Sowers v. Com.

• Decision Date: 24 April 2007
• Docket Number: Record No. 2233-05-3.
• Court: Virginia Court of Appeals
• Parties: John Eugene SOWERS, Jr. v. COMMONWEALTH of Virginia.

643 S.E.2d 506

49 Va. App. 588

John Eugene SOWERS, Jr. v. COMMONWEALTH of Virginia.

Record No. 2233-05-3.

Court of Appeals of Virginia, Salem.

April 24, 2007.

Sidney H. Kirstein, Lynchburg, for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General; Josephine F. Whalen, Assistant Attorney General, on brief), for appellee.

Present: BENTON, ELDER and CLEMENTS, JJ.

JAMES W. BENTON, JR., Judge.

John Eugene Sowers, Jr., appeals his conviction for possession of cocaine with the intent to distribute. Sowers contends the trial judge erred in refusing his pre-trial motion to suppress evidence found in his residence pursuant to a search warrant. We hold that the trial judge did not err in applying the good faith exception of United States v. Leon, 468 U.S 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and, thus, we affirm the conviction.

I.

Under well-established principles, when reviewing the trial judge's denial of a motion to suppress evidence, we must consider the evidence in the light most favorable to the Commonwealth, the prevailing party at trial. See Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004). So viewed, the evidence proved that on September 25, 2004, police officers stopped John Eugene Sowers, Jr., for driving in the City of Lynchburg while his driver's license was suspended. After a trained dog alerted to the car Sowers was driving, the police searched the car and found a plastic bag of white substance on the floorboard at the driver's seat. The police tested the substance and then arrested Sowers for possession of cocaine. They also found a cell phone and $1,263 in cash, and, during a later search of the car, they found another bag of cocaine hidden in a cigarette package.

At the police station, the police advised Sowers of his Miranda rights. Officer Riley testified Sowers said "the cocaine wasn't his" and Sowers explained the cocaine must have been left in his car by a friend who borrowed the car a week earlier. Sowers also said that "he did see the cocaine when he got in the car . . . and that he should have moved it." In addition, Sowers told the officer "he was coming from his residence" when the police stopped him and had "smoked marijuana at his house . . . in the past."

Officer Riley submitted an affidavit for a warrant to search Sowers's residence for "Cocaine, U.S. Currency and paraphernalia associated with the distribution of Cocaine, and any fruits associated with the distribution of Cocaine, marijuana." In support of the request, the affidavit recited the following:

On 9-24-04 at approx. 2135 hrs., I assisted in a traffic stop . . . in the City of Lynchburg for a traffic infraction. (Driving Suspended). Ofc. R. Zuidema made the traffic stop and made contact with the driver, a John E. Sowers Jr. Ofc. Zuidema had his canine run the veh. and it alerted on the drivers side door of the veh. I began to search the veh. and immediately found a small bag of white powder which tested positive for Cocaine. A cell phone was found on the floorboard of the veh. and $53.00 in currency was found in the center console. A search of his person revealed $900.00 in currency from his wallet and $310.00 in currency from his front pocket. A second bag of white powder was found in the drivers door of the veh. by Ofc. M.R. Soyars. This affiant interviewed Mr. Sowers (after reading Miranda) and Sowers advised me that he did not use Cocaine and that he left his residence . . . and was heading to Amherst Cty Mr. Sowers also stated that he had used Marijuana at this residence also in the past.

It is this affiants experience that Marijuana and Cocaine can easily be hidden inside of a residence. It is also this affiants experience that persons involved in using and Distributing narcotics will not always take everything they have with them when they travel. It is also this affiants experience that narcotics and the paraphernalia Associated with the use of Narcotics are often hidden inside the user's residence for safe keeping.

Officer Riley testified that "[t]he magistrate read the affidavit thoroughly and then went ahead and started filling out the paperwork." After the magistrate issued the search warrant, Officer Riley informed Sowers they had obtained a warrant to search his house. He testified Sowers then said he had "five or six grams" of drugs in his kitchen and some marijuana on his couch. Sowers also admitted that he had sold cocaine for three to four months. Sowers then gave the officer the keys to his residence and identified the lock each key opened.

When executing the search warrant, police seized a plastic bag of marijuana, a plastic bag of cocaine, two digital scales, a box of plastic sandwich bags, a marijuana cigarette, and a box of baking soda. After the police seized these items, they obtained a warrant to arrest Sowers for possession of cocaine with intent to distribute.

At trial, Sowers argued that the facts in the affidavit did not provide probable cause to issue a search warrant and were so lacking in probable cause that the good faith exception did not apply. The trial judge denied the motion, ruling probable cause existed and, alternatively, ruling the magistrate did not abandon his judicial role and the officer relied upon the warrant in good faith. At the conclusion of the evidence, the trial judge convicted Sowers of possession of narcotics with the intent to distribute and denied his request for post-conviction bail, finding him "a danger to himself and to the community."¹

II.

In view of the significant disputes about whether the search warrant was based upon probable cause and whether the officer could have relied upon the magistrate's decision to issue the search warrant, we conclude we must first address the probable cause issue. We do so because, if police officers are to "harbor an objectively reasonable belief in the existence of probable cause," Leon, 468 U.S. at 926, 104 S.Ct. at 3422, they and magistrates must be informed about the individualized and fact-specific inquiry of probable cause. Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 413, 9 L.Ed.2d 441 (1963).

If the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers and magistrates, nothing will prevent reviewing courts from deciding that question before turning to the good-faith issue. Indeed, it frequently will be difficult to determine whether the officers acted reasonably without resolving the Fourth Amendment issue. Even if the Fourth Amendment question is not one of broad import, reviewing courts could decide in particular cases that magistrates under their supervision need to be informed of their errors and so evaluate the officers' good faith only after finding a violation. In other circumstances, those courts could reject suppression motions posing no important Fourth Amendment questions by turning immediately to a consideration of the officers' good faith. We have no reason to believe that our Fourth Amendment jurisprudence would suffer by allowing reviewing courts to exercise an informed discretion in making this choice.

Leon, 468 U.S. at 925, 104 S.Ct. at 3421-22 (footnote omitted); see also Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2333, 76 L.Ed.2d 527 (1983) (noting that to ensure the magistrate's action is not "a mere ratification of the bare conclusions of others . . ., courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued").

Probable Cause

Sowers contends the search warrant is invalid because the affidavit supporting it failed to provide specific facts connecting the drugs to his home. He further contends the Leon good faith exception does not apply because the magistrate abandoned his judicial role and the warrant was based on an affidavit so lacking in indicia of probable cause that any official belief in its existence was unreasonable. The Commonwealth responds that the affidavit established probable cause due to the evidence of drug distribution found in the car and the police officer's knowledge of where drug distributors stow their supply. The Commonwealth alternatively contends that the good faith exception applies.

The Fourth Amendment of the United States Constitution requires that a search warrant be based upon probable cause. Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.Ct. 2085, 2085, 80 L.Ed.2d 721 (1984). "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a particular crime will be found in a particular place." Gates, 462 U.S. at 238, 103 S.Ct. at 2332. This determination of probable cause must be based on objective facts, United States v. Ross, 456 U.S. 798, 808, 102 S.Ct. 2157, 2164, 72 L.Ed.2d 572 (1982), and reasonable inferences drawn from those facts. Gates, 462 U.S. at 240, 103 S.Ct. at 2333.

As the appellant, Sowers bears the burden of showing that the trial judge's denial of his motion to suppress evidence seized pursuant to a search warrant constituted reversible error. Anzualda v. Commonwealth, 44 Va.App. 764, 774, 607 S.E.2d 749, 754 (2005) (en banc). On review, we must determine whether "the magistrate had a `substantial basis for . . . conclud[ing]' that a search would uncover evidence of wrongdoing." Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). In considering this issue, we "must grant `great deference' to the magistrate's interpretation of the predicate facts supporting the issuance . . . and to the determination of whether probable cause supported the warrant." Janis v. Commonwealth, 22 Va.App. 646, 652, 472 S.E.2d 649, 652 (1996).

For a search warrant to be supported by probable...