Slade v. Com., Record No. 1529-03-1.

• Docket Nº: Record No. 1529-03-1.
• Citation: 596 S.E.2d 90, 43 Va. App. 61
• Case Date: May 18, 2004
• Court: Court of Appeals of Virginia

596 S.E.2d 90
43 Va. App. 61

Lavar A. SLADE
v.
COMMONWEALTH of Virginia

Record No. 1529-03-1.

Court of Appeals of Virginia, Chesapeake.

May 18, 2004.

596 S.E.2d 91

Jeffrey C. Rountree, Newport News, for appellant

Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., FELTON and KELSEY, JJ.

FITZPATRICK, Chief Judge.

In this criminal appeal, Lavar A. Slade (appellant) contends that: 1) the trial court erred in overruling his motion to suppress evidence obtained pursuant to a search warrant issued without probable cause, and 2)

596 S.E.2d 92

the evidence was insufficient to convict him of possession with intent to distribute cocaine. We affirm the judgment of the trial court

I. BACKGROUND

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va.App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that on December 7, 2002 the Newport News police executed a search warrant at Apartment 7, 438 Tara Court. The warrant was issued based on a controlled purchase of cocaine instigated by a confidential informant whom appellant stipulated to be reliable. The informant asked an "unwitting informant" where he could purchase cocaine, and the unwitting informant took him to the Tara Court home. The confidential informant saw the unwitting informant take cash given to him by the confidential informant into the home, return and give him the drugs purchased. The unwitting informant stated that there was more cocaine available for sale inside. The affidavit stated that this happened on several occasions.

Inside the apartment, the police found approximately two and a half grams of cocaine on the living room coffee table, ten and a half grams of cocaine on top of a sliding door, digital scales and plastic baggies in the kitchen, $900 in appellant's pants pocket separated into smaller denominations, and a cell phone. Detective Nesbitt (Nesbitt) testified that appellant admitted the cocaine on the table was his. When he was asked about the large stash of cocaine, appellant replied, "Times are tough. I'm just trying to support my family." Nesbitt also testified that appellant repeated this statement in front of the magistrate at the bail hearing. Appellant denied making this statement at trial.

II. MOTION TO SUPPRESS

"The burden to establish that the denial of the motion to suppress constituted eversible error rests with the defendant." King v. Commonwealth, 39 Va.App. 306, 308, 572 S.E.2d 518, 519 (2002) (citations omitted). "We are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them[,] and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). However, we review de novo the trial court's application of defined legal standards such as probable cause and reasonable suspicion to the particular facts of the case. See Ornelas, 517 U.S. at 699, 116 S.Ct. 1657; Hayes v. Commonwealth, 29 Va.App. 647, 652, 514 S.E.2d 357, 359 (1999); Shears v. Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996).

Appellant contends that the affidavit failed to sufficiently establish the reliability of the unwitting informant, and thus the magistrate did not have probable cause to issue the search warrant. We disagree and affirm the judgment of the trial court.

The affidavit stated, in pertinent part:

On December 4, 2002, this affiant received information from a confidential reliable informant that he/she and a[sic] unwitting informant had been to an apartment known as 438 Tara Court, #7. The reliable informant advised that he/she observed the unwitting informant knock on the door of 438 Tara Court #7 and walk in with the U.S. currency. The reliable informant advised that the unwitting informant returned and handed the reliable informant a quantity of cocaine and stated that there is more cocaine for sale inside 438 Tara Court #7 when the reliable informant wanted more. The reliable informant advised he/she had taken the unwitting informant to 438 Tara Court #7 several times in the past and has given U.S. currency to the unwitting informant to purchase cocaine from inside 438 Tara Court #7 and the unwitting informant has stated that there is more cocaine for sale inside 438 Tara Court #7 when the reliable informant wanted more.

596 S.E.2d 93

Defense counsel stipulated to the reliability of the confidential informant, but moved to suppress the evidence obtained during the search, contending that the affidavit and warrant contained no facts to support the reliability of the unwitting informant and that it contained his hearsay statements about the cocaine purchase inside the suspect residence. He argues

On the face of the warrant, the magistrate looking at it, we don't know how long this person was in there, and for another

...