Anzualda v. Com.

• Decision Date: 25 January 2005
• Docket Number: Record No. 1719-02-1.
• Citation: 607 S.E.2d 749,44 Va. App. 764
• Parties: Delio ANZUALDA, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

607 S.E.2d 749

44 Va. App. 764

Delio ANZUALDA, Jr. v. COMMONWEALTH of Virginia.

Record No. 1719-02-1.

Court of Appeals of Virginia, Richmond.

January 25, 2005.

William P. Robinson, Jr., Norfolk, for appellant.

Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., BENTON, ELDER, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY, JJ., and ANNUNZIATA, S.J.¹

UPON REHEARING EN BANC

HUMPHREYS, Judge.

Delio Anzualda, Jr. appeals his convictions, following a conditional plea of guilty, for one count of possession of cocaine with intent to distribute, in violation of Code § 18.2-248, one count of possession of marijuana with intent to distribute, in violation of Code § 18.2-248.1, and one count of possession of a firearm while in possession of cocaine, in violation of Code § 18.2-308.4.² Anzualda argues on appeal that the trial court erred in denying his motion to suppress evidence seized pursuant to a search warrant, contending that the warrant was not supported by probable case and additionally failed to meet the requirements of the good faith exception to the exclusionary rule set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984). For the reasons that follow, we hold that the trial court did not err and, therefore, affirm the judgment of the trial court.

I. Background

In accord with settled principles of appellate review, on appeal of the denial of a motion to suppress, we review the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party prevailing below. Sabo v. Commonwealth, 38 Va.App. 63, 69, 561 S.E.2d 761, 764 (2002); Shaver v. Commonwealth, 30 Va.App. 789, 794, 520 S.E.2d 393, 396 (1999).

So viewed, the evidence here establishes that, on September 15, 2000, Officer David Doughty, an investigator with the Northampton County Sheriff's Office, executed a search warrant at Anzualda's home. The warrant was based on an affidavit sworn to by Doughty on the same day. The affidavit stated the "material facts constituting probable cause" for the search as follows:

On March 17, 2000, Carlos Tolentito and Hildeberto Velasco were shot to death with 9 millimeter rounds on Occohannock Neck Road. An individual incarcerated in the Northampton County Jail has become a suspect in the offense in that he has made incriminating statements to at least three persons. An intimate friend of the suspect has informed the undersigned that the suspect informed the intimate friend that he had traded a pistol to an individual named as "Cowboy" for marijuana, "Cowboy" being known to her as residing at the place to be searched. The undersigned has personal knowledge that "Cowboy" is Delio Anzualda.

The affidavit described the "thing to be searched for" as a "9 millimeter pistol and/or ammunition," and the place to be searched as the:

dwelling house (single-wide trailer), outbuildings, motor vehicles and any other structures or containers on the property located at 9182 Franktown Road, Franktown, Va.... The property is occupied by Delio Anzualda and family.

While searching Anzualda's home, Doughty and his fellow officers found several items that they suspected were stolen. They also discovered cocaine and related paraphernalia, marijuana, and several firearms. However, a pistol was not among the items seized.

After Officer Doughty arrested Anzualda, Anzualda made several incriminating statements relating to the drugs and other items discovered during the search. A grand jury subsequently indicted Anzualda on several charges, including possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and possession of a firearm while in possession of cocaine.

Before a trial on the merits, Anzualda filed a motion to suppress the evidence seized from his home, contending that both the evidence and his resulting statements were obtained in violation of the "Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States, Article 1, Section 10 of the Constitution of Virginia." At the hearing on the motion to suppress, Anzualda argued specifically that the evidence and statements should be suppressed because the affidavit, upon which the warrant was based, failed to "set sufficient facts on its face to cause a reasonably detached magistrate to believe that the subject matter of the search for a pistol was at [Anzualda's] home," reasoning that the affidavit failed to provide a sufficient nexus between the item sought and the place to be searched. Anzualda further argued that, because the affidavit alleged that the murders occurred on March 17, 2000, but the warrant was not issued until September 15, 2000, "there [was] no way to conclude that the evidence [police] want[ed] to seize or look for [was] at [Anzualda's] residence."³ The trial court denied the motion to suppress, reasoning that, even if the warrant was not supported by probable cause, the evidence was admissible under the Leon exception to the exclusionary rule, which permits the introduction of evidence seized in good faith reliance on a defective search warrant.

Anzualda subsequently entered a conditional plea of guilty to each of the drug-related charges. On appeal, a divided panel of this Court reversed the judgment of the trial court and remanded the case for a new trial. See Anzualda v. Commonwealth, 42 Va.App. 481, 592 S.E.2d 761 (2004)

. We granted the Commonwealth's petition for en banc review, stayed the mandate of the panel decision, and reinstated the appeal. Upon rehearing en banc, we affirm the judgment of the trial court and reinstate Anzualda's conviction.

II. Analysis

Anzualda contends the trial court erred in denying his motion to suppress for two reasons. First, Anzualda argues that the search warrant was defective because it was not based upon probable cause, reasoning that the underlying affidavit "lack[ed] specificity with respect to the time between the communication of the information, and the issuance thereof." Second, Anzualda argues the warrant cannot be "saved" under the good faith exception because it was "so lacking in the indicia of probable cause as to be fatally defective on its face." Specifically, Anzualda contends that the affidavit failed to set forth "any" facts establishing a connection between "the premises to be searched, and a reasonable belief that the evidence to be seized would be located on the premises."

We begin by noting that, although "`[w]e are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them,' ... we review de novo the trial court's application of legal standards... to the particular facts of the case." McCracken v. Commonwealth, 39 Va.App. 254, 258, 572 S.E.2d 493, 495 (2002) (en banc) (quoting 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, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). Further, "[i]n reviewing a trial court's denial of a motion to suppress, `the burden is upon [the appellant] to show that the ruling ... constituted reversible error.'" McGee, 25 Va.App. at 197,487 S.E.2d at 261 (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).

A. Whether the Warrant Was Supported by Probable Cause⁴

Generally, "`[t]he existence of probable cause is determined by examining the totality-of-the-circumstances.'" Janis v. Commonwealth, 22 Va.App. 646, 651-52, 472 S.E.2d 649, 652 (quoting Miles v. Commonwealth, 13 Va.App. 64, 68, 408 S.E.2d 602, 604 (1991)), aff'd en banc, 23 Va.App. 696, 479 S.E.2d 534 (1996). Accordingly, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (citation omitted); see also Tart v. Commonwealth, 17 Va.App. 384, 387, 437 S.E.2d 219, 221 (1993)

("The initial determination of probable cause requires the magistrate to weigh the evidence presented in light of the totality of the circumstances."). When determining whether probable cause exists, the magistrate may draw reasonable inferences from the material supplied to him. Williams v. Commonwealth, 4 Va.App. 53, 68, 354 S.E.2d 79, 87 (1987).

However, "[i]t is well settled `that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.'" Tart, 17 Va.App. at 388, 437 S.E.2d at 221 (quoting Gates, 462 U.S. at 236, 103 S.Ct. at 2331). Rather, "`the duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for ... conclud [ing] that probable cause existed.'" Id. at 387, 437 S.E.2d at 221 (quoting Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332) (alterations in original) (internal quotations omitted); see also Janis, 22 Va.App. at 652,

472 S.E.2d at 652. This deferential standard of review "`is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant.'" Tart, 17 Va.App. at 388,

437 S.E.2d at 221 (quoting Williams, 4 Va.App. at 68,

354 S.E.2d at 87); see also Leon, 468 U.S. at 914,

104 S.Ct. at 3416 ("Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable case, and we have thus concluded that the preference for warrants is most appropriately effectuated by according `great deference' to a magistrate's determination.").

Anzualda argues that, considering all of the circumstances of this case, the information set forth in the affidavit was insufficient to provide the magistrate with a "substantial basis" for finding probable cause to believe that the pistol...