                       COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia


CLARENCE JAY LYNCH
                                                OPINION BY
v.   Record No. 1874-01-3             JUDGE RUDOLPH BUMGARDNER, III
                                             OCTOBER 15, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                  Robert P. Doherty, Jr., Judge

          Melissa W. Friedman (Anthony F. Anderson, on
          brief), for appellant.

          Marla Graff Decker, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     A jury convicted Clarence Jay Lynch of manufacturing

marijuana not for personal use.   He assigns two errors:   (1) the

admission of evidence seized pursuant to a search warrant, and

(2) the failure of the trial judge to recuse himself.     Finding

no error, we affirm.

     On May 17, 1999, a concerned citizen notified police the

defendant was growing marijuana in his residence at 925 Westside

Boulevard N.W.   The citizen had seen 30 to 50 marijuana plants

and grow lights in the residence as recently as "06[sic]0199."

On July 28, 1999, a second concerned citizen notified police the

defendant was growing and selling marijuana from his residence.

He reported the defendant "had numerous firearms in the
residence and threatened to use them if he came in contact with

the police."   The police verified the defendant's identity and

address from the city directory and Department of Motor Vehicles

records.   Police conducted a power consumption analysis from the

electric utility's records for the defendant's residence.      Over

the previous six-month period, the defendant consumed three

times more power than neighbors, who resided in similar houses.

The defendant's power consumption coincided with the cultivating

and harvesting cycle of marijuana.      Additionally, the police

twice used a thermal imaging device and detected an extreme heat

source at the rear of the residence.

     The investigating detective recited those details in an

affidavit for a search warrant of the defendant's residence that

he prepared on September 9, 1999.    A magistrate issued the

warrant that evening, and police officers executed it shortly

thereafter.    The defendant moved to suppress the marijuana

plants, related evidence, and incriminating statements obtained

during the search.

     The trial court held the evidence was admissible under the

good faith exception of United States v. Leon, 468 U.S. 897

(1984), even assuming the affidavit was deficient or the warrant

was invalid.   The trial judge ruled:    the magistrate did not

abandon his judicial role; the police officers were not

dishonest or reckless in preparing the affidavit and did not

mislead the magistrate; the warrant is not so lacking in

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probable cause or the required information as to render belief

in its existence unreasonable; and the warrant was not so

facially deficient that the executing officers could not

reasonably assume it was valid.

     On appeal, the defendant contends the trial court erred in

applying the good faith exception to the exclusionary rule.    He

argues the thermal imaging surveillance of his residence was

unconstitutional 1 and the results must be excised when assessing

the validity of the search.   He concludes that without the

results of the thermal imaging the affidavit was facially

deficient and reliance on it was unreasonable.

     As did the trial court, we do not address the validity of

the search warrant because the good faith exception applies to

the facts of this case.   The good faith exception is not

available in four situations:

               (1) [W]here 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.


     1
       Kyllo v. United States, 533 U.S. 27 (2001), ruled thermal
imagery was an unconstitutional search. The Supreme Court
rendered its decision after the defendant's suppression hearing
and trial, but before sentencing.


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Adkins v. Commonwealth, 9 Va. App. 462, 464, 389 S.E.2d 179, 180

(1990) (citing Leon, 468 U.S. at 923).    Only the third or fourth

exceptions could apply in this case, but neither does.

     The affidavit stated that two concerned citizens observed

the marijuana plants inside the defendant's home.    The police

corroborated that the defendant existed and resided at the

address provided.    A detailed power consumption analysis of the

residence revealed the defendant used an unusual amount of

power, which correlated with the marijuana cultivation cycle.

The investigation tended to corroborate the information provided

by the citizen informants.    Even excluding the information

derived from thermal imaging, the affidavit did not lack indicia

of probable cause.   The third exception to the good faith

doctrine does not apply to this case.

     At the time the magistrate issued the warrant, the Supreme

Court had not decided Kyllo v. United States, 533 U.S. 27

(2001).   Indeed, every United States Circuit Court that had

addressed the issue had ruled that the use of the thermal

imagery was permissible.     Id. at 46 n.4 (Stevens, J.,

dissenting).   The magistrate and officers were entitled to rely

on the results of that surveillance technique when determining

probable cause for the search warrant.    They adhered to

established law, and requiring them to anticipate the

constitutional standard announced in Kyllo is not reasonable.



                                 - 4 -
     When the officers conducted their search, they acted under

authority of an apparently valid warrant.    "[A]n officer cannot

be expected to question the magistrate's probable-cause

determination or his judgment that the form of the warrant is

technically sufficient."    Leon, 468 U.S. at 921.    Though

partially based on information derived from thermal imaging, the

warrant was not so facially deficient that the officers were

unreasonable in assuming it was valid.    The fourth exception to

the good faith doctrine does not apply to this case.

     "The purpose of the exclusionary rule historically was to

deter police misconduct rather than to punish the errors of

magistrates.   This deterrent 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."      Derr v.

Commonwealth, 242 Va. 413, 422, 410 S.E.2d 662, 667 (1991)

(citation omitted).   None of the evils sought to be avoided by

the exclusionary rule are present in this case.      The trial court

did not err in denying the defendant's motion to suppress the

evidence obtained from execution of this search warrant.

     Next, we consider whether the trial judge erred by refusing

to recuse himself.    Judge Apgar presided at the suppression

hearing.   By the time the trial began, he had been assigned to a

different court within the circuit.     Judge Apgar denied a motion

to continue the case until he could preside.    Judge Doherty

conducted the trial during which the defendant represented

                                - 5 -
himself.    Judge Doherty declared a mistrial and found the

defendant in contempt for misconduct that disrupted his trial.

Judge Doherty denied a motion to have Judge Apgar preside at the

retrial.

     The defendant contends Code § 17.1-503 2 mandates that the

judge who hears a preliminary matter hear the entire case.    The

statute forbids a rule of the Supreme Court that would preclude

a judge from hearing a case to its conclusion.   It simply does

not read as the defendant contends.

     The defendant contends the trial judge had a conflict of

interest because he was a former law partner of the defendant's

first attorney whom the defendant discharged.    He maintains the

judge was biased because he held the defendant in contempt

during the first trial.    After a full hearing on the motion to


     2
         Code § 17.1-503 provides in part:

            No rule shall hereafter be promulgated . . .
            which would avoid or preclude the judge
            before whom an accused is arraigned in
            criminal cases from hearing all aspects of
            the case on its merits, or to avoid or
            preclude any judge in any case who has heard
            any part of the case on its merits, from
            hearing the case to its conclusion.
            However, another judge may hear portions of
            a case where a judge is required to
            disqualify himself, in cases in which a
            mistrial is declared, or in cases which have
            been reversed on appeal, or in the event of
            sickness, disability or vacation of the
            judge.




                                - 6 -
recuse, the trial judge stated he did not have "any sort of

conflict" and denied the motion.

     Whether a judge should recuse in a given case rests within

the exercise of reasonable discretion.    Deahl v. Winchester

Dep't Soc. Servs., 224 Va. 664, 672, 299 S.E.2d 863, 867 (1983).

The judge's decision will not be reversed absent a showing that

he abused his discretion.   In Stockton v. Commonwealth, 227 Va.

124, 141, 314 S.E.2d 371, 382 (1984), the trial judge did not

abuse his discretion in not recusing after the defendant had

cursed him during the previous trial.    In Justus v.

Commonwealth, 222 Va. 667, 673, 283 S.E.2d 905, 908 (1981), the

trial judge did not abuse his discretion when he retried the

defendant after his first capital murder conviction was

reversed.

     The defendant provided no support for his claim of conflict

and bias, and none appears from the record.   The record provides

no indication that the trial judge abused his discretion in not

recusing himself.   The trial court did not err in denying the

motion to do so.

     For the reasons stated, we affirm the conviction.

                                                          Affirmed.




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