Marks v. Commonwealth
| Decision Date | 25 April 2017 |
| Docket Number | Record No. 0897-16-4 |
| Parties | JONATHAN LAMAR MARKS v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
UNPUBLISHED
Present: Judges O'Brien, Russell and Senior Judge Haley
Argued at Fredericksburg, Virginia
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
1
Bonnie H. Hoffman, Deputy Public Defender, for appellant.
Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Jonathan Lamar Marks, appellant, was found guilty by a jury of breaking and entering with the intent to commit larceny in violation of Code § 18.2-91, possession of burglary tools in violation of Code § 18.2-94, destruction of property in violation of Code § 18.2-137, wearing a mask in public in violation of Code § 18.2-422, and attempted grand larceny in violation of Code §§ 18.2-26 and -95. On appeal, he contends the trial court erred in finding the search warrants executed at his apartment on Beechwood Terrace were supported by probable cause and that the court erred in denying him a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). For the reasons that follow, we affirm.
During the early morning hours of August 2, 2015, a digital video recorder outside a Wells Fargo bank in Ashburn captured an individual wearing dark pants, a dark shirt, and a black mask breaking into the drive-thru ATM. According to the video and trial testimony, the individual was using a crowbar, a sledgehammer, various other hand tools, and "what looked to be a grinder" to "basically destroy" the ATM. The video also showed the individual spray paint one of the video cameras, resulting in some images being obscured. Nevertheless, the video revealed the individual wearing a baseball hat with a logo, a Nike logo on a sneaker, and an Air Jordan logo on another article of clothing. The recording depicted the individual crawling through the ATM and entering the ATM cash room where currency is stored.
Deputy John Chavez and another officer were dispatched to the bank. Chavez saw the suspected burglar, but could not recognize the individual except to described him as an African-American male. After the suspect eluded, Chavez secured the perimeter of the crime scene until additional law enforcement arrived. FBI agents and lead detective Colette Cunningham conducted a preliminary survey of the scene. Inside the bank they located two sledgehammers. Outside, they found a pry bar, a black Nike backpack, and a can of orange spray paint beneath the backpack. The backpack contained, among other things, a box cutter, a black Samsung cell phone, black socks, and a "minute key."
On August 3, 2015, Detective Cunningham applied for a search warrant for appellant's Beechwood Terrace apartment. Her supporting affidavit read:
On August 2, 2015 at approximately 0412 hrs, LCSO responded to a bank alarm at the Wells Fargo Bank . . . in Ashburn, VA. Upon arrival, an unknown subject was seen fleeing the area from the ATM machine. The ATM was dismantled and power tools and cord were located nearby. There was neon orange spray paint on the front window of the ATM where the cameras were located. The subject was seen coming from the northern end of the bank area when approaching on foot. The subject was also seen leavingand returning multiple times with tools from the northern side of the building . . . . A backpack was located by a bush on the northern end within view outside the bank. Under the backpack was a can of Rustoleum neon orange spray paint which was consistent with the paint used to obscure the camera on the ATM. Inside the backpack was a Black Samsung cellular phone which was identified as number 703-457-0396. Further analysis of the phone revealed text messages referring to "Jon" or "Jonathon" and an address of "20271 Beechwood Terr." A text message sent at 0100 hrs on August 2, 2015 states, LEO databases link Jonathon Marks to 20271 Beechwood Terrace #103. Jonathon Lamar Marks has a criminal history including thefts and burglaries to dwellings. Based on the above facts, Your Affiant believes the cell phone left on scene has been used by Jonathon Marks of 20271 Beechwood Terr[.] #103. Your Affiant is requesting a search of 20271 Beechwood Terrace in Ashburn, VA to further the pending investigation.
(Emphasis added).
A magistrate issued a search warrant at 4:53 p.m. authorizing a search for, among other things, a dark-colored hat and outerwear, Nike brand tennis shoes, a facial mask or bandana, any indicia of occupancy, and all burglarious tools. As a result of the search, officers recovered black Nike shoes from a bedroom, and a black "Polo" cap and black sweatpants in the bottom of a clothing hamper. Appellant was present when the search took place, and upon questioning by Detective Cunningham, he denied any involvement in the burglary.
During the search, police observed other possible evidence related to the burglary and obtained a second warrant allowing them to search for evidence connecting appellant to the Wells Fargo bank. The affidavit Detective Cunningham submitted was substantially identical to the first affidavit, except for the additional following language:
A key found at the scene matches a key found in the execution of the initial search warrant. Subject stated he does not know where Wells Fargo is, however, financial document/receipts were located in execution of initial search warrant.2
The second warrant authorized officers to search for "keys, financial and purchase receipts from Wells Fargo bank and any other evidence of Wells Fargo transactions." Pursuant to this second search, officers recovered a "minute key;" a purchase copy of a Wells Fargo cashier's check (Ashburn branch) from Claribel Pinedo, appellant's estranged girlfriend, to Joel Abrhamson; an earning statement in the name of Jonathan Marks; and a United States Priority Mail receipt bearing appellant's name and the Beechwood Terrace address.
Prior to trial, the court held a hearing on appellant's motion to suppress the evidence recovered from the Beechwood Terrace apartment. Appellant argued that because the text message connecting appellant to the Beechwood Terrace residence was sent nearly six months prior to Detective Cunningham swearing out the affidavit for the warrant, the information for the warrant was stale. Appellant also maintained that the items searched for could be located in any home, and therefore the description of them was not specific enough to satisfy the warrant requirement. Finally, appellant alleged that, because the detective "recklessly omitted" the date of the six-month-old text message connecting appellant to the Beechwood Terrace apartment and omitted certain facts about appellant's criminal history, appellant met his burden requiring the court to conduct a Franks hearing. Upon questioning by the trial court, appellant's counsel acknowledged that the detective did not make a false statement to the magistrate; rather, appellant asserted that she recklessly omitted information. The court denied both motions stating from the bench the following:
At trial, a special agent employed by the FBI was called to testify as an FBI certified computer forensic examiner. The agent was able to extract data from the recovered cell phone, including the cell phone's number and the date and content of text messages sent and received from the cell phone. Phone records from the phone indicate that a text message was sent from the cell phone approximately one hour before the burglary began. Numerous other incoming messages refer to the recipient as "Jon" or "Jonathan." In addition, a sent text message on February 7, 2015 contained the address The next incoming message read, "Be there in 20," and a subsequent outgoing message read, "Apt 103."
The trial court received an investigator with the Loudoun County Fire Marshal's Office as an expert in "the interpretation of cell phone records and the mapping of cell phone records." The expert testified that the phone moved from the area of the Beechwood Terrace address around 1:15 a.m. to an area north and west of that location. The expert opined that the next usage of the phone occurred at 5:00 a.m. The expert believed this occurred when the phone was in the vicinity of the bank where it was ultimately located.
With the fruits of the search warrants available as evidence and the other evidence presented, the jury convicted appellant of the various charges, and he was sentenced to three years and seven months of active incarceration. This appeal follows.
I. Standard of Review
In reviewing a trial court's ruling on a motion to suppress, this Court views the evidence "in the 'light most favorable to . . . the prevailing party below,' . . . and the decision of the trial judge will be disturbed only if plainly wrong." Greene v....
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