                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, AtLee and Senior Judge Clements
PUBLISHED


            Argued at Lexington, Virginia


            JAMES WILLIS CAMPBELL, SR.
                                                                                 OPINION BY
            v.     Record No. 1404-15-3                                JUDGE JEAN HARRISON CLEMENTS
                                                                               OCTOBER 25, 2016
            COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF AMHERST COUNTY
                                       J. Michael Gamble, Judge Designate

                           Robert C. Goad, III (Shrader Law Office, on brief), for appellant.

                           Katherine Quinlan Adelfio, Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   An Amherst County grand jury indicted James Willis Campbell, Sr. (appellant) for

            manufacturing or possessing methamphetamine with the intent to distribute it. See Code

            § 18.2-248. Appellant moved to suppress the evidence seized when the police entered his

            property and searched it on August 6, 2014 pursuant to a search warrant. The trial court found

            that the affidavit upon which the warrant was based was not filed as required by Code § 19.2-54,

            Virginia’s statute prohibiting general warrants and detailing the procedures for filing warrants

            and affidavits. Nonetheless, the trial court found that probable cause and exigent circumstances

            existed to justify a search without a warrant, and denied the motion to suppress the evidence. On

            appeal, appellant argues the trial court erred in denying the motion to suppress. For the reasons

            that follow, we reverse the trial court’s ruling and remand the matter to the trial court.

                                                     BACKGROUND

                   “When reviewing a trial court’s denial of a defendant’s motion to suppress, we review the

            evidence in the light most favorable to the Commonwealth, according it the benefit of all
reasonable inferences fairly deducible from the evidence.” Anderson v. Commonwealth, 279

Va. 85, 90, 688 S.E.2d 605, 607 (2010).

       At about 10:30 p.m. on August 6, 2014, a magistrate issued a search warrant for premises

owned by appellant and located in Amherst County. The warrant authorized a search for items

related to the manufacture of methamphetamine. Investigator James Begley appeared before the

magistrate and executed the affidavit in support of the search warrant. The affidavit included

information Begley had received from an informant regarding the existence of a

methamphetamine lab on appellant’s property. The informant had advised Begley that a “meth

cook” was planned for later that evening.

       Begley left the magistrate’s office with two signed copies of the warrant and the

underlying affidavit. He gave one copy to the Virginia State Police. Begley and officers with

the Virginia State Police tactical team executed the warrant at 11:52 p.m. on August 6, 2014.

The officers seized evidence related to the manufacture of methamphetamine. They arrested

appellant and others.

       The magistrate retained one copy of the search warrant and affidavit, which contained

handwritten additions to indicate appellant’s property was located in Madison Heights, a

community within Amherst County. Documents relating to the warrant subsequently were faxed

from the magistrate’s office to the clerk of the circuit court for Amherst County, and were filed

there on August 7, 2014. However, only the first page of the affidavit and the search warrant

were received and filed. The second page of the affidavit, containing the facts constituting

probable cause, was not received or filed.

       Appellant was indicted for the offense on February 10, 2015. Appellant filed a motion to

suppress the evidence on March 26, 2015 and an amended motion to suppress on April 2, 2015.

He alleged that the evidence seized pursuant to the warrant should be suppressed because the

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complete affidavit supporting the warrant had not been filed as required by Code § 19.2-54.

Although initially finding the violation of the filing requirement was a procedural matter, the

trial court ultimately concluded that the failure to file the complete affidavit required suppression

of the evidence.

       The Commonwealth moved for reconsideration of the trial court’s decision. It also

argued that, notwithstanding any violation of the statutory filing requirement, the good faith

exception to the Fourth Amendment exclusionary rule applied. The Commonwealth also

contended probable cause and exigent circumstances existed to justify a warrantless search of

appellant’s property.

       At an evidentiary hearing on the motion to reconsider, the Commonwealth was unable to

produce the original copy of the second page of the search warrant affidavit. Placed before the

trial court, and made a part of the record, was the copy of the affidavit Begley had retained.

Begley’s copy of the affidavit differed from the document faxed to the circuit court clerk in that

Begley’s copy did not contain the handwritten notations that appellant’s property was in

Madison Heights. The trial court declined to disturb its prior ruling suppressing the evidence due

to the violation of Code § 19.2-54. The trial court took under advisement the Commonwealth’s

contention that probable cause and exigent circumstances existed to justify a warrantless search

of the property.

       The trial court then proceeded to hear evidence of the substantive offense, including

evidence obtained from the search on August 6, 2014. At the conclusion of the

Commonwealth’s evidence, the trial court found that probable cause and exigent circumstances

justified a warrantless search of appellant’s property and that the prosecution’s evidence was

admissible. Appellant presented no evidence, and the trial court found him guilty of the charged

offense.

                                                -3-
                                         DISCUSSION

      Code § 19.2-54 provides, in pertinent part:

                      No search warrant shall be issued until there is filed with
             the officer authorized to issue the same an affidavit of some person
             reasonably describing the place, thing, or person to be searched,
             the things or persons to be searched for thereunder, alleging briefly
             material facts, constituting the probable cause for the issuance of
             such warrant and alleging substantially the offense in relation to
             which such search is to be made and that the object, thing, or
             person searched for constitutes evidence of the commission of such
             offense. The affidavit may be filed by electronically transmitted
             (i) facsimile process or (ii) electronic record as defined in
             § 59.1-480. Such affidavit shall be certified by the officer who
             issues such warrant and delivered in person; mailed by certified
             mail, return receipt requested; or delivered by electronically
             transmitted facsimile process or by use of filing and security
             procedures as defined in the Uniform Electronic Transactions Act
             (§ 59.1-479 et seq.) for transmitting signed documents, by such
             officer or his designee or agent, to the clerk of the circuit court of
             the county or city wherein the search is made, with a copy of the
             affidavit also being delivered to the clerk of the circuit court of the
             county or city where the warrant is issued, if in a different county
             or city, within seven days after the issuance of such warrant and
             shall by such clerks be preserved as a record and shall at all times
             be subject to inspection by the public after the warrant that is the
             subject of the affidavit has been executed or 15 days after issuance
             of the warrant, whichever is earlier . . . . Each such clerk shall
             maintain an index of all such affidavits filed in his office in order
             to facilitate inspection. No such warrant shall be issued on an
             affidavit omitting such essentials, and no general warrant for the
             search of a house, place, compartment, vehicle or baggage shall be
             issued. The term “affidavit” as used in this section, means
             statements made under oath or affirmation and preserved
             verbatim.

                     Failure of the officer issuing such warrant to file the
             required affidavit shall not invalidate any search made under the
             warrant unless such failure shall continue for a period of 30 days.
             If the affidavit is filed prior to the expiration of the 30-day period,
             nevertheless, evidence obtained in any such search shall not be
             admissible until a reasonable time after the filing of the required
             affidavit.

(Emphasis added).



                                              -4-
        The statutory framework set forth in Code § 19.2-54 requires that the search warrant

affidavit be filed in the circuit court clerk’s office within a relatively brief period of time after the

search warrant is issued or executed. “Affidavit” means the statements made under oath by the

affiant when he sought the search warrant. See id. See also Quintana v. Commonwealth, 224

Va. 127, 136, 295 S.E.2d 643, 646 (1982) (under Code § 19.2-54, “‘the required affidavit’ means

the affidavit required to support issuance of a search warrant”).

        In this case, only one page of the affidavit for the search warrant was filed with the clerk

of the Circuit Court of Amherst County. The single page that was filed did not contain Begley’s

sworn statements of material facts constituting probable cause. It is clear, and the parties do not

dispute, that the affidavit filing requirement of Code § 19.2-54 was not satisfied in this instance.

Thus, we must determine whether, and under what circumstances, a violation of the filing

requirement of Code § 19.2-54 mandates suppression of evidence seized pursuant to a warrant.

        At the outset, it is important to distinguish the potential remedy of exclusion of evidence

pursuant to Code § 19.2-54 from the exclusionary rule recognized to redress violations of the

Fourth Amendment of the United States Constitution. The Fourth Amendment protects against

unreasonable searches and seizures by the police, but “is silent about how this right is to be

enforced. To supplement the bare text, [the United States Supreme Court] created the

exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence

obtained by way of a Fourth Amendment violation.” Davis v. United States, 564 U.S. 229,

231-32 (2011). This exclusionary rule applies only to constitutional violations, not to alleged

violations of state laws governing police encounters with members of the public. See Virginia v.

Moore, 553 U.S. 164, 178 (2008).

        “Absent an infirmity of constitutional dimensions, the ‘mere violation of state statutory

law does not require that the offending evidence be suppressed, unless the statute expressly

                                                  -5-
provides for an evidentiary exclusion remedy.’” Cutright v. Commonwealth, 43 Va. App. 593,

600, 601 S.E.2d 1, 4 (2004) (quoting Seaton v. Commonwealth, 42 Va. App. 739, 757 n.7, 595

S.E.2d 9, 17 n.7 (2004)). The Supreme Court of the United States has made clear that states may

impose consequences for violation of a state statute, even where the search or seizure did not

also violate the Fourth Amendment. See Moore, 553 U.S. at 173 (observing that “when States

go above the Fourth Amendment minimum, the Constitution’s protections concerning search and

seizure remain the same”). “A State is free to prefer one search-and-seizure policy among the

range of constitutionally permissible options, but its choice of a more restrictive option does not

render the less restrictive ones unreasonable, and hence unconstitutional.” Id. at 174.

       The Supreme Court of Virginia has observed that Code § 19.2-54 “deals with the

admissibility of evidence seized in the search” pursuant to a warrant. 1 Lane v. Commonwealth,

223 Va. 713, 719, 292 S.E.2d 358, 362 (1982). However, no known Virginia case law has

concluded that Code § 19.2-54 requires exclusion of evidence if the requirement for filing a

search warrant affidavit was not met. Most of the decisions considering the application of Code

§ 19.2-54 have focused on the “notice-based” purpose of the statute and whether the defendant

sustained any prejudice as a result of noncompliance.

       In Quintana, the defendant moved to suppress evidence seized in a search because the

magistrate failed to strictly comply with the procedural requirements of Code § 19.2-54.

Specifically, the magistrate who issued the search warrant did not certify the supporting affidavit

before he filed it with the clerk of the circuit court, nor did he do so within thirty days after

issuance of the search warrant. Quintana, 224 Va. at 136, 295 S.E.2d at 646. The Court rejected


       1
         Code § 19.2-54 is titled, “Affidavit preliminary to issuance of search warrant; general
search warrant prohibited; effect of failure to file affidavit.” (Emphasis added). “A title may be
read in an attempt to ascertain an act’s purpose, though it is no part of the act itself.” Newton v.
Commonwealth, 29 Va. App. 433, 441-42, 512 S.E.2d 846, 850 (1999) (quoting Hawkins v.
Commonwealth, 255 Va. 261, 269, 497 S.E.2d 839, 842 (1998)).
                                                  -6-
the argument that “the required affidavit” had not been filed within thirty days and that

consequently the search was invalid. The Court found that the purpose of the certification

requirement “in our statute is to insure that the affidavit filed with the clerk for the information

of the accused is the same affidavit upon which the finding of probable cause was based.” Id. at

136, 295 S.E.2d at 646-47. See also Garza v. Commonwealth, 228 Va. 559, 566, 323 S.E.2d

127, 131 (1984) (stating the purpose of Code § 19.2-54 “is to give the defendant reasonable

opportunity to determine that the affidavit on file is the same one upon which the determination

of probable cause was based”).

       In Lockhhart v. Commonwealth, 34 Va. App. 329, 335-36, 542 S.E.2d 1, 4 (2001), the

defendant moved to suppress evidence seized pursuant to a search warrant because the

magistrate himself did not file the supporting affidavit within thirty days of the issuance of the

warrant. Rather than the magistrate, the police officer who obtained the warrant filed the

warrant, inventory from the search, and the original supporting affidavit with the clerk of the

circuit court. Not until ten months after the warrant was issued did the magistrate file the

documents required by Code § 19.2-54. See Lockhart, 34 Va. App. at 336-37, 542 S.E.2d at 4.

This Court found that “[t]he purpose of the filing requirement, like the certification requirement,

‘is to give the defendant reasonable opportunity to determine that the affidavit on file is the same

one upon which the determination of probable cause was based.’” Id. at 338, 542 S.E.2d at 5

(quoting Robertson v. Rogers, 2 Va. App. 503, 507, 346 S.E.2d 41, 44 (1986)). We concluded:

               [T]he supporting affidavit filed by [the officer] was the same one
               he subscribed before the magistrate. The affidavit was on file in
               the clerk’s office available for inspection by [the defendant] the
               day after the search warrant was issued. We find, therefore, that,
               even though the affidavit was delivered to the clerk’s office by the
               officer who executed the search warrant rather than by the
               magistrate who issued the warrant, the notice-based purpose of




                                                 -7-
                Code § 19.2-54 was achieved and [the defendant] suffered no
                prejudice as a result of the affidavit not having been filed by the
                magistrate.

Id.

        Unlike in Quintana and Lockhart, the incomplete affidavit that was filed in this case was

not the same one upon which the determination of probable cause was based. Obviously, a

second page, containing Begley’s statements to support probable cause, was missing. In

addition, the one page of the affidavit that was filed did not contain the handwritten notations

regarding Madison Heights that appeared on the copy of the affidavit later produced by Begley at

a suppression hearing. In the course of the proceedings in the trial court, the Commonwealth

was unable to produce the original affidavit certified by the magistrate.

        As earlier noted, the final paragraph of Code § 19.2-54 states:

                        Failure of the officer issuing such warrant to file the
                required affidavit shall not invalidate any search made under the
                warrant unless such failure shall continue for a period of 30 days.
                If the affidavit is filed prior to the expiration of the 30-day period,
                nevertheless, evidence obtained in any such search shall not be
                admissible until a reasonable time after the filing of the required
                affidavit.

        “The primary objective of statutory construction is to ascertain and give effect to

legislative intent.” Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998).

In pursuit of this objective, “[c]ourts are required to apply the plain language of a statute when

possible and may not rewrite it.” Parker v. Warren, 273 Va. 20, 23, 639 S.E.2d 179, 181 (2007).

        The final paragraph of Code § 19.2-54 is no model of clarity regarding the consequences

intended by the General Assembly upon a failure to comply with the statutory filing requirement.

But, it provides implicitly that a search is invalid if the failure to file the required affidavit

continues for thirty days. To interpret the statute otherwise would give no meaning to the word

“unless.” “[W]e . . . presume that the legislature chose, with care, the words it used when it


                                                  -8-
enacted the relevant statute.” Seabolt v. Cnty. of Albemarle, 283 Va. 717, 720, 724 S.E.2d 715,

717 (2012) (quoting Addison v. Jurgelsky, 281 Va. 205, 208, 704 S.E.2d 402, 404 (2011)).

       Accordingly, we find that, pursuant to the higher standard set in Code § 19.2-54 by the

General Assembly, see Moore, 553 U.S. at 173, a search is invalid and evidence obtained in the

search is inadmissible if the search warrant affidavit, including the sworn statements providing

probable cause, is not filed with the clerk for a period of thirty days from the issuance or

execution of the warrant. Having reached the conclusion that the evidence obtained pursuant to

the search warrant should have been suppressed by operation of state statute, the question of

whether the search and seizure of evidence also violated the Fourth Amendment is irrelevant.2


       2
         Although finding the evidence should be suppressed due to the violation of Code
§ 19.2-54, the trial court found the presence of probable cause and exigent circumstances
permitted a warrantless search of appellant’s property without violation of the Fourth
Amendment.

                       Although the text of the Fourth Amendment does not
               specify when a search warrant must be obtained, this Court has
               inferred that a warrant must generally be secured. “It is a ‘basic
               principle of Fourth Amendment law,’” we have often said, “‘that
               searches and seizures inside a home without a warrant are
               presumptively unreasonable.’” Brigham City v. Stuart, 547 U.S.
               398, 403 (2006) (quoting Groh v. Ramirez, 540 U.S. 551, 559
               (2004)). But we have also recognized that this presumption may
               be overcome in some circumstances because “the ultimate
               touchstone of the Fourth Amendment is ‘reasonableness.’”
               Brigham City, supra, at 403. . . . Accordingly, the warrant
               requirement is subject to certain reasonable exceptions. Brigham
               City, supra, at 403.

                      One well-recognized exception applies when “‘the
               exigencies of the situation’ make the needs of law enforcement so
               compelling that [a] warrantless search is objectively reasonable
               under the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385,
               394 (1978) . . . .

Kentucky v. King, 563 U.S. 452, 459-60 (2011).

       The trial court’s application of the exigent circumstances exception to the warrant
requirement was inapposite. Regardless of the facts and circumstances facing the police officers
                                                -9-
As a matter of state law, the evidence was inadmissible. “The doctrine of judicial restraint

dictates that we decide cases ‘on the best and narrowest grounds available.’” Commonwealth v.

Swann, 290 Va. 194, 196, 776 S.E.2d 265, 267 (2015) (quoting McGhee v. Commonwealth, 280

Va. 620, 626 n.4, 701 S.E.2d 58, 61 n.4 (2010)).

                                          CONCLUSION

       For the foregoing reasons, we reverse the trial court’s decision to admit evidence

obtained in the search executed pursuant to the warrant, and reverse appellant’s conviction. We

remand the matter to the trial court for retrial if the Commonwealth be so advised.

                                                                           Reversed and remanded.




who arrived at appellant’s property to search it, the police had in fact obtained a search warrant.
There was no warrantless search or seizure in this instance.
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