COURT OF APPEALS OF VIRGINIA 

Present: Judges Kelsey, Petty and Senior Judge Willis 

Argued at Chesapeake, Virginia 

HENRY MILIAN, S/K/A 

 HENRY LEE MILIAN 

 MEMORANDUM OPINION* BY 

v. Record No. 2003-07-1 JUDGE WILLIAM G. PETTY 

SEPTEMBER 23, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY 

Carl E. Eason, Jr., Judge 

 Steven M. Oser (Law Office of Steven M. Oser, on brief), for 

appellant. 

 Rosemary V. Bourne, Assistant Attorney General (Robert F. 

McDonnell, Attorney General, on brief), for appellee. 

 Appellant, Henry Lee Milian, was convicted of possessing cocaine with the intent to 

distribute, in violation of Code § 18.2-248, pursuant to a conditional guilty plea. He now appeals 

his conviction, arguing that the trial court erred in denying his “motion to suppress evidence derived 

from a search warrant obtained in violation of Franks v. Delaware.” 1

 We disagree and affirm his 

conviction. 

I. 

 On May 7, 2007, Sergeant Kenneth Barham met with Timothy Hobbs at the Franklin Police 

Department. Hobbs stated that he had given Henry Milian $2,400 because Milian said he could 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication.

1

 Milian also raises the issue of “the reliability of the informer” and argues that the 

warrant was defective because the police officer did not “set forth facts establishing the 

reliability of the informer” in the affidavit. We decline to address this issue because it is not 

included in Milian’s question presented. See Rule 5A:12(c). 
- 2 - 

 

help Hobbs get a mortgage for a house. When the mortgage was not forthcoming, Hobbs asked 

Milian for a refund, and Milian told him that he had spent the money, but he would pay Hobbs back. 

After Milian failed to pay him back, Hobbs obtained a civil judgment against Milian. Concerned 

that he would not get his money if Milian went to jail, Hobbs declined to file a complaint with the 

police. 

 Barham was aware of an active investigation of Milian involving other complaints of 

mortgage fraud. Therefore, despite Hobbs’ disinclination to prosecute, the sergeant obtained a 

search warrant to search Milian’s house2

 for business records supporting a charge of obtaining 

money by false pretenses. The affidavit Sergeant Barham gave to the magistrate contained the 

following information: 

In the month of August, 2003, Hobbs was approached by Henry 

Milian because Mr. Hobbs was attempting to buy a house. Mr. 

Milian advised Mr. Hobbs that he could get Mr. Hobbs approved 

for a cheap mortgage payment. Mr. Milian advised Mr. Hobbs that 

he needed $4,500.00 to get the mortgage. Mr. Hobbs gave the 

defendant $2,400.00 to process the loan for Mr. Hobbs. The 

defendant did not get a mortgage for Mr. Hobbs and did not return 

the $2,400.00. 

 During the suppression hearing, Hobbs testified that he had not initiated contact with the 

police, but had gone to the police station after police had contacted him. However, Hobbs 

confirmed that the facts in the affidavit accurately reflected what he had told Sergeant Barham. 

Hobbs also confirmed that he told Sergeant Barham that he did not want to prosecute Milian 

because he would not get his money back if Milian were in jail. Sergeant Barham testified during 

the suppression hearing as well. The sergeant stated that he did not initiate contact with Hobbs and 

that Hobbs simply “walk[ed] in” to make his complaint. However, Sergeant Barham did not know 

2

 Upon searching the house, the police found a quantity of cocaine and drug 

paraphernalia that led to the possession with the intent to distribute charge for which Milian was 

eventually convicted. 
- 3 - 

whether someone else from the police department had called Hobbs for an interview. Sergeant 

Barham denied lying or falsifying any of the allegations in the affidavit. 

 At the conclusion of the hearing, the trial court made numerous factual findings. First, the 

court stated that it believed someone from the police department had contacted Mr. Hobbs regarding 

Milian, but that this fact was not material to the Franks analysis. The trial court went on to find that 

the allegations in the affidavit were factually accurate and that the record disclosed neither an 

“omission of facts” nor an “intentional disregard” for the truth on the sergeant’s part. 

II. 

 Milian argues that the trial court should have granted his motion to suppress evidence 

recovered from his home during the execution of a search warrant because the affidavit supporting 

the warrant contained falsehoods and statements made with reckless disregard for the truth. 

Because we conclude that the trial court’s decision was neither plainly wrong nor unsupported by 

the record in this case, we affirm. 

 An accused may attack a search warrant based upon the veracity of the underlying 

affidavit. “[I]f the magistrate [who issued] a warrant was misled by information in an affidavit 

that the affiant knew was false or would have known was false except for his reckless disregard 

for the truth” suppression of the evidence seized under that warrant is “an appropriate remedy.” 

United States v. Leon, 468 U.S. 897, 923 (1984). The United States Supreme Court set forth the 

standard for such a challenge in Franks v. Delaware, 438 U.S. 154, 155-56 (1978).3

 In Franks the 

 3

 In Franks, 438 U.S. at 155-56, the United States Supreme Court held: 

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 alleged 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 at that 

hearing the allegation of perjury or reckless disregard is 
- 4 - 

Court held, as applicable to our case, that when (1) an affiant provides information in support of a 

search warrant that contains deliberate falsehoods or statements made with a reckless disregard for 

the truth, and (2) the affidavit is insufficient to support a finding of probable cause with the false 

information set aside, the evidence seized pursuant to the warrant should be suppressed. Id. The 

accused bears the burden to show that the affiant’s statements were false or made with reckless 

disregard for the truth. Id. at 156. 

 The trial court’s conclusion as to the truthfulness of the affiant’s assertions in an affidavit 

is a factual finding, and we will not disturb it on review unless it is “plainly wrong or without 

evidence to support it.” West v. Commonwealth, 16 Va. App. 679, 690, 432 S.E.2d 730, 737 

(1993). 

III. 

Milian conceded both at trial and on appeal that the factual statements in the affidavit 

were true. However, he argues that Sergeant Barham omitted facts from the affidavit that were 

important to the overall probable cause analysis. He contends that the magistrate would not have 

found probable cause had the officer included in the affidavit two additional facts: (1) that police 

initiated contact with Hobbs and (2) that Hobbs told Sergeant Barham that he did not want to 

press charges. We disagree. 

 

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 fact of the affidavit. 

For the purposes of this appeal, we treat the hearing on Milian’s motion to suppress as a 

Franks hearing, despite the absence of “any preliminary showing by [Milian] of police 

misconduct.” Williams v. Commonwealth, 26 Va. App. 612, 617, 496 S.E.2d 113, 116 (1998) 

(emphasis in original) (quoting West v. Commonwealth 16 Va. App. 679, 689, 432 S.E.2d 730, 

736-37 (1993)) (internal quotation marks omitted). 
- 5 - 

First, there is no requirement that the Commonwealth include all of its information in an 

affidavit for a search warrant. Id. at 689, 432 S.E.2d at 737. Second, “Franks clearly requires 

defendants to allege more than intentional omission . . . .” United States v. Colkley, 899 F.2d 

297, 301 (4th Cir. 1990) (internal quotation marks omitted). Instead, “Franks protects against 

omissions that are designed to mislead, or that are made in reckless disregard of whether they 

would mislead, the magistrate.” Id. (emphasis in original). As the Franks Court emphasized, 

“[m]ere[] negligen[ce] in . . . recording the facts relevant to a probable-cause determination” is 

not enough to support a Franks challenge. Franks, 438 U.S. at 170. Finally, the facts Milian 

argues were wrongly omitted from the affidavit have no bearing on the existence of probable 

cause. That the police initiated contact with Hobbs is not material to whether there was probable 

cause that Milian had obtained money by false pretenses from Hobbs. Further, Hobbs’ hesitation 

to have Milian prosecuted did nothing to nullify a probable cause finding. Instead, as the trial 

court found, Hobbs’ hesitation made his statements to police even more credible because he 

“does not have a vendetta against Mr. Milian. He is trying to collect his money.” 4 

IV. 

Based on the foregoing discussion, we affirm the trial court. 

 Affirmed.

 4

 Milian also makes a vague and unsupported argument that the police had a duty to 

“corroborate or verify” Hobbs’ allegations. However, he fails to explain how, in searching for 

evidence, Sergeant Barham was not doing exactly that. Moreover, even assuming that some 

such duty of further investigation existed, “[a]llegations of negligence are insufficient to . . . 

invalidate a warrant.” Franks, 438 U.S. at 171.