Commonwealth v. Thompson

COMMONWEALTH OF VIRGINIA v. DAVID LEE THOMPSON

Record No. 1166-20-3

COURT OF APPEALS OF VIRGINIA

MARCH 16, 2021

UNPUBLISHED

Present: Judges Humphreys, Huff and AtLee

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE RICHARD Y. ATLEE, JR.

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY

William N. Alexander, II, Judge Designate

Timothy J. Huffstutter, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellant.

Mark T. Williams (Williams & Light, on brief), for appellee.

Pursuant to Code § 19.2-398, the Commonwealth appeals the circuit court's decision to grant David Lee Thompson's motion to suppress evidence obtained from the search of his residence because the affidavit in support of the search warrant lacked probable cause, and the good faith exception to the exclusionary rule did not apply. For the following reasons, we reverse and remand for further proceedings.

I. BACKGROUND

In an appeal brought by the Commonwealth, we view the historical facts in the light most favorable to the prevailing party below, in this case Thompson, and we grant him all reasonable inferences that flow from that evidence. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067 (1991).

So viewed, on June 13, 2019, Investigator Nick Samuels, of the Pittsylvania County Sheriff's Office, was on patrol in a marked police cruiser. Samuels saw Thompson pull into the driveway of a residence. He recognized Thompson and knew he lived in a different house several miles away. Numerous citizens had called to complain because of a high volume of traffic coming in and out of Thompson's house at "all hours of the day and night." In Samuels' experience, such activity is consistent with selling drugs.

Samuels turned around and parked his vehicle on the side of the road near the driveway. He activated the "blue lights on the light bar" as a safety precaution in order to alert other vehicles that the cruiser was partially in the roadway. He approached Thompson, who was standing on the driver's side of his car. Samuels asked if "everything was okay," and Thompson explained that his tire was low on air. Samuels asked for identification, which Thompson provided. Samuels ran the identification and found that Thompson's license was suspended and there was a warrant for his arrest. Around this time, Investigator Johnny Owens, also with the Pittsylvania County Sheriff's Office, arrived.

Samuels told Thompson he was under arrest and placed him in handcuffs. He performed a search incident to arrest, during which he found a "small pink, reddish plastic bag" containing a white powdery substance, which he believed to be cocaine, in Thompson's front shirt pocket. Samuels and Owens searched Thompson's vehicle and recovered a handgun and a small plastic bag containing a crystalline substance.

Another officer in the area was conducting a traffic stop near Thompson's residence. He found methamphetamine on the individual, who reported that he or she had purchased it within the past twenty-four hours from Thompson's residence. This officer relayed this information to Owens.

Owens applied for a warrant to search Thompson's home. The affidavit in support of the warrant stated:

David Thompson resides at the address [to be searched]. He was stopped earlier on a vehicle registered to a female that also resides at that location. In Thompson's possession was a substance that tested positive for Methamphetamine, and also a handgun. Thompson is a convicted felon. Another traffic stop was conducted on a different subject by another officer and Methamphetamine was found on that person. That person advised that they had purchased the Meth from Thompson at [his home] within the past 24 hours. It is believed that narcotics, and other instruments of drug distribution will be at this residence, as well as firearms.

Owens noted that he had personal knowledge of the facts in the affidavit, writing,

I was present for the search of the vehicle Thompson was operating whereas [sic] the Meth and gun was found. I was advised by another officer about the Meth found in a separate vehicle whereas [sic] the Meth had been purchased from Thompson. I have 17 years of law enforcement experience and have been involved with over 100 drug cases.

A magistrate approved the warrant, and officers recovered from the home an "AK-47 type pistol," digital scales, a digital scale box containing small baggies, and a small baggie containing a crystal substance.

Thompson was charged with three counts of possession with intent to distribute a Schedule II substance, two counts of possession of a firearm while possessing illegal drugs, and two counts of possession of a firearm by a felon. Thompson filed three motions to suppress, challenging the adequacy of the warrant for the search of his residence, the legality of the traffic stop, and the admissibility of evidence obtained from his cell phone. The circuit court granted the first of these motions,¹ finding that the affidavit in support of the search warrant of theresidence lacked probable cause because "there's just no nexus between the stop, location of the drugs, and then their house where . . . Thompson and his girlfriend live." It found the good faith exception inapplicable:

I don't think that just saying in good faith now saves it. The, the, Owens' had, was in good faith. I don't say he's not in good faith but that's not the real question. It's a question of whether you look at this warrant now and find a, a, good faith actions which save the warrant and I don't think it does.

As such, the evidence recovered from the search of Thompson's house was subject to the exclusionary rule and was suppressed. This pre-trial appeal followed.

II. ANALYSIS

We will not reverse the circuit court's decision unless it is plainly wrong. Grimstead, 12 Va. App. at 1067 (citing Code § 8.01-680). Whether police action amounts to a violation of the Fourth Amendment, however, is "a mixed question of law and fact" that we review de novo. Hairston v. Commonwealth, 67 Va. App. 552, 560 (2017) (quoting Harris v. Commonwealth, 276 Va. 689, 695 (2008)).

We assume without deciding that the warrant here was deficient, because the good faith exception to the exclusionary rule applies, which we conclude is the best and narrowest ground for reversal. See Sanders v. Commonwealth, 64 Va. App. 734, 742 n.3 (2015) ("An appellate court decides cases on the best and narrowest ground."). "The Fourth Amendment protects the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,' but 'contains no provision expressly precluding the use of evidence obtained in violation of its commands.'" Freeman v. Commonwealth, 65 Va. App. 407, 419 (2015) (quoting Herring v. United States, 555 U.S. 135, 139 (2009)). As such, the exclusionary rule prohibits, with some exceptions, unlawfully-obtained evidence from being presented at trial. Id. The rule's "prime purpose is to deter future unlawful police conduct andthereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures." Id. at 419-20 (quoting United States v. Calandra, 414 U.S. 338, 347 (1974)).

The "good faith" exception to the exclusionary rule exists "so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective." Adams v. Commonwealth, 275 Va. 260, 268 (2008) (quoting United States v. Leon, 468 U.S. 897, 905 (1984)). In considering whether the good faith exception applies, we consider "whether a reasonably well[-]trained officer would have known that the search was illegal despite the magistrate's authorization." Id. (quoting Leon, 468 U.S. at 922 n.23). The officer's reliance on the magistrate's probable cause determination "must be objectively reasonable." Id. at 269 (quoting Leon, 468 U.S. at 922). Finally, unlike a probable cause determination, which is limited to "'only those sworn, written facts stated...