Cunningham v. Com.

• Decision Date: 24 April 2007
• Docket Number: Record No. 0069-06-3.
• Citation: 643 S.E.2d 514,49 Va. App. 605
• Parties: Victor Garnette CUNNINGHAM v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

643 S.E.2d 514

49 Va. App. 605

Victor Garnette CUNNINGHAM v. COMMONWEALTH of Virginia.

Record No. 0069-06-3.

Court of Appeals of Virginia, Salem.

April 24, 2007.

Brian R. Moore, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Karen Misbach, Assistant Attorney General II (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: BENTON, ELDER and CLEMENTS, JJ.

JAMES W. BENTON, JR., Judge.

Victor Garnette Cunningham appeals his conviction for possession of marijuana with the intent to distribute. Cunningham contends the trial judge erred in refusing his pre-trial motions to suppress (i) evidence seized from his residence pursuant to a search warrant and (ii) statements he made to the police officer. We agree that the trial judge erred in denying his motion to suppress the evidence found in Cunningham's residence during the warrant search, and, thus, we reverse the conviction.

I.

Under well-established principles, when reviewing the trial judge's denial of a motion to suppress evidence, we must consider the evidence in the light most favorable to the Commonwealth, the prevailing party at trial. See Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004). So viewed, the evidence proved police officer Wayne Duff activated his lights and siren when he observed an automobile traveling erratically. After a pursuit, he arrested the driver, Victor Garnette Cunningham, for driving in a willful and wanton disregard of an officer's signal to stop. Cunningham apologized for fleeing and explained he did so because he did not have a driver's license and was the subject of an outstanding warrant for his arrest in another city.

Another police officer arrived and searched Cunningham incident to the arrest. He found a plastic bag of green plant material, a torn plastic bag, and $133. Searching the automobile, Officer Duff found small screens used in marijuana smoking devices, empty plastic bags, a lighter, a razor in a duffel bag, and a list of names he later learned to be customers of a lawn care service.

After the arrest, Officer Duff told Cunningham he "would like to have the opportunity to discuss with him what transpired." When he began to advise Cunningham of Miranda rights, Cunningham informed him that he wanted his lawyer present. While waiting for the magistrate, Cunningham asked if the officer had found any outstanding warrants for his arrest. The officer told Cunningham the record search had not revealed any warrants. The officer then began discussing with Cunningham the search warrant he intended to obtain and asked if he would find marijuana if he searched Cunningham's house. During this discussion, Cunningham said "he had a couple [of] bags in his room on the floor."

After this discussion with Cunningham, Officer Duff obtained a warrant to search Cunningham's residence. In pertinent part, the officer's affidavit in support of a search warrant for Cunningham's residence stated as follows:

On Wednesday, February 02, 2005, I attempted to stop a vehicle for a traffic offense and the vehicle fled attempting to evade me. The operator (and only occupant) of the vehicle, Victor Garnett Cunningham . . ., then fled on foot. When Cunningham was taken into custody, he was found to have marijuana on his person; he was also found to have a plastic baggie corner with suspected cocaine residue on his person. In searching his vehicle subsequent to arrest, I located a razor blade, several empty plastic baggies that are consistent with drug packaging, various butane lighters, and several small brass screens that are commonly used in smoking devices. It is this affiant's experience that people that use marijuana often keep marijuana as well as devices used to ingest marijuana in their residences.

From my training and experience, I am aware that cocaine is sold in small quantities and is easily concealed on individuals as well as within a residence.

* * * * * *

This affiant has been a police officer for twelve years and has made numerous marijuana and cocaine arrests. I was assigned to the Narcotics Strike Force and the Vice / Narcotics Unit for five years.

The affidavit did not refer to the information the officer later testified he learned from his discussion with Cunningham. The affidavit and the warrant identified the object of the search to be "[c]ocaine, marijuana, and paraphernalia associated with the possession and use of cocaine and marijuana." Several hours after the warrant was executed by searching the residence, the police obtained an arrest warrant charging Cunningham with possession of marijuana with the intent to distribute it. The record contains no indication of a charge for cocaine.

Denying Cunningham's motions to suppress the evidence, the trial judge ruled, in part, as follows:

[T]he affidavit afforded probable cause to issue the warrant. The affidavit of Captain Duff contained sufficient objective facts from which the magistrate reasonably could infer or find the probability of drugs or evidence of drug trafficking would be found in Mr. Cunningham's residence or room. And I think what Officer Duff knew in this case [as] to what was in the affidavit, at the time they searched the apartment, the [Leon] exception would apply.

At trial, the prosecutor presented evidence of the circumstances surrounding Cunningham's arrest: his flight, the items found in his automobile, the items found on his person and his conversation with Officer Duff. The Commonwealth's witnesses also testified that when police officers executed the search warrant at Cunningham's residence, they found two digital scales, empty plastic bags, thirteen plastic bags containing marijuana, marijuana on the dresser, a film canister containing marijuana, a smoking device, a mint tin containing marijuana, a pager, and $1,201. In all, police found .693 ounce of marijuana in Cunningham's residence, and 1.7 grams of marijuana on his person. Cunningham testified that he possessed marijuana for personal use, not with the intent to sell it.

At the conclusion of the evidence, the jury convicted Cunningham of eluding a police officer and possession of marijuana with the intent to distribute.¹ Cunningham appeals his conviction for possession of marijuana with intent to distribute, contending the trial judge erred by denying his motions to suppress the evidence found in his residence and the statements he made to Officer Duff.

II.

Cunningham challenges the search warrant's validity, arguing the affidavit supporting it failed to provide specific facts connecting Cunningham's residence to the marijuana seized upon his arrest. He further contends the good faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), does not apply because the magistrate abandoned her judicial role and the warrant was so lacking in indicia of probable cause that any official belief in its existence was unreasonable. The Commonwealth argues that, although no Virginia cases hold that an "inference of contraband in the residence" can be drawn from a user's possession of drugs, case decisions do hold that people, in general, tend to keep their illicit possessions in their residences and that "drug traffickers" do the same. Without addressing the probable cause issue, the Commonwealth argues the Leon good faith exception applies because the officer's belief that the affidavit established probable cause was not unreasonable and because the affidavit provided a minimal nexus between drugs and Cunningham's residence.

Probable Cause

The Fourth Amendment of the United States Constitution provides that "no Warrants shall issue, but upon probable cause." Applying a "totality-of-the-circumstances analysis" to a magistrate's consideration of a warrant application, the Supreme Court has held that "[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 particular 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). This determination of probable cause must be based on objective facts, United States v. Ross, 456 U.S. 798, 808, 102 S.Ct. 2157, 2164, 72 L.Ed.2d 572 (1982), and reasonable inferences drawn from those facts. Gates, 462 U.S. at 240, 103 S.Ct. at 2333.

In appealing a trial judge's denial of a motion to suppress evidence seized during a warrant search, Cunningham bears the burden of showing that the ruling constituted reversible error. Anzualda v. Commonwealth, 44 Va.App. 764, 773, 607 S.E.2d 749, 754 (2005) (en banc). As a reviewing court, we must determine whether "the magistrate had a `substantial basis for . . . conclud[ing]' that a search would uncover evidence of wrongdoing." Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). In our review of this issue, we "must grant `great deference' to the magistrate's interpretation of the predicate facts supporting the issuance . . . and to the determination of whether probable cause supported the warrant." Janis v. Commonwealth, 22 Va.App. 646, 652, 472 S.E.2d 649, 652 (1996).

The existence of probable cause to arrest an individual does not ipso facto give rise to probable cause to search that individual's residence. Steagald v. United States, 451 U.S. 204, 212-13, 101 S.Ct. 1642, 1647-48, 68 L.Ed.2d 38 (1981). For a search warrant to be supported by probable cause, "the crucial element is not whether the target of the search is suspected of a crime, but whether it is reasonable to believe that the items to be seized will be found in the place to be searched." United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir.1993) (citing Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 1976-77...