Lanier v. Com.

• Decision Date: 03 July 1990
• Docket Number: No. 1025-88-3,1025-88-3
• Citation: 394 S.E.2d 495,10 Va.App. 541
• Parties: Herbert G. LANIER v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

Page 495

394 S.E.2d 495

10 Va.App. 541

Herbert G. LANIER v. COMMONWEALTH of Virginia.

No. 1025-88-3.

Court of Appeals of Virginia.

July 3, 1990.

David W. Shreve (Shreve & Berger, Altavista, on brief), for appellant.

David A. Rosenberg, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and KEENAN and MOON, JJ.

KEENAN, Judge.

Herbert Garland Lanier was convicted in a bench trial of possession of marijuana with the intent to distribute. He raises three issues on appeal: (1) whether the search warrant was issued without probable cause; (2) whether the identity of the informant who provided the basic information for the warrant affidavit was improperly withheld; and (3) whether statements made by Lanier during and after the search were made in violation of his fifth amendment rights. For the reasons set forth below, we affirm Lanier's conviction.

On March 11, 1987, a search warrant was issued for the residence of Herbert Lanier based on an affidavit provided by Officer Brown. ¹ A week earlier, a similar warrant was obtained for the search of a trailer occupied by James Shaw. ² Officer Brown relied on the same informant for the information provided in both affidavits.

At approximately 5:50 p.m. on March 11, Deputy Conner and Investigator Taylor of the Pittsylvania County Sheriff's office pulled into Lanier's driveway in a marked police vehicle and sounded the horn. Lanier went out to the car. Conner told Lanier that they needed to talk to him and instructed him to sit in the back of the car. When Lanier did so, the door was closed behind him. A wire cage separated the front and back seats and the doors had no handles on the inside. Lanier knew that Conner was a deputy sheriff, although Conner was not wearing his uniform.

Conner introduced Taylor to Lanier and told Lanier that they had a search warrant for his home. Taylor asked Lanier if anyone else was inside and if there were drugs in the home. When Lanier responded that his wife and son were inside and that there were a couple of pounds of "pot" in the basement, Taylor stopped him and advised him of his fifth amendment rights. Five or six additional police vehicles arrived as they were speaking. The officers and Lanier then got out of their vehicle. Taylor again advised Lanier of his rights, this time from a written form, which Lanier signed.

Lanier was taken into the kitchen while the officers searched his home. He was extremely upset and nervous. During the search, Lanier spoke to Special Agent Gibson about the need to provide care for his son if his wife were to be arrested as a result of the search. ³ After this discussion, Lanier's wife told him he did not have to speak with the police before speaking with an attorney, and calmed him down somewhat.

Lanier was placed under arrest at approximately 8:30 p.m. Investigator Simpson advised him of his rights at that time and told him he would be transported to the Sheriff's office, where a magistrate would determine whether he would be put in jail. Lanier did not request an attorney. While in the car, he asked what would happen to him. Investigator Simpson informed Lanier of the serious nature of the charges he was facing and the possibility of a long prison sentence. Simpson also told him that he had information that Lanier was dealing a large quantity of drugs from his home. Simpson then advised Lanier that if Lanier wanted to work with the police, Simpson would speak to the Commonwealth's Attorney.

Lanier replied by stating that he had "slacked off" for the last six months, was not doing drugs like before, and was trying to get things straightened out. He also indicated that the drugs were his and that his wife was not involved.

On appeal, Lanier argues that the evidence obtained pursuant to the search of his home should have been suppressed because the information contained in the affidavit supporting the warrant was false. He argues that the officer either lied as to the existence of the informant, or that the officer knowingly, or with reckless disregard for the truth, included information in the affidavit which was false and omitted material information as to the reliability of the informant. Thus, he asserts there was insufficient probable cause to sustain the issuance of the warrant and the evidence seized pursuant to it was improperly admitted into evidence. Lanier argues in the alternative that, if the informant did exist, the court erred in not requiring the Commonwealth to disclose the informant's identity when such disclosure would have been both relevant and helpful to his defense. Finally, Lanier argues that the statements he made to the police when they first arrived at his home and after he had been arrested, should have been suppressed because they were made while he was in custody and without a voluntary waiver of his fifth amendment rights.

In response, the Commonwealth argues that Lanier failed to show that the officer knew: (1) that any of the statements he made in the affidavit were false; or (2) that his informant was lying. Therefore, the Commonwealth contends that the affidavit provided sufficient probable cause to support issuance of the warrant and the evidence obtained as a result of its execution was properly admitted at trial. In addition, the Commonwealth argues that Lanier had no right to disclosure of the informant's identity, either at the suppression hearing or at trial. Finally, the Commonwealth maintains that Lanier's statements were properly admitted because he was not in custody when he first spoke with the officers and therefore was not entitled at that time to Miranda warnings. The Commonwealth asserts that the later statements were admissible because Lanier made the statements voluntarily after he had been advised of his fifth amendment rights.

We find that the warrant was supported by probable cause and, therefore, the trial court did not err in denying Lanier's motion to suppress the evidence seized from his residence. In addition, we find that the court did not err in denying Lanier's motions for disclosure of the informant's identity. Finally, we find that the statements made by Lanier to the officers during the search of his residence were made voluntarily and not obtained in violation of his fifth amendment rights. Accordingly, we affirm the conviction.

In making a probable cause determination, "[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." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); see also, Garza v. Commonwealth, 228 Va. 559, 563, 323 S.E.2d 127, 129 (1984). The duty of a reviewing court, on the other hand, is "simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)); Garza, 228 Va. at 563, 323 S.E.2d at 129; see also Williams v. Commonwealth, 4 Va.App. 53, 68, 354 S.E.2d 79, 87 (1987). Thus, the magistrate's determination of probable cause should be afforded great deference on appellate review. Williams, 4 Va.App. at 68, 354 S.E.2d at 87. Moreover, even if the warrant was not issued upon probable cause, evidence seized pursuant to the warrant is nevertheless admissible if the officer executing the warrant reasonably believed that the warrant was valid. United States v. Leon, 468 U.S. 897, 918-21, 104 S.Ct. 3405, 3418-19, 82 L.Ed.2d 677 (1984); see McCary v. Commonwealth, 228 Va. 219, 232, 321 S.E.2d 637, 644 (1984).

In Leon, the court acknowledged that suppression "remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth." 468 U.S. at 923, 104 S.Ct. at 3421. An accused may challenge the veracity of the affiant in accordance with the procedure established in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978):

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Id. at 155-56, 98 S.Ct. at 2676.

The court defined "truthful" for Franks purposes as follows:

This does not mean "truthful" in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily. But surely it is to be "truthful" in the sense that the information put forth is believed or appropriately accepted by the affiant as true.

Id. at 165, 98 S.Ct. at 2681. The Franks standard of deliberate falsity or reckless disregard applies only to those statements made by the affiant, not a nongovernmental informant. Id. at 171, 98 S.Ct. at 2684.

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