Brown v. Commonwealth

• Decision Date: 20 March 2018
• Docket Number: Record No. 0184-17-2
• Parties: Lamar Shelton BROWN v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

68 Va.App. 517

810 S.E.2d 905

Lamar Shelton BROWN

v.COMMONWEALTH of Virginia

Record No. 0184-17-2

Court of Appeals of Virginia, Richmond.

MARCH 20, 2018

David Lassiter, Jr., for appellant.

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, Beales and AtLee

OPINION BY JUDGE RANDOLPH A. BEALES

On May 17, 2016, the circuit court convicted Lamar Shelton Brown ("appellant") of possession of cocaine with intent to distribute in violation of Code § 18.2-248. On appeal, appellant claims that the circuit court erred by not granting his motion to suppress evidence that was found during a search of his home.¹ Appellant argues that the police lacked probable cause to search his home because "Detective McKay’s affidavit failed to provide a nexus between the items sought ... and Mr. Brown’s residence." Appellant also argues that the circuit court erred by upholding the search warrant through the good-faith exception to the exclusionary rule. For the reasons that follow, we find that the circuit court did not err in denying appellant’s motion to suppress, and we affirm appellant’s conviction.

I. BACKGROUND

On November 10, 2015, Officer Jon McKay of the Jefferson Area Drug Enforcement (JADE) Task Force, an officer with more than twenty-five years of law enforcement experience (fourteen of those years being with JADE), prepared a sworn affidavit to obtain a search warrant for appellant’s home.² The magistrate issued the search warrant, and during the search of the home, police found two vacuum-sealed bags that contained a total of 394.55 grams of cocaine along with $4,551 in U.S. currency.

The affidavit stated that, on the same day Officer McKay obtained the search warrant for appellant’s home, appellant was arrested for attempting to purchase more than five pounds of marijuana. At the time of his arrest, appellant had more than $5,000 in U.S. currency on his person. Officer Mark Frazier informed McKay that "a firearm was also recovered during [appellant’s] arrest." When he was arrested, appellant was the occupant of a GMC Envoy that was registered to his wife, who lived with appellant in the home. Officer McKay’s affidavit also stated that Officer Frazier had routinely observed the GMC Envoy parked outside of appellant’s home along with other vehicles associated with appellant.³

The affidavit stated, "You[r] affiant [Officer McKay] believes that Lamar S. Brown’s residence ... is a base of operation for his illegal activities involving the distribution of marijuana and other illegal drugs." The affidavit also stated that on November 4, 2015, less than one week before appellant’s arrest, "Mr. Brown reported an assault and attempted robbery at his residence."⁴ McKay’s affidavit elaborated that "subjects involved in the distribution of illegal drugs often accumulate large amounts of cash proceeds derived from those drug sales and are frequently the targets of robberies. Your affiant believes that Lamar Brown was the target of such a robbery at his residence on [November 4, 2015]."⁵

Officer McKay’s affidavit also stated that a confidential informant identified as "Source A" informed the police that he or she "has observed Lamar Brown in possession of multiple pounds of marijuana and large amounts of U.S. Currency on more than 10 occasions in the last 45 days." Regarding the reliability of Source A, the affidavit stated, "Source A is known to your affiant and has provided information that has directly led to the seizure of money derived from the sale of illegal drugs." Source A also provided the police with information that "directly led to the arrest of a subject involved in the distribution of illegal drugs," and Source A had also provided information "that was against [the source’s] penal interest."

Following a hearing on appellant’s motion to suppress, the trial judge found that, "in this case while it is alleged that Mr. Brown was buying marijuana, the Court finds it—it was of such an amount that there is a reasonable inference that it was for the purpose of distributing in the future." In stating her decision, the trial judge also considered facts related to the 2012 credit union incident and the fact that an informant, who was known to law enforcement, was "providing law enforcement information on what has happened in the past forty-five (45) days" regarding appellant’s activities. The trial judge concluded that "when you put all of those factors together that there is indicia of probable cause underlying the search warrant so that ... the good faith exception is applied."⁶ Consequently, the circuit court denied appellant’s motion to suppress.

II. ANALYSIS

A. Standard of Review

A defendant’s claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact to an appellate court. Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). When reviewing a denial of a motion to suppress evidence, an appellate court considers the evidence in the light most favorable to the Commonwealth as the party that prevailed in the trial court, and the appellate court accords the Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence. Gregory v. Commonwealth, 64 Va. App. 87, 93, 764 S.E.2d 732, 735 (2014). "In addition, ‘the defendant has the burden of showing that even when the evidence is reviewed in that light, denying the motion to suppress was reversible error.’ " Id. (quoting Branham v. Commonwealth, 283 Va. 273, 279, 720 S.E.2d 74, 77 (2012) ); see also Lebedun v. Commonwealth, 27 Va. App. 697, 711, 501 S.E.2d 427, 434 (1998) ("[W]here the police conduct a search pursuant to a judicially sanctioned warrant, the defendant must rebut the presumption of validity by proving that the warrant is illegal or invalid."). Appellate courts are bound by the trial court’s factual findings "unless those findings are ‘plainly wrong or unsupported by the evidence.’ " Ward v. Commonwealth, 273 Va. 211, 218, 639 S.E.2d 269, 272 (2007) (quoting Pyramid Dev., L.L.C. v. D & J Assocs., 262 Va. 750, 753, 553 S.E.2d 725, 727 (2001) ). "However, the trial court’s application of the law is reviewed de novo ." Id.

B. Probable Cause ⁷

When reviewing a question of probable cause, appellate courts consider "only those sworn, written facts stated in the search warrant affidavit" as well as "information simultaneously presented to a magistrate by sworn oral testimony" or in "supplemental affidavits." Adams v. Commonwealth, 275 Va. 260, 270, 657 S.E.2d 87, 93 (2008). "In determining whether the affidavits are sufficient to support the search warrant, [appellate courts] must look to the totality of the circumstances." Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666 (1991) (citing Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328–29, 76 L.Ed.2d 527 (1983) ). Viewing an affidavit’s facts in their totality, "[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." Gates, 462 U.S. at 238, 103 S.Ct. at 2332 ; see Hicks v. Commonwealth, 281 Va. 353, 359, 706 S.E.2d 339, 342 (2011). The magistrate must base his determination of probable cause "upon objective facts and reasonable inferences drawn therefrom." Gwinn v. Commonwealth, 16 Va. App. 972, 975, 434 S.E.2d 901, 903 (1993). "And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... [concluding]’ that probable cause existed." Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332 (alterations in original) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960) ).

In Gwinn v. Commonwealth, we stated, "A magistrate is entitled to draw reasonable inferences about where incriminating evidence is likely to be found, based on the nature of the evidence and the type of offense." 16 Va. App. at 975, 434 S.E.2d at 904.⁸ One such reasonable inference is that "[i]n the case of drug dealers, evidence of that on-going criminal activity [drug dealing] is likely to be found where the dealer resides." Id. at 976, 434 S.E.2d at 904. This Court in Gwinn also stated that an affidavit does not need to conclusively show that the evidence sought by law enforcement will be found in the location to be searched. We said:

The magistrate need not determine that the evidence sought is, in fact, on the premises to be searched or that the evidence is more likely than not to be found where the search is to take place. The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit.

Id. at 975, 434 S.E.2d at 903 (internal citations omitted); see also Derr, 242 Va. at 421, 410 S.E.2d at 666 (stating that the United States Supreme Court in Illinois v. Gates rejected "hypertechnical, rigid, and legalistic analysis of probable cause determinations"). Thus, this Court has established that a magistrate can reasonably infer, based upon facts indicative of the distribution of illegal drugs, that evidence of such drug dealing may be found in a defendant’s home. See Gwinn, 16 Va. App. at 976, 434 S.E.2d at 904.

C. McKay’s Affidavit Provided a Substantial Basis for Probable Cause

Viewing the facts in the light most favorable to the Commonwealth, as we must because the Commonwealth prevailed in the trial court, the facts alleged in the affidavit support the reasonable inference that appellant was engaged in the ongoing distribution of illegal drugs. Applying the law to these facts, the magistrate here had a substantial basis to find probable cause existed to issue a search warrant for appellant’s home. See Gwinn, 16 Va. App. at 975-76, 434 S.E.2d at 904.

Officer McKay—who has investigated more than 200 drug cases and has received a...