                                               COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Chafin and Senior Judge Clements
            Argued at Lexington, Virginia
PUBLISHED




            JAMES WILLIS CAMPBELL, SR.
                                                                                    OPINION BY
            v.      Record No. 1923-15-3                                      JUDGE TERESA M. CHAFIN
                                                                                  AUGUST 21, 2018
            COMMONWEALTH OF VIRGINIA


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

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

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


                    Following a bench trial, James Willis Campbell, Sr., was convicted of possession with the

            intent to distribute methamphetamine, in violation of Code § 18.2-248.1 On appeal, Campbell

            challenges the trial court’s denial of his motion to suppress evidence obtained from a police search

            of his property. He further assigns error to the trial court’s denial of his motion to dismiss the

            indictment for possession with intent to distribute and the trial court’s ruling that the case was not

            barred by double jeopardy principles or by Code § 19.2-294. For the reasons that follow, we affirm

            the decision of the trial court.

             


                    1
                     Campbell was also convicted of manufacturing methamphetamine in violation of Code
            § 18.2-248 in a separate proceeding. On appeal, this Court reversed his manufacturing conviction
            on October 25, 2016. See Campbell v. Commonwealth, 66 Va. App. 677, 791 S.E.2d 351 (2016).
            The Commonwealth appealed to the Supreme Court of Virginia. On December 14, 2017, the
            Supreme Court reversed the Court of Appeals decision, reinstating Campbell’s manufacturing
            conviction. See Commonwealth v. Campbell, 294 Va. 486, 807 S.E.2d 735 (2017). The instant
            appeal was held in abeyance by this Court pending the Supreme Court’s decision in the
            manufacturing case.
                                           Background

       On August 6, 2014, Kevin Lockhart, a confidential informant, contacted Investigator

James Begley to inform him that a “meth cook” was going to happen in a shed on Campbell’s

property. Begley told Lockhart to keep him “apprised” of the situation. Begley then made

preparations in advance of receiving word from Lockhart that “the cook” was underway. He

contacted the Virginia State Police to inform the tactical team of the impending situation.

Begley informed his supervisors at the sheriff’s office that he would need additional officers on

the scene. While Begley was still in the process of making preparations, Lockhart informed

Begley that Campbell had acquired all the essential components needed to make

methamphetamine and was preparing the ingredients in a shed on his property.

       Begley drafted an affidavit and made three copies – (1) a copy to retain; (2) a copy to

attach to the search warrant once obtained; and (3) a copy to leave with the magistrate to file

with the clerk’s office. The magistrate instructed Begley to add “Madison Heights” to the

affidavit in order to clarify the location. He only made the addition on the magistrate’s copy.

Begley retained two copies of the affidavit, the original search warrant which he gave to the

Virginia State Police, and a copy of the search warrant. Begley’s affidavit stated as follows:

               A confidential, reliable informant has observed a
               methamphetamine lab in a shed within the curtilage, beside the
               residence listed in paragraph 2 [of the affidavit] within the past 72
               hours. The confidential, reliable informant is familiar with how
               methamphetamine is manufactured and is familiar with the
               precursors used to manufacture methamphetamine. The
               confidential, reliable informant has observed both the precursors
               and the residents processing the precursors to make the
               methamphetamine product in the shed beside [redacted] Drive.
               This officer knows that manufacturing methamphetamine is in
               violation of the Code of Virginia and that it is a felony offense
               listed under [Code § 18.2-248].

       The officers arrived at Campbell’s residence prior to executing the search warrant.

Investigator Brandon Hurt positioned himself between twenty-five and thirty yards from
                                                ‐ 2 -
Campbell’s shed. He observed the scene for nearly an hour before the execution of the warrant.

During that time, Hurt heard people talking and witnessed Campbell’s daughter as well as

another individual transport aluminum foil and a short hose to the shed. He also observed a

significant amount of smoke coming from the shed.

       Once the ingredients had been mixed in bottles, Lockhart called Begley. Lockhart

testified that the strong fumes forced Campbell to open the door to the shed. Approximately a

minute and a half later, the police drove up Campbell’s driveway. Campbell and the other

individuals hid or ran, but were apprehended by law enforcement within the hour. The officers

recovered evidence from the methamphetamine “cook,” including rolled up aluminum foil in the

bottom of a two-liter bottle; a roll of aluminum foil; muriatic acid; pseudoephedrine; a coffee

filter; camping fuel; Drano; lye; dry ice; “sludge from a . . . meth cook in [a] plastic pipe;” and

“two different containers containing liquid, both of which field tested [positive] for the presence

of methamphetamine.”

       Begley, who was qualified as an expert witness in the field of methamphetamine

production, testified that the process of making methamphetamine used highly combustible,

volatile chemicals that, if “cooked” for an extended period of time, could produce carcinogenic

and potentially lethal gases.

       Virginia State Police Special Agent Glen Phillips, who was also qualified as an expert on

the subject of manufacturing methamphetamine, testified that the manufacture of

methamphetamine posed a fire hazard and explosion risk. He further stated that Campbell had

completed the process of manufacturing methamphetamine.

       On February 10, 2015, Campbell was indicted for the felonious manufacture of

methamphetamine. Campbell filed a motion to suppress all evidence recovered pursuant to the

search warrant. He argued that the search warrant was defective pursuant to Code § 19.2-54

                                                ‐ 3 -
because the clerk of court never received a complete affidavit due to a faxing error or

malfunction. The affidavit page received by the clerk of court via fax “included a description of

the offense, a paragraph describing the place to be searched, and another paragraph listing the

things or persons to be searched.” Commonwealth v. Campbell (“Campbell I”), 294 Va. 486,

491-92, 807 S.E.2d 735, 737 (2017). The second page was missing from the fax. It contained a

description of the basis for probable cause and an explanation that the information came from an

informant and the basis for which the officer believed that the informant was credible.

Ultimately, the trial court denied Campbell’s suppression motion. While the trial court agreed

that the warrant was defective, it concluded that the search was justified by exigent

circumstances based on expert testimony and Lockhart’s communications with Begley. Id.

       On June 9, 2015, Campbell was indicted for feloniously possessing methamphetamine

with the intent to distribute it. On June 17, 2015, both the manufacturing and possession with

intent to distribute cases were set for trial. By counsel, Campbell requested a continuance on the

possession with intent to distribute charge due to the fact that he had only been indicted on that

charge less than two weeks earlier. The Commonwealth did not object, and the possession with

intent to distribute case was scheduled for August 19, 2015. The trial on the manufacturing

charge proceeded on June 17, 2015, and the trial court found Campbell guilty of that charge.

Campbell appealed to this Court. On October 25, 2016, this Court reversed the trial court’s

ruling to admit evidence obtained pursuant to the search warrant and reversed Campbell’s

conviction. See Campbell v. Commonwealth, 66 Va. App. 677, 791 S.E.2d 351 (2016). The

Commonwealth appealed to the Supreme Court of Virginia. The Supreme Court reversed the

ruling of the Court of Appeals and affirmed the reasoning and decision of the trial court. Thus,

Campbell’s conviction was reinstated. See Campbell I, 294 Va. at 497, 807 S.E.2d at 740.




                                                ‐ 4 -
          On October 25, 2015, Campbell filed a motion to dismiss the possession with intent to

distribute charge. He contended that prosecution of the possession with intent to distribute

charge would violate Code § 19.2-294 and constitutional double jeopardy principles. He also

filed a motion to suppress on the same day, repeating his argument that the affidavit filed with

the search warrant did not comply with Code § 19.2-54. The Commonwealth responded that

Campbell had not been subjected to double jeopardy because the manufacturing and possession

with intent to distribute offenses contained different elements, each requiring proof of a fact that

the other did not. Further, the Commonwealth contended that Campbell could be tried separately

for each of the “pots” that had been “cooked.” Finally, the Commonwealth argued that because

the possession with intent to distribute case was continued on Campbell’s request, Code

§ 19.2-294 did not bar the subsequent prosecution of that charge.

          During argument on Campbell’s motions, Campbell argued for the first time that the

“onus” was on the Commonwealth to move to join the charges pursuant to Rule 3A:6(b) and that

scheduling the possession with intent to distribute trial on June 17, 2015 violated Rule 3A:10

because he did not have enough time to prepare.

          The trial court ruled that the indictments did indeed charge separate offenses, and thus,

double jeopardy was not violated. Further, the trial court ruled that Campbell waived any

challenge because both the manufacturing and possession with intent to distribute cases were

scheduled to be tried the same day. Campbell asked that they be tried separately. As to the

suppression issue, the trial court held that its rulings on the matter in Campbell I controlled,

indicating that the search warrant was invalid, but exigent circumstances justified a warrantless

search.

          Campbell entered a conditional guilty plea, “subject to the court’s ruling on the

suppression motion in this case, which is basically going to be determined by the appeal” in the

                                                  ‐ 5 -
manufacturing case (Campbell I), as well as the appeal of the constitutional double jeopardy and

Code § 19.2-294 issues. Campbell now appeals to this Court in the possession with intent to

distribute case.

                                              Analysis

                                        I. Law of the Case

       Campbell argues on appeal that the exigent circumstances exception to the warrant

requirement could not save a violation of Code § 19.2-54. He next contends that the affidavit for

the search warrant was constitutionally insufficient and that the good faith exception to the

exclusionary rule did not apply. Thirdly, Campbell contends that exigent circumstances were not

present in this case to justify the entry and search of his property without a valid search warrant.

       Campbell’s first three assignments of error are identical to the assignments of error

presented in his appeal of the manufacturing methamphetamine conviction. See Campbell I, 294

Va. 486, 807 S.E.2d 735. The facts are the same in this appeal as in Campbell I, and the

evidence Campbell seeks to suppress is identical. In that case, Campbell appealed his

manufacturing conviction to this Court. We reversed the trial court’s decision. The

Commonwealth then appealed to the Supreme Court. The Supreme Court reversed the Court of

Appeals decision and reinstated the trial court’s order of conviction for the manufacturing of

methamphetamine charge. Id. at 497, 807 S.E.2d at 740. Specifically, the Supreme Court held

that, even assuming the search warrant was insufficient under the requirements of Code

§ 19.2-54, the search was nonetheless justified as a warrantless search pursuant to the exigent

circumstances doctrine. Id. at 495, 807 S.E.2d at 739.

       Therefore, assignments of error 1, 2, and 3 are controlled by the “law of the case”

doctrine. It is well-established that

               [when] there have been two appeals in the same case, between the
               same parties, and the facts are the same, nothing decided on the
                                                ‐ 6 -
               first appeal can be re-examined on a second appeal. Right or
               wrong, it is binding on both the trial court and the appellate court,
               and is not subject to re-examination by either. For the purpose of
               that case, though only for that case, the decision on the first appeal
               is the law.

Miller-Jenkins v. Miller-Jenkins, 276 Va. 19, 26, 661 S.E.2d 822, 826 (2008) (quoting Steinman

v. Clinchfield Coal Corp., 121 Va. 611, 620, 93 S.E. 684, 687 (1917)). Therefore, we will not

address Campbell’s first three assignments of error.

                               II. Constitutional Double Jeopardy

       On appeal, Campbell contends that the trial court erred by denying his motion to dismiss

the possession with intent to distribute indictment and ruling that the case was not barred by

constitutional double jeopardy principles. “In reviewing a double jeopardy claim, or a claim

based on statutory interpretation, this Court shall conduct a de novo review.” Davis v.

Commonwealth, 57 Va. App. 446, 455, 703 S.E.2d 259, 263 (2011). This Court “examine[s] the

record of a prior proceeding, taking into account the pleadings, evidence, charge, and other

relevant matter[s].” Davis v. Commonwealth, 63 Va. App. 45, 52, 754 S.E.2d 533, 537 (2014)

(quoting Jones v. Commonwealth, 217 Va. 231, 233, 228 S.E.2d 127, 129 (1979)).

       “The origin and history of the Double Jeopardy Clause are hardly a matter of dispute.”

United States v. Scott, 437 U.S. 82, 87 (1978). “The constitutional provision had its origin in the

three common-law pleas of autrefois acquit, autrefois convict, and pardon.” Id. “These three

pleas prevented the retrial of a person who had previously been acquitted, convicted, or pardoned

for the same offense.” Id. The principle of double jeopardy was a “universal maxim of the

common law of England, that no man is to be brought into jeopardy of his life more than once

for the same offense.” United States v. Wilson, 420 U.S. 332, 340 (1975) (quoting 4 W.

Blackstone, Commentaries on the Laws of England 335-336 (1769)). However, the

common-law pleas merely prohibited “repeated ‘prosecution for the same identical act and

                                                ‐ 7 -
crime,’ not the retrial of particular issues or evidence.” Currier v. Virginia, 138 S. Ct. 2144,

2153 (2018) (quoting 4 W. Blackstone at 330). English and early American cases demonstrate

that line of reasoning.

                In Turner’s Case, 30 Kel. J. 30, 84 Eng. Rep. 1068 (K. B. 1663),
                for example, a jury acquitted the defendant of breaking into a home
                and stealing money from the owner. Even so, the court held that
                the defendant could be tried later for the theft of money “stolen at
                the same time” from the owner’s servant. [Id.] In Commonwealth
                v. Roby, 29 Mass. 496 [(12 Pick. 496)] (Mass. 1832), the court,
                invoking Blackstone, held that “[i]n considering the identity of the
                offence, it must appear by the plea, that the offence charged in both
                cases was the same in law and in fact.” Id., at 509. The court
                explained that a second prosecution isn’t precluded “if the offences
                charged in the two indictments be perfectly distinct in point of law,
                however nearly they may be connected in fact.” [Id.] (emphasis
                added). Another court even ruled “that a man acquitted for
                stealing the horse hath yet been arraigned and convict for stealing
                the saddle, tho both were done at the same time.” 2 M. Hale, [The
                History of the Pleas of the Crown, ch. 31, p. 246 (1736 ed.)].

Id. Turner’s Case and Roby, in addition to various other cases with similar rulings, “demonstrate

that early courts . . . expressly rejected the notion that the Double Jeopardy Clause barred the

relitigation of issues or facts.” Id.

        In more modern double jeopardy cases, “the courts apply today much the same double

jeopardy test they did at the founding.” Id. (citing Blockburger v. United States, 284 U.S. 299,

304 (1932)). The Blockburger Court held that “where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied to determine whether there are

two offenses or only one, is whether each provision requires proof of a fact which the other does

not.” Blockburger, 284 U.S. at 304. The Blockburger test (or the same-elements test) places the

focus of the analysis on the proof necessary to prove the statutory elements of each offense,

instead of the actual evidence to be presented at trial. Id. If each statute requires proof of a fact

that the other does not, they constitute separate offenses, “notwithstanding a substantial overlap



                                                 ‐ 8 -
in the proof offered to establish the crimes.” Iannelli v. United States, 420 U.S. 770, 785 n.17

(1975).

          Ashe v. Swenson, 397 U.S. 436 (1970), “pressed Blockburger’s boundaries by suggesting

that, in narrow circumstances, the retrial of an issue can be considered tantamount to the retrial

of an offense.” Currier, 138 S. Ct. at 2153. However, the “ultimate focus [in a double jeopardy

analysis] remains on the practical identity of offenses, and the only available remedy is the

traditional double jeopardy bar against the retrial of the same offense – not a bar against the

relitigation of issues or evidence.” Id.

          In Currier, the Supreme Court addressed a case similar to the present case. Currier, 138

S. Ct. 2144. Currier was indicted for burglary, grand larceny, and unlawful possession of a

firearm by a convicted felon. Id. at 2148. In order to avoid the undue prejudice that would occur

upon mention of Currier’s prior felonies to a jury, Currier consented to a severance of the three

charges. Id. The burglary and larceny charges were tried first, and Currier was acquitted. Id.

Currier then attempted to stop the felon-in-possession trial on double jeopardy principles. Id. at

2149. The trial court denied Currier’s motion. Ultimately, Currier was convicted of the

felon-in-possession charge. This Court affirmed the decision of the trial court, stating that

double jeopardy was inapplicable because the severance of the trials inured to Currier’s benefit,

and he had consented to the severance. Currier v. Commonwealth, 65 Va. App. 605, 609-13,

779 S.E.2d 834, 836-37 (2015). The Supreme Court of Virginia affirmed this Court, and Currier

appealed.

          Currier argued that Ashe required a ruling in his favor. In Ashe, the defendant was

charged with six counts of armed robbery for robbing six men at a poker game. Ashe, 397 U.S.

at 438. The charges were tried separately. At the conclusion of the first trial, the defendant was




                                                 ‐ 9 -
acquitted of the robbery of one victim. The Supreme Court concluded that a second trial violated

the Double Jeopardy Clause.

               [T]he Court reasoned [that], because the first jury necessarily
               found that the defendant “was not one of the robbers,” a second
               jury could not “rationally” convict the defendant of robbing the
               second victim without calling into question the earlier acquittal. In
               these circumstances, the Court indicated, any relitigation of the
               issue whether the defendant participated as “one of the robbers”
               would be tantamount to the forbidden relitigation of the same
               offense resolved at the first trial.

Currier, 138 S. Ct. at 2149 (quoting Ashe, 397 U.S. at 445-46) (internal citations omitted). It is

important to note, however, that Ashe “forbids a second trial only if to secure a conviction the

prosecution must prevail on an issue the jury necessarily resolved in the defendant’s favor in the

first trial.” Id. at 2150. The Court in Currier observed a “critical difference” between Currier

and Ashe – Currier consented to a second trial. Id. Accordingly, Ashe cannot be applied to

Campbell’s case, as he also consented to a second trial.

       The Supreme Court notes that Jeffers v. United States, 432 U.S. 137 (1977), is instructive

in this exact situation. Currier, 138 S. Ct. at 2150. In Jeffers, as in Currier and the present case,

the defendant requested separate trials for each of the counts against him in order to “reduce the

possibility of prejudice.” Id. The defendant was acquitted of a lesser-included offense. He then

argued that double jeopardy barred a trial for the greater offense.

               In any other circumstance the defendant likely would have had a
               good argument. Historically, courts have treated greater and
               lesser-included offenses as the same offense for double jeopardy
               purposes, so a conviction on one normally precludes a later trial on
               the other. Jeffers, 432 U.S. at 150-151 (plurality opinion); Brown
               v. Ohio, 432 U.S. 161, 168-169 (1977) (collecting authorities).
               But, Jeffers concluded, it’s different when the defendant consents
               to two trials where one could have done. If a single trial on
               multiple charges would suffice to avoid a double jeopardy
               complaint, “there is no violation of the Double Jeopardy Clause
               when [the defendant] elects to have the . . . offenses tried



                                                ‐ 10 -
                 separately and persuades the trial court to honor his election.”
                 [Jeffers], 432 U.S. at 152.

Id.

          In the present case, Campbell’s manufacturing and possession with intent to distribute

charges were to be tried concurrently on June 17, 2015. However, Campbell requested a

continuance in the possession with intent to distribute case, arguing that he had been indicted on

that charge less than two weeks prior and needed more time to prepare. He made no objection to

the possession with intent to distribute charge itself. The continuance was granted by the trial

court. The manufacturing trial proceeded, and Campbell was found guilty. Campbell filed a

motion to dismiss the possession with intent to distribute charge, contending that the second trial

would violate double jeopardy principles.

          “[Campbell’s] consent [to a second trial] dispels any specter of double jeopardy abuse

that holding two trials might otherwise present.” Id. at 2151. Campbell’s request to sever the

charges pending against him and have two separate trials was a voluntary, strategic choice.

“[D]ifficult strategic choices like these are ‘not the same as no choice,’ and the Constitution

‘does not . . . forbid requiring’ a litigant to make them.” Id. at 2152 (citations omitted). The

Double Jeopardy Clause, “which guards against Government oppression, does not relieve a

defendant from the consequences of his voluntary choice.” Id. at 2151 (quoting Scott, 437 U.S.

at 99).

          Thus, the trial court did not err in denying Campbell’s motion to dismiss the possession

with intent to distribute indictment and ruling that the case was not barred by constitutional

double jeopardy principles.

                          III. Statutory Double Jeopardy – Code § 19.2-294

          Campbell argues that the trial court erred in ruling that his indictment and conviction of

possession with the intent to distribute were not barred by Code § 19.2-294. He contends that
                                                 ‐ 11 -
the proceedings in the manufacturing case (Campbell I) and the instant possession with intent to

distribute case were “successive” because he was indicted on different dates and the cases were

not tried in a single, concurrent evidentiary hearing. Therefore, he argues, he was subjected to

multiple prosecutions for the same act.

       Code § 19.2-294 states in pertinent part:

               If the same act be a violation of two or more statutes, or of two or
               more ordinances, or of one or more statutes and also one or more
               ordinances, conviction under one of such statutes or ordinances
               shall be a bar to a prosecution or proceeding under the other or
               others.

       Even though Code § 19.2-294 does not explicitly state that it provides a defense of

former jeopardy, “it amounts to such a defense in purpose and desired effect.” Epps v.

Commonwealth, 216 Va. 150, 155, 216 S.E.2d 64, 68 (1975) (citation omitted). Code

§ 19.2-294 precludes the Commonwealth from “subjecting an accused to the hazards of

vexatious, multiple prosecutions.” Hall v. Commonwealth, 14 Va. App. 892, 899, 421 S.E.2d

455, 460 (1992) (en banc). “Code § 19.2-294 does not bar multiple convictions for the same act

when those convictions are obtained in a single trial.” Id. at 894, 421 S.E.2d at 457.

       Our holding that the possession with intent to distribute trial did not violate constitutional

double jeopardy principles also applies here. Although Campbell argues that the manufacturing

charge and the possession with intent to distribute charge should have been prosecuted together

in a single trial, Campbell voluntarily requested to continue the possession with intent to

distribute charge and have two trials. “[Campbell’s] consent [to a second trial] dispels any

specter of double jeopardy abuse that holding two trials might otherwise present.” Currier, 138

S. Ct. at 2151. Campbell waived any right to challenge the decision of the trial court to proceed

with the second trial.




                                               ‐ 12 -
         The Commonwealth did not “subject” Campbell to “vexatious, multiple prosecutions,”

which is the primary concern of Code § 19.2-294. Hall, 14 Va. App. at 899, 421 S.E.2d at 460.

Rather, Campbell requested two separate trials. Therefore, we find that this argument is without

merit.

                                           Conclusion

         For the foregoing reasons, we hold that the Supreme Court’s ruling in the manufacturing

case controls the outcome of Campbell’s assignments of error 1, 2, and 3. The search warrant

has been held invalid. However, the warrantless search was justified based on exigent

circumstances. We further hold that constitutional and statutory double jeopardy principles were

not violated in the prosecution of the possession with intent to distribute methamphetamine. We

therefore affirm Campbell’s conviction for possession with the intent to distribute

methamphetamine pursuant to Code § 18.2-248.

                                                                                        Affirmed.

                                




                                              ‐ 13 -
Humphreys, J., concurring in the judgment.

        I join entirely in the analysis and judgment of my colleagues that the recent decision of

the Supreme Court of the United States in Currier v. Virginia, 138 S. Ct. 2144 (2018), is

dispositive with respect to Campbell’s fifth assignment of error—that his prosecution in this case

constituted a violation of the Double Jeopardy Clause of the Fifth Amendment. I also join in the

analysis and judgment of my colleagues that the same logic applicable in Currier is dispositive of

his fourth assignment of error—that Campbell’s motion for separate trials constitutes a waiver of

the application of Code § 19.2-294.

        However, regarding Campbell’s first three assignments of error, I join my colleagues

only in affirming the judgment in this case. As to Campbell’s first assignment of error, I do so

because I must, since, as my colleagues also correctly note, our Supreme Court’s decision in

Commonwealth v. Campbell (“Campbell I”), 294 Va. 486, 489, 807 S.E.2d 735, 736 (2017), is

binding upon us and controls the disposition of that assignment of error.2




        2
          Campbell’s second and third assignments of error assert constitutional infirmities based
entirely upon the failure of the magistrate to properly deliver the search warrant and affidavit to the
clerk of the circuit court. He reasons that because the warrant was not properly filed, it is a
constitutional nullity and therefore no probable cause existed to support a search. Given our
Supreme Court’s holding in Campbell I, those assignments of error are now moot, and we need not
decide them, however I note that the Fourth Amendment’s exclusionary rule is not a strict-liability
sanction. It is a prophylactic remedy and to the extent it is relevant to the first assignment of error, I
respectfully suggest that its purpose is not to deter the malfunctioning of a fax machine as
apparently occurred here. See, e.g., Matthews v. Commonwealth, 65 Va. App. 334, 347, 778
S.E.2d 122, 129 (2015) (“To trigger the exclusionary rule, police conduct must be sufficiently
deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is
worth the price paid by the justice system.” (quoting Herring v. United States, 555 U.S. 135, 144
(2009))).
         Where police have acted reasonably and conscientiously, as in this case where they obtained
and properly executed a search warrant invalidated only by the magistrate’s failure to transmit it and
its accompanying affidavit to the clerk of the circuit court, the Fourth Amendment’s exclusionary
rule is inapplicable and only the statutory sanction of Code § 19.2-54 could affect the admissibility
of the evidence seized from the execution of the search warrant.
                                                  ‐ 14 -
       Regarding the current appeal with respect to Campbell’s conviction for possession with

the intent to distribute methamphetamine, Campbell moved to suppress the evidence seized on

the same grounds he argued in his earlier trial and appeal for manufacture of methamphetamine.

Thus, for the reasons stated by the majority, Campbell I is binding and controls the outcome of

this assignment of error and renders two others moot. I write separately to explain why I believe

that decision to be flawed and to point out the mischief I believe it will now cause.

       The analysis and judgment of our Supreme Court in Campbell I raise several concerns in

my mind. First of all, I respectfully suggest that an inescapable inference from even a cursory

review of its analysis in Campbell I is that our Supreme Court has concluded that it is

fundamentally unfair to bar the use of evidence due to an apparent mechanical failure of a fax

machine when police have acted responsibly and appropriately in securing a search warrant and

gathered the evidence Campbell sought to suppress in total conformity with the Fourth

Amendment. However, as much I, or any judge, might personally agree with that conclusion, it

has no place in any legal analysis. An essential requirement of our judicial role, stemming from

the constitutional division of power among the three branches of government, is that our

subjective opinion regarding the policies embodied in statutes ought to have no bearing on any

legal analysis of those statutes. In short, whatever our private opinions of them, it is not for the

courts to nullify or undermine the policy decisions of the legislative branch so long as they are

constitutional.3

       Moreover, our Supreme Court’s decision in Campbell I ignored the basic constitutional

tenet that the Fourth Amendment of the United States Constitution is a floor, not a ceiling. In

Cooper v. California, 386 U.S. 58 (1967), the United States Supreme Court held that the states



       3
         I have also observed over the years that the surest way to obtain the modification or repeal
of a “bad” law by a legislature is to strictly enforce it.
                                                   ‐ 15 -
remain free “to impose higher standards on searches and seizures than required by the Federal

Constitution.” Id. at 62. Reversing our Supreme Court in Virginia v. Moore, 553 U.S. 164

(2008), the United States Supreme Court repeated that states may provide “additional protections

exclusively as matters of state law.” Id. at 171. In other words, the various states may enact

statutes that go beyond the minimum requirements imposed by the Fourth Amendment if they

choose. The Commonwealth has occasionally done so. Moore dealt with whether evidence must

be suppressed when it was recovered as part of a search incident to arrest when the arrest,

constitutional under the Fourth Amendment, nevertheless violated Code § 19.2-74, which

requires the issuance of a summons rather than a physical arrest for certain misdemeanor

offenses. The United States Supreme Court held in Moore that the Fourth Amendment’s

exclusionary rule applied only to violations of the Fourth Amendment itself and the existence of

any exclusionary remedy for violation of a state procedural statute must be found in state law.

See id. at 178. “[H]istorically, searches or seizures made contrary to provisions contained in

Virginia statutes provide no right of suppression unless the statute supplies that right.” Troncoso

v. Commonwealth, 12 Va. App. 942, 944, 407 S.E.2d 349, 350 (1991) (emphasis added); see

also Thompson v. Commonwealth, 10 Va. App. 117, 122, 390 S.E.2d 198, 201 (1990); Hall v.

Commonwealth, 138 Va. 727, 733-34, 121 S.E. 154, 156 (1924).

       The statute at the heart of Moore, Code § 19.2-74, contained no exclusionary remedy.

However, Code § 19.2-54, the statute at the center of both this case and Campbell I, clearly does

so. In enacting Code § 19.2-54, the General Assembly imposed a mandatory filing requirement

on every judicial officer issuing a search warrant, ordinarily a magistrate. The statutory

requirement is both straightforward and draconian. Code § 19.2-54 requires that the magistrate

deliver or transmit a copy of the search warrant and the supporting affidavit to the clerk of the

circuit court of the city or county where the search is to take place, within seven days. This

                                               ‐ 16 -
statute clearly specifies that the failure of the magistrate to do so prohibits the use of any

evidence obtained until a “reasonable time” after the warrant and affidavit are filed, provided

that such is done within “30 days.” The clear implication is that a failure to file is not curable

after 30 days.

       Specifically, the final paragraph of Code § 19.2-54 provides that the

                 [f]ailure of the officer [here, a magistrate] 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). While inartfully drafted, this statute implicitly provides that evidence seized

“under the warrant” is inadmissible if the failure to file the required affidavit continues beyond

29 days. In essence, Code § 19.2-54 establishes a more stringent standard for the admissibility

of evidence obtained through search warrants than those required by the Fourth Amendment and

also provides a statutory mandate for exclusion of the evidence obtained for non-compliance

after 29 days. At least it did until our Supreme Court neutered this statute by “assum[ing]” it

was violated but nevertheless holding that, contrary to the United States Supreme Court’s

decisions in Cooper and Moore, a less stringent constitutional standard trumps a more restrictive

statutory requirement and therefore, apparently the only criteria for admitting evidence obtained

pursuant to a search warrant in the Commonwealth going forward, is compliance with the Fourth

Amendment.

       I reach the conclusion that our Supreme Court effectively rendered the General

Assembly’s exclusionary sanction in this statute a nullity in Campbell I, because of that Court’s

holding that “[w]hatever the scope of inadmissibility contemplated by Code § 19.2-54 for

searches made under a defective warrant, nothing in the plain language of this statute compels

                                                 ‐ 17 -
the exclusion of evidence obtained in the course of a search that is justified on grounds other

than a warrant.” Campbell I, 294 Va. at 493, 807 S.E.2d at 738 (emphasis added). In my view,

this statement ignores both the right of the General Assembly to impose “additional protections

. . . as matters of state law” as restated in Moore and it also ignores the plain language of the

statute that its exclusionary remedy expressly applies to “any search made under the warrant.” In

Campbell I and in this case, a search warrant was obtained, executed, and evidence seized

pursuant to it. Given that the police in this case obtained a constitutionally valid search warrant

from a magistrate, executed that warrant properly, and obtained evidence expressly within the

scope of, and authority granted by, the warrant, the holding that the search in this case and in

Campbell I was not conducted “under the warrant” is so much in conflict with the facts in the

record as to amount to a legal fiction without saying so.

       Moreover, to reach this logically strained result, our Supreme Court set aside another

basic tenet of appellate review with problematic consequences going forward. After assuming

that the warrant was invalid under Code § 19.2-54, our Supreme Court nevertheless concluded

that it need not determine if the sanction in that statute applied because the search was justified

by the exigent circumstances exception to the normal constitutional requirement that a warrant

be obtained prior to a search.

       Judicial restraint commands that courts decide cases “on the best and narrowest ground

available.” Commonwealth v. Swan, 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)). “A

fundamental and longstanding precept of this doctrine is that ‘unnecessary adjudication of a

constitutional issue’ should be avoided.” Id. (quoting Bell v. Commonwealth, 264 Va. 172, 203,

563 S.E.2d 695, 715 (2002)).




                                                ‐ 18 -
       Instead of adhering to its own jurisprudence in this regard, our Supreme Court conducted

an entirely unnecessary constitutional analysis expressly to avoid construing the statute.4 While I

am confident that sowing confusion in the jurisprudence of the Commonwealth for this Court

and the trial courts was not intended, among the consequences of Campbell I going forward are

that no statutory requirement that expands upon the minimum protections of the Constitution is

effective in the Commonwealth and also that the courts of the Commonwealth no longer need

refrain from deciding constitutional issues, if doing so will avoid the enforcement of a statute we

regard as overly unforgiving.

       Additionally, and even more troubling to me, is that in its entirely unnecessary

constitutional analysis in Campbell I, our Supreme Court applied Fourth Amendment exigent

circumstances criteria clearly inconsistent with the jurisprudence on the subject from the

Supreme Court of the United States. Exigent circumstances, in the most basic sense, is quite

simply a situation where probable cause exists but it is not practical or reasonable for a law

enforcement officer to obtain a search warrant. The United States Supreme Court has repeatedly

stressed that to constitute exigent circumstances sufficient to provide an exemption from the

constitutional requirement that a warrant be secured prior to a search, police must be faced with a

“now or never” situation.” Riley v. California, 134 S. Ct. 2473, 2487 (2014) (quoting Missouri

v. McNeely, 569 U.S. 141, 153 (2013)); see also Roaden v. Kentucky, 413 U.S. 496, 505 (1973).

       The Fourth Amendment guarantees the right of liberty against unreasonable searches and

seizures by providing:

               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures,
               shall not be violated, and no Warrants shall issue, but upon

       4
          I note that Campbell does not challenge the validity of the search warrant at issue based
upon a lack of probable cause, upon any deficiency in the manner or scope of its execution by
police, or any ground other than purported constitutional consequences flowing from the
magistrate’s failure to adhere to Code § 19.2-54.
                                                ‐ 19 -
               probable cause, supported by Oath or affirmation, and particularly
               describing the place to be searched, and the persons or things to be
               seized.

U.S. Const. amend. IV.

       Before a search occurs, “a warrant must generally be secured.” Kentucky v. King, 563

U.S. 452, 459 (2011); see also Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971)

(“[S]earches conducted outside the judicial process, without prior approval by judge or

magistrate, are per se unreasonable[.]”). However, “this presumption may be overcome in some

circumstances because ‘[t]he ultimate touchstone of the Fourth Amendment is

“reasonableness.’”” King, 563 U.S. at 459 (quoting Brigham City v. Stuart, 547 U.S. 398, 403

(2006)). The exceptions to the Fourth Amendment’s warrant requirement “are few in number

and carefully delineated.” Katz v. United States, 389 U.S. 347, 357 (1967). “[I]n general, they

serve the legitimate needs of law enforcement officers to protect their own well-being and

preserve evidence from destruction.” United States v. United States Dist. Court, 407 U.S. 297,

318 (1972).

       The presence of “exigent circumstances” is one such exception to the warrant

requirement. As correctly noted by our Supreme Court in Campbell I, the exigent circumstances

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.”

Campbell I, 294 Va. at 493, 807 S.E.2d at 738 (quoting King, 563 U.S. at 460) (some internal

quotation marks omitted) (emphasis added). Essentially, it “allows a warrantless search when an

emergency leaves police insufficient time to seek a warrant.” Birchfield v. North Dakota, 136

S. Ct. 2160, 2173 (2016) (referencing Michigan v. Tyler, 436 U.S. 499, 509 (1978)) (emphasis

added); see also Schmerber v. California, 384 U.S. 757, 771 (1966) (upholding a warrantless

search when “there was no time to seek out a magistrate and secure a warrant”). However, after

                                              ‐ 20 -
correctly stating the definition of exigent circumstances, our Supreme Court in Campbell I then

misapplied that definition by ignoring the fact that the key phrase in all of these cases is

“warrantless search.”

          The United States Supreme Court has recognized many common situations where

obtaining a search warrant is objectively unreasonable. “Our decisions have recognized that a

warrantless entry by criminal law enforcement officials may be legal when there is compelling

need for official action and no time to secure a warrant.” Tyler, 436 U.S. at 509 (emphasis

added).

          These situations include the so called “emergency aid exception,” where “law

enforcement officers may enter a home without a warrant to render emergency assistance to an

injured occupant or to protect an occupant from imminent injury.” Brigham City, 547 U.S. at

403. The hot pursuit exception recognizes “the right of police, who had probable cause to

believe that an armed robber had entered a house a few minutes before, to make a warrantless

entry to arrest the robber and to search for weapons.” United States v. Santana, 427 U.S. 38, 42

(1976). And, perhaps most on point in this case, is the exception permitting “a warrantless entry

onto private property . . . to prevent the imminent destruction of evidence.” Brigham City, 547

U.S. at 403. There are numerous other examples of exigent circumstances but what every single

one of them has in common is that they are situations where it would not be objectively

reasonable for the police to take the time to obtain a warrant.5




          5
          See, e.g., Warden v. Hayden, 387 U.S. 294 (1967) (warrantless entry of house by police in
hot pursuit of armed robber); Ker v. California, 374 U.S. 23 (1963) (warrantless and unannounced
entry of dwelling by police to prevent imminent destruction of evidence); N. Am. Cold Storage Co.
v. Chicago, 211 U.S. 306 (1908) (warrantless seizure of unwholesome food); Jacobson v.
Massachusetts, 197 U.S. 11 (1905) (warrantless compulsory smallpox vaccination); Compagnie
Francaise v. Bd. of Health, 186 U.S. 380 (1902) (warrantless health quarantine).
                                                 ‐ 21 -
       In all of these cases, the overarching principle expressed by the United States Supreme

Court is that if there is a “compelling need for official action and no time to secure a warrant,”

the warrant requirement may be excused. See Tyler, 436 U.S. at 509 (emphasis added).

       No such excuse existed in either Campbell I or this case. According to our Supreme

Court as reaffirmed in Campbell I, the factors relevant to an exigent circumstances determination

include, but are not limited to:

               (1) the degree of urgency involved and the time required to get a
               warrant; (2) the officers’ reasonable belief that contraband is about
               to be removed or destroyed; (3) the possibility of danger to others,
               including police officers left to guard the site; (4) information that
               the possessors of the contraband are aware that the police may be
               on their trail; (5) whether the offense is serious, or involves
               violence; (6) whether officers reasonably believe the suspects are
               armed; (7) whether there is, at the time of entry, a clear showing of
               probable cause; (8) whether the officers have strong reason to
               believe the suspects are actually present in the premises; (9) the
               likelihood of escape if the suspects are not swiftly apprehended;
               and (10) the suspects’ recent entry into the premises after hot
               pursuit.

Campbell I, 294 Va. at 495, 807 S.E.2d at 739-40 (quoting Verez v. Commonwealth, 230 Va.

405, 410-11, 337 S.E.2d 749, 753 (1985)). These factors are to be considered “as they

reasonably appeared to trained law enforcement officers to exist when the decision to enter was

made.” Verez, 230 Va. at 411, 337 S.E.2d at 753 (emphasis added).

       I have several problems with the application of the Verez factors to the facts found in

both Campbell I and this case. Initially, I note that in this case as in Campbell I, none of the

Verez factors were likely the subject of any consideration at all by the police “when the decision

to enter was made” since they had obtained and were executing, what they believed to be, and at

the time actually was, a valid search warrant. Additionally, I am troubled by our Supreme

Court’s determination that four of the Verez factors favored a finding of exigent circumstances.

Clearly, as they noted, “[t]he existence of probable cause is not in doubt here” but probable cause

                                                ‐ 22 -
is a requirement for any search and is not a factor in determining whether the requirement to

obtain a warrant is excused. Campbell I, 294 Va. at 496, 807 S.E.2d at 740; see also Welsh v.

Wisconsin, 466 U.S. 740, 753 (1984) (“[N]o exigency is created simply because there is

probable cause to believe that a serious crime has been committed[.]”).

       The manufacture of methamphetamine is undoubtedly dangerous to “cooks” and

bystanders alike and is certainly a serious offense. However, our Supreme Court’s reliance on

two other Verez factors—the degree of urgency and the “disposability of evidence[,]” as

characterized in Campbell I—are not supported by the record. As described by our Supreme

Court, “[w]here there are exigent circumstances in which a reasonable police action literally

must be ‘now or never’ to preserve the evidence of the crime, it is reasonable to permit action

without prior judicial evaluation.” Smith v. Commonwealth, 56 Va. App. 592, 598, 696 S.E.2d

211, 214 (2010) (quoting Wright v. Commonwealth, 222 Va. 188, 193, 278 S.E.2d 849, 853

(1981)) (emphasis added). However, unlike in Smith and Wright, in Campbell I and in this case,

the record establishes that police obviously had the time to secure the judicial evaluation of

probable cause and formal authorization to search for and seize evidence of criminal activity that

the Fourth Amendment prefers. It seems axiomatic to me that the fact that they did so, pretty

conclusively establishes that this was not a situation where the degree of urgency and the

“disposability of evidence” made it necessary to act in the absence of such prior judicial

evaluation and authorization.

       Moreover, in reaching its holding that the police here need not have bothered to obtain a

search warrant, our Supreme Court deviated from the Fourth Amendment jurisprudence of the

United States Supreme Court by considering “the degree of urgency involved and the time

required to get a warrant” as just one factor in an exigent circumstances analysis that may be

outweighed by others when, in fact, it is the overriding factor. Since they went to the trouble of

                                               ‐ 23 -
actually complying with the letter of the Fourth Amendment, the police officers in these cases

clearly did not share our Supreme Court’s various ex post facto conclusions that there was a

likelihood of evidence being removed or destroyed, that the “cooks” knew that they were being

watched by the police or by an informant, or that there was any “risk of flight” if they took the

time necessary to secure a warrant. Instead, the record is clear that law enforcement officers

were on the scene of the “cook,” conducting surveillance well before executing the search

warrant. Under the facts of this case, the fact that police actually obtained a constitutionally

valid search warrant categorically contradicts any suggestion that this was a “now or never”

situation where officers believed that the methamphetamine would be destroyed or removed if

they took the time to do what they did – obtain a search warrant.

       In summary, where police actually secure a search warrant, the factors mentioned in

Verez to determine if it was reasonable for police to not obtain a warrant become irrelevant

because exigent circumstances to justify a warrantless search cannot exist as a matter of law if

there has been sufficient time for police to actually obtain the search warrant the Fourth

Amendment ordinarily requires.

       To be clear, there is no violation of the Fourth Amendment in this case any more than

there was in Campbell I and the search warrant issued in this case was entirely valid at the time

of its execution. It is only the subsequent failure of a magistrate to comply with a purely

statutory requirement that rendered inadmissible the evidence obtained in the search. My view is

simply that there was no need for our Supreme Court to construct a retroactive and very

problematic constitutional rationale to justify a warrantless search that was actually based upon a

constitutionally valid search warrant, other than to circumvent the will of the General Assembly

as expressed in a presumptively constitutional, though apparently unpalatable statute.




                                                ‐ 24 -
       Although I am bound to apply its judgment to this case, for the reasons discussed above, I

respectfully disagree with the analysis of our Supreme Court in Campbell I, but nevertheless join

my colleagues in affirming the judgment below.




                                              ‐ 25 -
