                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                         MEMORANDUM OPINION * BY
v.   Record No. 1150-00-3                 JUDGE LARRY G. ELDER
                                            SEPTEMBER 26, 2000
HAROLD WAYNE HUFFMAN


          FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                B. A. Davis, III, Judge Designate

          Shelly R. James, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellant.

          Jesse W. Meadows, III, for appellee.


     Harold Wayne Huffman (defendant) stands indicted for

possessing a firearm after having been convicted of a felony.

The Commonwealth appeals a pretrial ruling granting defendant's

motion to suppress all evidence seized pursuant to a search

warrant on the ground that the warrant was invalid because it

was not based on the personal knowledge of the affiant.    On

appeal, the Commonwealth contends the trial court erroneously

suppressed the evidence because the warrant was based on

probable cause and, even if it was not, the officer executing

the warrant acted in good faith.   We hold, based on the trial

court's findings of fact, that the search was valid because the

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
affiant deputy did not make the incorrect statement knowingly

and intentionally or with a reckless disregard for the truth.

Therefore, we reverse the trial court's suppression of the

evidence and remand for further proceedings consistent with this

opinion.

                                  I.

                              BACKGROUND

     On October 1, 1999, Corporal Suzanne Divine, a deputy with

the Pittsylvania County Sheriff's Department, saw defendant, her

next-door neighbor, firing a shotgun or rifle in his yard for

about thirty minutes.   About a week earlier, Divine had been

involved in serving some outstanding warrants on defendant, and

she thought, based on her involvement in that process, that

defendant had a prior felony conviction.   As a result, she

called her dispatcher and had him run a criminal history.     "The

dispatcher advised [her] reading from the criminal history while

[she] was on the phone with him that [defendant] had been

convicted of" at least one prior felony, and Divine thought she

recalled being told he had three prior felony convictions.

Divine testified that this method of obtaining information about

a person's prior convictions was "standard procedure."

     Based on this information, Divine prepared an affidavit and

requested a search warrant.    The affidavit described the offense

as a "violation of [Code §] 18.2-308.2" and represented that

"[defendant] has prior felony convictions and was standing in

                                - 2 -
his backyard shooting a gun on [10-01-99] from approx[imately]

1850 pm until 1920 pm."   The affidavit also indicated that

Divine became aware of the incident when she heard shots fired

and went outside, where she observed defendant firing a shotgun

or rifle as she described.   In section 6 of the affidavit,

Divine had the choice of indicating that she "[had] personal

knowledge of the facts set forth in this affidavit OR [that she]

was advised of the facts . . . in whole or in part by an

informer[, whose] credibility or . . . reliability of . . .

information may be determined from the following facts."   She

checked the first box, indicating personal knowledge of the

facts contained in the affidavit.   The magistrate issued the

warrant, pursuant to which officers seized seven different

firearms.

     Defendant moved to suppress the fruits of the search,

contending the warrant was invalid because it was issued without

probable cause.   At the hearing on the motion to suppress,

Divine testified in keeping with the above.   The trial court

questioned whether Divine could rely on the information she

obtained from the dispatcher without verifying the convictions

by obtaining conviction orders.   It noted that the warrant

represented Divine had personal knowledge of its contents but

that her testimony indicated the information about defendant's

prior convictions was actually hearsay from the dispatcher.     The

court then continued the matter to allow the parties to submit

                               - 3 -
legal memoranda on the issue.   Additional information received

by the court indicated that not all dispatchers were employees

of the sheriff's department, and nothing in the record

established whether they were employees of any branch of law

enforcement.   Defendant argued, based on this lack of proof,

that Divine was not entitled to rely on the dispatcher's

representations about defendant's prior convictions.

     At a subsequent hearing on the motion, the trial court

found Divine did not have personal knowledge of defendant's

prior felony convictions but agreed with the Commonwealth's

attorney's representation that Divine did not "in any way

intentionally mis[lead] the Court," responding, "Oh, I'm sure of

that."   The court then ruled the search invalid without further

elaboration.

                                 II.

                             ANALYSIS

     At a hearing on a defendant's motion to suppress evidence

seized pursuant to a judicially sanctioned warrant, the warrant

is presumed valid, and the accused bears the burden of proving

the warrant is illegal or invalid.      See Lebedun v. Commonwealth,

27 Va. App. 697, 711, 501 S.E.2d 427, 434 (1998).     On appeal, we

view the evidence in the light most favorable to the party

prevailing below, here the defendant, granting him all

reasonable inferences fairly deducible therefrom.     See

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d

                                - 4 -
47, 48 (1991); see also Ornelas v. United States, 517 U.S. 690,

699, 116 S. Ct. 1657, 1659, 134 L. Ed. 2d 911 (1996).          We review

de novo the trial court's application of defined legal standards

such as probable cause to the particular facts of the case.           See

Shears v. Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309,

311 (1996); see also Ornelas, 517 U.S. at 699, 116 S. Ct. at

1659.

        Per the United States Supreme Court's holding in Franks v.

Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978),

a "presumption of validity [accompanies an] affidavit supporting

[a] search warrant."        Id. at 171, 98 S. Ct. at 2684.    A

defendant may challenge the validity of a warrant by making "a

substantial preliminary showing that a false statement knowingly

and intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit." 1         Id. at


        1
            Under Franks,

               if the allegedly false statement is
               necessary to a finding of probable cause,
               the Fourth Amendment requires that a hearing
               be held at the defendant's request. In the
               event that at that hearing the allegation of
               perjury or reckless disregard is established
               by the defendant by a preponderance of the
               evidence, and, with the affidavit's false
               material set to one side, the affidavit's
               remaining content is insufficient to
               establish probable cause, the search warrant
               must be voided and the fruits of the search
               excluded to the same extent as if probable
               cause was lacking on the face of the
               affidavit.


                                    - 5 -
155-56, 98 S. Ct. at 2676.    The supporting affidavit "'is to be

"truthful" in the sense that the information put forth is

believed or appropriately accepted by the affiant as true,'"

keeping in mind that "'probable cause may be founded upon

hearsay and upon information received from informants, as well

as information within the affiant's own knowledge that sometimes

must be garnered hastily.'"    Id. at 165, 98 S. Ct. at 2681

(quoting United States v. Halsey, 257 F. Supp. 1002, 1005

(S.D.N.Y. 1966), aff'd, No. 31369 (2d Cir. June 12, 1967)).

"Allegations of negligence or innocent mistake are insufficient"

to require a Franks hearing or invalidate a warrant.    Id. at

171, 98 S. Ct. at 2684.   "[W]here police have been merely

negligent in checking or recording the facts relevant to a

probable-cause determination," no violation has occurred, and no

Franks hearing is required.    Id. at 170, 98 S. Ct. at 2683.

     These standards are in keeping with the principle that "the

Fourth Amendment 'probable cause' test requires not absolute

certainty but only that the government have good reason for

believing in the existence of the necessary facts."    2 Wayne R.

LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure

§ 3.4(d), at 129 (2d ed. 1999).   They also are "consistent with

the remedial purpose of the exclusionary rule, 'to deter police


Id. at 155-56, 98 S. Ct. at 2676. Because we hold the inclusion
of the incorrect material did not result from perjury or
reckless disregard, we do not consider whether the affidavit's
remaining content was sufficient to establish probable cause.

                                - 6 -
misconduct by [preventing] illegally obtained evidence from

being admitted in [a] defendant's criminal trial.'"     Williams v.

Commonwealth, 26 Va. App. 612, 618, 496 S.E.2d 113, 116 (1998)

(quoting Johnson v. Commonwealth, 21 Va. App. 172, 175, 462

S.E.2d 907, 909 (1995) (emphasis added)).

     As we have done in numerous prior cases, "we treat the

hearing on defendant's motion to suppress as a Franks hearing,

despite the absence of 'any preliminary showing' by defendant of

police misconduct" in this case.     Id. at 617, 496 S.E.2d at 115

(quoting West v. Commonwealth, 16 Va. App. 679, 689, 432 S.E.2d

730, 737 (1993) (emphasis added)).

     Under the Franks standard, the evidence here is

insufficient to support the trial court's granting of

defendant's motion to suppress.    The trial court found the

affidavit contained incorrect information in that Deputy Divine

did not have first-hand knowledge of defendant's prior felony

convictions.    Deputy Divine admitted as much at the suppression

hearing. 2   However, no evidence established that Divine included


     2
       In other contexts, law enforcement officers are allowed to
rely on hearsay information received from other law enforcement
officers as if the information were within their personal
knowledge. See, e.g., Code § 19.2-81 (requiring that officer
arresting individual for misdemeanor offense must have observed
the offense being committed but providing certain exceptions,
including one which permits officer to arrest individual for
misdemeanor offense committed outside the officer's presence if
the officer receives a radio message from his department or
other Virginia law enforcement agency that a warrant for that
offense is on file). These principles do not, however, support
a determination that Deputy Divine's information concerning

                                - 7 -
this information in the affidavit either knowingly and

intentionally or with a reckless disregard for the truth, as is

required for exclusion under Franks.   The trial court

specifically found Divine did not act with an intent to mislead,

and no evidence supports a finding that she acted recklessly.

Rather, the evidence established no more than a "negligent . . .

recording [of] the facts relevant to a probable-cause

determination," which is insufficient to support invalidation of

the warrant.   Franks, 438 U.S. at 170, 98 S. Ct. at 2683.

     Divine did not directly represent that she had personal or

first-hand knowledge of defendant's prior felony convictions.

This interpretation comes from reading the first and last

sections of the warrant together.   In paragraph 1, which

required the affiant to describe the offense for which the

warrant was sought, Divine indicated, "Violation of

18.2-308.2--accused has prior felony convictions and was

standing in his backyard shooting a gun . . . ."   Paragraph 6 of


defendant's prior convictions was based on personal knowledge
rather than hearsay, however reliable that hearsay information
may have been. See also Penn v. Commonwealth, 13 Va. App. 399,
402-06, 412 S.E.2d 189, 190-93 (1991) (rejecting theory that
information relayed by police officer who observes individual
commit misdemeanor to second officer who did not observe
commission of offense is sufficient under Code § 19.2-81 to
permit second officer to effect arrest because "'police team'
approach of 'combin[ing] [officers'] collective
perceptions'. . . is inconsistent with the prior holdings of the
Supreme Court and this Court and the plain meaning of Code
§ 19.2-81" (quoting People v. Dixon, 222 N.W.2d 749, 751 (Mich.
1979))).


                               - 8 -
the affidavit required Divine to choose between indicating that

she had "personal knowledge of the facts set forth in [the]

affidavit" or that she was "advised of the facts . . . , in

whole or in part, by an informer," whose credibility or

reliability was based on facts enumerated in the affidavit by

the affiant.   We hold, as a matter of law, that one does not act

with reckless disregard for the truth in representing, in such

an indirect fashion, that information about a suspect's criminal

history received from one's dispatcher in the ordinary course of

one's law enforcement duties is information more akin to

"personal knowledge" than it is to information received from "an

informer."   Such a representation amounts, at most, to a

"negligent . . . recording [of] the facts relevant to a

probable-cause determination."     Id.

     For these reasons, we hold the evidence was insufficient as

a matter of law to establish a misrepresentation which was made

knowingly and intentionally or with reckless disregard for the

truth.   Therefore, we reverse the trial court's suppression of

the evidence on this ground and remand to the trial court for

further proceedings consistent with this opinion.

                                            Reversed and remanded.




                                 - 9 -
