the search warrant invalid. Lebedun v. Commonwealth, 27 Va. App. 697,

710-11, 501 S.E.2d 427, 433-34 (1998). Where the record is barren of evidence concerning

whether a magistrate acted properly, the search warrant must be upheld. See United States v. Perez,

393 F.3d 457, 465-66 (4th Cir. 2004) (suppression unwarranted where no evidence in the record

supports the assertion that the magistrate abandoned his judicial role). Therefore, the defendant

must establish that the magistrate wholly abandoned her judicial role to obviate the application of

the good faith exception.

        The Court in Leon provided an example of a situation where the magistrate wholly

abandoned his judicial role. See Leon, 468 U.S. at 923 (citing Lo-Ji Sales, Inc., 442 U.S. 319). In

Lo-Ji Sales, the magistrate actually joined the search party, thus “allow[ing] himself to become a
                                                  -9-
member, if not the leader, of the search party which was essentially a police operation.” Lo-Ji

Sales, 442 U.S. at 327. Stewart v. State, 711 S.W.2d 787 (Ark. 1986), furnishes another example.

There, a judge signed blank search warrant affidavits and authorized a clerk to issue them upon

application by the police. The Supreme Court of Arkansas found that this judge wholly

abandoned his judicial role. Id. at 788. No such facts are shown on this record.

        Becerra-Ochoa essentially contends that the magistrate abandoned her judicial role because,

by issuing a search warrant on these facts, she must have acted as a “rubber stamp” for the police.

The issuance of a search warrant, even if mistaken, does not by itself demonstrate that the

magistrate ceased to be neutral and detached. This record simply does not support the conclusion

that the magistrate abandoned her neutral and detached judicial role within the intendment of Leon.

                                          CONCLUSION

        Applying the good faith exception, we reverse the judgment of the trial court and remand

the case for trial.

                                                                            Reversed and remanded.




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