Commonwealth v. Henry
| Decision Date | 11 March 2014 |
| Docket Number | Record No. 2017-13-3 |
| Court | Virginia Court of Appeals |
| Parties | COMMONWEALTH OF VIRGINIA v. CHARLES LESLIE HENRY, JR. |
UNPUBLISHED
Present: Chief Judge Felton, Judges Alston and Chafin
Argued by teleconference
MEMORANDUM OPINION* BY
FROM THE CIRCUIT COURT OF WISE COUNTY
Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellant.
No brief or argument for appellee.
Pursuant to Code § 19.2-398(A)(2), the Commonwealth appeals the pretrial order of the Circuit Court of Wise County ("trial court") granting Charles Leslie Henry, Jr.'s ("appellee") motion to suppress evidence found in appellee's home pursuant to a search warrant. On appeal, the Commonwealth asserts that the trial court erred in suppressing evidence found by the officers who relied on the search warrant in good faith and that the trial court erred in ruling that there was no probable cause to issue the search warrant. For the following reasons, we hold the trial court erred in granting appellee's motion to suppress the evidence located within his residence.
On September 24, 2012, Officer Clint Johnson of the Big Stone Gap Police Department was assigned to the Drug Task Force. That morning, an anonymous tipster called Officer Johnson and told him that appellee had marijuana on his property where he was growing andselling it. The anonymous tipster also gave Officer Johnson appellee's address. In response to that information, Officer Johnson and Virginia State Police Special Agent Christopher Gilley left for appellee's residence. They proceeded to property adjacent to appellee's property. They obtained permission from a neighbor of appellee, whom Officer Johnson knew, to walk through her property to the wood line behind her property in the direction of appellee's residence. As the officers walked through the woods, they saw marijuana growing in pots along the wood line approximately 15 feet from the area of the yard behind appellee's residence where the grass was mown.1 Officer Gilley testified that the police never identified the property lines.
The officers observed a worn path from the potted marijuana plants to a camper and "a little place they would do a fire." The officers also saw pots, similar to those that the marijuana was growing in, beside an outbuilding 10 to 15 feet from appellee's residence. The two buildings, the outbuilding and the residence, were built in a similar style, with the same siding.
After making these observations, Officer Johnson walked to the residence to talk with the owner. At that time, he discovered appellee was not there. Officer Johnson asked several workmen who were inside the house to leave. The officers then secured the house, without entering, while one of the officers left to obtain a search warrant to search the residence.
The magistrate issued a search warrant to the officers to search the residence and outbuildings for evidence relating to the cultivation of marijuana, scales, marijuana, weapons, etc. Relying on the search warrant, the officers returned to appellee's residence and proceeded to execute the search warrant. The officers found marijuana being processed inside appellee's residence.
At the end of the suppression hearing, the trial court specifically found the officers "were acting in good faith." However, the trial court held that it could not find any probable cause or "one shred of reliable evidence that sort of links [the marijuana] up to the actual home." The trial court then granted appellee's motion to suppress evidence found within the residence. The trial court did not suppress "evidence obtained outside the home, in outbuildings or the things that were seen on the property," stating, "there was probable cause to search around the outbuilding and the property there." The trial court also found:
The affidavit presented to the magistrate contained no probable cause because there was not a sufficient nexus that would justify the application of the good-faith exception. Keep in mind: The only evidence upon which the officers relied were (a) an anonymous tip -- which is inherently unreliable; (b) marijuana growing on the property next door; (c) a path that did not lead to [appellee's] personal residence; and (d) buckets on [appellee's] property that were similar to those with the marijuana.
In an appeal by the Commonwealth of an order of the trial court suppressing evidence, the evidence must be viewed in the light most favorable to the defendant and findings of fact are entitled to a presumption of correctness unless they are plainly wrong or without evidence to support them.
Commonwealth v. Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992). However, "we review de novo the trial court's application of defined legal standards such as probable cause and reasonable suspicion to the particular facts of the case." Cherry v. Commonwealth, 44 Va. App. 347, 356, 605 S.E.2d 297, 301 (2004).
On appeal, the Commonwealth asserts that the trial court erred in finding that the officers knew the marijuana was not on appellee's property. The trial court stated that "the officers conceded that they knew the property was not owned by the [appellee]." (Emphasis added). After reviewing the testimony of the officers at the suppression hearing, we find no such concession in the record. Officer Johnson testified that he did not "know the deeds on" the property where he saw the marijuana growing. He testified that he assumed the camper and fire pit, from which a path led to the marijuana plants, were on appellee's property. Officer Johnson also noted that there was a worn path that led from the marijuana plants to the mowed area of appellee's yard and toward an outbuilding that was 10 to 15 feet from appellee's residence where pots similar to those in which the marijuana was growing at the wood line. On cross-examination, Officer Johnson testified that the marijuana plants were growing approximately 10 to 15 feet from the edge of where the grass was mown.
Special Agent Gilley testified that he could not identify where appellee's property lines were in relation to the marijuana growing in pots at the wood line. He also stated that the marijuana plants were found 15 feet from the curtilage (at the end of the mown part of the yard) of the residence.
Here, the trial court erred in making its findings of fact that the officers knew where the property lines were and knew the marijuana was not growing on appellee's property. Neither officer conceded that they knew the marijuana was not on appellee's property. Accordingly, the trial court's finding of fact was "plainly wrong or without evidence to support" it. Venable v. Commonwealth, 12 Va. App. 358, 360, 404 S.E.2d 74, 75 (1991).
On appeal, the Commonwealth also asserts that the search warrant was supported by probable cause and relied upon, in good faith, by the officers. When reviewing the validity of a search warrant, the Court applies a "'totality of the circumstances analysis' to a magistrate's consideration of a warrant application." Cunningham v. Commonwealth, 49 Va. App. 605, 612, 643 S.E.2d 514, 518 (2007) (citation omitted).
"Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the probable-cause decision." Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citation and internal brackets omitted). Not even a "prima facie showing" of criminality is required. Illinois v. Gates, 462 U.S. 213, 235 (1983) (citation omitted). Instead, probable cause "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity" Id. at 243 n.13 (emphasis added). "The Constitution does not guarantee that only the guilty will be arrested." Baker v. McCollan, 443 U.S. 137, 145 (1979).
Joyce v. Commonwealth, 56 Va. App. 646, 659, 696 S.E.2d 237, 243 (2010) (footnote omitted).
"'A grudging or negative attitude by reviewing courts toward warrants' is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; 'courts should not invalidate [warrants] by interpreting [affidavits] in a hypertechnical, rather than a commonsense, manner.'" Gates, 462 U.S. at 236 (alterations in original) (quoting United States v. Ventresca, 380 U.S. 102, 108, 109 (1965)). Lawson v. Commonwealth, 217 Va. 354, 358, 228 S.E.2d 685, 687 (1976).
"[O]ur cases indicate that a sufficient nexus can exist between a defendant's criminal conduct and his residence even when the affidavit supporting the warrant 'contains no factualassertions directly linking the items sought to the defendant's residence.'" United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005) (quoting United States v. Servance, 394 F.3d 222, 230 (4th Cir. 2005)). "In determining whether the affidavit provides a sufficient nexus, 'the nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence.'" Gregory v. Commonwealth, 46 Va. App. 683, 691, 621 S.E.2d 162, 166 (2005) (quoting United States v. Anderson...
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