COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Elder 

Argued at Salem, Virginia 

ERNEST JOHNSON BARNETTE, JR. 

 OPINION 

v. Record No. 0997-95-3 BY JUDGE JOSEPH E. BAKER 

 DECEMBER 10, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Mosby G. Perrow, III, Judge 

 James Hingeley (Office of the Public 

Defender, on brief), for appellant. 

 Richard B. Smith, Assistant Attorney General 

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

brief), for appellee. 

 Ernest Johnson Barnette, Jr. (appellant) appeals from his 

bench trial conviction by the Circuit Court of the City of 

Lynchburg (trial court) for possession of cocaine in violation of 

Code § 18.2-250. The sole issue is whether the exclusionary rule 

as applied to the Fourth Amendment required the trial court to 

suppress cocaine discovered in appellant's possession when he was 

searched incident to his arrest for violating parole. We hold 

that the trial court did not err when it denied the motion to 

suppress the cocaine evidence discovered during that search. 

 On appeal from a trial court's denial of a suppression 

motion, the burden is on appellant to show, considering the 

evidence in the light most favorable to the Commonwealth, that 

the denial of his motion to suppress constituted reversible 

error. Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 
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731 (1980), cert. denied, 449 U.S. 1017 (1980). We will disturb 

the decision of a trial court only if the decision was plainly 

wrong or without credible evidence to support it. Commonwealth 

v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). 

 The record reveals that on July 24, 1992 appellant was 

convicted of distribution of cocaine and sentenced to serve seven 

years in the penitentiary. He was released from prison on parole 

on November 10, 1993. Pursuant to Code §§ 53.1-145, 53.1-149, 

and 53.1-162, appellant's supervising parole officer, Jeffrey H. 

Mosher, caused a warrant for appellant's arrest to be issued on 

August 17, 1994. The warrant alleged that appellant had violated 

terms of his parole, authorized any police officer to arrest him, 

and concluded with the following language: 

Witness my hand this 17th day of August 1994 

(VOID AFTER 60 DAYS) 

 JEFFREY H. MOSHER

 Probation & Parole Officer 

At trial, Mosher testified that there was no legal requirement to 

place an expiration time on the warrant. Mosher said the reason 

for inserting the sixty-day period was that he "had previously 

received notification from the regional office in Roanoke they 

want us to put that on there strictly as a track mechanism . . . 

[s]o that if a PB15 which is an arrest warrant is outstanding [we 

could] follow through every sixty days and if need be either 

issue a new one or seek a capias . . . ." 

 Lynchburg Police Officer F. D. McFarland received the 

warrant prior to October 17, 1994; however, he did not serve it 
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until October 17, 1994 when he arrested appellant. Incident to 

that arrest, McFarland searched appellant and found rock cocaine 

in appellant's pants pocket. 

 Appellant argues that McFarland's authority to arrest him 

had expired because the arrest occurred the sixty-first day after 

the warrant was issued. Accordingly, appellant moved the trial 

court to suppress the evidence, contending that it was found as a 

result of an illegal arrest and search. Citing Atkins v. 

Commonwealth, 9 Va. App. 462, 389 S.E.2d 179 (1990), the trial 

court held that the warrant was not "so facially deficient that 

Officer McFarland should have picked up on it, and I don't think 

he acted in bad faith." 

 The warrant was issued on August 17, 1994 and served on 

October 17, 1994. Appellant conceded at trial that "sixty days 

is commonly understood as two months," and service was made 

within the period of that common understanding. However, 

appellant further argues that included in this two-month period 

was August which contained thirty-one days and resulted in the 

arrest being made the sixty-first day after the warrant was 

issued. The Commonwealth contends that the phrase "VOID AFTER 60 

DAYS" was placed on the warrant for administrative purposes and 

did not render the warrant legally void after sixty days. 

 McFarland's belief that the service was being made within 

the time shown on the warrant was a mistake of fact. An arrest 

made pursuant to a mistake of fact is valid if (1) the arresting 
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officer believed, in good faith, that his or her conduct was 

lawful, and (2) the arresting officer's good faith belief in the 

validity of the arrest was objectively reasonable. See, e.g., 

Yeatts v. Minton, 211 Va. 402, 177 S.E.2d 646 (1970). 

 Here, the trial court found that McFarland acted in good 

faith in executing the arrest warrant. We must determine whether 

the evidence supports the trial court's finding that McFarland 

acted reasonably within the provisions of the Fourth Amendment. 

Guidelines for determining reasonableness as applied to mistakes 

of fact may be found in Hill v. California, 401 U.S. 797 (1971). 

 In that case, an informant gave the police a detailed 

description of Hill, a wanted thief, and the address at which he 

lived. Without either an arrest or search warrant, the police 

went to the address to arrest Hill. Upon arriving at Hill's 

residence, the police found inside a person (Miller) who matched 

Hill's description. Notwithstanding Miller's protests that he 

was not Hill, believing Miller to be Hill, the police arrested 

Miller and searched the premises. The Hill Court refused to hold 

that the Fourth Amendment required the trial court to suppress 

the evidence found at Hill's residence. The Court noted that 

"when judged in accordance with 'the factual and practical 

considerations of everyday life on which reasonable and prudent 

men, not legal technicians, act,' Brinegar v. United States, 338 

U.S. 160, 175 (1949), the arrest and subsequent search were 

reasonable and valid under the Fourth Amendment." Hill, 401 U.S. 
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at 804-05. Thus, as the Court further said, the "sufficient 

probability [of the right to arrest], not certainty, 

is the touchstone of reasonableness under the Fourth Amendment 

. . . ." Id. at 804. 

 In People v. Tellez, 128 Cal. App. 3d 876, 180 Cal Rptr. 579 

(1982), the California Court of Appeals held that, "a reasonable 

mistake of fact, entertained in good faith by arresting officers, 

will authorize a search or arrest, even if the facts subsequently 

prove to be mistaken." Id. at 880, 180 Cal Rptr. at 581. 

 Notwithstanding the fact that the police had subjected the 

defendant to a parole search when he was not actually on parole, 

the Tellez Court refused to suppress the evidence they found. 

 This fact, however, does not compel 

suppression of the evidence recovered in the 

search conducted by the officers. It is 

uncontradicted that the officers were 

informed by appellant's parole officer and 

appellant, that he was in fact on parole. 

Their reliance on this information was 

reasonable and they acted thereon in good 

faith. As we previously stated in People v. 

Spratt (1980) 104 Cal.App.3d 562, 567, 164 

Cal.Rptr. 78: "The test of legality of a 

search is that of reasonableness and the 

court must look to all of the circumstances 

known to the officers prior to implementing 

the search." 

Id. at 880, 180 Cal Rptr. at 581 (emphasis added). We agree with 

the Hill and Tellez analyses. Here, the evidence disclosed that 

the supervising parole officer did not intend the warrant to 

become ineffective if not served within sixty days of the 
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issuance. Moreover, the arresting officer mistakenly believed 

that sixty days equated to the two months between August 17, 1994 

and October 17, 1994, and no bad faith or unreasonableness has 

been shown which requires exclusion of the evidence. 

 For the reasons stated, we hold that the decision of the 

trial court was not plainly wrong or without evidence to support 

it. Accordingly, we affirm the judgment. 

 Affirmed. 
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Elder, J., concurring. 

 I concur with the judgment of the Court but not with the 

analysis of the majority opinion. It is unnecessary to analyze 

whether the arresting officer's actions were undertaken in good 

faith or whether the arrest and search of appellant were 

performed pursuant to a mistake of fact. Instead, I would hold 

that the trial court did not err in denying appellant's motion to 

suppress because the warrant for his arrest was valid. "Cases 

are to be decided on the narrowest legal grounds available." 

Korioth v. Briscoe, 523 F.2d 1271, 1275 (5th Cir. 1975); 21 

C.J.S. Courts § 136(1) (1990). 

 The warrant was valid in this case because the parole 

officer's language limiting its duration to sixty days had no 

legal effect. I find no authority for a parole officer to limit 

the time period during which the warrant is effective. Clearly a 

parole officer has statutory authority to issue a warrant for the 

arrest of a parolee whom the officer judges to be in violation of 

the terms of his parole. Code §§ 53.1-145(4), 53.1-162. Logic 

suggests that such a warrant remains in force until a competent 

judicial official makes a determination regarding the legitimacy 

of the parole officer's allegations. At trial, the parole 

officer did not claim authority to limit the time period of 

warrants issued by him. Instead, he testified that he inserted 

the language in the warrant as a tracking mechanism to aid in the 

administration of outstanding warrants. Thus, the language in 
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the warrant indicating that it was void after sixty days was mere 

surplusage and the warrant was still valid when it was executed 

on October 17, 1994. Because appellant's conviction should be 

affirmed on the ground that the cocaine was seized pursuant to a 

search incident to arrest based on a valid arrest warrant, I find 

it unnecessary to address other issues. 
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Coleman, J., concurring. 

 I concur with the separate opinions expressed by both my 

colleagues, Judges Baker and Elder. I agree with Judge Elder 

that the probation officer did not render the PB-15 arrest 

warrant invalid by placing a sixty-day time limitation upon it 

for administrative purposes. Therefore, the arrest under 

authority of the warrant was valid, in my opinion, and the search 

incident thereto was lawful. 

 However, assuming that the arrest warrant was invalid, as is 

the assumption in Judge Baker's opinion, I agree that appellant 

was nonetheless validly arrested. The officer made the arrest 

based upon his good faith, but mistaken, belief that he was 

acting upon a valid arrest warrant and that the defendant was 

wanted for a probation violation. See Hill v. California, 401 

U.S. 797 (1971). Therefore, in my opinion, the arrest was valid 

on either ground and the search incident to that arrest was 

lawful.