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

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No . 1840-17-2 JUDGE MARLA GRAFF DECKER MAY 1, 2018 SARAH BETH SMITH

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. Monica J. Chernin (Law Offices of Monica J. Chernin, P.C., on brief), for appellee.
Sarah Beth Smith (the defendant) was indicted for conspiracy t o manufacture marijuana and possession of marijuana with the intent to manufacture in violation of Code §§ 18.2-248.1(c) and -256. 1 The defendant filed a pretri al motion to suppress evidence, w hich she 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

* 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, Clint Wayne C ockrill. See Commonwealth v. Co ckrill, No. 1841-17-2 (Va. Ct. App. Jan. 9, 2018). The Court resolves the appeals in separate, simultaneously issued opinions.UNPUBLISHED- 2 - did not challenge the presumption that the search warrant was v alid and supported by probable cause.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 Kelly Mills, an investigator with the Spotsylvania County Sheriff’s Office, received infor mation from an anonymous caller . The caller claimed that Clint Cockrill was growing marijuana , had been convicted of sex crime s against a child, and was possibly living with children a t a certain address. Through he r investigation, Mills learned that the defendant lived at the give n address, was married to Cockri ll, and had children. In addition, a guardian ad litem informed Mills of concerns over the welfare of the defendant’s children and possible marijuana in the home. T he children’s father told Mil ls 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 the defendant’s listed residence. When law enforcement parked in f ront 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 f oot, the smell 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 the defendant at the front door. S he asked about Cockrill, and the defendant informed her that he was not at home. Mills, Abe , Ball, and at leas t four narcotics officers entered the home. Law enforcement had no specific inf ormation that Cockrill was present and did not hear sounds indicating anyone moving around in the house hidden from view. Nonetheless, the officers conducted a “sweep” of the roo ms looking for anyone there with a gun. While doing so, they came up on a locked door to a room in the basement. 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 found “what appeared to be [a] marijuan a grow” in the locked room. A s 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 her motion, she argued that the protective sweep was an illeg al search. The defendant sugg ested that “th e evidence found during the protective sweep” s hould be suppressed as the produc t of an illegal search and “all other evidence” should be suppressed “as ‘fruits of the poisono us tree.’” 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. Commonwealth, 264 Va. 568, 573, 57 0 S.E.2d 836, 8 38 (2002). Wh en reviewing this ruling, the

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 - 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 protect ive sweep. See, e.g., Russell v. Commonwealth, 33 Va. App. 604 , 609, 535 S.E.2d 699, 701 (200 0) (“At a hearing on a defendant’s motion to suppress, t he 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 discern, law enforcement did not observe “any contraband” or se ize anything during the sweep. In contrast, the search conducted pur suant to the warrant yielded evidence of a “marijuana grow,” including marijuana plants. T he defendant did not challenge th e search warrant and specifically conceded that probable cause for a search warrant existed befor e law enforcement approached the

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 - house. 5 See generally Logan v. Commonw ealth, 47 Va. App . 168, 172 n.4 , 622 S.E.2d 771, 773 n.4 (2005) (noting that a concession can constitute a 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,” proba ble 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 protective sweep as uncon stitutional, she was not precluded from also challenging the search warrant as lacking s ufficient probable cause to justify the search after redacting refer ences to information obtained d ue to the allegedly impermissible protective sweep. The defendant, however, did not make such a challenge, either in her written

5 The defendant suggested that th e passage of time between the a nonymous call to Mills and her “welfare check” cast doubt upon her motive. However, “ circumstances occurring substantially before the issuance of a search warrant can justi fy the issuance of t he warrant . . . if such past circumstances disclose ‘a probable cause’ of continuo us nature so as to support a rational conclusion that the past probable cause is still opera tive at the time of the issuance of the warrant.” Pierceall v. Commonwealth, 218 Va. 1016, 1021, 243 S .E.2d 222, 225 (1978) (quoting Sgro v. United Stat es, 287 U.S. 206, 210-11 (1932)). The warrant and supporting affidavit were not introduced i nto evidence. However, the reco rd makes clear that the probable cause relates to growing marijuan a in the basement of the resid ence.- 6 - motion or during the h earing. See Code § 1 9.2-266.2 (requiring a defense motion to suppress evidence on Fourth Amendment gr ounds to be in writing); see als o McGhee v. Comm onwealth, 280 Va. 620, 625 n.3, 701 S.E.2d 5 8, 60 n.3 (2010) ( noting that a t rial court “may, for good cause shown and in the interest of justice, grant leave for a defendant to amend a motion to s uppress”). The record before us makes clear that the defendant did not challen ge the magistrate’s determination of probable cause, as reflected by issuance of the search warrant. See generally Gre gory, 64 Va. App. at 91, 94-95, 764 S.E. 2d at 734-36 (holding that the appellant’ s general allegation of a violation of her Fifth Amendment rights in he r motion to suppress did not su fficiently raise the claim of an unlawful custodial interrogation under Miranda v. Arizona, 384 U.S. 436 (1966)). Accordingly, the defendant did not rebut the pre sumption of validity of the warr ant, and the circuit court erred by granting the motion to suppress the evidence obtained pursuant to the search warrant. 6
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.

6 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).