COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Alston and Decker Argued by teleconference

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No . 1841-17-2 JUDGE MARLA GRAFF DECKER MAY 1, 2018 CLINT WAYNE COCKRILL

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY Joseph J. Ellis, Judge Liam A. Curry, Assistant Attorn ey General (Mark R. Herring, Attorney General, on briefs), for appellant. Stuart C. Sullivan, III (Stuart C. Sullivan & Carolyn S. Sekl ii, Attorneys at Law, P.L.C., on brief), for appellee.
Clint Wayne Cockrill (the defenda nt) was indicte d for conspira cy to manufacture marijuana and possession of marijuana with the intent to manufacture in v iolation of Code §§ 18.2-248.1(c) and -256. 1 The defendant filed a pretri al motion to suppress evidence, w hich he alleged was obtained during an unlawful sear ch. After a hearing, the circu it court granted the motion and suppressed the evidence. Pursuant to Code §§ 19.2 -398 and -400 , the Commonwealth appeals that pretrial ruling. The Commonwealth contends, among other things, that the discov ery of the evidence was reasonable under the Fourth Ame ndment to the United States Cons titution because t he defendant did not challenge the presumption that the search warrant was v alid and supported by probable

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 The Commonwealth als o appeals the suppressi on order issued in the case concerning the co-defendant, Sarah Beth S mith. See Commonwealth v. Smith, No. 1840-17-2 (Va. Ct. App. Jan. 9, 2018). The Court resolves the appeals in separate, sim ultaneously issued opinions.UNPUBLISHED- 2 - cause. The record, viewed under the appropriate legal standard , supports the conclusion that the circuit court erred because the evidence against the defendant was obtained through an unchallenged search warrant. Consequently, we reverse the circuit court’s r uling suppressing the evidence and remand the case for further proceedings consistent with this op inion.
I. BACKGROUND 2 On March 29, 2016, Detective KellyMills, an investigator with the Spotsylvania County Sheriff’s Office, received infor mation from an anonymous caller . The caller claimed that the defendant was growing marijuana , convicted of sex crimes agains t a child, and possibly living with children at a certain addr ess. Through her investigation, Mills learned that the defendant and Smith were married, Smith liv ed at the given address, and s he had children. In addition, a guardian ad litem informed Mills of concerns over th e welfare of Smith’s childre n and possible marijuana in the home. The child ren’s father told Mills that the children had described marijuana growing in the baseme nt of the residence. The detect ive decided to conduct a “welfare check” with the “ Narcotics Unit . . . on standby.” On April 14, 2016, Detective Mills, six narcotics investigator s, Joanna Abe (the guardian
ad litem assigned to the case), and Amanda B all from Child Protective Se rvices went to Smith’s listed residence. When law enforcement parked in front of the home, the smell of marijuana emanated from the open front door of the house to the street. As the officers approached the front door on foot the sme ll got stronger.

2 On review of a ruling on a mo tion to suppress, this Court view s the evidence in the light most favorable to the party who pr evailed below, in this case t he defendant. See Commonwealth v. Smith, 281 Va. 582, 588, 709 S.E.2d 139, 141 (2011); Commonw ealth v. Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992). This Court is “ bound by the trial court’s findings of historical fact unless ‘plainly wrong’ or without e vidence to support them.” Scott v. Commonwealth, 68 Va. App. 452, 458, 809 S.E.2d 254, 257 (2018) (quoting McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) ( en banc )).- 3 - Detective Mills spoke with Smith at the front door. She asked about the defendant, and Smith informed her that he was not at home. Mills, Abe, Ball, and at least four narcotics officers entered the home. Law enforcement had no specific information that Cockrill was present and did not hear sounds indicating a nyone moving around in the hous e hidden from view. Nonetheless, the officers conduc ted a “sweep” of the rooms look ing for anyone there with a gun. While doing so, they came upon a l ocked door to a room in the b asement. At that point, one law enforcemen t officer remained at the loc ked door while Detective Gregory Hamilton, with the Spotsy lvania County Sheriff’s Office , obtained a search warrant. Once Hamilton returned with the s earch warrant, law enforcement searched the house and in the locked room found marijuana plants and growing equipment consis ting of a hose, power inverters, grow lights, l ight bulbs, and a book about hydroponi cs. As a result, the defendant was indicted for conspiracy to manuf acture marijuana and possession of marijuana with the intent to manufacture it. The defendant filed a pretria l motion to suppre ss evidence. I n his motion, he argued that law enforcement’s entry into the home and protective sweep were unconstitutional. The defendant suggested that “any evi dence seized from the home as a result of these several violations of his constituti onal rights” should be suppressed. The defendant did not challenge the search warrant. 3 The circuit court granted the motion to suppress, which resul ted in this pretrial appeal.
II. ANALYSIS On appeal of an order granting a defendant’s motion to suppres s evidence, the Commonwealth has the burden to s how that the ruling constituted reversible error. See Murphy v.

3 Indeed, the prosecutor pointe d this out during argument, and t he defendant still did not challenge the warrant’s v alidity during rebuttal.- 4 - Commonwealth, 264 Va. 568, 573, 57 0 S.E.2d 836, 8 38 (2002). Wh en reviewing this ruling, the appellate court is bound by the circuit court’s findings of fac t unless “plainly wrong or without evidence to support them.” Gr egory v. Commonwea lth, 64 Va. App . 87, 93, 764 S.E .2d 732, 735 (2014) (citing Code § 8.01-680). Further, we “give due weight to the inferences drawn from [the] facts” by the circuit court judge and law enforcement. Scott v . Commonwealth, 68 Va. App. 452, 458, 809 S.E.2d 2 54, 257 (2018) (quoting McGee v. Commonwealth, 25 Va. App. 19 3, 198, 487 S.E.2d 259, 261 (1997) ( en banc )). Ultimately, however, the Court reviews de novo the overarching question of whether a search or seizure violated the Fourth Ame ndment. Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E .2d 910, 913 (2008). The Commonwealth argues that the marijuana and related evidenc e discovered pursuant to the search warrant were admissible because the defendant did no t challenge the warrant below. 4 Applying the proper standard of review to the facts in the reco rd, we hold that the circuit court erred in granting the motion to suppr ess because the officers obtaine d the marijuana and other inculpatory evidence through the unchallenged search warrant. Therefore, w e reverse the circuit court’s ruling. The defendant’s motion to suppr ess challenged only the police entry into the house and the protective sweep. Se e, e.g., Russell v. Commonwealth, 33 Va. A pp. 604, 609, 535 S .E.2d 699, 701 (2000) (“At a hearing on a def endant’s motion to suppress, the Commonwealth has the burden of proving the challenged action did not violate the defendant’s constitutional rights.” (Emph asis added)). As far as we can dis cern, law enforcement did not obs erve “any contraband” or seize anything during the initial en try or protectiv e sweep. In cont rast, the search conducted pursuant to the warrant yielded marijuana pl ants and equipment indicating t hat the plants wer e being grown at

4 The Commonwealth argues in the a lternative that the protective sweep was constitutional, the good-faith ex ception to the exclusionary ru le should apply, and the suppression order was erroneousl y broader than the letter opini on’s holding. We do not consider these arguments in light of our holding that the challenged evi dence was discovered pursuant to the unchallenged search warrant.- 5 - the residence. The defendant did not challenge the search warr ant and specifically conceded that probable cause for a search warrant existed before law enforcem ent approached t he house. See generally Logan v. Commonwealth , 47 Va. App. 168 , 172 n.4, 622 S.E.2d 771, 77 3 n.4 (2005) (noting that a concession c an constitute waiver). The law is well established that we presume the validity of a s earch conducted by law enforcement “pursuant to a warra nt issued by a m agistrate.” Fe lton v. Commonwealth, 56 Va. App. 43, 48, 690 S.E.2d 318, 321 (2010). “[T]he inclusion of tainte d evidence does not [necessarily] invalidate” the warrant. Willia ms v. Commonwealth, 26 Va. App. 612, 619, 496 S. E.2d 113, 116 (1998) (quoting United States v . Wright, 991 F.2 d 1182, 1186 (4 th Cir. 1993)). “[S]uppression is not required ‘if, excluding the i llegally obtained information, probable cause for the issuance of the warrant could still be found.’” Id. (quoting United States v. Apple, 915 F.2d 89 9, 910 (4th Cir. 1990)). In determining whether an “affidavit was sufficient to support the search warrant,” the reviewing court “must look to the totality of the circumstances .” Hicks v. Commonwealth, 281 Va. 353, 359, 706 S.E.2d 33 9, 342 (2011). “[W]hen ‘there is a fair probability that contraband or evidence of a crime w ill be found in a particular place,’” prob able cause exists to support the warrant. Id. (quoting Jones v. Commonwealth, 27 7 Va. 171, 178, 670 S.E.2d 727, 731 (2009)). Although the defendant challenged the entry and protective swee p as unconstitutional, he was not precluded from also challen ging the search warrant as l acking sufficient probable cause to justify the search after redactin g references to information ob tained due to the allegedly impermissible conduct. The defendant, however, did not make su ch a challenge, either in his written motion or d uring the hearin g. See Code § 19.2-266.2 (r equiring a defense motion to suppress evidence on Fourth Amendm ent grounds to be in writing) ; see also McGhee v. Commonwealth, 280 Va. 620, 625 n .3, 701 S.E.2d 58, 60 n.3 (2010 ) (noting that a trial court “may,- 6 - for good cause shown and in the interest of justice, grant leav e for a defendant t o amend a motion to suppress”). The record before us makes clear that the defendan t did not challenge the magistrate’s determination of probable cause, as reflected by issuance of th e search warrant. See generally Gregory, 64 Va. App . at 91, 94-95, 764 S. E.2d at 734-36 (holdin g that the appellant’s general allegation of a violation of her Fifth Amendment rights in her motion to suppress di d not sufficiently raise the claim of an unlawful custodial interrogation under Mi randa v. Arizona , 384 U.S. 436 (1966)). Accordingly, the defen dant did not rebut the presumpt ion of validity of t he warrant, and the circuit court erred by gra nting the motion to suppress the evidence obtained pursuant to the search warrant. 5
III. CONCLUSION We hold that the record, viewed under the appropriate legal st andard, establishes that the inculpatory evidence was discove red pursuant to a search warran t. The defendant did not challenge the validity of the wa rrant in the circuit court. Consequently , we reverse the circ uit court’s ruling suppressing the challenged evide nce, and we remand the case for further proceedings consistent with this opinion. Reversed and remanded.

5 At this time, we are not aske d to decide whether the defendant would be precluded from filing an additional motion to suppress the evidence on remand. See generally Cole v. Commonwealth, 294 Va. 342, 353, 806 S.E.2d 387 , 393 (2017) (hol ding that this Court is authorized to reconsider a constitutional issue raised in a pre trial appeal later on direct appeal following a conviction).