COURT OF APPEALS OF VIRGINIA

Present: Judges Ke lsey, Haley and Petty Argued at Alexandria, Virginia

BRIAN WILLIAM PATTON MEMORANDUM OPINION * BY v. Record No. 0704-06-4 JUDGE WILLIAM G. PETTY AUGUST 7, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA John E. Kloch, Judge Jonathan Shapiro for appellant. Craig Stallard, Assistant Attorney General (Robert F. McDonnell, Attorney General; Denise C. Ande rson, Assistant Attorney General, on brief), for appellee.

Appellant, Brian William Patton, was convicted by a jury of possession of cocaine with intent to distribute, in violation of Code § 18.2-248; cons piracy to possess with intent to distribute cocaine, in violation of Code §§ 18.2-248 & 18.2- 22; and transportation of one ounce or more of

cocaine into the Commonwealth w ith intent to sell and distri bute, in violation of Code § 18.2-248.01. On appeal, Patton challenges the trial court’s de nial of his motion to suppress

evidence and its refusal to exclude evidence of wire transf ers. We disagree with Patton and affirm the judgment of th e trial court.

I. B ACKGROUND On appeal, we view the evid ence in the light most favora ble to the Comm onwealth, the party prevailing below, and grant to it all reasonab le inferences fairly dedu cible from the evidence. Ragland v. Commonwealth , 16 Va. App. 913, 915, 434 S.E.2d 675, 676-77 (1993). “That principle

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - requires us to ‘discard the evidence’ of the appellan t which conflicts, e ither directly or inferentially, with the evidence presented by the ap pellee at trial.” Congdon v. Congdon , 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003) (q uoting Wactor v. Commonwealth , 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002)). So viewed, the evidence establishes the following. Packages Shipped from Colomb ia and Trinidad and Tobago February Package On February 11, 2005, United States Customs agents intercepted a package being processed at the Federal Express hub offi ce in Memphis, Tennessee. The package was ad dressed to Brian Patton, 8280 Greensboro Drive, McLean, Virginia. According to Scott Solecki, one of the customs agents who intercepted the packag e, the package came from Colombia, a known source country for cocaine. After a K-9 dog indicate d that there were narcotics in the package, Agent Solecki opened

the box and discovered that the auto parts in the package had cocaine secreted inside of them. After the package was transported to the Washington, D.C. area Office of Im migration and Customs Enforcement (ICE), a number of agents participated in an atte mpted controlled delivery of the package. The location, 8280 Greensboro Drive, is a large multi-story professional building. The agents could not locate a listing fo r “Brian Patton” in the office bui lding, despite a ttempting to find a mailing office and contacting th e building management office. Following the unsuccessful controlled delivery attempt, the agen ts returned the package to ICE’s seized property vault. During February 2005, appellant Brian Patton worked for Communique Conferencing, Inc., located at 8280 Greensboro Drive in McLean, Virginia. March Package On March 15, 2005, cu stoms agents intercepte d two more packages in Miami, Florida. These packages were addressed to Joseph Pa trick, 5800 Quantrell Av enue, Apartment 1001,- 3 - Alexandria, Virginia, and came from Trinidad and Tobago – an other known source country for cocaine. Following routine screening for packages entering the United States, customs agents discovered that these packages contained a total of approximat ely one pound of cocaine hidden within the cardboard lining of each box The Miami facility sent the pa ckages to the Washi ngton, D.C. ICE office . Following their arrival in the D.C. area, an ICE officer delivere d the packages to Sergea nt Benjamin George, the sergeant in charge of the narco tics section of the Alexandria Police Department. Sergeant George contacted Inspector Tony Gooden of the United States Postal Service to make immediate arrangements for a controlled deliv ery of the two boxes because of his concern that the controlled delivery proceed quickly so that the addressee would no t become suspicious that something had gone wrong with his expect ed drug shipment.

Search Warrant Detective Christopher Flood, another member of the Alexandria Police Department assigned to this case, prepared an affidavit for a search warrant of 5800 Quantrell Avenue, Apartment 1001. Detective Flood’s affi davit stated, in pertinent part: On March 16, 2005, your affiant received information from [ICE], that two boxes had been intercep ted by U.S. Customs agents in Miami, Florida, that arrived fr om Trinidad & Tobago. [An ICE agent] advised your affiant that U.S. Customs recognizes Trinidad & Tobago as a source country for cocaine. The boxes had been x-rayed and probed and it was di scovered that approximately 1⁄2 pound of powder cocaine was concea led in the cardboard lining of each box. The powder cocaine was field-tested positive by U.S. Customs agents in Miami. The two boxes were sent by a Randy Sookoo of 28 Montoe Street, Cl axton, Trinidad & Tobago, and were addressed to a Joseph Patrick at 5800 Quantrell Avenue, apartment #1001, Alexandria, Virginia, 22312. . . . 5800 Quantrell Avenue, apartment #1001, Alexandria, Virginia is a private residence that is located in a high crime area. Detective Flood obtained a search warrant base d on this affidavit. The search warrant authorized a search for “[c]ocaine, any parapherna lia related to the sale or use of cocaine, any- 4 - records, documents or electronic storage devices related to the sale or use of cocaine, and any monies or proceeds from the sale of cocaine.” Members of the Alexandria Police Department did not do any other investigation or surveillanc e prior to receiving the search warrant. Controlled Delivery On March 17, Sergeant George, Inspector Gooden, and a number of Alexandria Police Department detectives made a controlled delivery of the packages. Inspec tor Gooden dressed as a

United States Postal Service letter carrier and delivered the parcels to 5800 Quantrell Avenue, Apartment 1001, while the others observed the delivery from vari ous locations within the building. When Inspector Gooden knocked on the apartment door, an individual Inspec tor Gooden later

identified as Patton answered th e door. Inspector Good en identified this in dividual as Patton. Patton accepted delivery of both packages, signing the name of the addresse e, Joseph Patrick, for both. Patton set the packages inside the apar tment, and Inspector Gooden walked away. After the delivery was comp lete, Detective Salas observed someone in the hallway and followed that person down the hallway towards the elevator. Detective Sala s identified the person he followed as Patton. Detective Salas, who was wearing Alexandria police raid attire that identified him as a police officer, a pproached Patton and verbally identifi ed himself as an officer. In reply to Detective Salas’ questions, Patton stated that he had be en visiting a frien d in the apartment next to Apartment 1001 and th at his friend was no longer there to verify his visit. Patton also denied having a key to Apartmen t 1001. Detective Salas asked for Patt on’s identification, and, as Patton was retrieving it, Sergeant George came toward th em and identified Patton as the individual who had accepted delivery of the pack ages. At that point, Detective Salas took Patton into custody. 1

1 Detective Salas also searched Patton a nd discovered what appeared to be a burned cigarette inside a plastic bag in Patton’s pants pocket. Later, it was discovered that Patton had cocaine residue in his pants pocket.- 5 - Execution of Search Warrant The police officers executed the warrant following the conclusion of the controlled delivery and Patton’s arrest. After knocki ng on the door and announc ing their presence, Sergeant George ordered a forced entry in order to preserve officer safety and to prevent the

destruction of evidence. Detect ive Flood noticed that the packages were still sitting immediately

inside the door and were still sealed. During the search, the police found cocaine in a kitchen cabinet. The police also found various documents throughout the apartment, many of which they seized, although Detective Flood testif ied that they did not take ever y document in the apartment.

Wire Transfer Evidence Among the documents found in the apartment were various wire transfer documents, indicating that Patton wired money by Western Union between March 1, 2002 and January 26, 2004. The Commonwealth subpoen aed records from Stacey Anders on, the manager of subpoena operations for Western Union Financial Services. As the custodian of the records, Anderson testified regarding those documents. Patton sent wi re transfers to Trinidad and Tobago on February 7, 2005; January 25, 2004; August 12, 2003; November 6, 2002; October 18, 2002; October 19, 2002; March 1, 2002; and March 2, 2002. Over three years, the total amount Pa tton wired to Trinidad and Tobago was approximately $25, 000. During his cl osing argument, the Commonwealth’s attorney refere nced the wire transfers as evidence of conspiracy.

II. A NALYSIS Standard of Review In reviewing the denial of a motion to suppr ess we consider the facts in the light most

favorable to the Commonwealth. Fore v. Commonwealth , 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). Patton bears the burden on appeal to show that the tr ial court committed reversible error when it denied his motion to suppress. Id. We are bound by the trial court’s factual- 6 - findings unless those findings are “plainly wrong or unsupported by the evidence.” Pyramid Development, L.L.C. v. D & J Associates , 262 Va. 750, 753, 553 S.E.2d 725, 727 (2001). However, we review the tr ial court’s application of the law de novo . Brown v. Commonwealth , 270 Va. 414, 419, 620 S.E.2d 760, 762 (2005). Furthermor e, when reviewing the validity of a warrant and its supporting affidavit, the “magistrate’s determ ination of probable cause should be paid great deference by reviewi ng courts.” Illinois v. Gates , 462 U.S. 213, 236 (1983) (quoting Spinelli v. United States , 393 U.S. 410, 419 (1969)) (internal q uotation marks omitted). Because of the great deference we give to the magistrate’s determin ation of probable cause, “‘the resolution of doubtful or marginal cases in th is area should be largely determined by the preference to be accorded to warrants.’” Ward v. Commonwealth , 47 Va. App. 733, 744, 627 S.E.2d 520, 526 (2006) (quoting United States v. Ventresca , 380 U.S. 102, 109 (1965)).

Patton contends that the affidavit in this case fails to establish a r easonable likelihood that

cocaine or related contraband would be found at the apartment on Quantrell Avenue and that the evidence seized from the apartment should therefor e be suppressed. He argues that no facts were presented in the affidavit linking the premises with any current or past criminal activity or the presence of any contraband. Inst ead, Patton contends, the only nexus to the apartment was the fact that packages containing cocaine were addres sed to the apartment. He further argues that the officers exceeded the scope of the warrant in seizing pay stubs from the apartment, and also seeks suppression of the evidence based on an alleged violation of the “knock and announce” rule. The Commonwealth, on the other hand, conte nds that the affidavit provided the magistrate with a substantial basis for finding that there wa s probable cause to believe that evidence of drug dealing would be found at the apartment. We c onclude that the information in the affidavit provided sufficient probable cause to justify the issuance of the warrant and that the warrant’s language was broad enough to include all of the items at i ssue in this case.- 7 - Probable Cause According to the Fourth Amendment of the United States Constitution, a search warrant must be based upon probable cause. Massachusetts v. Upton , 466 U.S. 727, 728 (1984). In making the probable cause determina tion, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision wh ether, given all the circumstan ces set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a particular crime will be found in a particular place.” Gates , 462 U.S. at 238. The magistrate’s probable cause determinati on “must be based on objective facts, and

reasonable inferences drawn from th ose facts.” Sowers v. Commonwealth , 49 Va. App. 588, 596, 643 S.E.2d 506, 510 (2007) (internal citations om itted). “[T]he crucial element [in the probable cause determination] is . . . whether it is reasonable to believe that the items to be seized will be found in the place to be searched.” Adams v. Commonwealth , 48 Va. App. 737, 750, 635 S.E.2d 20, 26 (2006). The magistrate need only have a substantial basi s for this belief. McCary v. Commonwealth , 228 Va. App. 219, 230, 321 S.E.2d 637, 643 (1984). Moreover, the magistrate may draw reasonable in ferences from the information supplied to him by an officer in deciding whether probable cause to issue the warrant exists. Gwinn v. Commonwealth , 16 Va. App. 972, 975, 434 S.E.2d 901, 904 (1993). The warrant authorized a search for “[c]ocaine , any paraphernalia related to the sale or use of cocaine, any records, documents or electroni c storage devices related to the sale or use of cocaine, and any monies or procee ds from the sale of cocaine.” The relevant facts before the magistrate were: 1) packages containing approximately one pound of cocaine were addressed to the apartment; 2) the packages were sent from Trinidad and Tobago, a known source country for cocaine coming into the United States; and 3) th e address was located in a high crime area of

Alexandria.- 8 - The magistrate that issued this warrant was entitled to infer that a large quantity of cocaine – in this case, one pound—was intended for di stribution. In fact, Se rgeant George stated at the suppression hearing that this was the most cocaine he had seen delivered at one time in Alexandria during the five years he has been supervising the vi ce and crime section. Moreover, the packages were sent from a country rec ognized by United States Im migration and Customs Enforcement as a source of cocaine to a high crime neighborhood in Alexandria. We conclude that the information in the affidavit provided su fficient probable cause for the warrant to issue because the magistrate could reasonably infer from these facts that there was a drug dealing operation going on at the residence, thus cr eating probable cause fo r finding evidence of unlawful drug transactions at th e home, including drugs, drug para phernalia, records, documents, and money. See Gwinn , 16 Va. App. at 976, 434 S.E.2d at 904 (“In the case of drug dealers, evidence of that on-going criminal activity is likely to be found where the dealer resides.”). 2 Scope of the Warrant Patton also argues that the pa y stubs that were seized from the apartment were not included in the scope of the warra nt. Once again, we disa gree and affirm the decision of the trial

court. The warrant in this case authorized the seizure of, inter alia , “ any records, documents or electronic storage devices relate d to the sale or use of cocaine.” (Emphasis added). “The permissible scope of a search is lim ited 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). The restriction “that warrants shall partic ularly describe the thi ngs to be seized makes general searches under them impo ssible and prevents the seizure of one thing under a warrant

2 Because we conclude that the warrant was supported by probable cause, we need not address Patton’s argument regarding the good fa ith exception to the warrant requirement.- 9 - describing another.” Marron v. United States , 275 U.S. 192, 196 (1927). 3 Logically, “[o]fficers executing a search warrant are ‘required to interp ret it,’” because they must determine whether the things that they unco ver in the search are the things that are to be seized under the warrant; however “they are ‘not obliged to interpret [t he warrant] narrowly.’” United States v. Stiver , 9 F.3d 298, 302 (3d Cir. 1993) (quoting Hessel v. O’Hearn , 977 F.2d 299, 302 (7th Cir. 1992)); see

also Strauss v. Stynchcombe , 165 S.E.2d 302, 307 (Ga. 1968) (discussing the practical need for an officer executing a search warrant to use his or her judgment to determine what things are subject to seizure under a particular warrant and stating, “[i ]f for example, the warrant calls for

the search and seizure of int oxicating liquors . . . the executin g officer may be required to

determine as a matter of fact which of several di fferent containers found . . . contain intoxicating liquors or which contain othe r beverages . . .”). Thus, the issue before us is whether, on thes e facts, the pay stubs were documents related to the sale or use of cocaine. Simply put, we conclude that the pay stubs were within the scope of the warrant because they constituted evid ence of Patton’s legitimate income—a vitally important piece of information that is related to the sale of cocaine and a large cocaine distribution conspiracy, especially in light of the wire transfer documents, also seized by police during the search, indica ting that significant sums of mone y had been wire transferred to Trinidad and Tobago. A police officer, familiar with the financial structure of drug dealing operations, would reasonably know th at this kind of record woul d be related to drug dealing. Moreover, the pay stubs also provided a link be tween the cocaine that had been mailed to the

3 Patton did not argue that this search wa rrant was overbroad and failed to meet the Fourth Amendment’s particularity requirement; rath er, he argued that the “seizure of pay stubs was well beyond the scope of the warrant and was t hus illegal[,] because “[t]he only documents authorized to be seized were only those re lated to the sale or use of cocaine.”- 10 - apartment and the occupant of the apartment. Hence, the pay stubs were documents related to the sale of cocaine in that they indicated the identity of the li kely cocaine dealer. 4

Knock and Announce Patton’s argument that the ev idence in this case should be suppressed because of a

violation of the “knock and announce” rule is without merit. In Perry v. Commonwealth , 49 Va. App. 65, 636 S.E.2d 891 (2006), we explicitly held that “the remedy for [a violation of the knock and announce rule] is not the suppression of the evidence recovered from appellant’s residence.” Perry , 49 Va. App. at 67, 636 S.E.2d at 893 (citing Hudson v. Michigan , 126 S. Ct. 2159, 2165 (2006)).

Exclusion of Evidence Finally, Patton argues that the trial court erre d by refusing to exclude evidence of wire transfers that he argues were “remote and unconnected to the charges.” The wire transfer evidence in question showed that Patton had, between March 1, 2002 and February 7, 2005, wired approximately $25,000 to Trinidad and Tobago. The admissibility of evidence rests in the s ound discretion of the tria l court. Breeden v.

Commonwealth , 43 Va. App. 169, 184, 596 S.E.2d 563, 570 (2004). “The trial court may consider remoteness [in determining the admissibili ty of evidence] but it should not withhold . . . evidence solely on the basis of remoteness unless the expanse of time ha s truly obliterated all probative value. This determination is committed to the sound discretion of the trial court” as

4 Patton mentions in passing on brief that the “[a]dmission of the pay stubs was a significant error [because] [w]ithout these stubs, there was no proof that linked the defendant with the address at Greensboro Drive, and the Co mmonwealth argued that that shipment helped show the defendant’s involvement in the conspiracy to distribute cocaine.” However, the issue Patton preserved for appeal and on which we grante d an appeal was not th e admissibility of the pay stubs. Instead, it was whether the pay stubs were within the sc ope of the warrant. Thus, we do not address this issue. See Rule 5A:12(c) (“Only questions presented in the petition for appeal will be noticed by the Court of Appeals.”).- 11 - well. Lafon v. Commonwealth , 17 Va. App. 411, 419, 438 S.E.2d 279, 284 (1993) (citing

Brown v. Commonwealth , 3 Va. App. 182, 186, 348 S.E.2d 849, 852 (1986), aff’d , 238 Va. 213, 381 S.E.2d 225 (1989)). The jury convicted Patton of possession of cocai ne with the intent to sell, conspiracy to distribute cocaine, and transporting cocaine into the Commonwealth with the intent to distribute it. The events that took place on both February 10, 2005 and March 17, 2005 constituted

evidence of those crimes. The last wire transf er took place only three days before the first package arrived in the D.C. area on February 10. Here, the wire transf er evidence is not so remote in time as to be without probative valu e; nor was it speculative. Rather, evidence that Patton sent money to Trinidad and Tobago, view ed in concert with evidence that packages

addressed to him and containi ng cocaine were sent from Tr inidad and Tobago, was highly probative in this case. The trial court properl y allowed the jury to consider this evidence.

III. C ONCLUSION For the foregoing reasons, we affirm Patton’s convictions.

Affirmed.