Janis v. Com.

• Decision Date: 09 July 1996
• Docket Number: No. 0271-95-2,0271-95-2
• Citation: 472 S.E.2d 649,22 Va.App. 646
• Parties: Kimberly O. JANIS and Thomas Janis v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 649

472 S.E.2d 649

22 Va.App. 646

Kimberly O. JANIS and Thomas Janis v. COMMONWEALTH of Virginia.

Record No. 0271-95-2.

Court of Appeals of Virginia Richmond.

July 9, 1996.

Charles R. Watson, Colonial Heights, for appellants.

Marla Graff Decker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: ELDER, BRAY and FITZPATRICK, JJ.

ELDER, Judge.

Kimberly O. Janis and Thomas Janis (appellants) appeal their convictions for possession of marijuana with intent to distribute, in violation of Code § 18.2-248.1. Appellants assert that the trial court: (1) erred in denying their motion to suppress, which alleged that the search warrant's affidavit did not provide a sufficient basis to establish probable cause; (2) erred in applying the "good faith exception" to the probable cause requirement; and (3) erred in applying the "good faith exception," when Code § 19.2-54 and the Virginia Constitution, article I, § 10, preclude such an application. Because we agree with appellants' second contention, we reverse the convictions.

I. FACTS

On July 19, 1993, Virginia State Police Special Agent Ronald Daniel located eleven plots of marijuana growing in a field in Dinwiddie County. Two days later, police installed a hidden video camera near one of the plots. On July 27, 1993, Daniel discovered that the hidden camera videotaped a male and female on July 26, 1993. The man, who carried a knife in his hand, and the woman were "throwing water on the marijuana plants [and] looking at the plants." On August 2, 1993, police returned to the location and found that the plants had been harvested.

On August 8, 1993, Daniel surveilled the entrance to the field and saw a red and silver truck, license number BVQ290, turn onto the dirt road leading to the field of marijuana plants. One hour later, Daniel observed the truck next to a nearby creek, with a hose leading from the truck into the creek. On August 10, 1993, police harvested some plants from the field and determined that they were marijuana.

Daniel ran a check on the license number of the truck that he had observed. He obtained the name of the truck's owner, Thomas Janis, and his address, 803 Pine Avenue, Hopewell, Virginia. Daniel personally observed Thomas Janis' truck at 803 Pine Avenue on August 8, 1993.

On August 10, 1993, Daniel filled out an affidavit requesting a warrant to search 803 Pine Avenue, Hopewell, Virginia. Daniel stated the material facts constituting probable cause as follows:

On July 26, 1993 Thomas Janis and an unknown white female were videod [sic] on a surveillance at a marijuana plot in Dinwiddie County. Surveillance of this plot since July 26, 1993 revealed that numerous marijuana plants had been harvested. On August 8, 1993 a pick-up truck driven by Thomas Janis was observed entering and leaving a dirt trail that lead [sic] to and from the plots. A check of the plots were checked after Thomas Janis left on August 8, 1993 and it was found that several more marijuana plants had been cut down and harvested.

On August 10, 1993, based on this affidavit, a magistrate issued a search warrant for Thomas Janis' residence, 803 Pine Avenue, in the City of Hopewell.

After executing the warrant, police found ninety-one marijuana plants at 803 Pine Avenue and arrested Thomas Janis and his wife, Kimberly Janis. Thomas Janis admitted to police that he grew the marijuana at the field in Dinwiddie County.

On August 29, 1994, the trial court overruled appellants' motion to suppress the marijuana evidence, after appellants argued that the affidavit contained insufficient facts to constitute probable cause. At a bench trial, appellants were found guilty of possessing marijuana with the intent to distribute.

II. VIRGINIA CONSTITUTIONAL AND STATUTORY LAW

Appellants contend that the trial court erroneously applied the exclusionary rule's good faith exception to the requirements of the Virginia Constitution, article I, § 10. ¹ See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)(discussing the good faith exception). Appellants assert that the constitutional rights and protections afforded by the Fourth Amendment to the United States Constitution differ from those afforded under the Virginia Constitution. We disagree. As this Court and the Supreme Court of Virginia have stated, the protections afforded under the Virginia Constitution, article I, § 10, are " 'substantially the same as those contained in the Fourth Amendment.' " Iglesias v. Commonwealth, 7 Va.App. 93, 96 n. 1, 372 S.E.2d 170, 171 n. 1 (1988)(quoting Lowe v. Commonwealth, 230 Va. 346, 348 n. 1, 337 S.E.2d 273, 275 n. 1 (1985), cert. denied, 475 U.S. 1084, 106 S.Ct. 1464, 89 L.Ed.2d 720 (1986)); McCary v. Commonwealth, 228 Va. 219, 232, 321 S.E.2d 637, 644 (1984)("embracing" the good faith exception); Tart v. Commonwealth, 17 Va.App. 384, 392, 437 S.E.2d 219, 224 (1993)(concluding that the good faith exception is "an accepted component of Virginia law"). No justification exists for drawing a distinction between the two constitutional provisions for purposes of good faith analysis.

Appellants also contend that because the police and magistrate's actions violated Code § 19.2-54, which sets the requirements for establishing probable cause in an affidavit, the good faith exception cannot provide a justification for the unconstitutional search. We also disagree with this argument. "Historically, searches or seizures made contrary to provisions contained in Virginia statutes provide no right of suppression unless the statute supplies that right." Troncoso v. Commonwealth, 12 Va.App. 942, 944, 407 S.E.2d 349, 350 (1991).

Virginia employs the rule of Weeks v. United States, 232 U.S. 383 [34 S.Ct. 341, 58 L.Ed. 652] (1914), made applicable to the states by Mapp v. Ohio, 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081] (1961), that evidence obtained in violation of constitutional proscriptions against unreasonable searches and seizures may not be used against an accused. However, our Supreme Court has steadfastly refused to extend that rule to encompass evidence seized pursuant to statutory violations, absent an express statutory provision for suppression.

Troncoso, 12 Va.App. at 944, 407 S.E.2d at 350.

III. PROBABLE CAUSE AND THE GOOD FAITH EXCEPTION

"The existence of probable cause is determined by examining the 'totality-of-the-circumstances.' " Miles v. Commonwealth, 13 Va.App. 64, 68, 408 S.E.2d 602, 604 (1991), aff'd en banc, 14 Va.App. 82, 414 S.E.2d 619 (1992). When reviewing a decision to issue a warrant, a reviewing court must grant "great deference" to the magistrate's interpretation of the predicate facts supporting the issuance of a search warrant and to the determination of whether probable cause supported the warrant. See Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983); Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)(stating that "the scrutiny applied to a magistrate's probable-cause determination to issue a warrant is less than that for warrantless searches").

Despite the deference paid to the magistrate's determination in this case, we hold that the magistrate lacked a substantial basis for finding that probable cause existed. The affidavit, while not a "bare bones" affidavit, failed to provide a "nexus" that linked the marijuana found in the Dinwiddie field to 803 Pine Avenue in Hopewell. See generally Tart, 17 Va.App. 384, 437 S.E.2d 219 (1993)(addressing the nexus requirement); United States v. Hove, 848 F.2d 137 (9th Cir.1988)(stating that the facts set forth in an affidavit must establish a nexus between the place to be searched and the alleged criminal activity). Although the affidavit did not contain the address, 803 Pine Avenue, Hopewell, Virginia, we assume that Agent Daniel verbally supplied the magistrate with this address. ² However, because the affidavit failed to explain why contraband would probably be found at the Hopewell address, Agent Daniel might just as easily have supplied the magistrate with an address belonging to an unrelated third party. Without a nexus in the affidavit linking the contraband with appellants' residence at 803 Pine Avenue, the magistrate who issued the warrant could not reasonably have concluded that contraband would probably be found at the premises to be searched.

Furthermore, an exception to the Leon good faith rule mandates a reversal of this case. See McCary, 228 Va. at 232, 321 S.E.2d at 644 (discussing the good faith exception); Atkins v. Commonwealth, 9 Va.App. 462, 464, 389 S.E.2d 179, 180 (1990)(same).

"[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates." Leon, 468 U.S. at 916, 104 S.Ct. at 3417. "In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient." Id. at 921, 104 S.Ct. at 3419. The deterrent effect of the exclusionary rule "is absent where an officer, acting in objective good faith, obtains a search warrant from a magistrate and acts within the scope of the warrant." Derr v. Commonwealth, 242 Va. 413, 422, 410 S.E.2d 662, 667 (1991).

The good faith exception is not available in four instances:

(1) [W]here the magistrate was misled by information in the affidavit which the affiant knew was false or should have known was false, (2) the issuing magistrate totally abandoned his judicial role, (3) the warrant was based on an affidavit "so lacking in indicia of probable cause" as to render official belief in its existence unreasonable or (4) where the warrant was so facially deficient that an executing officer could not reasonably have assumed it was valid.

Robinson v. Commonwealth, 19 Va.App. 642, 647, 453 S.E.2d 916, 918 (1995)(emphasis added).

Despite the absence of police misconduct...