Polston v. Com.

• Decision Date: 27 May 1997
• Docket Number: No. 1064-96-2,1064-96-2
• Citation: 485 S.E.2d 632,24 Va.App. 738
• Parties: Sherri Ann POLSTON, s/k/a Sherri Anne Polston v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 632

485 S.E.2d 632

24 Va.App. 738

Sherri Ann POLSTON, s/k/a Sherri Anne Polston v. COMMONWEALTH of Virginia.

Record No. 1064-96-2.

Court of Appeals of Virginia,

Richmond.

May 27, 1997.

Ned M. Mikula, Chesterfield (Rudy, Evans & Mikula, on briefs), for appellant.

Monica S. McElyea, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: BENTON and ELDER, JJ., and COLE, Senior Judge.

ELDER, Judge.

Sherri Ann Polston (appellant) appeals her conviction of possession of marijuana with intent to distribute. She contends that the trial court erred in denying her motion to suppress evidence obtained during a search of her apartment. She argues that the magistrate lacked a substantial basis for finding probable cause to issue the search warrant for her apartment. For the reasons that follow, we affirm.

I. FACTS

On January 6, 1995, Detective Stuart Graham Powell of the Chesterfield County police participated in the arrest of an unidentified person (informant). Following his ¹ arrest, informant told Detective Powell that he had witnessed the storage and sale of marijuana in appellant's apartment within the past seventy-two hours. Detective Powell had never met informant prior to January 6, and informant had never participated in any "controlled buys" with the police. Detective Powell did not inquire whether or not informant was a registered voter or a person who regularly attended church. In addition, Detective Powell did not recall if he performed a check of informant's criminal record or know if informant was involved in After speaking with informant, Detective Powell wrote an affidavit that stated in relevant part:

any plea bargaining that was contingent upon his cooperation in appellant's case.

4. The material facts constituting probable cause that the search should be made are: On this date, 1-6-95, a citizen appeared before the magistrate of the Twelth [sic] Judicial District Court and stated the following facts under the penalty of purgery [sic]. This citizen stated that within the past 72 hours he/she observed a quantity of marijuana being stored and being offered for sale at [an apartment on Markview Lane].

* * * * * *

6. I was advised of the facts set forth in this affidavit, in whole or in part, by an informer. This informer's credibility or the reliability of the information may be determined from the following facts: The citizen mentioned in section 4 of this document made these statements while under oath and after being advised of the penalty of purgery [sic] by your affiant. Your affiant has been a police officer for over six years and is currently employed in the vice and narcotics unit of the Chesterfield County Police Department. Your affiant has made several drug arrests and is familiar with the drug culture in and around Chesterfield County.

Detective Powell then brought informant before a magistrate, and informant both swore that all of the information contained in the affidavit was true and testified under oath that "within the last 72 hours [he observed] a quantity of marijuana being prepared and offered for sale at [the apartment on Markview Lane]." The magistrate then questioned informant about his familiarity with drugs. In response, informant testified that he had used drugs on a weekly basis for several years and that he was familiar with the drug culture in Chesterfield County. Following this testimony, the magistrate made the following addition to the section of the affidavit addressing the credibility and reliability of informant:

This citizen is a self-admitted drug user and is familiar with the drug culture in and around Chesterfield County.

The magistrate issued a search warrant for the apartment. When Detective Powell entered the apartment, he found appellant. After appellant was given her Miranda warnings, she stated that she had marijuana inside her dresser drawers in her bedroom. Another detective recovered 12.74 ounces of marijuana from appellant's dresser. Appellant also stated that she had been selling marijuana in order to raise money to pay for Christmas presents.

Appellant was charged with possessing marijuana with the intent to distribute. The trial court denied appellant's motion to suppress the evidence obtained during the search of the apartment. Appellant then entered a conditional guilty plea that was subject to her appeal regarding the denial of her motion to suppress.

II. MOTION TO SUPPRESS

On appeal, appellant does not contend that the facts contained in the affidavit, if credible, failed to provide a substantial basis for the magistrate to find probable cause to issue the search warrant for the apartment on Markview Lane. Instead, appellant challenges the basis for the magistrate's reliance upon the information provided by informant. Specifically, appellant argues that the affidavit provided by Detective Powell failed to objectively establish informant's veracity and basis of knowledge and that the magistrate improperly supplemented the information provided in the affidavit by examining informant under oath regarding his reliability and basis of knowledge. We disagree.

A.

The existence of probable cause is determined by examining the "totality-of-the-circumstances." "The task of the issuing magistrate is simply to make a practical, commonsense 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." The duty of the reviewing court is "simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed."

Miles v. Commonwealth, 13 Va.App. 64, 68-69, 408 S.E.2d 602, 604-05 (1991), aff'd en banc, 14 Va.App. 82, 414 S.E.2d 619 (1992) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)).

When the factual basis for probable cause is provided by an informer, the veracity, reliability, and basis of knowledge of the informer are "highly relevant" to the magistrate's determination of probable cause. See Gates, 462 U.S. at 230, 103 S.Ct. at 2328. However, the credibility and basis of knowledge of an informer are not independent "elements" that must be "proved" in order for a magistrate to find probable cause. Instead, these considerations are merely factors in the overall "totality-of-the-circumstances" analysis. Id. at 233, 103 S.Ct. at 2329. "[A] deficiency in [either credibility or basis of knowledge] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Id.

The reliability of an informer's tip may be established in different ways depending on the nature of the informer and the manner in which the information provided by the informer reaches the magistrate. If the informer is a disinterested citizen who is either the victim or eyewitness of a crime, the magistrate is permitted to infer that reasonable information obtained from the citizen is reliable. See Saunders v. Commonwealth, 218 Va. 294, 299-300, 237 S.E.2d 150, 154 (1977). On the other hand, the reliability of a "criminal" informer, such as an "underworld figure" or a "professional informer," should be established by "underlying facts or circumstances buttressing the credibility of the informer." Id. at 298, 237 S.E.2d at 153-54.

The proper method to establish the reliability of "criminal" informers is determined in part by whether or not the informer appears in person before the magistrate and testifies under oath. When the "criminal" informer's tip is in the form of hearsay recited in an affidavit, its reliability may be established by showing that (1) the informer has previously given reliable information; (2) the informer previously has worked with the police and has made controlled buys or worked in narcotic surveillance or other law enforcement efforts; (3) the informer provided detailed information that only a person who had actually observed the criminal activity would know; or (4) the informer has made a declaration against his penal interest. See Boyd v. Commonwealth, 12 Va.App. 179, 187-88 n. 2, 402 S.E.2d 914, 919-20 n. 2 (1991); Corey v. Commonwealth, 8 Va.App. 281, 288, 381 S.E.2d 19, 23 (1989).

A different situation is presented when an informer appears in person before a magistrate and testifies under oath regarding his personal observations. Our Supreme Court has previously held that a magistrate determining probable cause may supplement the information contained in an affidavit with information received orally. See McCary v. Commonwealth, 228 Va. 219, 231, 321 S.E.2d 637, 643 (1984) (holding that "an insufficient affidavit may be supplemented or rehabilitated by information disclosed to the issuing magistrate upon application for the search warrant"). Thus, an affidavit need not include extrinsic corroboration of a "criminal" informer's veracity when such information is provided orally to the magistrate. This information may be conveyed orally by the police officer seeking the warrant or through the magistrate's direct examination of the informer while under oath.

[W]hen an informant appears before a judge or magistrate and testifies under oath concerning personal observations, there is no comparable need for extrinsic corroboration of the informant's veracity: the presiding judge or magistrate is able to observe the informant's demeanor, is capable of questioning the informant, and is provided further assurance by the fact that the informant's testimony is under oath.

Latham v. State, 790 P.2d 717, 720 (Alaska Ct.App.1990). As with any other similarly situated witness, the informant's willingness to submit to an oath, and his personal presence and the availability for questioning by the magistrate [provide]...