COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

DAVID DONNELL WILLIAMS, S/K/A 

 DAVID D. WILLIAMS, SR. 

 OPINION BY 

v. Record No. 2912-96-1 JUDGE RICHARD S. BRAY 

 FEBRUARY 17, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Everett A. Martin, Jr., Judge 

 James O. Broccoletti (Zoby & Broccoletti, 

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

 Michael T. Judge, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 David Donnell Williams (defendant) was convicted in the 

trial court for possession of a firearm by a felon in violation 

of Code § 18.2-308.2. Defendant complains on appeal that the 

trial court erroneously declined to suppress evidence seized 

during the execution of a search warrant at his residence. 

Defendant argues that the affidavit given in support of the 

warrant was tainted both by a material omission and with 

information obtained unconstitutionally by the affiant, requiring 

suppression of all evidence seized during the attendant search. 

Finding no error, we affirm the conviction. 

 I. 

 In reviewing a trial court's ruling on a suppression motion, 

we consider the evidence in the "light most favorable to . . . 

the prevailing party below," the Commonwealth in this instance, 
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and the factual findings of the trial judge will be disturbed 

only if plainly wrong. Commonwealth v. Grimstead, 12 Va. App. 

1066, 1067, 407 S.E.2d 47, 48 (1991). Our consideration of the 

record includes evidence adduced at both the trial and the 

suppression hearing, if any. DePriest v. Commonwealth, 4 Va. 

App. 577, 583, 359 S.E.2d 540, 542-43 (1987). However, "as a 

general matter, determinations of . . . probable cause should be 

reviewed de novo on appeal," with deference to a trial court's 

finding of "historical fact." Ornelas v. United States, 116 

S. Ct. 1657, 1663 (1996). To prevail on appeal, the defendant 

must "show . . . that the denial of [his] motion . . . 

constitute[d] reversible error." Motley v. Commonwealth, 17 Va. 

App. 439, 440-41, 437 S.E.2d 232, 233 (1993). 

 II. 

 On July 1, 1994, Norfolk Humane Officers Jody Shoulders and 

Mark Kumpf visited defendant's residence to investigate an 

"[animal] cruelty complaint." In defendant's absence, his wife 

admitted the officers to the home and adjoining, fenced rear 

yard, where they observed four adult pit bull dogs "[o]n very, 

very heavy chains," a pit bull puppy confined in a "kennel 

carrier," "quite a bit . . . of feces," and "no water." Inside 

the residence, Shoulders noticed items "consistent with 

individuals engaged in breeding and fighting pit bull dogs for 

sport," including "injectable materials," a periodical entitled 

"Game Dog Times," and canine pedigree documents. Because 
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defendant's wife was unable to locate vaccination certificates or 

city licenses for the dogs, and none were found among city 

records, Shoulders left a notice with defendant's wife, directing 

that he contact Shoulders concerning licensure and care of the 

animals. 

 When defendant failed to respond to the notice, Shoulders 

resumed her investigation in January, 1995, learned that no dogs 

had been licensed to defendant's residence following the July, 

1994 visit, and returned to defendant's home on the morning of 

January 31, 1995. On arrival, Shoulders noticed a car in the 

driveway, and, while standing on the public sidewalk, saw "things 

moving through the slats of the [back yard] fence." The odor of 

animal waste and a cacophony of "multiple dogs barking" emanating 

from the rear of the house were also detectable from the 

sidewalk. Receiving no answer to her knock at defendant's front 

door, Shoulders "stepped off the front porch . . . [and] went 

down a very short driveway to the fence to see what the animals 

were barking about, if they were okay and [if] someone was 

possibly in the back yard." The "driveway area" was an "open 

space," with no signs warning away trespassers, which afforded an 

unobstructed view from the sidewalk to the fence. Shoulders 

called, "hello, hello," but heard no response above the din of 

"six Pit Bulls barking all at once." The rear yard was visible 

to Shoulders through "large spaces between the [fence] slats," 

and she saw "six dogs . . . chained to different 
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structures[,] . . . no water . . . [,] and quite a bit of fecal 

matter." 

 Based upon her observations, Shoulders immediately obtained 

a warrant to search defendant's "residential dwelling, its 

curtilage and its environs" for evidence of violations of several 

city ordinances. The following "material facts constituting 

probable cause" were set forth in the attendant affidavit: 

 On January 31, 1995, your affiant went to 

2136 Ballentine Boulevard, Norfolk, VA 23509, 

at approximately 11:15 a.m. I observed six 

(6) adult dogs in the back yard on heavy 

chains. No food or water was visible for the 

animals. A check of 1994 and 1995 city 

licenses showed no licenses on file for thqat 

[sic] address. On July 1, 1994, your affiant 

investigated a cruelty complaint at 2136 

Ballentine Boulevard, Norfolk, VA 23509. 

Your affiant was given consent to examine the 

four (4) pitbulls and one (1) pitbull puppy 

on the property. While on the property, your 

affiant observed a bottle labeled injectable 

Vitamin E and other unlabeled bottled 

injectable substances. . . . Your affiant 

also observed several periodicals including 

"Game Dog Times." In theis [sic] officer's 

experience, such documents and medications 

are consistent with individuals engaged in 

breeding and fighting pitbull dogs for sport. 

 A check of DMV files for Virginia ICE 

MAN1, showed vehicle registration to David D. 

Williams at 2316 Ballentine Blvd., Norfolk, 

VA 23509. A check of Norfolk tracer 

indicated previous arrests for use of a 

firearm in the commission of a felony, 

carrying concealed weapons, etc.1

 

 1The affidavit referenced the following violations of the 

Norfolk City Code: "[m]aintaining more than four dogs" in 

violation of Code § 6-5(d); "[f]ailure to vaccinate for rabies" 

in violation of Code § 6-102; "[f]ailure to pay city dog license 

tax," in violation of Code § 6-79; and "[f]ailure to provide the 

duties of ownership" in violation of Code § 6-11. 
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Shoulders, accompanied by several officers, executed the search 

warrant on the afternoon of January 31, 1995, and discovered the 

offending firearm, together with evidence of numerous other 

crimes not in issue. 

 III. 

 Defendant first argues that the "primary basis in the 

affidavit sworn to by Officer Shoulders" in support of probable 

cause for the search warrant "was information she observed on 

January 31, 1995 while trespassing onto" defendant's property. 

He maintains that Shoulders' failure to advise the magistrate 

that she saw the "six pit bulls" while unconstitutionally 

invading the curtilage of his residence and gazing through his 

"privacy fence" constituted a "material omission . . . made in 

reckless disregard for the truth . . . ."2

 Relying upon Franks 

v. Delaware, 438 U.S. 154 (1978), defendant reasons that such 

"tainted information in the affidavit" must be "set aside," 

leaving the warrant without the requisite probable cause. 

 In Franks, the Supreme Court of the United States instructed 

that 

 where the defendant makes a substantial 

preliminary showing that a false statement 

knowingly and intentionally, or with reckless 

disregard for the truth, was included by the 

affiant in the warrant affidavit, and if the 

allegedly false statement is necessary to the 

finding of probable cause, the Fourth 

Amendment requires that a hearing be held at 

the defendant's request. In the event that 

 

 2

The trial judge concluded that the "enclosed back yard and 

side yard were within the curtilage." 
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at that hearing the allegation of perjury or 

reckless disregard is established by the 

defendant by a preponderance of the evidence, 

and, with the affidavit's false material set 

to one side, the affidavit's remaining 

content is insufficient to establish probable 

cause, the search warrant must be voided and 

the fruits of the search excluded to the same 

extent as if probable cause was lacking on 

the face of the affidavit. 

Id. at 155-56, see also West v. Commonwealth, 16 Va. App. 679, 

689, 432 S.E.2d 730, 736-37 (1993). For purposes of this appeal, 

we treat the hearing on defendant's motion to suppress as a 

Franks hearing, despite the absence of "any preliminary showing" 

by defendant of police misconduct. West, 16 Va. App. at 689, 432 

S.E.2d at 737 (emphasis added). 

 Defendant correctly asserts that "Franks protects against 

omissions that are designed to mislead, or that are made in 

reckless disregard of whether they would mislead, the 

magistrate . . .[;] [however,] 'mere negligen[ce] in . . . 

recording the facts relevant to a probable-cause determination' 

is not enough." United States v. Colkley, 899 F.2d 297, 300 (4th 

Cir. 1990) (quoting Franks, 438 U.S. at 171); see West, 16 Va. 

App. at 689-90, 432 S.E.2d at 437. Thus, to prevail in a Franks

challenge, an accused must allege and prove "more than [an] 

'intentional' omission." Colkley, 899 F.2d at 301. This 

principle is consistent with the remedial purpose of the 

exclusionary rule, "to deter police misconduct by denying 

illegally obtained evidence from being admitted in [a] 

defendant's criminal trial." Johnson v. Commonwealth, 21 Va. 
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App. 172, 175, 462 S.E.2d 907, 909 (1995) (emphasis added). 

 Here, defendant offered no evidence that established either 

a design to deceive the magistrate or recklessness in Shoulders' 

omission of "material" information from the affidavit, and 

nothing in the record suggests such misconduct. Accordingly, in 

denying defendant's motion to suppress, the trial court concluded 

that "the officer neither intentionally nor recklessly misled the 

magistrate," a factual finding supported by the record and which 

renders defendant's Franks claim meritless. See West, 16 Va. 

App. at 689, 432 S.E.2d at 737; Moats v. Commonwealth, 12 Va. 

App. 349, 355, 404 S.E.2d 244, 247 (1991). 

 IV. 

 Defendant next urges that, irrespective of Franks, the 

disputed search was dependent upon the authority of a warrant 

supported by an affidavit "tainted by the prior illegal entry 

onto defendant's property," a circumstance requiring suppression 

of the resulting evidence as "fruit of the poisonous tree." See

Commonwealth v. Ealy, 12 Va. App. 744, 754-55, 407 S.E.2d 681, 

688 (1991). Defendant acknowledges on brief that Shoulders 

"lawfully obtained" information that dogs were present at the 

residence "from their barking and . . . odor," conditions 

"observable" from the public sidewalk, without invading the 

curtilage. Hence, his challenge embraces only that information 

gathered from Shoulders' view of the dogs through the fence. 

 It is well established that "[t]he inclusion of tainted 
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evidence does not invalidate a search warrant," United States v. 

Wright, 991 F.2d 1182, 1186 (4th Cir. 1993) (citing United States 

v. Whitehorn, 813 F.2d 646, 649 (4th Cir. 1987)), and suppression 

is not required "if, excluding the illegally obtained 

information, probable cause for the issuance of the warrant could 

still be found." United States v. Apple, 915 F.2d 899, 910 (4th 

Cir. 1990); United States v. Gillenwaters, 890 F.2d 679, 681 (4th 

Cir. 1989); see also United States v. Hawkins, 788 F.2d 200, 

203-04 (4th Cir. 1986) (court properly deleted challenged wiretap 

information from the affidavit before making a probable cause 

determination); cf. Derr v. Commonwealth, 6 Va. App. 215, 221-22, 

368 S.E.2d 916, 919 (1988) (in assessing probable cause to 

conduct a warrantless search under the "automobile exception," 

evidence properly obtained is admitted, while evidence resulting 

from an unconstitutional search is suppressed). 

 Thus, if we adopt defendant's argument, any taint in 

Shoulders' affidavit is cured by the following redactions: "I 

observed six (6) adult dogs in the back yard on heavy chains. No 

food or water was visible for the animals." The remainder of the 

affidavit then recites that Shoulders visited defendant's home on 

the morning of January 31, 1995, and "observed . . . dogs in the 

back yard" of a residence to which no dog licenses were of record 

with the city. Such circumstances, together with the information 

gathered on July 1, 1994, also set forth in the affidavit, 

clearly provided probable cause to believe that dogs were present 
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on the premises in violation of City Code §§ 6-11 and 6-79. See

Gwinn v. Commonwealth, 16 Va. App. 972, 975-76, 434 S.E.2d 901, 

904 (1993).3 Accordingly, we find no error in admitting the 

disputed evidence and affirm the conviction. 

 Affirmed.

 

 3"In dealing with probable cause . . . as the very name 

implies, we deal with probabilities. These are not technical; 

they are the factual and practical considerations of everyday 

life on which reasonable and prudent men, not legal technicians, 

act . . . . The process does not deal with hard certainties, but 

with probabilities." Boyd v. Commonwealth, 12 Va. App. 179, 

186-87, 402 S.E.2d 914, 919 (1991) (quoting Illinois v. Gates, 

462 U.S. 213, 231-32 (1983)).