                     COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia


GEORGE ANTONIO BRANDON
                                         MEMORANDUM OPINION * BY
v.   Record No. 1700-01-2                 JUDGE G. STEVEN AGEE
                                           SEPTEMBER 17, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Learned D. Barry, Judge

          Elliott B. Bender for appellant.

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


     George Antonio Brandon (Brandon) was convicted in the City

of Richmond Circuit Court of possession of cocaine with intent

to distribute, in violation of Code § 18.2-248, possession of

cocaine with intent to distribute near school property, in

violation of Code § 18.2-255.2, and possession of marijuana, in

violation of Code § 18.2-250.1.   He was sentenced to a prison

term of five years, the time to be suspended upon the completion

of a "boot camp" program.   Brandon now appeals his convictions




     *
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
contending the trial court erred by denying his motion to

suppress. 1

                                ANALYSIS

     On appeal of a ruling on a motion to suppress, we view the

evidence in the light most favorable to the prevailing party

below, here the Commonwealth, granting to it all reasonable

inferences deducible therefrom.      See Commonwealth v. Grimstead,

12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).     "[W]e are

bound by the trial court's findings of historical fact unless

'plainly wrong' or without evidence to support them[,] and we

give due weight to the inferences drawn from those facts by

resident judges and local law enforcement officers."         McGee v.

Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997)

(en banc) (citing Ornelas v. United States, 517 U.S. 690, 699

(1996)).      However, we review de novo the trial court's

application of defined legal standards to the particular facts

of the case.      See Ornelas, 517 U.S. at 699.

     Relying principally upon Franks v. Delaware, 438 U.S. 154

(1978), Brandon contends that the search warrant was issued upon

information in the affidavit that Officer Flornoy knew was false

or which he included with a reckless disregard of the truth.


     1
       As the parties are fully conversant with the record in
this case and because this memorandum opinion carries no
precedential value, only those facts necessary to a disposition
of this appeal are recited.


                                 - 2 -
Accordingly, Brandon avers the trial court erred in refusing to

suppress evidence gathered pursuant to the warrant.     We

disagree.

     In Franks, the United States Supreme Court held as follows:

            [W]here the defendant makes a substantial
            preliminary showing that a false statement
            knowingly and intentionally, or with
            reckless disregard for the truth, was
            included by the affiant in the warrant
            affidavit, and if the allegedly false
            statement is necessary to the finding of
            probable cause, the Fourth Amendment
            requires that a hearing be held at the
            defendant's request. In the event that at
            that hearing the allegation of perjury or
            reckless disregard is established by the
            defendant by a preponderance of the
            evidence, and, with the affidavit's false
            material set to one side, the affidavit's
            remaining content is insufficient to
            establish probable cause, the search warrant
            must be voided and the fruits of the search
            excluded to the same extent as if probable
            cause was lacking on the face of the
            affidavit.

438 U.S. at 155-56.    See also West v. Commonwealth, 16 Va. App.

679, 689, 432 S.E.2d 730, 736-37 (1993); Neustadter v.

Commonwealth, 12 Va. App. 273, 274, 403 S.E.2d 391, 392, aff'd

en banc, 13 Va. App. 283, 411 S.E.2d 228 (1991).

     The trial court granted Brandon a Franks hearing on his

motion but made no finding of a substantial preliminary showing

that the warrant contained false information.    Assuming, without

deciding, the trial court properly granted a Franks hearing, we

hold that the trial court did not err in denying the motion to

suppress because Brandon failed to establish by a preponderance
                               - 3 -
of the evidence his "allegation of perjury or reckless

disregard."

     Brandon failed to present any evidence, direct or

otherwise, that Officer Flornoy was knowingly or recklessly

untruthful in the search warrant affidavit when he stated

Officer Misiano observed Brandon reaching into a plastic bag and

removing a "small white object."    While Brandon presented the

preliminary hearing testimony of Officer Misiano in which the

officer described the transactions he observed as involving a

"small object" rather than a "small white object," a reading of

the entire preliminary hearing transcript shows that the officer

was never asked about the color of the "small object."    Officer

Flornoy's affidavit statement differed from Officer Misiano's

testimony only in minute detail and does not represent any

conflicting facts.   The difference between the two versions is

neither significant nor material.     Brandon failed to establish

by a preponderance of the evidence that Officer Flornoy

intentionally or recklessly misrepresented the truth in his

affidavit when he described a "small white object."     See Lanier

v. Commonwealth, 10 Va. App. 541, 549, 394 S.E.2d 495, 500

(1990). 2


     2
       Brandon elected to proceed in the Franks hearing solely on
Officer Flornoy's affidavit and the transcript of Officer
Misiano's preliminary hearing testimony. Having chosen not to
call the officers to testify, or present any other evidence, the
record is limited to these items for purposes of this appeal.

                              - 4 -
     Similarly, Brandon's contention that Officer Flornoy lied

or misrepresented a transaction involving a gray van is an

unsupported allegation.   Brandon claims that Officer Misiano's

preliminary hearing testimony refutes the warrant affidavit

statement.   This testimony, however, does not prove the

information stated in Officer Flornoy's warrant affidavit to be

false or reckless.   While Officer Misiano testified that he did

not see Brandon approach any cars, the officer did testify that

he observed individuals approach Brandon in the street.

Further, the officer was questioned only about "cars" and not

about any other motor vehicles such as trucks or vans.     Again,

Brandon failed to establish a material false or reckless

statement by a preponderance of the evidence.

     Even if we assume the statement regarding a transaction

involving a "gray van" was unfounded, the trial court did not

err by denying the motion to suppress.   Officer Misiano's

observation of Brandon exchanging small objects for cash on the

street in an active open air drug market provided the magistrate

with sufficient probable cause to issue the warrant.     See Gwinn

v. Commonwealth, 16 Va. App. 972, 976, 434 S.E.2d 901, 904

(1993) ("[W]hen other evidence exists in the affidavit, which

independently establishes probable cause without having to

consider the unfounded statement, the magistrate's decision to

issue a search warrant will not be disturbed because the

supporting affidavit contained some evidence which, standing
                             - 5 -
alone, would be insufficient to establish probable cause.");

Neustadter, 12 Va. App. at 278, 403 S.E.2d at 394 (citing

Franks, 438 U.S. at 171-72).

     The trial court did not err by denying Brandon's motion to

suppress.   Accordingly, we affirm Brandon's convictions.

                                                            Affirmed.




                               - 6 -
