COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Elder 

Argued at Norfolk, Virginia 

WALTER LEE CHERRY, JR. 

v. Record No. 1458-93-1 OPINION 

 BY JUDGE JOSEPH E. BAKER 

COMMONWEALTH OF VIRGINIA OCTOBER 10, 1995 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Jerome B. Friedman, Judge 

 Besianne Tavss Shilling (John R. Fletcher; Tavss, 

 Fletcher, Earley & King, P.C., on briefs), 

 for appellant. 

 Kathleen B. Martin, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, on brief), 

 for appellee. 

 Walter Lee Cherry (appellant) appeals from his bench trial 

conviction by the Circuit Court of the City of Virginia Beach 

(trial court) for possession of more than five pounds of 

marijuana with intent to distribute. Appellant entered a plea of 

guilty, conditioned upon his right to appeal the trial court's 

refusal to suppress the evidence admitted as a result of a 

previous panel decision.1

 Appellant concedes that the evidence presented at the trial 

from which this appeal emanates is the same as was before the 

trial court in the prior case. The record discloses that on 

November 6, 1991, Detective A. B. Byrum (Byrum) of the Virginia 

Beach Police Department received information from a special agent 

 

 1Commonwealth v. Cherry, Record No. 1249-92-1, referred to 

herein as the "prior case." 
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of the United States Customs Service that a suspected package of 

marijuana was being shipped via United Parcel Service (UPS) to 

Walter Lee Cherry at 3021 Gentry Road, Virginia Beach, Virginia. 

 That address is appellant's home. 

 When the package arrived at the Virginia Beach UPS office, 

the police were advised. A trained narcotics search dog was 

taken to that office and alerted on the package. Pursuant to the 

dog's alert, a warrant to search the package was procured. The 

package was opened, searched, and numerous individual bags of 

marijuana were found. The package was resealed and a second 

warrant was obtained that gave the following authorization to 

search appellant's premises: 

To Detective A. B. Byrum: 

You are hereby commanded in the name of the 

Commonwealth to forthwith search either day 

or night 3021 Gentry Road, Virginia Beach, 

Virginia for the following property, objects 

and/or persons: Marijuana. 

The warrant, being anticipatory, contained the further proviso 

that "UPON DELIVERY OF SAID PACKAGE, EXECUTION OF THIS SEARCH 

WARRANT IS GRANTED." 

 On November 7, 1991, the package was delivered to 3021 

Gentry Road, Virginia Beach, Virginia by Virginia Beach Detective 

Duane Hart (Hart), who posed as a UPS delivery person. Hart 

verified the delivery to Byrum, who was waiting outside 

appellant's house with Agent Saunders of United States Customs, 

and Virginia Beach Police Officers Houston, Mills, Kurrle, 

Stafford, Crayle, Santos, and Hart. The officers then proceeded 
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to execute their search as had been planned. When they received 

no response to a knock, the officers pushed the door open and 

entered the premises. Within a matter of seconds after the 

entry, the package was recovered, unopened, in a downstairs 

bedroom. The house was quickly secured. 

 Each officer was assigned an area of the house to search. 

In addition to the package, the search revealed two sets of 

scales, plastic baggies, packaging material, and a small 

additional amount of marijuana in an upstairs bedroom. A 

laboratory analysis revealed that the substance in the package 

was marijuana, weighing in excess of five pounds. 

 On March 2, 1992, appellant was indicted for possession of 

more than five pounds of marijuana with intent to distribute. In 

the prior case, he filed a motion to suppress all the evidence 

found in the house, alleging that the evidence had been obtained 

during an illegal search and seizure of his house on November 7, 

1991. In that case, the trial court denied the general motion to 

suppress all the evidence found in appellant's house but 

sustained that portion of the motion that dealt with the evidence 

found in the bedroom after the UPS package had been discovered. 

 From that decision, the Commonwealth appealed and in a prior 

memorandum opinion,2

 we reversed the trial court's order 

suppressing evidence found incident to execution of the 

anticipatory search warrant and remanded the case to the trial 

 2See supra note 1. 
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court for such further proceedings as the Commonwealth may be 

advised. 

 On March 17, 1993, appellant entered a plea of guilty, 

conditioned upon his right to appeal. As noted, appellant 

concedes that the evidence reviewed by this Court in its November 

3, 1992 opinion is the same as presented at the trial from which 

this appeal emanates. Appellant contends that the anticipatory 

search warrant limited the search to the package delivered, and 

that the police exceeded the scope of the warrant in conducting a 

general search of the premises for marijuana. These are the same 

arguments previously made in opposition to the Commonwealth's 

appeal of the suppression ruling. 

 I.

 Citing Commonwealth v. Burns, 240 Va. 171, 395 S.E.2d 456 

(1990), the Attorney General argues that because a panel of this 

Court previously decided that the evidence discovered during the 

search of appellant's residence after the UPS package had been 

found should not have been suppressed, appellant is by the 

doctrine of stare decisis barred by that panel's decision from 

raising that issue again in the appeal before us. We disagree. 

The rule of stare decisis controls only "if the parties are 

different, though the question be the same." Steinman v. 

Clinchfield Coal Corp., 121 Va. 611, 623, 93 S.E. 684, 688 

(1917). The parties on this appeal are not strangers to the 
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record of the interlocutory appeal.3

 Moreover, in Satchell v. 

Commonwealth, 20 Va. App. 641, 460 S.E.2d 253 (1995) (en banc), 

we specifically found that in an en banc proceeding an appellant 

is entitled to have the full Court "reconsider an issue which was 

the subject of the pretrial appeal." Id. at 647, 460 S.E.2d at 

256 (quoting Code § 19.2-409). 

 II.

 The magistrate may draw from the information presented by 

the affiant reasonable inferences that are based upon objective 

facts which will justify the issuance of the warrant. Boyd v. 

Commonwealth, 12 Va. App. 179, 186, 402 S.E.2d 914, 918 (1991). 

On appeal, the magistrate's determination of probable cause will 

be given great deference. Williams v. Commonwealth, 4 Va. App. 

53, 68, 354 S.E.2d 79, 87 (1987). Nothing in the record suggests 

that the magistrate intended to issue a warrant to search only 

for the UPS package. The evidence known to the police officers 

and conveyed to the magistrate was that a substance inside the 

package was alerted upon by the trained narcotics dog and found 

to be marijuana packaged in numerous individual baggies. With 

that information, the magistrate issued a second warrant to 

search appellant's house for marijuana, limited only to the time 

the search was to begin. 

 Appellant argues that the words "said package" limit the 

 

 3Whether the doctrine of res judicata or law of the case can be 

invoked is not before us as the Commonwealth did not raise those 

issues. 
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scope of the search to the package of marijuana. We disagree. 

The anticipatory language of the warrant limited only the time at 

which the search could begin. The warrant did not command a 

search for "a package containing marijuana," or other words to 

the same effect which might have limited the scope of the search. 

 Moreover, the "said package" contained more than five pounds of 

marijuana with an estimated value of $11,000. That large amount 

gave the police reasonable cause to suspect, and gave probable 

cause for the magistrate to find, that appellant probably was 

involved in marijuana distribution and that more evidence might 

be found in other parts of the house. See Monroe v. 

Commonwealth, 4 Va. App. 154, 156, 355 S.E.2d 336, 338 (1987) 

(possession of controlled substance in quantity greater than that 

ordinarily possessed for one's personal use sufficient to 

establish intent to distribute). 

 A search warrant is valid if it describes with specification 

the places to be searched and the items to be seized. Code 

§§ 19.2-53, -56. Here, appellant's address was identified in the 

warrant as the place to be searched, and "marijuana" was 

specified as the item to be seized. The warrant issued by the 

neutral magistrate specifically described the premises to be 

searched as the place that was searched. It defined the 

substance to be searched for as "marijuana." That is the 

substance that the officers clearly had probable cause to suspect 

would be concealed on the premises. A search is not invalid 
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merely because officers seize items not named in the warrant. 

See Coolidge v. New Hampshire, 403 U.S. 443 (1971). 

A lawful search of premises described in a 

warrant "extends to the entire area in which 

the object of the search may be found and is 

not limited by the possibility that separate 

acts of entry or opening may be required to 

complete the search." 

Kearney v. Commonwealth, 4 Va. App. 202, 205, 355 S.E.2d 897, 899 

(1987) (quoting United States v. Ross, 456 U.S. 798, 820-21 

(1982)). 

 We hold that the warrant permitted a search of the entire 

premises for marijuana, and that the only limitation relevant to 

this appeal was the time at which the search could begin. 

 For the reasons stated, the judgment of the trial court is 

affirmed. 

 Affirmed.
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Elder, J., dissenting. 

 I respectfully dissent because I believe the search of 

appellant's house exceeded the scope of the anticipatory search 

warrant and was unreasonable under the fourth amendment. I would 

therefore reverse the conviction. 

 As Satchell v. Commonwealth, 20 Va. App. 641, 460 S.E.2d 253 

(1995) (en banc), indicates, we must review this issue in the 

light most favorable to appellant. This is so because the trial 

court ruled in appellant's favor on the suppression issue after 

making findings that "constitute[d] the factual predicate to 

which we must apply our legal analysis." Id. at 648, 460 S.E.2d 

at 256. 

 The record reveals the police obtained an anticipatory 

search warrant from the magistrate. "An anticipatory search 

warrant is defined as '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.'" 

McNeill v. Commonwealth, 10 Va. App. 674, 677 n.1, 395 S.E.2d 

460, 462 n.1 (1990) (quoting 1 W. LaFave, Search and Seizure

§ 3.7(c), at 698 (1978)). I agree with the majority that there 

was probable cause to believe the package of marijuana would be 

located at appellant's premises at the time the search was 

executed. See id. at 680, 395 S.E.2d at 463-64. 

 However, I do not agree with the majority concerning the 

lawful scope of the search. "The permissible scope of a search 
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is limited by the terms of the warrant pursuant to which it is 

conducted." Kearney v. Commonwealth, 4 Va. App. 202, 204, 355 

S.E.2d 897, 898 (1987). In this case, the warrant provided "upon 

delivery of said package, execution of this search warrant is 

granted." The only basis for the issuance of the warrant was the 

delivery of the specific package of marijuana. Once the package 

was found, any further search by police was unreasonable and 

unconstitutional. See Horton v. California, 496 U.S. 128, 140 

(1990). The record reveals police testimony to support this 

conclusion. Detective Byrum, who was in charge of the search, 

testified that the warrant was invalid until the package was 

delivered and that the package was the sole object of the search. 

 In my opinion, the majority misinterprets the authority 

conferred by the warrant. First, the majority improperly 

concludes that the anticipatory language limited only the time at 

which the search could begin. Second, the majority ignores the 

specific limiting language of the warrant and the facts in the 

underlying affidavit. It is true that the warrant states that 

"[t]he things or persons to be searched for are . . . marijuana." 

 However, under the majority's approach, the warrant is reduced 

to an unconstitutional "general warrant" that fails to 

particularly describe the objects to be seized. See Morke v. 

Commonwealth, 14 Va. App. 496, 419 S.E.2d 410 (1992) (stating 

general warrants are proscribed by both the fourth amendment and 

Code § 19.2-54). 
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 There are no applicable exceptions that would validate the 

seizure of objects other than the package. The items seized from 

the upstairs room at least thirty minutes after the package was 

found were not in plain view, see Cantrell v. Commonwealth, 7 Va. 

App. 269, 282, 373 S.E.2d 328, 334 (1988), and the actions of the 

police did not fall under the so-called "good faith" exception. 

See McCary v. Commonwealth, 228 Va. 219, 232, 321 S.E.2d 637, 644 

(1984). Viewed in the light most favorable to appellant, the 

police officers could not reasonably have believed that they were 

authorized to search the entire house for any and all marijuana 

found therein. Officer Byrum's testimony belies such an 

assertion, as he specifically stated the sole object of the 

search was the delivered package. See generally United States v. 

Leon, 468 U.S. 897 (1984); Atkins v. Commonwealth, 9 Va. App. 

462, 389 S.E.2d 179 (1990). 

 Therefore, I would reverse appellant's conviction because 

the police exceeded their authority to search.