Warren v. Com.

• Citation: 214 Va. 600,202 S.E.2d 885
• Court: Supreme Court of Virginia
• Decision Date: 04 March 1974
• Parties: Charles Beverly WARREN v. COMMONWEALTH of Virginia.

Page 885

202 S.E.2d 885

214 Va. 600

Charles Beverly WARREN v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

March 4, 1974.

G. Marshall Mundy, Roanoke, for plaintiff in error.

James E. Kulp, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

HARRISON, Justice.

Again we review a case in which the sole question involved is the validity of a search warrant. Specifically we decide whether the affidavit for the warrant properly established probable cause.

Charles Beverly Warren appeals his conviction by a jury of possession of heroin with intent to distribute, possession of cocaine with intent to distribute, and possession of marijuana. The apartment of Warren was searched pursuant to a search warrant and quantities of heroin and cocaine, together with drug paraphernalia, were found. The search warrant was based upon an affidavit made June 7, 1972 by Robert C. McLaughlin, Assistant Commonwealth's Attorney of Roanoke, the relevant portions of which read as follows:

'(1) He has reason to believe that on the premises known as 711 Hunt Avenue, N.W., Apt. #94, occupied by William Warren a/k/a 'Buba' Warren and another Negro, female, in the City of Roanoke there is now being concealed certain property, namely Controlled drugs and drug paraphernalia in violation of Secs. 54--524.101 and 54.524--109:1 of the Code of Va. (1950). (2) He bases his belief that such property can be found on those premises on the following facts: On June 6, 1972 a reliable informer advised the affiant that during the past 24 hours the informer had observed a quantity of heroin and a large supply of hypodermic syringes in the premises to be searched.

(3) (b) He was advised of the facts set forth in paragraph (2) by an informer. This informer's credibility or the reliability of the information may be adjudged by the following facts: The informer on numerous occasions has supplied the affiant and the Vice Squad with drug information which has proven to be correct. Informer is also self-admitted drug abuser.'

The principles which control our decision here have been articulated by this court in a number of cases, including Huff v. Commonwealth,213 Va. 710, 194 S.E.2d 690 (1973); Guzewicz v. Commonwealth, 212 Va. 730, 187 S.E.2d 144 (1972); Manley v. Commonwealth, 211 Va. 146, 176 S.E.2d 309 (1970); and Wiles v. Commonwealth, 209 Va. 282, 163 S.E.2d 595 (1968). We have recognized that the applicable standard is the test of Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). In essence, these cases provide that an affidavit for a search warrant based upon information from an informant must (1) establish the reliability of the informant and (2) set forth the underlying circumstances necessary to enable the magistrate to judge the validity of the informant's statements to the affiant.

Without question the affidavit in the instant case satisfies the second requirement of the foregoing test. The informant's information here was based on his personal observation of a quantity of heroin and a large supply of hypodermic syringes in the home of the defendant Warren. A neutral and detached magistrate could reasonably conclude therefrom that the informant's knowledge of the drugs was based on fact, not on suspicion or rumor.

We now consider whether the affidavit in the present case meets the first requirement of the test, that of credibility or reliability. Although there has been an avalanche of cases, both federal and state, dealing with the validity of search warrants and the sufficiency of the supporting affidavits, we have found no two affidavits to be word-for-word identical. And there is no mathematical formula we can apply in deciding whether a search warrant is supported by probable cause. Affidavits must be tested and interpreted in a common sense and realistic fashion. The applicable standard is that of reasonableness; the Fourth Amendment of the United States Constitution prohibits only unreasonable searches and seizures. Cady v. Dombroski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Harris, Supra; and United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

An exhaustive review of recent cases considering affidavits couched in language similar to that in the present case is found in an opinion by Judge Smith of the Maryland Court of Appeals in State v. Kraft, 269 Md. 583, 307 A.2d 683 (1973). There, the court approved an affidavit in which one informant was described as '. . . a reliably established informant, who is responsible for eleven narcotics arrests . . ..', and a second informant was described as one '. . . who has provided reliable information to this Dept. for the past six months. . . .' Among the cases discussed in Kraft are: Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Sultan, 463 F.2d 1066 (2nd Cir. 1972); United States v. Crawford, 462 F.2d 597 (9th Cir. 1972); Jones v. Crouse, 447 F.2d 1395 (10th Cir. 1971), cert. denied 405 U.S. 1018, 92 S.Ct. 1298, 31 L.Ed.2d 480 (1972); United States v. Buonomo, 441 F.2d 922 (7th Cir. 1971), cert. denied 404 U.S. 845, 92 S.Ct. 146, 30 L.Ed.2d 81 (1971); United States v. Shipstead, 433 F.2d 368 (9th Cir. 1970); United States v. Hood, 422 F.2d 737 (7th Cir. 1970), cert. denied 400 U.S. 820, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970); United States v. Kidd, 407 F.2d 1316 (6th Cir.1969); and United States v. Rich, 407 F.2d 934 (5th Cir. 1969), cert. denied 395 U.S. 922, 89 S.Ct. 1775, 23 L.Ed.2d 239 (1969).

In United States v. Bridges, 419 F.2d 963 (8th Cir. 1969), an affidavit was approved which, in language similar to the affidavit under review, stated that informants had 'on numerous occasions' given information which had proved reliable.

The affidavit in Buonomo, supra, cannot be distinguished, factually or legally, from the affidavit in the instant case. In Buonomo the informant was described as having supplied reliable information in the past. ¹ The validity of the affidavit was upheld. The court distinguished Aguilar by pointing out that, unlike the Buonomo affiant, the Aguilar affiant was characterized only as 'credible', not as the source of reliable information in the past. Similarly the court held Spinelli not controlling because the second prong of the Aguilar test had not been met, i.e., the informant had no personal knowledge of the information relayed and the affiant had observed the defendant engaged only in innocent activities. In Buonomi, as here, the information relayed by the informer to the affiant was based upon personal observation and personal knowledge of criminal activities. And here, as in Buonomo, the informant was shown to have been credible and to have supplied correct information in the past.

As has been heretofore observed, no two affidavits are word-for-word alike. While we have referred to many cases in this opinion, and although some dissimilarity may be found among them, nevertheless, as was observed in Kraft:

'(A) pattern may be derived from the cases cited as to interpretations placed upon the Supreme Court's pronouncements in the search and seizure area, a pattern which shows, in accordance with the Supreme Court's mandate in Spinelli, 'in judging probable cause issuing magistrates (have) not (been) confined by niggardly limitations or by restrictions on the use of their common sense, . . . and that their determination of probable cause (has been) paid great deference by...