                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Russell and AtLee
              Argued by teleconference
UNPUBLISHED




              COMMONWEALTH OF VIRGINIA
                                                                                           MEMORANDUM OPINION BY
              v.            Record No. 2006-18-1                                            JUDGE WILLIAM G. PETTY
                                                                                                 APRIL 16, 2019
              ALEXANDER RAINES PEYTON


                                        FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                                          Gary A. Mills, Judge

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

                                           Timothy G. Clancy (Lisa A. Mallory; Clancy & Walter, P.L.L.C., on
                                           brief), for appellee.


                            The Commonwealth appeals the trial court’s order granting Alexander Raines Peyton’s

              motion to suppress evidence seized pursuant to a search warrant. The trial court held that the

              search warrant lacked sufficient probable cause and declined to apply the good faith exception to

              the exclusionary rule. For the following reasons, we reverse the trial court’s suppression of the

              evidence and remand the case for further proceedings.

                                                                             BACKGROUND

                            Alexander Raines Peyton was charged with conspiracy to possess with the intent to

              distribute over half an ounce but not over five pounds of marijuana, in violation of Code

              § 18.2-248.1, and possession with the intent to sell, give, or distribute more than one-half ounce,

              but less than five pounds of marijuana, in violation of Code § 18.2-248.1. The charges were

              brought as a result of evidence obtained following execution of a search warrant on 370

                                                                          
                            
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Francisco Way, Newport News, Virginia. The affidavit attached to the application for search

warrant alleged the following:

              1. On August 25, 2017, your affiant along with other members of
              the investigative team were conducting surveillance on the
              residence of 370 Francisco Way, Newport News, VA, 23601. At
              approximately 1150 hours a passenger vehicle parked in the area of
              the residence and a black male was observed sitting inside of the
              vehicle without exiting.

              2. At approximately 1200 hours, a black male wearing a white
              t-shirt exited the residence of 370 Francisco Way, Newport News,
              VA, carrying a small object and entered the front passenger door of
              the vehicle that was waiting.

              3. The vehicle pulled forward and turned around in front of the
              residence and the black male in the passenger seat exited the
              vehicle and entered 370 Francisco Way, Newport News, VA. The
              vehicle pulled off and other members of the investigative team
              followed the vehicle.

              4. The vehicle was stopped on Jefferson Avenue for a traffic
              violation and a small amount of marijuana was recovered. The
              driver of the vehicle immediately admitted to being in possession
              of marijuana and provided details that matched up with the
              observation of your affiant and other members of the investigative
              team. The driver stated he had pulled onto Francisco Way and a
              black male had come out and gotten into his vehicle and sold him a
              quantity of marijuana. The driver stated he let the black male get
              out of his vehicle and return to the residence before he left the area.

              The statements in this affidavit are based on the totality of the
              investigations and not all details of the ongoing investigations are
              included in this affidavit. This affidavit was prepared for the
              limited purpose of establishing probable cause to search the
              residence of 370 Francisco Way, Newport News, VA.
              Additionally this affidavit is based on my training and experience
              as a police officer, trained narcotics investigator, and on my law
              enforcement investigations, debriefs of narcotics users and dealers,
              interviews of witnesses and surveillance of the narcotics enterprise.
              Additionally it is standard practices [sic] among those involved in
              the distribution of narcotics to store additional narcotics and other
              associated contraband inside of their residence. The statements in
              this affidavit are based on totality of my training and experience as
              a police officer and on my law enforcement investigations, debriefs
              of narcotics users and dealers, interviews of witnesses and
              surveillance of the narcotics enterprise.
                                               -2-
The warrant sought to obtain “[a]ny marijuana, monies, ledgers, packaging materials, bank

statements, firearms and any electronic data recording devices to include but not limited to

cellular telephones that can be used to store evidence of narcotics activity, and any other drug

related paraphernalia.”

       Peyton filed a motion to suppress the evidence seized at the 370 Francisco Way address,

arguing that the affidavit for search warrant did not provide sufficient probable cause to search

the residence. The trial court initially ruled that the affidavit set out sufficient probable cause to

support the search warrant and denied the motion to suppress. After requesting additional

briefing, however, the trial court reversed its prior ruling and issued a written opinion granting

the motion. This appeal followed.

                                             ANALYSIS

       When the Commonwealth appeals a trial court’s order to suppress evidence, “the

evidence must be viewed in the light most favorable to the [appellee].” Commonwealth v.

Peterson, 15 Va. App. 486, 487 (1992). The burden is on the appellant “to show that when

viewing the evidence in such a manner, the trial court committed reversible error.” Hairston v.

Commonwealth, 67 Va. App. 552, 560 (2017). Any claim of Fourth Amendment violation

presents “a mixed question of law and fact that we review de novo on appeal.” Harris v.

Commonwealth, 276 Va. 689, 694 (2008). Appellate courts “are bound by the trial court’s

findings of historical fact unless ‘plainly wrong’ or without evidence to support them” and “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 (1997) (en banc). This

Court will, however, “determine independently whether, under the law, the manner in which the

evidence was obtained satisfies constitutional requirements.” McCain v. Commonwealth, 261

Va. 483, 490 (2001). The same de novo standard applies to “the trial court’s application of

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defined legal standards such as probable cause and reasonable suspicion to the particular facts of

the case.” Hayes v. Commonwealth, 29 Va. App. 647, 652 (1999).

       Here, the Commonwealth argues that the trial court erred by suppressing the evidence

obtained from the search warrant because there was probable cause to search the residence and,

even if there was not probable cause, the trial court should have applied the good faith exception

to the exclusionary rule.

       “The Fourth Amendment of the United States Constitution requires that a search warrant

be based upon probable cause.” Sowers v. Commonwealth, 49 Va. App. 588, 595 (2007).

Generally, “[w]here law enforcement officers illegally search private premises or seize property

without probable cause . . . the illegally seized evidence will be excluded from evidence.” Colaw

v. Commonwealth, 32 Va. App. 806, 810 (2000). The exclusionary rule, created with the intent

of deterring police misconduct, “operates ‘as a judicially created remedy designed to safeguard

Fourth Amendment rights generally through its deterrent effect, rather than [to protect] a

personal constitutional right of the party accused.’” United States v. Leon, 468 U.S. 897, 906

(1984) (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)). However, because “[t]he

deterrent effect of the exclusionary rule ‘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,’” Janis

v. Commonwealth, 22 Va. App. 646, 653 (emphasis added) (quoting Derr v. Commonwealth,

242 Va. 413, 422 (1991)), aff’d en banc, 23 Va. App. 696 (1996), evidence seized pursuant to an

invalid search warrant “is nevertheless admissible if the officer executing the warrant reasonably

believed that the warrant was valid,” Lanier v. Commonwealth, 10 Va. App. 541, 547 (1990)

(citing Leon, 468 U.S. at 918-21). “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

with the requirements of the Fourth Amendment.” Leon, 468 U.S. at 921. “In the absence of an

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allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate

only if the officers were dishonest or reckless in preparing their affidavit or could not have

harbored an objectively reasonable belief in the existence of probable cause.” Id. at 926.

              The Commonwealth makes a compelling argument that the affidavit provided sufficient

probable cause to justify the issuance of the search warrant. We need not address that argument,

however, because we can resolve the case on the narrow ground of whether the officer’s reliance

on the search warrant was reasonable. See Commonwealth v. White, 293 Va. 411, 419 (2017)

(“[T]he doctrine of judicial restraint dictates that we decide cases on the best and narrowest

grounds available.” (quoting Commonwealth v. Swann, 290 Va. 194, 196 (2015))). We need

only to resolve this question because, where, as here, there is room for debate over whether the

affidavit established probable cause, an officer’s “reliance on the magistrate’s determination of

probable cause” is objectively reasonable and applying “the extreme sanction of exclusion is

inappropriate.” Leon, 468 U.S. at 926.1

                                                            
              1
         The United States Supreme Court has approved a reviewing court’s decision to pass on
the Fourth Amendment issue and consider only the application of the good faith doctrine.

                             If the resolution of a particular Fourth Amendment question is
                             necessary to guide future action by law enforcement officers and
                             magistrates, nothing will prevent reviewing courts from deciding
                             that question before turning to the good-faith issue. Indeed, it
                             frequently will be difficult to determine whether the officers acted
                             reasonably without resolving the Fourth Amendment issue. Even
                             if the Fourth Amendment question is not one of broad import,
                             reviewing courts could decide in particular cases that magistrates
                             under their supervision need to be informed of their errors and so
                             evaluate the officers’ good faith only after finding a violation. In
                             other circumstances, those courts could reject suppression motions
                             posing no important Fourth Amendment questions by turning
                             immediately to a consideration of the officers’ good faith. We
                             have no reason to believe that our Fourth Amendment
                             jurisprudence would suffer by allowing reviewing courts to
                             exercise an informed discretion in making this choice.

Leon, 468 U.S. at 925.
                                                               -5-
         A police officer’s reliance on a judicially authorized search warrant is not an absolute bar

to a court’s application of the remedy of suppression; that reliance must be objectively

reasonable.

                There are four circumstances, however, where an officer cannot
                have an objectively reasonable belief that probable cause exists for
                the search and suppression is an appropriate remedy: “(1) Where
                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) where the warrant was so facially deficient that an executing
                officer could not reasonably have assumed it was valid.”

Lane v. Commonwealth, 51 Va. App. 565, 572 (2008) (quoting Cunningham v. Commonwealth,

49 Va. App. 605, 618 (2007)). At the motion to suppress, Peyton argued that the third exception

to the good faith rule applies, contending that the underlying affidavit was so lacking in indicia

of probable cause that a reasonable police officer would not have believed that the warrant was

valid.

         “The showing of an ‘objectively reasonable belief’ that probable cause existed under the

good-faith exception is a significantly lesser standard than a showing of a ‘substantial basis’ for

upholding a magistrate’s determination of probable cause.” Adams v. Commonwealth, 275 Va.

260, 274 (2008); see also Anzualda v. Commonwealth, 44 Va. App. 764, 781 (2005) (en banc)

(noting that ‘“no substantial basis’ does not automatically equate to ‘no indicia of probable

cause’”). “In fact, Leon states that the third circumstance[, the one upon which Peyton relies,]

prevents a finding of objective good faith only when an officer’s affidavit is ‘so lacking in

indicia of probable cause as to render official belief in its existence entirely unreasonable.’”

Adams, 275 Va. at 274 (quoting United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002)).

Thus, “as long as there is some indicia of probable cause in the underlying affidavit, we will

apply the good faith exception [provided that] a reasonable police officer, after assessing the
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facts set forth in the affidavit, could have believed that the warrant was valid.” Midkiff v.

Commonwealth, 54 Va. App. 323, 332 (2009) (quoting Anzualda, 44 Va. App. at 781).

               “[T]he inquiry must be focused on the ‘flagrancy of the police
               misconduct’ at issue,” Davis [v. United States], 564 U.S. [229,]
               238 [(2011)] (citation omitted), and employ the “last resort”
               remedy of exclusion only when necessary “to deter deliberate,
               reckless, or grossly negligent conduct, or in some circumstances
               recurring or systemic negligence,” Herring [v. United States], 555
               U.S. [135,] 140, 144 [(2009)] (citation omitted).

Collins v. Commonwealth, ___ Va. ___, ___ (Mar. 28, 2019). See Colaw, 32 Va. App. at 813

(“A police officer could not reasonably have believed that the warrant was properly issued when

it was based on a ‘bare bones’ affidavit that contained only conclusory assertions by a third-party

informant about a future event without supporting facts to constitute probable cause.”); see also

United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996) (“An affidavit that states

suspicions, beliefs, or conclusions, without providing some underlying factual circumstances

regarding veracity, reliability, and basis of knowledge, is a ‘bare bones’ affidavit.”).

       The affidavit in this case had some indicia of probable cause. The underlying affidavit

was not a “bare-bones” affidavit that merely set forth conclusory allegations with no recitation of

the facts supporting those conclusions. Rather, the underlying affidavit described with

particularity the items sought, the place to be searched, and the transaction that led the police to

believe that the items sought would have been found at the place to be searched. See Atkins v.

Commonwealth, 9 Va. App. 462, 464 (1990) (holding that warrant was not based on a “bare

bones” affidavit because it “contained a detailed description of the nature of the offense, the

premises to be searched, the items for which they were searching, and the transaction which led

the informant to believe that the drugs would be in this apartment”). Here, it is hard to fathom

why a police officer would immediately recognize the affidavit to be utterly lacking in a factual




                                                -7-
predicate of probable cause when the trial court initially ruled that the facts contained in the

affidavit were sufficient to support a legal finding of probable cause.

       Peyton asserted that there were no facts to suggest the residence had been used in

criminal activity “other than [the seller] exited it prior to the marijuana sale and returned to it

after the isolated sale.” By this admission, Peyton conceded that the affidavit contained, at the

very least, some facts to connect evidence of illegal drug distribution to the residence. Because

the affidavit contained “some indicia of probable cause,” a reasonable officer could have

believed that the warrant was valid; and the circuit court erred when it failed to apply the good

faith exception to the exclusionary rule. Anzualda, 44 Va. App. at 781. “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.” Tart v. Commonwealth, 17

Va. App. 384, 390 (1993) (quoting Leon, 468 U.S. at 921).

       The affidavit in this case is similar to the affidavit analyzed in Sowers v. Commonwealth.

In Sowers, this Court affirmed the trial court’s application of the good faith exception for a

search warrant for Sowers’s residence where police initiated a traffic stop on Sowers and found

evidence of drug distribution in his possession. Sowers, 49 Va. App. at 592-93. Sowers told the

officer that he had just left his residence and had used marijuana at his residence in the past. Id.

at 593. The affiant also indicated that it was his experience that “narcotics and the paraphernalia

[a]ssociated with the use of [n]arcotics are often hidden inside the user’s residence for safe

keeping.” Id.

       This Court held that it was not a bare bones affidavit because it “indicat[ed] Sowers

possessed cocaine, had a large sum of money, and denied he was a user of cocaine. Our cases

indicate these facts could support inferences about his intent.” Id. at 603. Additionally, there

were some facts to support the inference that Sowers was selling drugs—“[t]he affidavit

                                                 -8-
described the items sought and the place to be searched. Under these circumstances, a

reasonable police officer could have believed the warrant was valid.” Id. at 604.

       Consideration of this Court’s decision in Janis v. Commonwealth is also persuasive. In

Janis, this Court reversed Janis’s convictions, holding that the trial court erred in applying the

good faith exception to the exclusionary rule. Janis, 22 Va. App. at 648. This Court held that it

was error to apply the good faith exception where the underlying affidavit stated that Janis was

seen entering and leaving a trail that led to and from a plot of marijuana plants. Id. at 649-50.

Based on those facts, the affiant sought to search Janis’s address without stating in the affidavit,

however, what nexus that address had to Janis. Id. at 653. Because the officer “might just as

easily have supplied the magistrate with an address belonging to an unrelated third party,” we

concluded that “[t]he affidavit gave absolutely no indication that the fruits of criminal activity

would probably be found at that location, rendering [the officer’s] belief in probable cause, based

solely on the affidavit, objectively unreasonable.” Id. This Court did not hold, however, that the

failure to establish a sufficient nexus between the item sought and the premises to be searched

automatically precluded application of the good faith exception. Rather, we held that, where the

underlying affidavit failed to provide any connection whatsoever between the alleged criminal

activity and the premises to be searched, that affidavit was so lacking in indicia of probable

cause that a reasonable police officer could not have harbored an objectively reasonable belief as

to the validity of the warrant. Id.

       Janis, therefore, is factually distinguishable from the present case. Unlike the affidavit in

Janis, which contained no information connecting the criminal activity to the premises to be

searched, the affidavit here did establish a nexus between illegal drug activity and the premises

to be searched. Specifically, the affidavit at issue in this case stated that Peyton left the premises

to be searched while in possession of marijuana. Then after conducting an illegal drug

                                                 -9-
transaction, Peyton immediately returned to the premises. The affidavit also indicated that it is

standard practice for those involved in the distribution of illegal drugs to store additional illegal

substances and other associated contraband inside their residence. Furthermore, the officers

sought and obtained the warrant less than two hours from when they witnessed the drug

transaction outside the address. Unlike in Janis, the affidavit in this case stated a sufficient nexus

between the items sought and the premises to be searched to apply the good faith exception to

the exclusionary rule. See also Anzualda, 44 Va. App. at 784 (affirming in plurality opinion

application of good faith exception despite affiant’s failure to state a time frame for when

Anzualda received item to be sought at his premises because affidavit was not bare bones and

provided at least a slight nexus between item sought and premises to be searched).

                                           CONCLUSION

       Because we hold that there was a sufficient nexus between the illegal activity and the

place to be searched to apply the good faith exception to the exclusionary rule, the trial court

erred in concluding otherwise. Accordingly, we reverse the trial court’s suppression of the

evidence and remand the case for further proceedings.

                                                                             Reversed and remanded.




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