COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Frank 

Argued at Salem, Virginia 

PAULA COLAW, S/K/A 

 PAULA LAVON COLAW 

 OPINION BY 

v. Record No. 2990-98-3 JUDGE SAM W. COLEMAN III 

 JULY 18, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HIGHLAND COUNTY 

 Duncan M. Byrd, Jr., Judge 

 Gordon W. Poindexter, Jr. (Poindexter & 

Schorsch, P.C., on brief), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Paula Colaw was convicted in a bench trial of possession of 

cocaine. The sole issue on appeal is whether the trial court 

erred by denying Colaw's motion to suppress the cocaine found in 

the search of a friend's house where she was staying as an 

overnight guest. Colaw argues the trial court erred in finding 

the seized cocaine admissible under the "good faith exception" to 

the warrant requirement as established in United States v. Leon, 

468 U.S. 897 (1984). We agree and reverse the conviction. 

BACKGROUND

 On September 12, 1997 at approximately 10:00 p.m., a 

confidential informant telephoned Highland County Deputy Sheriff 

Robert Kelly and informed him that a party would take place at 
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Steve Wimer's residence where the people "will be using and 

selling drugs." Kelly testified that the informant had been 

providing information to the sheriff's department for more than 

six years and that the information resulted in arrests on two 

occasions. The record did not reflect whether the information or 

arrests resulted in convictions. 

 Based on the information, Kelly sought and obtained a search 

warrant authorizing a search of Wimer's residence for drugs. The 

affidavit supporting the warrant stated that "[o]n September 12th 

1997 a reliable informant called me by phone and noticed me of a 

party at Steven Wimer[']s residence that the people there will be 

using and selling narcotics." The confidential informant was 

described as someone who has "displayed knowledge of drug use and 

distribution on numerous occasions. This informant has given 

information in the past that has led to 2 arrests." A magistrate 

issued the warrant on September 13, 1997 at 12:46 a.m. Kelly 

executed the warrant at 2:10 a.m. on September 13. 

 When Kelly arrived at the Wimer residence, he observed 

several people standing outside in the yard as well as several 

people inside the house. Kelly served the warrant on Wimer and 

searched the residence. In the second floor bedroom, which Paula 

Colaw was occupying with a companion, Kelly discovered cocaine and 

a small scale in Colaw's overnight bag. Kelly also found 
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packaging material and a metal spoon under a towel on the table 

where Colaw's bag was placed. 

 Colaw moved to suppress the cocaine found in the bedroom she 

was occupying on the basis that the affidavit did not provide the 

magistrate with probable cause to believe that drugs were at the 

Wimer residence. The trial court denied the motion, finding that, 

although the affidavit did not establish probable cause, the 

evidence was admissible under the "good faith" exception to the 

exclusionary rule. 

ANALYSIS

 Colaw argues that the affidavit underlying the warrant was a 

"bare-bones affidavit" and that it was "so lacking in indicia of 

probable cause as to render official belief in its existence 

entirely unreasonable." 

 Where law enforcement officers illegally search private 

premises or seize property without probable cause in violation 

of the Fourth Amendment, the illegally seized evidence will be 

excluded from evidence. See Mapp v. Ohio, 367 U.S. 643, 655 

(1961). "'[T]he exclusionary rule is designed to deter police 

misconduct rather than to punish the errors of judges and 

magistrates. In the ordinary case, an officer cannot be 

expected to question the magistrate's probable-cause 

determination or his judgment that the form of the warrant is 

technically sufficient.'" Tart v. Commonwealth, 17 Va. App. 384, 
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390, 437 S.E.2d 219, 222 (1993) (citation omitted). Where a 

police officer has an objectively reasonable belief that the 

issuing magistrate had probable cause to issue the search warrant, 

the officer may rely upon the magistrate's probable cause 

determination and the evidence will not be excluded, even though 

the affidavit may not have provided the magistrate, in fact, with 

probable cause to issue the warrant. See Leon, 468 U.S. at 

918-22. "Under the good faith exception [to the exclusionary 

rule] evidence illegally seized is admissible if the officer 

conducting the search reasonably relied on a search warrant issued 

by a detached and neutral magistrate." Atkins v. Commonwealth, 9 

Va. App. 462, 464, 389 S.E.2d 179, 180 (1990) (citations omitted). 

 "In Leon, the United States Supreme Court held that 

'suppression of evidence obtained pursuant to a warrant should 

be ordered only on a case-by-case basis and only in those 

unusual cases in which exclusion will further the purposes of 

the exclusionary rule.'" Polston v. Commonwealth, 255 Va. 500, 

503, 498 S.E.2d 924, 925 (1998) (quoting Leon, 468 U.S. at 918). 

Where the officer's conduct is not objectively reasonable, 

suppression is the appropriate remedy. See Leon, 468 U.S. at 

923. 

 The good faith exception to the exclusionary rule is not 

available in the following four instances: 

(1) Where the magistrate was misled by 

information in the affidavit which the 
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affiant knew was false or should have known 

was false, (2) the issuing magistrate 

totally abandoned his judicial role, (3) the 

warrant was based on an affidavit "so 

lacking in indicia of probable cause" as to 

render official belief in its existence 

unreasonable or (4) where the warrant was so 

facially deficient that an executing officer 

could not reasonably have assumed it was 

valid. 

Atkins, 9 Va. App. at 464, 389 S.E.2d at 180 (citation omitted). 

 When we review a trial court's denial of a suppression 

motion, "[w]e view the evidence in a light most favorable to 

. . . the prevailing party below, and we grant all reasonable 

inferences fairly deducible from that evidence." Commonwealth 

v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). 

Although the facts underlying the suppression ruling are 

basically undisputed, we view the facts, including those in 

dispute, in the light most favorable to the Commonwealth. 

 We affirm the trial court's finding that the affidavit 

failed to establish probable cause and, therefore, was 

deficient. The trial court found that the affidavit failed to 

establish probable cause because it failed to provide a basis 

for the source of the affiant's knowledge. Moreover, it appears 

the warrant was an invalid anticipatory search warrant. The 

warrant was issued on September 13, but the affidavit failed to 

allege the date or time the criminal activity would occur. The 

affidavit also failed to provide a reason or explanation for the 

informant's knowledge that the criminal activity would occur. 
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See McNeill v. Commonwealth, 10 Va. App. 674, 677 n.1, 395 

S.E.2d 460, 462 n.1 (1990) (stating that an anticipatory search 

warrant is "'a warrant based upon an affidavit showing probable 

cause that at some future time (but not presently) certain 

evidence of crime will be located at a specified place'" 

(quoting 1 Wayne R. LaFave, Search and Seizure § 3.7(c), at 698 

(1978))). An anticipatory search warrant is valid only when 

"'probable cause [exists] to believe that the items to be seized 

will be at the place to be searched at the time the warrant is 

executed.'" McNeill, 10 Va. App. at 677, 395 S.E.2d at 462 

(quoting State v. Gutman, 670 P.2d 1166, 1172 (Alaska Ct. App. 

1983)). Here, the affidavit failed to articulate the basis for 

the informant's knowledge that the party would be occurring at 

the Wimer residence or that it would occur on September 13. 

Further, it failed to state the basis for his knowledge that 

drugs would be present at the residence. No evidence indicated 

that the informant had been told of a party planned at the Wimer 

residence September 13 or that he had been invited to a party 

there. Insofar as the record shows, the informant may have only 

been aware that parties were regularly held at the Wimer 

residence, and the warrant was issued on September 13 in 

anticipation that a party would be held there. 

 The trial court found that, notwithstanding the deficient 

search warrant, the good faith exception to the exclusionary 
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rule applied and denied the motion to suppress. We hold that 

the "good faith" exception to the warrant requirement does not 

apply because "the warrant was based on an affidavit 'so lacking 

in indicia of probable cause' as to render official belief in 

its existence unreasonable." 

 Here, the same police officer was both the affiant and the 

executing officer. However, the affidavit contains no facts, 

and presumably the affiant was aware of none, that would support 

the conclusion that people were at the residence to be searched 

or would be there on September 13 or that they would be "using 

and selling drugs." The affidavit merely stated a conclusory 

declaration by a third party informant that people at the 

residence "will be using and selling narcotics." A police 

officer could not reasonably have believed that the warrant was 

properly issued when it was based on a "bare bones" affidavit 

that contained only conclusory assertions by a third-party 

informant about a future event without supporting facts to 

constitute probable cause. See People v. Young, 987 P.2d 889, 

893 (Colo. Ct. App. 1999) (stating that "[a] bare bones 

affidavit is one that contains only conclusory statements devoid 

of facts from which a magistrate can independently determine 

probable cause"); State v. Rodriguez, 580 N.E.2d 1127, 1130-31 

(Ohio Ct. App. 1989) (finding that affidavit which simply stated 
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a conclusory allegation of criminal activity without stating the 

basis for the informant's knowledge is "bare bones"). 

 An executing officer, making an objective assessment of the 

warrant, would find no facts in the warrant to support a 

reasonable, "good faith" belief that drugs would be at the 

residence at a future time. The affidavit states, in effect, 

that an undisclosed informant said drugs would be at a certain 

residence at an unspecified future date and time. Based on the 

affidavit, the informant did not report having been inside the 

residence, having seen anyone purchase or sell drugs inside the 

residence, or having seen anyone using drugs inside the 

residence. Neither the affiant nor the informant reported 

having witnessed a drug transaction in the residence or a drug 

transaction involving anyone who was there or resided there. 

The affidavit contains no statement which asserts that anyone 

saw drugs in the residence or on a person at the residence. See

Janis v. Commonwealth, 22 Va. App. 646, 653-54, 472 S.E.2d 649, 

653 (1996) (holding that the "affidavit gave absolutely no 

indication that the fruits of criminal activity would probably 

be found at that location, rendering [the officer's] belief in 

probable cause, based solely on the affidavit, objectively 

unreasonable"), aff'd en banc, 23 Va. App. 696, 479 S.E.2d 534 

(1996); see also Atkins, 9 Va. App. at 464, 389 S.E.2d at 180 

(holding that evidence was admissible under the good faith 
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exception where the affidavit contained "a detailed description 

of the nature of the offense, the premises to be searched, the 

items for which they were searching, and the transaction which 

led the informant to believe that the drugs would be in this 

apartment"). Only by blindly accepting the informant's 

conclusory statement could one believe that drugs would be at 

the residence. Accordingly, we find that the affidavit was "so 

lacking in an indicia of probable cause as to render official 

belief in its existence entirely unreasonable." 

 We hold that the evidence seized as a result of the search 

warrant was inadmissible under the good faith exception to the 

exclusionary rule and hold that the seized cocaine should have 

been suppressed. We, therefore, reverse the trial court's 

ruling. Because the seized cocaine is essential to the 

Commonwealth's case, we reverse Colaw's conviction and dismiss the 

indictment. 

Reversed and dismissed.