Tart v. Com.

• Decision Date: 23 November 1993
• Docket Number: No. 0456-92-2,0456-92-2
• Citation: Tart v. Com., 437 S.E.2d 219, 17 Va.App. 384 (Va. App. 1993)
• Parties: Charles Edward TART v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 219

437 S.E.2d 219

17 Va.App. 384

Charles Edward TART v. COMMONWEALTH of Virginia.

Record No. 0456-92-2.

Court of Appeals of Virginia.

Nov. 23, 1993.

Joy Hodges Robinson, Manakin Sabot (Claire G. Cardwell, Claire Cardwell & Associates, Richmond, on brief), for appellant.

Janet F. Rosser, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: MOON, C.J., and BENTON and FITZPATRICK, JJ.

FITZPATRICK, Judge.

Charles E. Tart (appellant) was convicted after a bench trial of possession with intent to distribute heroin in violation of Code § 18.2-248. The sole issue raised in this appeal is whether the information provided as the basis for the issuance of the search warrant was stale so as to render the warrant facially invalid. Finding no error, we affirm.

On September 6, 1991, at approximately 4:08 a.m., Officer Robert C. Woodburn and several other police officers executed a search warrant on Room 30 of the Town Motel in Henrico County. Appellant and a female companion were in the room. The search revealed a bag of cocaine in "the jalousie glass window in the bathroom over the tub." After appellant was placed under arrest, the police found in a pouch attached to his belt, a pager and several packages of heroin wrapped in tinfoil.

The affidavit accompanying the search warrant states as follows:

On September 6, 1991 your affiant investigator R.C. Woodburn of the Henrico County Division of Police was contacted by Officer Paul Ronca of the Richmond Bureau of Police who related the following facts. Ronca advised your affiant that on this date Ronca spoke with a confidential and reliable informant, here after referred to in this affidavit as CI(1) who is presently cooperating with the Richmond Bureau of Police. Ronca advised that CI(1) stated that within seventy two (72) hours of CI(1) contacting Ronca that CI(1) was in person at Room 4 and Room 30 located at the Town Motel, 5214 Brook Rd. Richmond, Virginia. CI(1) further stated that CI(1) observed what CI(1) knows to be "crack" cocaine in the possession of a black male from the New York area. CI(1) further described the black male as having a scar along his cheek. CI(1) went on to advise Ronca that this CI(1) was also within this seventy two (72) of contacting Ronca that this CI(1) was also in person at Room 30 of the Town Motel located at 5214 Brook and observed a quanity [sic] of what this CI(1) knows to be "crack" cocaine, cut up into small rocks. CI(1) advised that a black male, light skinned [sic] wearing two (2) gold chains and two (2) gold rings was in possession of the "crack" cocaine in Room 30. CI(1) advised that the [sic] above described subjects in Rooms 4 and 30 of the Town Motel were associated in regard to the illegal possession of the cocaine.

CI(1) openly admits to having both abused and sold "crack" cocaine in the past and has moved among the illegal drug cultures in the Richmond metropolitan area and is completely familiar with "crack" cocaine and its appearance.

It is for the above stated facts that your affiant firmly believes that there is now being illegally stored a quanity [sic] of "crack" cocaine in Room 4 and Room 30, located at the Town Motel, 5214 Brook Road, Henrico County, Virginia.

Based upon this information, the magistrate issued a search warrant for Room 30 of the Town Motel for the seizure of "cocaine and any and all items related to, or indicative of the possession, use, transportation or storage ... thereof." The warrant was issued on September 6, 1991 at 3:35 a.m., and the police executed it approximately thirty minutes later.

Appellant filed a pre-trial motion to suppress the evidence seized pursuant to the search claiming that, because of the potential transient nature of motel room occupants, the allegation that "within 72 hours" drugs were seen in the room was "stale" and so "lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable."

At the conclusion of the suppression hearing, the trial judge specifically found:

that the affidavit does in fact provide probable cause, and if not, no question in my mind from the totality of it that the police officers were acting in good faith under [United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ], and I do not feel the facts presented in this affidavit would in any way present to a reasonable police officer the situation that he would not reasonably believe that this was in fact a valid search warrant issued on probable cause.

"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 crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (citation omitted); Garza v. Commonwealth, 228 Va. 559, 563, 323 S.E.2d 127, 129 (1984). The initial determination of probable cause requires the magistrate to weigh the evidence presented in light of the totality of the circumstances. In contrast, "the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332 (citation omitted); Garza, 228 Va. at 563, 323 S.E.2d at 129.

It is well settled "that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's 'determination of probable cause should be paid great deference by reviewing courts.' " Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (citation omitted); see also United States v. Settegast, 755 F.2d 1117, 1121 (5th Cir.1985). "A deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." Williams v. Commonwealth, 4 Va.App. 53, 68, 354 S.E.2d 79, 87 (1987) (quoting Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984)).

The underlying affidavit in this case was specific in the description of the individuals involved in each room to be searched; that the individuals were associated in an ongoing criminal enterprise; that the confidential informant had been in the rooms within the past seventy-two hour period and had personally seen the drugs in Rooms 4 and 30 of the motel. From this information, a magistrate could reasonably conclude that the two men described in the affidavit were involved in the sale of drugs and that there was a "fair probability" that drugs were being stored in these rooms.

Appellant argues that the character of a motel is transient and, as such, a seventy-two hour time frame is too long a period for a magistrate to have reasonably concluded that drugs would remain in the room. The police did not check whether the same people were still registered in the room to be searched nor did they conduct any additional surveillance of the room. Admittedly, had the police taken these simple steps to ascertain whether or not the occupants of the targeted rooms had changed after the time the confidential informant observed the drugs or had the police proffered reasons why such additional information was not reasonably ascertainable, that information would have significantly bolstered the affidavit. We conclude, however, that the location searched, a motel room, is merely one factor to be considered in light of the totality of the circumstances. The search warrant issued in this case was for the search of drugs stored in the motel room, specifically: "cocaine and any and all items related to, or indicative of the possession, use, transportation or storage of thereof including but not limited to, pipes, vials, baggies and packaging." As such, we find that the affidavit provided sufficient information to justify the magistrate's determination of probable cause.

The affidavit indicates "that within seventy two (72) hours" of [the confidential informant's] contacting [the police] that [the confidential informant] was in person at Room 4 and Room 30 located at the Town Motel, 5214 Brook Rd. Richmond, Virginia." (emphasis added). The trial judge succinctly pointed out the import of the phrase "within seventy two (72) hours," as follows:

within the past 72 hours, not 72 hours, but within the last 72 hours. So, I mean, that, as you said, could be anytime as the magistrate had presented to him that this information could have been immediately prior to the affiant being there in front of him, all the way back to 72 hours.

The Commonwealth's Attorney informed the trial judge that this phrase was often used to protect the identity of confidential informants. Further, the affidavit indicates that two rooms contained illegal drugs, that the occupants of the rooms were associated with one another and that "a quanity [sic] of ... "crack" cocaine, [was] cut up into small rocks." From this information, it is reasonable to infer that the occupants were engaged in an ongoing criminal enterprise of drug distribution. We have held that "[t]he selling of drugs, by its nature, is an ongoing activity." Turner v. Commonwealth, 14 Va.App. 737, 746, 420 S.E.2d 235, 240 (1992) (citing Donaldson v. State, 46 Md.App. 521, 420 A.2d 281 (1980)). In addition, there was almost no delay between the issuance of the warrant and its execution. "Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965) (citation omitted). Accordingly, based on the facts of this case, we find that the information was not rendered stale by the time frame presented and, as such, that a...