                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia


COMMONWEALTH OF VIRGINIA
                                           MEMORANDUM OPINION * BY
v.   Record No. 2065-99-3                   JUDGE RICHARD S. BRAY
                                              FEBRUARY 29, 2000
GEORGE WINSTON SAGE


          FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                    Charles J. Strauss, Judge

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellant.

          Jon I. Davey for appellee.


     George Winston Sage (defendant) was before the trial court on

indictments alleging rape, forcible sodomy, attempted rape,

attempted forcible sodomy, and two counts of object sexual

penetration and aggravated sexual battery.   Defendant successfully

moved the court to suppress evidence obtained during the execution

of two search warrants, arguing that the affidavit supporting the

initial warrant did not establish the requisite probable cause.

The Commonwealth appeals pursuant to Code § 19.2-398, contending

that the affidavit was sufficient but, if not, the "good faith

exception" saves the evidence from the operation of the

exclusionary rule.    We agree and reverse the order.

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     "It is well established that on appeal the burden is on the

appellant to show, considering the evidence in a light most

favorable to [defendant], that the [granting] of a motion to

suppress constitutes reversible error."        Commonwealth v. Tart, 17

Va. App. 384, 390-91, 437 S.E.2d 219, 223 (1993).       "Questions of

. . . probable cause to . . . search are subject to de novo review

on appeal.       'In performing such analysis, we are bound by the

trial court's findings of historical fact unless "plainly wrong"

or without evidence to support them[.]'"        Archer v. Commonwealth,

26 Va. App. 1, 8, 492 S.E.2d 826, 830 (1997) (citations omitted).

                                     I.

     Pittsylvania County Detective Boyd Arnold, III, while

investigating a complaint that defendant, a convicted felon, had

sexually assaulted three minor girls, learned that defendant

possessed a "handgun."      Acting on information obtained during

questioning of the mother (mother) and adult half-sister (sister)

of the alleged victims, Arnold secured a search warrant for

defendant's residence, supported, in pertinent part, by the

following affidavit:

             During my investigation of [defendant] I was
             told by [mother] and [sister] that he was in
             possession of a handgun. The handgun was
             described as a semi-automatic pistol.
             [Mother] told me that [defendant] would
             carry the handgun on his person, kept in the
             vehicle, or in the house . . . . A criminal
             history check showed two felony convictions
             (05/18/83 & 01/14/85).

             *        *      *      *      *       *       *

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          The mother and . . . sister . . . have seen
          the handgun in the possession of [defendant]
          . . . . Both of them are adults and they
          described a handgun to me when I spoke with
          them on 09/30/98. [Mother] told me that she
          last saw the handgun about 2 months ago.

          *      *      *      *       *      *      *

          The informer's [sic] told me that they have
          known [defendant] for about 5-7 years and
          have seen the handgun in his possession.
          The informers appear to have some knowledge
          of what and how a handgun works. The
          informer's [sic] did not tell me anything
          about the handgun until I questioned them
          about it.

     Upon execution of the warrant on October 21, 1998, police

discovered no guns but observed "children's underwear" and

various "cassette tapes" on the premises.   Aware that the

victims had missed certain articles of underclothing after

"overnight visits" at defendant's home and that defendant had

been surreptitiously "recording [the] sexual relations" of other

houseguests, Arnold obtained and executed a second search

warrant, which resulted in the seizure of "children's panties"

and numerous cassette tapes.

     In granting defendant's motion to suppress all evidence

resulting from both searches, the trial court determined that

"the statements . . . by the informants appear overly general,"

unsupported by "facts from which the Magistrate could determine

that at the time the warrant was issued, on October 19th, 1998,

there was any reasonable likelihood that a firearm would be



                               - 3 -
located in the residence of the defendant" or "how [the

informants] knew the defendant 'carried the handgun on his

person . . . or [kept it] in the house.'"   The court, therefore,

concluded that "the facts contained in the Affidavit . . .

failed to provide . . . the Magistrate . . . probable cause to

issue the search warrant."   The court likewise rejected

application of the good faith exception established by United

States v. Leon, 468 U.S. 897 (1984), reasoning that "the warrant

was based on an Affidavit 'so lacking in indicia of probable

cause' as to render official belief in its existence

unreasonable[.]"

                                 II.

     Assuming, without deciding, that the affidavit failed to

provide the requisite probable cause, we, nevertheless, apply

the good faith exception of Leon to preclude operation of the

exclusionary rule.   "'The exclusionary rule is designed to deter

police misconduct rather than to punish the errors of judges and

magistrates.   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, 17 Va. App. at 390, 437 S.E.2d

at 222 (citation omitted).   Thus, "[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.

                                - 4 -
Commonwealth, 22 Va. App. 646, 653, 472 S.E.2d 649, 653 (1996)

(citation omitted).

     The good faith exception is not available in the following

four instances:

          (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.

Robinson v. Commonwealth, 19 Va. App. 642, 647, 453 S.E.2d 916,

918 (1995).   In declining to apply Leon to the instant search,

the trial court, and defendant on appeal, rely on the third

exception to the doctrine.   However, our review of the affidavit

discloses an "objectively reasonable belief that probable cause

existed" in support of the warrant.

          The task of the issuing magistrate is simply
          to make a practical, commonsense decision
          whether, given all the circumstances set
          forth in the affidavit before him, including
          the "veracity" and "basis of knowledge" of
          persons supplying hearsay information, there
          is a fair probability that contraband or
          evidence of a crime will be found in a
          particular place. And the duty of a
          reviewing court is simply to ensure that the
          magistrate had a "substantial basis for
          . . . conclud[ing]" that probable cause
          existed.




                               - 5 -
Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (citation

omitted).    The reliability of an informer's tip depends "on the

nature of the informer and the manner in which the information

provided by the informer reaches the magistrate."     Polston v.

Commonwealth, 24 Va. App. 738, 745, 485 S.E.2d 632, 635 (1997).

"If the informer is a disinterested citizen who is either the

victim or eyewitness of a crime, the magistrate is permitted to

infer that reasonable information obtained from the citizen is

reliable."     Id.

     Here, the informants, both citizens known to the

affiant/Arnold as adult relatives of the several infant victims,

advised him, during questioning, that defendant, a convicted

felon, "was in possession of a handgun."    Both women had "known"

defendant for five to seven years, had "some knowledge of what

and how a handgun works" and "had seen" defendant in possession

of a specifically described "pistol."    The mother stated that

defendant "would carry the handgun on his person" or "kept [it]

in the vehicle, or in the house" and had "last" seen the weapon

"about two months ago."

     Thus, like Leon, the warrant in issue was not dependent

upon a "bare bones" affidavit.    To the contrary, the instrument

recited detailed information provided by citizen informers,

based upon personal observations not too remote in time 1 and


     1
             "The ultimate criterion in determining the
             degree of evaporation of probable cause,

                                 - 6 -
deemed reliable, that defendant feloniously possessed a firearm.

Clearly, "the affidavit 'provided evidence sufficient to create

disagreement among thoughtful and competent judges as to the

existence of probable cause.'   Therefore, we cannot say that the

officers could not have 'harbored an objectively reasonable

belief in the existence of probable cause.'"     Tart, 17 Va. App.

at 390, 437 S.E.2d at 223 (citations omitted).

     Accordingly, we reverse the order suppressing the evidence

and remand for further proceedings consistent with this opinion.

                                         Reversed and remanded.




          however, is not case law but reason. The
          likelihood that the evidence sought is still
          in place is a function not simply of watch
          and calendar but of variables that do not
          punch a clock: the character of the crime
          (chance encounter in the night or
          regenerating conspiracy?), of the criminal
          (nomadic or entrenched?), of the thing to be
          seized (perishable and easily transferable
          or of enduring utility to its holder?), of
          the place to be searched (mere criminal
          forum of convenience or secure operational
          base?), etc. The observation of a
          half-smoked marijuana cigarette in an
          ashtray at a cocktail party may well be
          stale the day after the cleaning lady has
          been in; the observation of the burial of a
          corpse in a cellar may well not be stale
          three decades later. The hare and the
          tortoise do not disappear at the same rate
          of speed."

Turner v. Commonwealth, 14 Va. App. 737, 745, 420 S.E.2d 235,
240 (1992) (quoting Donaldson v. State, 420 A.2d 281, 286 (Md.
App. 1980) (citation omitted)).

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