                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judge Elder and Senior Judge Willis
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                              MEMORANDUM OPINION * BY
v.     Record No. 0242-11-1                                     JUDGE LARRY G. ELDER
                                                                   AUGUST 16, 2011
WILLIAM C. THOMAS


                   FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                E. Preston Grissom, Judge

                 Alice T. Armstrong, Assistant Attorney General II (Kenneth T.
                 Cuccinelli, II, Attorney General, on briefs), for appellant.

                 Timothy G. Clancy (Moschel, Clancy & Walter, P.L.L.C., on
                 brief), for appellee.


       William C. Thomas (defendant) stands charged with possession of cocaine in violation of

Code § 18.2-250, which was seized during execution of a search warrant for his home. Pursuant

to Code § 19.2-398, the Commonwealth appeals a pretrial ruling granting defendant’s motion to

suppress. Because the record and evidence support the circuit court’s ruling, we affirm and

remand for further proceedings consistent with this opinion if the Commonwealth be so advised.

       In order to attack a “‘facially sufficient affidavit,’” a defendant must make a dual

showing under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). 1



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         The record shows some confusion existed below regarding the form of proof required to
support the request for a hearing and who had the burden of going forward with the evidence.
See Franks, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682. However, on appeal, the
Commonwealth has assigned error only to the merits of the court’s ruling on the Franks test.
Thus, we do not consider the procedure followed below. Cf. Barnes v. Commonwealth, 279 Va.
22, 33, 688 S.E.2d 210, 216 (2010) (affirming the circuit court’s ruling upholding the warrant
Barnes v. Commonwealth, 279 Va. 22, 31, 688 S.E.2d 210, 215 (2010) (quoting United States v.

Colkley, 899 F.2d 297, 300 (4th Cir. 1990)). First, he must show “‘a false statement knowingly

and intentionally, or with reckless disregard for the truth, was included by the affiant in the

warrant affidavit.’” Colkley, 899 F.2d at 300 (quoting Franks, 438 U.S. at 155-56, 98 S. Ct. at

2676, 57 L. Ed. 2d at 672). Alternatively, Franks applies when an affiant “omit[s] material facts

‘with the intent to make, or in reckless disregard of whether they thereby made, the affidavit

misleading.’” Id. (quoting United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986)). This is

a question of fact to be proved by a preponderance of the evidence. Colkley, 899 F.2d at 300.

       Second, in the case of an omission, a defendant must show the omission was material and

that the affidavit, if supplemented with the omitted material, would have been insufficient to

establish probable cause. Reivich, 793 F.2d at 961. This is to be judged under an objective

standard. Barnes, 279 Va. at 31, 688 S.E.2d at 215 (citing Colkley, 899 F.2d at 300). “When the

factual basis for probable cause is provided by an informer, the informer’s (1) veracity,

(2) reliability, and (3) basis of knowledge are ‘highly relevant’ factors in the overall

totality-of-the-circumstances probable cause analysis.” Russell v. Commonwealth, 33 Va. App.

604, 610, 535 S.E.2d 699, 702 (2000). “[I]f the informer is a disinterested citizen who is either a

victim of or eyewitness to, a crime, police properly may give more weight to the informer’s

information than they would to information from a ‘criminal’ informer, whose motives are less

likely to be pure.” Reed v. Commonwealth, 36 Va. App. 260, 267-68, 549 S.E.2d 616, 619-20

(2001). However, if the evidence establishes the citizen informant had a motive to falsify and

fails to establish some other indicia of reliability, such as independent corroboration or a

statement against penal interest, a law enforcement affiant’s sworn statements of the informer’s



despite that court’s “improper procedure” in “conduct[ing] a Franks hearing absent the
establishment of the requisite substantial preliminary showing”).

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allegations regarding a crime, standing alone, are insufficient to provide probable cause for the

issuance of a warrant. See Lester v. Commonwealth, 30 Va. App. 495, 501, 518 S.E.2d 318,

320-21 (1999).

       Here, the affidavit form specifically requested all “facts” upon which “this informer’s

credibility or the reliability of the information may be determined.” Detective Williams failed to

include the facts that defendant had just been awarded custody of informant, his teenaged son, in

a “contentious” custody battle and that informant did not want to live with defendant because

defendant was “hard on him” due to his poor performance in school. The omitted information

established informant had a motive to lie about the presence of contraband in defendant’s home

in an effort to anger his father into returning him to the custody of his mother. The information

omitted also indicated informant made inconsistent statements concerning his familiarity with

marijuana, stating first he had never smoked marijuana and stating later both that he was familiar

with marijuana because he had smoked it before and that he knew the substance he claimed to

have found beneath his father’s sink was marijuana because he smoked some of it. Detective

Williams did not include these statements in the affidavit and indicated, to the contrary, that his

second interview with informant “was consistent with the first.” He admitted at the suppression

hearing that he should have included in response to the affidavit’s credibility question that

informant “lied” by originally denying he had ever smoked marijuana. Finally, Detective

Williams omitted his suspicion that informant was not being truthful about the size of the bag of

marijuana he claimed to have found, which provided additional information relevant to

informant’s credibility.

       Because informant did not make either of his inconsistent statements regarding his

marijuana smoking under oath, his penal admission added little, if any, credibility to his claims.

Further, we are unable to conclude that the content of informant’s tip “gave him any reason to

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fear prosecution for giving false information if the tip failed to prove completely accurate.”

Russell, 33 Va. App. at 616, 535 S.E.2d at 705. The only information informant gave Detective

Williams on January 4 was that a small bag of marijuana, rather than the larger gallon-sized bag

he had previously described, was present in the home, perhaps with a wooden smoking device.

If those items were not present when police searched the home, a reasonable conclusion would

have been simply that defendant had consumed the remaining marijuana or taken it and the

smoking device to a location outside the home. Thus, “the informant could easily conclude that

he would not be held responsible if the tip did not prove wholly accurate.” Id. at 617, 535 S.E.2d

at 705. Finally, informant’s tip was not predictive in any way and was not subject to

corroboration.

       The circuit court found the credibility information was recklessly omitted and held that if

the omitted information had been included, any judicial officer to whom the affidavit had been

presented would have concluded the informant’s statements were not sufficiently credible to

justify issuance of a warrant. Given informant’s motive to lie and the absence of evidence

corroborating his allegations or establishing his reliability in some other way, the record supports

this result. In sum, although the search warrant was facially valid and nothing in the record

indicates the issuing judicial officer acted improperly, defendant proved, based on the totality of

the circumstances which were known to the law enforcement affiant but recklessly omitted from

the affidavit, that probable cause was lacking. Thus, “the search warrant must be voided and the

fruits of the search excluded.” Franks, 438 U.S. at 156, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.

       For these reasons, we affirm the ruling granting defendant’s motion to suppress.

                                                         Affirmed and remanded with instructions.




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