                       COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Humphreys
Argued at Richmond, Virginia


ARCHIE LAREE DAWKINS
                                          MEMORANDUM OPINION * BY
v.   Record No. 1079-00-2                  JUDGE LARRY G. ELDER
                                               APRIL 17, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge

          Christopher H. Macturk (Barnes & Batzli, on
          briefs), for appellant.

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Archie Laree Dawkins (appellant) appeals from his bench trial

convictions for possession of heroin and possession of a firearm

while simultaneously possessing heroin.   On appeal, he contends

the trial court erroneously denied his motion to suppress because

the search warrant pursuant to which the heroin and firearm were

found was not supported by probable cause and because the good

faith exception to the warrant requirement did not apply.

Assuming without deciding that the facts recited in the warrant

were insufficient to provide probable cause, we hold that the

evidence supports the conclusions that the magistrate was not


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
misled by information in the affidavit which the officer knew or

should have known was false and that the warrant was not so

lacking in indicia of probable cause as to render the officer's

reliance on the warrant unreasonable.   Therefore, we hold that the

trial court's denial of appellant's suppression motion was not

erroneous, and we affirm appellant's convictions,1 subject to

remand to correct a clerical error. 2

     The Fourth Amendment protects people from unreasonable

searches and seizures.   U.S. Const. amend. IV.   "[T]he Fourth

Amendment has drawn a firm line at the entrance to the house.

Absent exigent circumstances, that threshold may not reasonably

be crossed without a warrant" issued on probable cause.     Payton

v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 1382, 63



     1
       This Court raised, sua sponte, the issue of whether the
order from which appellant appealed was actually a final
appealable order in light of the fact that the trial court found
appellant guilty of the charged offenses but suspended
imposition of sentence on appellant's conviction of possession
of heroin. For the reasons discussed in our recent decision in
Oliver v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (2001),
we hold the order was appealable, and we do not consider this
issue further.
     2
       The parties agree the conviction order of March 24, 2000,
erroneously indicates that appellant pled guilty to the charged
offenses. The transcript of the proceedings held that same date
makes clear that appellant entered pleas of not guilty but
"stipulat[ed] that the evidence is sufficient for a finding of
guilty on both charges." Therefore, we remand the matter to the
trial court for the sole purpose of correcting the clerical
error in that order. See Tatum v. Commonwealth, 17 Va. App.
585, 592, 440 S.E.2d 133, 138 (1994); see also Code
§ 8.01-428(B).

                               - 2 -
L. Ed. 2d 639 (1980).   Probable cause for issuance of a search

warrant exists when, "given all the circumstances set forth in

the affidavit . . . , there is a fair probability that

contraband or evidence of a crime will be found in a particular

place."   Tart v. Commonwealth, 17 Va. App. 384, 387, 437 S.E.2d

219, 221 (1993) (quoting Illinois v. Gates, 462 U.S. 213, 238,

103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983)).   In deciding

whether probable cause exists to issue a warrant, a magistrate

may draw reasonable inferences from the facts supplied to him.

Williams v. Commonwealth, 4 Va. App. 53, 68, 354 S.E.2d 79, 87

(1987).

     The exclusionary rule is a judicial creation which, under

certain circumstances, prevents evidence obtained in violation

of one's Fourth Amendment rights from being admitted into

evidence against him in a criminal prosecution.    See

Commonwealth v. Ealy, 12 Va. App. 744, 750, 407 S.E.2d 681, 685

(1991).

           In [United States v. Leon, 468 U.S. 897, 104
           S. Ct. 3405, 82 L. Ed. 2d 677 (1984)], the
           United States Supreme Court held that
           "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." The
           Supreme Court also stated that "the
           exclusionary rule is designed to deter
           police misconduct . . . ." This deterrent
           is not present when a police officer, acting
           in objective good faith, obtains a search
           warrant from a magistrate and conducts a

                               - 3 -
          search within the scope of the warrant. We
          have embraced and applied the good faith
          exception to the exclusionary rule.

Polston v. Commonwealth, 255 Va. 500, 503, 498 S.E.2d 924,

925-26 (1998) (quoting Leon, 468 U.S. at 916, 918, 104 S. Ct. at

3417, 3418) (other citations omitted).

     In keeping with the goal of deterring police misconduct,

Leon provides that the good faith exception to the exclusionary

rule is unavailable in four specific instances:

          where [(1)] the magistrate was misled by
          information in the affidavit which the
          affiant knew was false or should have known
          was false, (2) the issuing magistrate
          totally abandoned his judicial role, (3) the
          warrant was based on an affidavit "so
          lacking in indicia of probable cause" as to
          render official belief in its existence
          unreasonable or (4) . . . the warrant was so
          facially deficient that an executing officer
          could not reasonably have assumed it was
          valid.

Miles v. Commonwealth, 13 Va. App. 64, 71, 408 S.E.2d 602, 606

(1991) (quoting Atkins v. Commonwealth, 9 Va. App. 462, 464, 389

S.E.2d 179, 180 (1990)), aff'd on reh'g en banc, 14 Va. App. 82,

414 S.E.2d 619 (1992).   In determining whether the good faith

exception applies, the court is limited to the four corners of

the affidavit and may not consider evidence known to the officer

but not included therein.   See Janis v. Commonwealth, 22 Va.

App. 646, 654, 472 S.E.2d 649, 653, aff'd on reh'g en banc, 24

Va. App. 207, 481 S.E.2d 473 (1996).



                               - 4 -
     At a hearing on a defendant's motion to suppress, the

Commonwealth has the burden of proving that a warrantless search

or seizure did not violate the defendant's Fourth Amendment

rights.   See Simmons v. Commonwealth, 238 Va. 200, 204, 380

S.E.2d 656, 659 (1989).    In attempting to meet this burden, the

Commonwealth is entitled to rely on "a presumption of validity

with respect to the affidavit supporting the search warrant."

Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57

L. Ed. 2d (1978).    On appeal, we view the evidence in the light

most favorable to the prevailing party, here the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.     See Commonwealth v. Grimstead, 12 Va. App. 1066,

1067, 407 S.E.2d 47, 48 (1991).    "[W]e are bound by the trial

court's findings of historical fact unless 'plainly wrong' or

without evidence to support them[,] and we give due weight to

the inferences drawn from those facts by resident judges and

local law enforcement officers."     McGee v. Commonwealth, 25 Va.

App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing

Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657,

1663, 134 L. Ed. 2d 911 (1996)).    However, we review de novo the

trial court's application of defined legal standards such as

probable cause and reasonable suspicion to the particular facts

of the case.     See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.

We use this same standard in determining whether the good faith


                                 - 5 -
exception to the exclusionary rule applies.   See, e.g., United

States v. Hendricks, 743 F.2d 653, 656 (9th Cir. 1984).

     Assuming without deciding that the search warrant was not

supported by probable cause, the items seized from appellant's

residence nevertheless were admissible in their entirety under

the good faith exception. 3

     Appellant argues on appeal that the good faith exception

does not apply both (1) because the magistrate was misled by

information in the affidavit which the affiant knew was false or

should have known was false and (2) because the warrant was

based on an affidavit "so lacking in indicia of probable cause"

as to render official belief in its existence unreasonable.    We

assume without deciding that appellant properly preserved both

arguments for appeal but hold that the evidence supports

application of the good faith exception.

     First, the affidavit was entitled to a presumption of

validity, see Franks, 438 U.S. at 171, 98 S. Ct. at 2684, and

the record, viewed in the light most favorable to the

Commonwealth, fails to establish that the challenged statement

in the affidavit was false.   The affidavit indicated that the


     3
       The precise basis for the trial court's denial of the
suppression motion does not appear in the record. However, in
the trial court, the Commonwealth apparently conceded its belief
that the warrant was not supported by probable cause. We
presume, therefore, that the trial court's denial of the motion
resulted from its application of the good faith exception to the
exclusionary rule.

                               - 6 -
officer saw appellant "drop green plant material on the floor

board" of the vehicle, and the officer indicated at the

suppression hearing that he observed appellant drop to the floor

a brown handrolled marijuana cigar.    Although appellant argues

that these statements are inherently at odds, we disagree, for

the brown cigar presumably contained "green plant material."

Appellant conceded at the motion hearing that, for purposes of

determining the existence of probable cause to issue the search

warrant, the magistrate could infer the "green plant material"

was marijuana, and he did not contest the officer's

representation that the cigar contained marijuana.    Both the

information in the affidavit and the officer's testimony at

trial indicate that appellant threw to the floor a substance

which likely was marijuana.   That his trial testimony was more

specific does not render the affidavit's recitation false.

     Second, even if the statement in the warrant were false,

the good faith exception still applies unless the affiant knew

the statement was false or should have known it was false.

Miles, 13 Va. App. at 71, 408 S.E.2d at 606.    This prong of Leon

preserves the earlier holding in Franks, see Leon, 468 U.S. at

923, 104 S. Ct. at 3421; see also Lanier v. Commonwealth, 10 Va.

App. 541, 547-48, 394 S.E.2d 495, 499-500 (1990); 1 Wayne R.

LaFave, Search and Seizure § 1.3(f), at 71-72 (3d ed. 1996), in

which the Court held that proof of a false statement resulting


                               - 7 -
from "negligence or innocent mistake [is] insufficient" to

require exclusion of the resulting evidence, Franks, 438 U.S. at

171, 98 S. Ct. at 2684.   Appellant presented no evidence to the

trial court that the statement, if false, was intentional or

reckless and conceded in oral argument before this Court that

the error could have been negligence.   Further, viewing the

evidence in the light most favorable to the Commonwealth, the

trial court, in refusing to apply the exclusionary rule,

implicitly found the officer's inclusion of a false statement

was not intentional or reckless.    See Lanier, 10 Va. App. at

549-50, 394 S.E.2d at 500-01.   We cannot say this finding was

plainly wrong or without evidence to support it.

     Finally, we reject appellant's argument that the allegedly

false statement likely misled the magistrate to infer the "green

plant material" was a bag indicative of distribution.   This

inference is not supported by the record.   The affidavit does

not state whether the green plant material was in any sort of

container or how much green plant material the officer observed,

and the magistrate did not question the officer affiant about

these issues.

     For these reasons, we reject appellant's argument that

prong one of Leon required the trial court to grant his motion

to suppress.




                                - 8 -
     We also conclude the evidence supports the trial court's

implicit holding that the affidavit was not "so lacking in

indicia of probable cause" as to render official belief in its

existence unreasonable.   Appellant contends the affidavit

provides an insufficient nexus between the marijuana and the

premises to be searched and an insufficient basis to support the

broad scope of the warrant to search for evidence of

distribution of drugs rather than mere possession.    We disagree.

Probable cause "'does not require actual knowledge.    "Only the

probability, and not a prima facie showing, of criminal activity

is the standard of probable cause."'"    Quigley v. Commonwealth,

14 Va. App. 28, 34, 414 S.E.2d 851, 855 (1992) (quoting Wescott

v. Commonwealth, 216 Va. 123, 126, 216 S.E.2d 60, 63 (1975))

(other citations omitted).

     Contrary to appellant's assertions, this case is

distinguishable from Janis, 22 Va. App. 646, 472 S.E.2d 649, in

which we held the challenged affidavit contained an insufficient

nexus between marijuana being cultivated in Dinwiddie County and

the Hopewell residence for which the search warrant was issued.

Id. at 653-55, 472 S.E.2d at 653-54.    The affidavit in Janis

indicated that Janis was seen on property in Dinwiddie on which

marijuana was being cultivated, but it gave no indication as to

how Janis was linked to the residence to be searched.    See id.

at 652-53, 472 S.E.2d at 653.


                                - 9 -
     In appellant's case, by contrast, the affidavit indicated

that appellant's mother confirmed he resided in the residence to

be searched and that the officer had observed appellant leave

the residence only moments before the officer found marijuana in

appellant's possession.   Further, the information in the

affidavit was sufficient to indicate that appellant likely had

marijuana in his possession inside the residence.   Officer

Musselwhite swore that when appellant exited the residence, "he

appeared to have an object cupped in his [left] hand, he got

into the car and I walked over to him and I asked him to step

out because I [believed] he may have a weapon[.]    [A]s the car

door opened I observed him drop green plant material on the

floor board."   A reasonable inference from this recitation of

events is that the green plant material appellant dropped to the

floor was the same substance he had cupped in his left hand when

he exited his residence only moments before.   Thus, as to the

nexus between the marijuana and appellant's residence, we cannot

say the trial court erred in concluding that the affidavit was

not "so lacking in indicia of probable cause" as to render

official belief in its existence unreasonable.

     We similarly reject appellant's argument that a reasonable

officer should have known the affidavit provided an insufficient

basis to support a search for items indicative of distribution.

In addition to marijuana, the affidavit indicated appellant


                              - 10 -
possessed over $2,000 in five, ten and twenty-dollar bills, and

a cellular telephone.   The magistrate was entitled to draw

reasonable inferences from these facts.   Although possession of

these non-contraband items could have been innocent and may not,

in fact, have provided probable cause to believe appellant was

distributing drugs, we cannot say the evidence of possible

distribution was "so lacking in indicia of probable cause" as to

render the officer's belief in it unreasonable.

     For these reasons, we affirm both the trial court's denial

of the suppression motion and the challenged convictions.

However, in keeping with footnote 2, supra, we remand to the

trial court for the sole purpose of amending the conviction

order to correct a clerical error.

                                          Affirmed on the merits
                                          and remanded with
                                          instructions.




                              - 11 -
