                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.   Record No. 2267-98-3              JUDGE JERE M. H. WILLIS, JR.
                                               APRIL 2, 1999
DANIEL CURTIS OVERSTREET


              FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                 Kenneth E. Trabue, Judge Designate

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on
          briefs), for appellant.

          B. Leigh Drewry, Jr., for appellee.


     Daniel Curtis Overstreet was indicted for possession of

cocaine, in violation of Code § 18.2-250, and for possession of

marijuana, in violation of Code § 18.2-250.1.      Appellee filed a

pretrial motion to suppress evidence of the drugs, contending

that they were discovered as a result of an unlawful search of

his person.   The trial court granted the motion, and the

Commonwealth appealed pursuant to Code § 19.2-398(2).     For the

following reasons, we reverse the trial court's decision and

remand for further proceedings.




     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
                                I.

     In reviewing a trial court's ruling on a suppression

motion, we consider the evidence in the light most favorable to

the prevailing party below, and the decision will not be

disturbed unless it is plainly wrong or without evidence to

support it.   See Lee v. Commonwealth, 18 Va. App. 235, 238, 443

S.E.2d 180, 181 (1994); Commonwealth v. Grimstead, 12 Va. App.

1066, 1067, 407 S.E.2d 47, 48 (1991).    So viewed, the evidence

established that on February 18, 1998, Investigator L.T. Guthrie

of the Campbell County Sheriff's Office arrested Overstreet

pursuant to a capias from Bedford County.    In a search incident

to arrest, Guthrie found marijuana and cocaine on Overstreet's

person.

     At the time of arrest, Guthrie served the arrest process,

consisting of the capias, and an attached indictment.    Although

Overstreet's name was on the capias, the defendant named in the

attached indictment was "Curtis Nichols."    Guthrie testified

that he did not read the indictment before serving the capias.

     At the conclusion of the suppression hearing, the trial

court granted Overstreet's motion.     The trial court ruled as

follows:

           I agree with the defendant. It's an
           invalid arrest. I don't think the
           officer did it in bad faith, but the
           . . . inconsistency . . . is on the
           face of the . . . documents, and that
           is it's obvious from reading the capias


                               - 2 -
             that the . . . person named in the
             capias is not the same person that's
             named in the indictment. And,
             therefore, it's an invalid arrest and
             . . . the Motion to Suppress the search
             is sustained.

Pursuant to Code § 19.2-398(2), the Commonwealth appealed the

trial court's ruling.

                                     II.

     The Commonwealth argues that because the capias was valid,

the arrest was lawful notwithstanding any error in the attached

indictment.     See Code § 19.2-76 (addressing the execution of a

capias). 1    The Commonwealth further argues that even if the

process failed to comply with Code § 19.2-232, 2 there was no


     1
         Code § 19.2-76 provides:

                  A law-enforcement officer may execute
             within his jurisdiction a warrant, capias or
             summons issued anywhere in the Commonwealth.
             A warrant or capias shall be executed by the
             arrest of the accused, and a summons shall
             be executed by delivering a copy to the
             accused personally.
     2
         Code § 19.2-232 provides:

                  When an indictment or presentment is
             found or made, or information filed, the
             court, or the judge thereof, shall award
             process against the accused to answer the
             same, if he be not in custody. Such
             process, if the prosecution be for a felony,
             shall be a capias; if it be for a
             misdemeanor, for which imprisonment may be
             imposed, it may be a capias or summons, in
             the discretion of the court or judge; in all
             other cases, it shall be, in the first
             instance a summons, but if a summons be
             returned executed and the defendant does not
                                    - 3 -
violation of Overstreet's Fourth Amendment rights and the

exclusionary rule is inapplicable for statutory violations.

Finally, the Commonwealth argues that even if there was a Fourth

Amendment violation, the good faith exception to the

exclusionary rule applies in this case and, therefore, the

evidence obtained by the search of Overstreet was admissible.

     Assuming, without deciding, that the arrest was defective

and that Overstreet's Fourth Amendment rights were violated, we

hold that the drugs seized were admissible pursuant to the good

faith exception to the exclusionary rule.

     In United States v. Leon, 468 U.S. 897 (1984), the United

States Supreme Court held that "suppression of evidence obtained

pursuant to a warrant should be ordered only on a case-by-case

basis and only in those unusual cases in which exclusion will

further the purposes of the exclusionary rule."   Id. at 918.

          The deterrent purpose of the exclusionary
          rule necessarily assumes that the police
          have engaged in willful, or at the very
          least negligent, conduct which has deprived
          the defendant of some right. By refusing to
          admit evidence gained as a result of such
          conduct, the courts hope to instill in those
          particular investigating officers, or in
          their future counterparts, a greater degree
          of care toward the rights of an accused.
          Where the official action was pursued in


          appear, or be returned not found, the court
          or judge may award a capias. The officer
          serving the summons or capias shall also
          serve a copy of the indictment, presentment
          or information therewith.

                              - 4 -
          rationale loses much of its force.

Id. at 919 (citations omitted) (emphasis added).   "In short,

where the officer's conduct is objectively reasonable,

'excluding the evidence will not further the ends of the

exclusionary rule in any appreciable way; for it is painfully

apparent that . . . the officer is acting as a reasonable

officer would and should act in similar circumstances.

Excluding the evidence can in no way affect his future conduct

unless it is to make him less willing to do his duty.'"     Id. at

919-20 (citations omitted). 3


     3
      In Leon, the Supreme Court established the following test
to determine whether suppression of evidence is an appropriate
remedy:

               Suppression therefore remains an
          appropriate remedy if the magistrate or
          judge in issuing a warrant was misled by
          information in an affidavit that the affiant
          knew was false or would have known was false
          except for his reckless disregard of the
          truth. . . . The exception we recognize
          today will also not apply in cases where the
          issuing magistrate wholly abandoned his
          judicial role. . . . [I]n such
          circumstances, no reasonably well trained
          officer should rely on the warrant. Nor
          would an officer manifest objective good
          faith in relying on a warrant based on an
          affidavit "so lacking in indicia of probable
          cause as to render official belief in its
          existence entirely unreasonable." . . .
          Finally, depending on the circumstances of
          the particular case, a warrant may be so
          facially deficient -- i.e., in failing to
          particularize the place to be searched or



                                - 5 -
     In Virginia, we have applied the good faith exception to

the exclusionary rule.    See Polston v. Commonwealth, 255 Va.

500, 503, 498 S.E.2d 924, 926 (1998); Derr v. Commonwealth, 242

Va. 413, 422-23, 410 S.E.2d 662, 667 (1991); McCary v.

Commonwealth, 228 Va. 219, 232, 321 S.E.2d 637, 644 (1984).      "An

arrest made pursuant to a mistake of fact is valid if (1) the

arresting officer believed, in good faith, that his or her

conduct was lawful, and (2) the arresting officer's good faith

belief in the validity of the arrest was objectively

reasonable."    Barnette v. Commonwealth, 23 Va. App. 581, 584,

478 S.E.2d 707, 708 (1996).

     The evidence established that Officer Guthrie acted in good

faith when executing the capias and arresting Overstreet.

Although Guthrie relied on the language of the capias and did

not check the name on the underlying indictment, this omission

does not require exclusion of the seized items.   At the

suppression hearing, Guthrie testified that he believed he could

arrest Overstreet based upon the capias alone.    This belief was

reasonable.    The capias itself was the process placed in

Guthrie's hands for execution.    It was regular on its face.    It

was a court order commanding him to arrest Overstreet.     The



          the things to be seized -- that the
          executing officers cannot reasonably presume
          it to be valid.

Leon, 468 U.S. at 923 (citations omitted).
                                 - 6 -
attached indictment was merely an underlying, supporting

document.

       No evidence proved that Guthrie's failure to read the

indictment constituted "willful" or "negligent" conduct,

requiring suppression of the evidence. 4      See Leon, 468 U.S. at

919.       The capias was not "facially deficient."   Guthrie

reasonably presumed it to be valid. 5      See id. at 923.   His duty

required him to obey the court order and arrest Overstreet.         In

short, Guthrie made the arrest based upon his good faith, but

mistaken, belief that the process was correct. 6      Accordingly, we

reverse the trial court's ruling granting the motion to suppress

and remand for further proceedings.

                                             Reversed and remanded.




       4
      The trial court specifically noted:      "I don't think the
officer did it in bad faith . . . ."
       5
      While Overstreet maintains that there was no valid
indictment relating to him, there is no evidence in the record
to support this contention. Rather, the record reflects that on
June 17, 1998, the indictment charging Overstreet with
distribution of methaphetamine was dismissed.
       6
      Overstreet's reliance upon Leatherwood v. Commonwealth, 215
Va. 161, 207 S.E.2d 845 (1974), is misplaced. While the Court
held that an arrest based on an invalid warrant required
suppression of the evidence in that case, see id. at 163, 207
S.E.2d at 847, Leatherwood was decided prior the Supreme Court's
decision in United States v. Leon, 468 U.S. 897 (1984), which
established the good faith exception to the exclusionary rule.
                                   - 7 -
Fitzpatrick, C.J., dissenting.

     I respectfully dissent.     I agree with the majority that

United States v. Leon, 468 U.S. 897 (1984), controls this case.

However, we have previously held that the good faith exception

is not available in 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) (emphasis added).

     Despite the absence of police misconduct in the instant

case, I would hold that the fourth situation bars application of

the Leon good faith exception.     See Janis v. Commonwealth, 22

Va. App. 646, 653, 472 S.E.2d 649, 653, aff'd en banc, 24 Va.

App. 207, 481 S.E.2d 473 (1996) (noting that evidence may

nonetheless be excluded in the "absence of police misconduct").

While the trial judge ruled that the officer did not act in "bad

faith" when executing the capias and arresting appellee, the

evidence clearly supports the trial court's finding that the

arrest was invalid based upon the inconsistency on the face of

the documents.   Officer Guthrie specifically testified that he


                                 - 8 -
did not read the attached indictment before serving the capias

and that had he done so, he would have investigated the

inconsistency in the names.    In short, the warrant was "so

facially deficient . . . that the executing officer[ ] [could]

not presume it to be valid."    Leon, 468 U.S. at 923.

     For the foregoing reasons, I would affirm the trial court's

decision suppressing the evidence.




                                - 9 -
