Campbell v. Commonwealth

• Decision Date: 21 August 2018
• Docket Number: Record No. 1923-15-3
• Citation: 69 Va.App. 217,817 S.E.2d 663
• Court: Virginia Court of Appeals
• Parties: James Willis CAMPBELL, Sr. v. COMMONWEALTH of Virginia

69 Va.App. 217

817 S.E.2d 663

James Willis CAMPBELL, Sr.

v.COMMONWEALTH of Virginia

Record No. 1923-15-3

Court of Appeals of Virginia, Lexington.

AUGUST 21, 2018

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

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

Present: Judges Humphreys, Chafin and Senior Judge Clements

OPINION BY JUDGE TERESA M. CHAFIN

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.

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 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 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.

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 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...