Gwinn v. Com.

• Decision Date: 31 August 1993
• Docket Number: No. 0261-92-2,0261-92-2
• Parties: Paul Lee GWINN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 901

434 S.E.2d 901

16 Va.App. 972

Paul Lee GWINN v. COMMONWEALTH of Virginia.

Record No. 0261-92-2.

Court of Appeals of Virginia.

Aug. 31, 1993.

David P. Baugh, Richmond, for appellant.

Robert B. Condon, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: COLEMAN, WILLIS and ELDER, JJ.

COLEMAN, Judge.

The issue in this criminal appeal is whether the magistrate who issued a search warrant had probable cause to believe that Paul Lee Gwinn was involved in drug trafficking and that evidence associated with that crime would probably be found at his residence. We find the evidence sufficient to establish probable cause; therefore, we uphold the trial judge's ruling to admit the seized evidence. Accordingly, we affirm Gwinn's convictions of possessing cocaine and possessing a firearm while possessing cocaine.

On May 15, 1991, Richmond police officers executed a search warrant for Gwinn's residence. The officers were searching for evidence of drug trafficking. The warrant was based upon an affidavit of George Wade, a police officer who received information from an undercover officer who had made several drug purchases from a man by the name of John Montague.

In the affidavit, Wade describes seven cocaine transactions between the undercover officer and Montague. Prior to each transaction, Montague met the undercover police officer at a "7-11" store in order to discuss the sale. Police surveillance revealed that following each discussion with the undercover officer, Montague went to the Highland Park Variety Store at 3008 First Avenue, which is owned and operated by Paul Gwinn. After visiting the variety store for a few minutes, Montague would return to the undercover officer with cocaine. After each sale was completed, Montague went back to Gwinn's store.

On several occasions, the police observed one of Gwinn's automobiles arrive at the variety store, having come from Gwinn's home shortly before a drug sale took place between Montague and the undercover officer. The police observed that Gwinn was present at the variety store when several of the sales took place. On one occasion, Gwinn and Montague left the variety store at the same time, each driving his own automobile, and then met at another location.

Wade also stated in his affidavit that on March 8, 1991, Detective Redford had interviewed an arrested person who was charged with possessing cocaine. The person had told Redford that Gwinn was selling cocaine from his Highland Park Variety Store.

The magistrate, based upon the affidavit, determined that probable cause existed to believe that Gwinn was involved in selling drugs and that evidence of that activity would probably be found in Gwinn's residence and in his place of business. Thus, the magistrate issued a search warrant for both Gwinn's residence and his variety store. Gwinn challenges only the search warrant for his residence.

The Fourth Amendment requires that a warrant to search shall issue only upon probable cause supported by oath or affirmation. "The function of probable cause is to guarantee a substantial probability that the invasion involved in the search will be justified by discovery of offending items." Boyd v. Commonwealth, 12 Va.App. 179, 185, 402 S.E.2d 914, 918 (1991) (citing 1 Wayne R. LaFave, Search and Seizure § 3.1(b) (2d ed. 1987)). The existence of probable cause is determined by examining the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).

"[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, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place."

Lanier v. Commonwealth, 10 Va.App. 541, 547, 394 S.E.2d 495, 499 (1990) (quoting Gates, 462 U.S. at 238, 103 S.Ct. at 2332).

"Probable cause is a flexible, common sense standard." Ruffin v. Commonwealth, 13 Va.App. 206, 209, 409 S.E.2d 177, 179 (1991). 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. Id. The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit. Id. The magistrate must, however, base his or her conclusion of probable cause upon objective facts and reasonable inferences drawn therefrom. Derr v. Commonwealth, 6 Va.App. 215, 220, 368 S.E.2d 916, 918 (1988) (citing United States v. Ross, 456 U.S. 798, 808 (1982)); Williams v. Commonwealth, 4 Va.App. 53, 68, 354 S.E.2d 79, 87 (1987).

Upon review, a search warrant will be upheld if the evidence, viewed as a whole, provided the magistrate a "substantial...