Polston v. Com.

• Decision Date: 17 April 1998
• Docket Number: Record No. 971536.
• Citation: 498 S.E.2d 924,255 Va. 500
• Court: Virginia Supreme Court
• Parties: Sherri Ann POLSTON, s/k/a Sherri Anne Polston v. COMMONWEALTH of Virginia.

498 S.E.2d 924

255 Va. 500

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

Record No. 971536.

Supreme Court of Virginia.

April 17, 1998.

Ned M. Mikula, Chesterfield, for appellant.

Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: All the Justices.

HASSELL, Justice.

Sherri Ann Polston entered a conditional plea of guilty to the crime of possession of marijuana with intent to distribute in violation of Code § 18.2-248. Pursuant to Code § 19.2-254, she reserved her right to appeal that portion of the Chesterfield Circuit Court's judgment denying her motion to suppress the marijuana which she claims was the fruit of an unlawful search. The trial court accepted her guilty plea and fixed her punishment at 10 years' imprisonment, which was suspended subject to certain conditions. The Court of Appeals affirmed the judgment of the circuit court, Polston v. Commonwealth, 24 Va.App. 738, 485 S.E.2d 632 (1997), and we awarded the defendant an appeal.

The following facts are relevant to our disposition of this appeal. Stuart G. Powell, a Chesterfield County detective, along with an unidentified informant, appeared before a magistrate on January 6, 1995. Detective Powell submitted an affidavit to the magistrate which stated in relevant part:

"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 oath and 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 the apartment mentioned in section two of this document.

* * *

"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 mention[ed] 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. The citizen has decided to remain anonymous for fear of retaliation."

The magistrate questioned the informant under oath, and the informant stated that he was familiar with the local drug culture and that he had used marijuana at least once per week for a number of years. The magistrate or Detective Powell added the following sentence to the affidavit: "This citizen is a self-admitted drug user and is familiar with the drug culture in and around Chestserfield [sic] County."

The magistrate issued a warrant authorizing a search of the defendant's apartment. When Detective Powell, along with Chesterfield County police officers, conducted the search, the defendant directed them to a dresser in her bedroom which contained approximately one pound of marijuana. The officers also found a "bong" in the defendant's apartment, and the defendant told the officers that she sold marijuana.

The defendant argues that the magistrate did not have a substantial basis to find probable cause necessary for the issuance of the search warrant. The defendant observes that the "citizen" referred to in the affidavit was actually an individual who had been arrested by police officers earlier on the day that the search warrant was issued. Continuing, the defendant says that Detective Powell "conceded that he had made no effort of any kind to investigate or verify either the informant's credibility or the reliability of the information" contained in the affidavit. Responding, the Commonwealth asserts that the magistrate did have a substantial basis for finding that probable cause existed for the issuance of the warrant and that the evidence seized pursuant to the warrant was also admissible on another basis, the good faith exception to the warrant requirement established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d...