Wiles v. Com.

• Decision Date: 14 October 1968
• Citation: 163 S.E.2d 595,209 Va. 282
• Parties: Henry Lee WILES v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 595

163 S.E.2d 595

209 Va. 282

Henry Lee WILES v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Oct. 14, 1968.

William A. Dervishian, Richmond, for plaintiff in error.

M. Harris Parker, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., Walter H. Ryland, Asst. Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.

EGGLESTON, Chief Justice.

On December 15, 1966, about 2:00 A.M., C. D. Coleman, a detective in the vice squad of the city of Richmond, obtained from a justice of the peace a warrant authorizing him to search the dwelling of Henry Lee Wiles at 204 S. Linden Street in the city of Richmond. Shortly thereafter Coleman and another detective went to the address, knocked on the door and were admitted by Wiles. Coleman identified himself as a police officer and told Wiles that he and his companion had a warrant authorizing them to search his residence for narcotics.

The officers then searched the premises which consisted of a two-story apartment occupied by Wiles, his wife and four children. On the top shelf in a hall closet directly across from the master bedroom the officers found several bottles containing narcotics. Wiles was immediately placed under arrest and was subsequently indicted for the unlawful and felonious possession of narcotics. Because of the defendant's indigency counsel was appointed to represent him. Upon arraignment he pleaded not guilty and by consent the lower court proceeded to hear and determine the matter without a jury.

At the commencement of the proceedings the defendant, by counsel, moved the court to suppress the evidence of the narcotics found on his premises, on the ground that they had been obtained as the result of illegal search and seizure. This motion was overruled and the evidence was admitted at the trial. After hearing this and the other evidence the court found the defendant guilty of the illegal possession of narcotics, as charged in the indictment, and sentenced him to confinement in the penitentiary for twenty years and assessed a fine of $1,000 against him.

On the writ of error granted the defendant he contends that (1) the lower court erred in not suppressing the evidence of the narcotics found on his premises, because, he says, they were obtained by illegal search and seizure; and (2) the evidence was insufficient to sustain a finding that he was guilty of the illegal possession of narcotics. In our opinion, the first assignment is well made and it is not necessary that we consider the second.

The defendant contends that the affidavit upon which the search warrant was issued was insufficient in that did not state sufficient facts and circumstances constituting probable cause for the issuance of the warrant, and that the search of his dwelling and the seizure therefrom of the alleged narcotics violated the rights guaranteed to him by the Fourth Amendment to the Constitution of the United States and Section 10 of the Constitution of Virginia. Consequently, he says, the alleged narcotics seized on his premises should not have been admitted in evidence at his trial.

The relevant portion of the affidavit on which the warrant was obtained reads thus:

'The material facts constituting probable cause for issuance of the warrant.

'1. Information from informant who has given reliable information in the past that Henry Wiles residing at this address has narcotics in his possession at this time.

'2. This Division has received several complaints that this man is a user of drugs.'

The Fourth Amendment to the Constitution of the United States, made applicable to the States by the Fourteenth Amendment, provides:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Section 10 of the Constitution of Virginia provides:

'That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.'

Code § 19.1--85 (Repl. Vol. 1960) provides in part: 'No search warrant shall be issued until there is filed with the officer authorized to issue the same an affidavit of some person * * * alleging briefly material facts, constituting the probable cause for the issuance of such warrant * * * . No such warrant shall be issued on an affidavit omitting such essentials, * * *.'

In Zimmerman v. Town of Bedford, 134 Va. 787, 801, 802, 115 S.E. 362, 365 (1922), we pointed our that the requirements of this statute are the same as those of the Fourth Amendment to the Federal Constitution. Hence, the question presented to us in the present case is whether the affidavit upon which the search warrant was issued complies with the requirements of the Fourth Amendment and the Virginia statute (Code § 19.1--85).

The leading case on the requirements of the Fourth Amendment for obtaining a valid state search warrant is Augilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). That case involved the validity of a search warrant issued by a state magistrate based upon an affidavit which read in part: 'Affiants have received reliable information from a credible person and do believe that heroin * * * and other narcotics * * * are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.' 378 U.S. at 109, 84 S.Ct. at 1511.

The opinion reaffirmed the court's prior holding that in passing on the validity of a search warrant the reviewing court may consider only the information brought to the magistrate's attention in the affidavit. (378 U.S. at 109, Note 1, 84 S.Ct. 1509.) It also reaffirmed the principles stated in Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 13, 78 L.Ed. 159 (1933), that: "Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from Facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough." 378 U.S. at 112, 84 S.Ct. at 1512.

The opinion pointed out that the affidavit involved in Aguilar had failed to meet the constitutional requirements because, it said, it "contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein" and no "affirmative allegation' that the affiant's unidentified source 'spoke with personal knowledge;" that '(f)or all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner's possession,' and that '(t)he magistrate * * * could not 'judge for himself the persuasiveness of the facts relied on * * * to show probable cause.'' (378 U.S. at 113, 114, 84 S.Ct. at 1513, 1514.) Hence, it concluded that the affidavit did not provide sufficient basis for a finding of probable cause and the search warrant should not have been issued.

The opinion in Aguilar thus summarized the basic requirements of the Fourth Amendment for a proper allegation of probable cause in such a case:

'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (78 A.L.R.2d 233), the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, (11 L.Ed.2d 887) was 'credible' or his information 'reliable." 378 U.S. at 114, 84 S.Ct. at 1514.

We find that the affidavit involved in the present case is subject to substantially the same infirmities as those in the affidavit involved in Aguilar. In the present case the first item of the 'material facts' which the affiant says constituted probable cause for the issuance of the warrant is: 'Information from informant who has given reliable information in the past that Henry Wiles residing at this address has narcotics in his possession at this time.' This item does not state what the information consists of nor does it say whether the information was based on the personal knowledge of the informant or the personal knowledge of the affiant. Again, there is no statement of the underlying circumstances supporting affiant's conclusion that the informant is credible, other than that he has 'given reliable information in the past.' There is no statement as to what this past information was or when it was given, whether recently or many years ago.

The second item of the alleged 'material facts,' that '(t)his Division has received several complaints that this man is a user of drugs,' adds no support to the first item. None of the 'several complaints' is detailed nor is the magistrate who issued the warrant told whether they were recent or made long ago. There is no recital that any informant or complainant had seen the defendant using drugs or in possession of them or attempting to sell them.

In the final analysis, the affidavit is merely a statement of the conclusion of the affiant, or that of the informant, that the defendant was in possession of narcotics at...