Guzewicz v. Com.

• Decision Date: 06 March 1972
• Citation: 187 S.E.2d 144,212 Va. 730
• Court: Virginia Supreme Court
• Parties: Donald S. GUZEWICZ v. COMMONWEALTH of Virginia. Theodore J. GUZEWICZ v. COMMONWEALTH of Virginia.

Page 144

187 S.E.2d 144

212 Va. 730

Donald S. GUZEWICZ v. COMMONWEALTH of Virginia.

Theodore J. GUZEWICZ v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

March 6, 1972.

Gerald F. Daltan, Fredericksburg (Scaife & Kinnamon, Fredericksburg, on brief), for plaintiffs in error.

James E. Kulp, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

COCHRAN, Justice.

Defendants, Donald S. Guzewicz and Theodore J. Guzewicz, were found guilty by a jury of possession of various controlled drugs in violation of the Drug Control Act. Fines and jail and penitentiary sentences were imposed by the judgment orders entered on the jury verdicts. We granted defendants writs of error.

The sole question for determination is the validity of the search warrant authorizing a search of the Guzewicz apartment in the City of Fredericksburg, during which controlled drugs and narcotics paraphernalia were found and seized.

At the commencement of the trial a motion was made to suppress the evidence which had been seized on the ground that the three affidavits supporting the search warrant were insufficient. This motion was overruled by the trial court.

In pertinent part, the affidavits read as follows:

Affidavit No. 1, executed by J. M. H. Willis, Jr., the Commonwealth's Attorney:

'an informant, personally known to the affiant and known by him to be reliable and to have held a position of confidence and trust, informed this affiant that the premises to be searched are being unlawfully used by the occupants thereof for the illegal possession and distribution of controlled drugs . . ..'

Affidavit No. 2, of John R. Lightner, a Fredericksburg police officer:

'this affiant knows from his own observation that the building in which are located the premises to be searched is frequented by persons known to him to be unlawful users and traffickers of and in controlled drugs . . ..'

Affidavit No. 3, made by Sgt. W. P. Smith, a Fredericksburg police officer:

'an information (sic), who has been known and whose family has been known by this affiant for many years, and is known by this affiant to be reliable, informed this affiant that persons known by her to frequent the premises to be searched have stated in her presence that they frequent said premises for the purpose of securing and using controlled drugs which are there unlawfully possessed and distributed, that said premises are frequented by persons who appear to be drug users and that there are frequent noisy and rowdy gatherings of such persons at said premises. This affiant further states that he has personal knowledge that said premises are frequented by persons known to him to be unlawful users of controlled drugs.'

All three affidavits were sworn to by the affiants on July 30, 1970. The search warrant, issued by a justice of the peace on that date, was executed a few minutes later by Sgt. A. S. Kendall, a Fredericksburg police officer, accompanied by Sgt. Smith, Officer Lightner and other officers. When the search was conducted, both defendants were in their apartment, properly described in the search warrant as Apartment 3, 808 William Street, and quantities of drugs and related paraphernalia were found therein. Defendants were arrested and charged with unlawfully and feloniously possessing with intent to distribute specified controlled drugs.

Defendants contend that the search and seizure violated their Fourth Amendment rights in that the search warrant was based upon affidavits which failed to establish probable cause to search, within the meaning of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). ¹

We have recently restated the applicable Aguilar test.

'In Aguilar the test for determining probable cause in those many instances where the affidavit is based solely or substantially upon an informer's tip was set forth as follows: (1) the affidavit must describe some of the underlying circumstances necessary to enable a neutral and detached magistrate to judge the validity of the informant's conclusion that the narcotics were where he claimed they were; and (2) the affidavit must describe some of the underlying circumstances from which such magistrate can determine that the affiant officer's unnamed informant, whose identity need not be disclosed, was 'credible' Or his information 'reliable."

Manley v. Commonwealth, 211 Va. 146, 149--150, 176 S.E.2d 309, 312--313 (1970), cert. denied, 403 U.S. 936, 91 S.Ct. 2245, 29 L.Ed.2d 716 (1971).

In Spinelli, the Supreme Court reaffirmed Aguilar, but went further in holding that even if a tip alone is insufficient under Aguilar, 'the other allegations which corroborate the information contained in the hearsay report should then be considered', Spinelli, supra, 393 U.S. at 415, 89 S.Ct. at 588, and may provide sufficient support for the tip to create probable cause. See Gonzalez v. Beto, 425 F.2d 963 (5th Cir. 1970), cert. denied, 400 U.S. 928, 91 S.Ct. 194, 27 L.Ed.2d 189 (1970), 400 U.S. 1001, 91 S.Ct. 476, 27 L.Ed.2d 452 (1971).

The tip related in Affidavit No. 1 clearly fails the Aguilar-Spinelli test. The affidavit contains no statement of the underlying circumstances upon which the informant based his conclusion that 'the premises to be searched are being unlawfully used by the occupants thereof for the illegal possession and distribution of controlled drugs. . . .' See Hooper v. Commonwealth, 212 Va. 49, 51--52, 181 S.E.2d 816, 818 (1971). Nor does it furnish any factual support for the affiant's conclusion that the informant was 'reliable'. No corroborative facts of the sort contemplated by Spinelli are set out to bolster the tip. Therefore, Affidavit No. 1 fails in itself to establish probable cause. See Wiles v. Commonwealth, 209 Va. 282, 285--286, 163 S.E.2d 595, 598 (1968). Furthermore, since it contains only conclusory statements, it cannot be used to support the other affidavits.

For somewhat different reasons, we reach the same conclusion with respect to Affidavit No. 2. Although it purports to relate personal observations, no facts are stated to support the affiant's conclusion that the persons who frequented the building were 'known' drug addicts. A 'mere affirmation of suspicion and belief without any statement of adequate supporting facts' has been held to be an improper basis for issuance of a warrant. Nathanson v. United States, 290 U.S. 41, 46--47, 54 S.Ct. 11, 13, 78 L.Ed. 159 (1933). Moreover, this affidavit alleges that the building, rather than the particular apartment, was frequented by known drug users. As these people could have been visiting any of the nineteen apartments in the building, this allegation would be entitled to no weight even if treated as a statement of fact.

Affidavit No. 3 also contains certain allegations which should be disregarded in determining probable cause. The statement that 'said premises are frequented by persons who appear to be drug users' is nothing more than an expression of suspicion. See McMillon v. Commonwealth, 212 Va. 505, 508, 184 S.E.2d 773, 775 (1971). 'Frequent noisy and rowdy gatherings' carry no inherent indicia of illegality, and cannot be validated by the unsupported conclusion that those attending the gatherings were apparent drug users. Furthermore, we accord no probative value to the affiant's statement that he had personal knowledge that the Guzewicz premises were frequented by persons 'known to him to be unlawful users of controlled drugs.' Spinelli, supra, 393 U.S. at 418--419, 89 S.Ct. at 590. Although the diverse views expressed in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) leave us in doubt as to the continuing validity of this aspect of Spinelli, we refrain from relying on such conclusory statements...