Robinson v. Com.
| Decision Date | 14 February 1995 |
| Docket Number | No. 1489-93-2,1489-93-2 |
| Citation | 19 Va.App. 642,453 S.E.2d 916 |
| Parties | DeAngelo Raphael ROBINSON v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Court of Appeals |
Marla Lynn Graff, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.
Present: BAKER, BENTON and FITZPATRICK, JJ.
DeAngelo R. Robinson (appellant) was convicted of possession of cocaine with intent to distribute in violation of Code § 18.2-248. He argues that the trial court erred when it denied his motion to suppress the evidence because the search and seizure of the cocaine fell within the "good faith" exception to the warrant requirement. We disagree and affirm the trial court.
In January 1993, Henrico County Police Officer Stephen C. Lowery (Lowery) received information from a confidential informant regarding possible drug activity in the area of the Huntington Village Apartments in Richmond. Lowery submitted the following affidavit to the magistrate:
1-9-93 Your affiant officer S.C. Lowery of the Henrico County Division of Police met with a confidential and reliable informant who is presently cooperating with the police in regard to illegal activity in the Richmond metropolitan area. This informant advised your affiant that within 24 hours of this meeting this informant observed a[n] individual at the Econo Lodge located at 5221 Brook Rd. in the central portion of Henrico County, going by the name of DeAngelo Robinson. This informant further stated that the Robinson subject was staying at the Econo Lodge and was observed by this informant to be in possession of a large amount of U.S. currency. Your affiant being familiar with a subject known to your affiant as DeAngelo R. Robinson as being a[n] illegal drug violator in the Richmond area checked with the Econo Lodge records to determine if the Robinson subject was in fact the same. Your affiant is familiar with the Robinson subject through past contact regarding illegal drug activity in the central portion of Henrico County. Your affiant has in the past charged DeAngelo R. Robinson with the possession of cocaine and in checking Robinson[']s criminal history has found that Robinson has been convicted of the possession of cocaine, two counts, [and] the possession of marijuana. Robinson has also in the past been charged with the possession of a concealed weapon and the possession of a weapon while in possession of cocaine. Your affiant has also taken action o[n] Robinson in the past in regard to a Metro Richmond crime stopper that related that Robinson was delivering drugs to the Huntington Village Apartments that are located in a very close proximity to the Econo Lodge at 5221 Brook Rd. This crime stopper also stated that Robinson was selling cocaine and marijuana and is armed with a .380 cal. pistol....
Your affiant in checking with the Econo Lodge records found that the DeAngelo Robinson staying at the Econo Lodge was in fact the same DeAngelo Robinson your affiant was familiar with. This was done by comparing the social security number the Robinson subject recorded at the time he, Robinson leased the room. Your affiant further found in checking the hotel records that Robinson checked [into] th[e] Econo Lodge on 1-8-93 and paid[ ] cash for this transaction. Your affiant found that on this date 1-9-93 the Robi[n]son subject left Room 268 and leased a new room on the same floor located at the end of the hallway. This transaction was also all cash. The new room leased by Robinson is Room 262. Your affiant found that upon check[-]in Robinson displayed no luggage, and requested no maid service during his, Robinson[']s stay. The Econo Lodge records also show a very high volume of in[-]coming calls and phone use.
Your affiant had Officer S.D. Jeffrey estab[l]ish a surveillance of Room 262 at the Econo Lodge at approximately 1730 hrs. on this date. At 1750 hrs. Jeffrey reported that he observed a subject fitting the physical description of Robinson, leave Room 262 and walk across Rt. 1 and use a pay phone, during inclement weather. Jeffrey also reported that a subject was observed looking out of the room window on a frequent basis.
Your affiant at approximately 1300 hrs. on this date, 1-9-93 contacted Investigator J.J. Riani of the Henrico County Division of Police Enforcement Unit and related the above[-]listed facts to Riani. Riani having worked in the field of hotel-motel interdiction advised your affiant that the above[-]listed facts are consist[e]nt with illegal drug violators utilizing hotel-motel rooms during illegal drug activity. Riani advised that persons involved in this activity do pay cash from day to day, lease rooms in a close proximity to the area of their distribution, deny any maid service, lease rooms at the end of hallways, and do frequently change rooms in the same hotel-motel. This activity is consist[e]nt with subject[s] who are processing and distributing illicit drugs. All the above actions are to aid in the attempt to minimize the detection of these ind[i]viduals from law enforcement efforts. Riani further advised the frequent phone use and the trip during inclement weather to a pay phone is extrem[e]ly indicative of illegal drug activity in hotel-motel rooms.
In the affidavit, Lowery indicated the facts establishing the reliability of his sources:
The reliability of the confidential and reliable informant is as follows. This informant has worked with your affiant for approximately [eight] months, and during this time has related information to your affiant that has resulted in the arrests and convi[c]tions of ... individuals for illegal activity in Henrico County. This informant has also related information in regard to other criminal activity that your affiant has found to be true and accurate.
Your affiant has been a police officer for eight years and during this time has received information from informants, and utilized this information to further criminal investigations.
Investigator J.J. Riani has been a police officer for [fifteen] years and during this time has worked as a narcotic investigator for a period of [nine] years. During this time Riani has received training in the field of hotel-motel interdiction and has been personally involved in numerous drug[-]related investigations involving hotel and motel rooms. Riani has also acted as a member of several area interdiction teams and acted as a trainer for these teams.
A magistrate issued a search warrant for appellant's motel room, authorizing a search for "cocaine, monies, records, weapons, packaging, adulterants and any and all items used and derived from the processing, packaging and distribution of cocaine." When executing the warrant, Lowery searched appellant and confiscated $200 from his pants pocket and marijuana and cocaine from his coat pocket.
In a pretrial motion to suppress, appellant argued that the search warrant was defective because Lowery failed to set forth sufficient facts in his affidavit to establish probable cause for the issuance of the warrant. The trial court overruled appellant's motion, finding that, although the affidavit failed to provide the magistrate with a substantial basis for a finding of probable cause, the good faith exception established by United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applied.
Appellant argues that the affidavit underlying the warrant was " 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.' " Leon, 468 U.S. at 923, 104 S.Ct. at 3421. We need not address the correctness of the trial court's initial determination that the warrant was insufficient because we agree with the trial court's finding that the evidence was admissible under the good faith exception to the exclusionary rule. See Atkins v. Commonwealth, 9 Va.App. 462, 464, 389 S.E.2d 179, 180 (1990).
Tart v. Commonwealth, 17 Va.App. 384, 390, 437 S.E.2d 219, 222 (1993) (citation omitted). 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 exception is not available in the following 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.
Miles v. Commonwealth, 13 Va.App. 64, 71, 408 S.E.2d 602, 606 (1991), aff'd en banc, 14 Va.App. 82, 414 S.E.2d 619 (1992). Although appellant argues that the second, third, and fourth requirements mandate exclusion of the cocaine, we conclude that none apply.
As in Leon, the affidavit is far from a "bare bones" allegation of wrongdoing. See Leon, 468 U.S. at 926, 104 S.Ct. at 3422. Lowery was specific about his personal knowledge of appellant's past involvement in the use and sale of drugs. In the affidavit, he stated his knowledge of appellant's past convictions for cocaine possession and appellant's drug activities near the Huntington Village Apartments. Also, Lowery offered his own observations of appellant's behavior at the Econo Lodge, including the...
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