COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Felton and Kelsey 

Argued at Chesapeake, Virginia 

LAVAR A. SLADE 

 OPINION BY 

v. Record No. 1529-03-1 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 MAY 18, 2004 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Edward L. Hubbard, Judge 

 Jeffrey C. Rountree for appellant. 

 Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore, 

Attorney General, on brief), for appellee. 

 In this criminal appeal, Lavar A. Slade (appellant) contends that: 1) the trial court erred in 

overruling his motion to suppress evidence obtained pursuant to a search warrant issued without 

probable cause, and 2) the evidence was insufficient to convict him of possession with intent to 

distribute cocaine. We affirm the judgment of the trial court. 

I. BACKGROUND 

 Under familiar principles of appellate review, we examine the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible 

therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). 

So viewed, the evidence established that on December 7, 2002 the Newport News police 

executed a search warrant at Apartment 7, 438 Tara Court. The warrant was issued based on a 

controlled purchase of cocaine instigated by a confidential informant whom appellant stipulated 

to be reliable. The informant asked an “unwitting informant” where he could purchase cocaine, 

and the unwitting informant took him to the Tara Court home. The confidential informant saw 
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the unwitting informant take cash given to him by the confidential informant into the home, 

return and give him the drugs purchased. The unwitting informant stated that there was more 

cocaine available for sale inside. The affidavit stated that this happened on several occasions. 

Inside the apartment, the police found approximately two and a half grams of cocaine on 

the living room coffee table, ten and a half grams of cocaine on top of a sliding door, digital 

scales and plastic baggies in the kitchen, $900 in appellant’s pants pocket separated into smaller 

denominations, and a cell phone. Detective Nesbitt (Nesbitt) testified that appellant admitted the 

cocaine on the table was his. When he was asked about the large stash of cocaine, appellant 

replied, “Times are tough. I’m just trying to support my family.” Nesbitt also testified that 

appellant repeated this statement in front of the magistrate at the bail hearing. Appellant denied 

making this statement at trial. 

II. MOTION TO SUPPRESS 

 “The burden to establish that the denial of the motion to suppress constituted reversible 

error rests with the defendant.” King v. Commonwealth, 39 Va. App. 306, 308, 572 S.E.2d 518, 

519 (2002) (citations omitted). “We are bound by the trial court’s findings of historical fact 

unless ‘plainly wrong’ or without evidence to support them[,] and we give due weight to the 

inferences drawn from those facts by resident judges and local law enforcement officers.” 

McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing 

Ornelas v. United States, 517 U.S. 690, 699 (1996)). However, we review de novo the trial 

court’s application of defined legal standards such as probable cause and reasonable suspicion to 

the particular facts of the case. See Ornelas, 517 U.S. at 699; Hayes v. Commonwealth, 29 

Va. App. 647, 652, 514 S.E.2d 357, 359 (1999); Shears v. Commonwealth, 23 Va. App. 394, 

398, 477 S.E.2d 309, 311 (1996). 
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 Appellant contends that the affidavit failed to sufficiently establish the reliability of the 

unwitting informant, and thus the magistrate did not have probable cause to issue the search 

warrant. We disagree and affirm the judgment of the trial court. 

The affidavit stated, in pertinent part: 

On December 4, 2002, this affiant received information from a 

confidential reliable informant that he/she and a [sic] unwitting 

informant had been to an apartment known as 438 Tara Court, # 7. 

The reliable informant advised that he/she observed the unwitting 

informant knock on the door of 438 Tara Court #7 and walk in 

with the U.S. currency. The reliable informant advised that the 

unwitting informant returned and handed the reliable informant a 

quantity of cocaine and stated that there is more cocaine for sale 

inside 438 Tara Court #7 when the reliable informant wanted 

more. The reliable informant advised he/she had taken the 

unwitting informant to 438 Tara Court #7 several times in the past 

and has given U.S. currency to the unwitting informant to purchase 

cocaine from inside 438 Tara Court #7 and the unwitting informant 

has stated that there is more cocaine for sale inside 438 Tara Court 

#7 when the reliable informant wanted more. 

Defense counsel stipulated to the reliability of the confidential informant, but moved to 

suppress the evidence obtained during the search, contending that the affidavit and warrant 

contained no facts to support the reliability of the unwitting informant and that it contained his 

hearsay statements about the cocaine purchase inside the suspect residence. He argues: 

On the face of the warrant, the magistrate looking at it, we don’t 

know how long this person was in there, and for another thing, this 

has been done a number of times in the past. We don’t know how 

many. Moreover, and most important, we don’t know anything 

about the unwitting informant. We don’t know if that person is 

reliable or telling the truth. We don’t – I think you can presume 

from the warrant, but we don’t know exactly anything about their 

reliability. We move to suppress the warrant, and the evidence that 

stems from it. 

 

The trial court overruled appellant’s motion to suppress as follows: 

The act speaks for itself, and I think the observance of that act by 

the reliable informant certainly is sufficient to get probable cause, 

and even if it didn’t, I agree with the Commonwealth that the 

good-faith exception applies. Overrule the motion. 
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“Whether a warrant is supported by probable cause is determined from the 

‘totality-of-the-circumstances.’” Corey v. Commonwealth, 8 Va. App. 281, 286, 381 S.E.2d 19, 

21 (1989) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)). 

The task of the issuing magistrate is simply to make a practical, 

common-sense decision whether, given all the circumstances set 

forth in the affidavit before him, including the “veracity” and 

“basis of knowledge” of persons supplying hearsay information, 

there is a fair probability that contraband or evidence of a crime 

will be found in a particular place. And the duty of a reviewing 

court is simply to ensure that the magistrate had a “substantial 

basis for . . . [concluding]” that probable cause existed. 

Gates, 462 U.S. at 239 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). 

While we have not specifically addressed the issue of whether an unwitting informant is 

subject to the same reliability requirements as a confidential informant, other jurisdictions have 

done so. In Delgado v. Florida, 556 So.2d 514 (Fla. Dist. Ct. App. 1990), a factually similar 

case, the Florida Court of Appeals analyzed the use of an unwitting informant in a drug buy. 

Delgado appealed the denial of his motion to suppress the evidence because the affidavit in 

support of the warrant failed to “include information revealing a basis for the ‘unwitting 

informant’s’ knowledge or his veracity.” Id. at 516. An undercover officer attempted to 

purchase cocaine from an unwitting informant who in turn purchased cocaine for the officer at a 

nearby apartment. The officer saw the unwitting informant enter the residence, return with 

cocaine, and heard him say that there was more cocaine in the residence. The officer obtained a 

search warrant ten days later. See id. at 515. In finding the affidavit sufficient, the court noted 

that “the affiant observed the ‘unwitting informant’ enter the residence” to purchase the cocaine. 

Id. The court held that it was not fatal to an affidavit to fail to include a basis for the unwitting 

informant’s knowledge. Rather, the proper analysis is a consideration of the totality of the 

circumstances as set out in Gates. See id. at 516; see also United States v. Jordan, 999 F.2d 11, 

14 (1st Cir. 1993) (holding that an unwitting informant’s statements to a confidential informant 
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that he had purchased cocaine in a residence during a controlled purchase constituted probable 

cause to issue a search warrant); Reyes v. Florida, 541 So.2d 772 (Fla. Dist. Ct. App. 1989) 

(holding that probable cause justified the issuance of a search warrant when officers observed an 

unwitting informant disappear into a house to make a controlled buy and return having 

completed the transaction); New Mexico v. Lovato, 868 P.2d 1293 (N.M. 1993) (holding that use 

of an unwitting informant does not trigger a reliability analysis because his actions are not 

“hearsay”); Minnesota v. Valento, 405 N.W.2d 914 (Minn. Ct. App. 1987) (holding that probable 

cause justified the issuance of a search warrant where officers observed a confidential informant 

use an unwitting informant to purchase cocaine). 

Because appellant stipulated to the reliability of the confidential informant, we need only 

address whether the totality of the circumstances surrounding the cocaine purchase provided the 

magistrate with a substantial basis for concluding that probable cause existed. Here, the totality 

of the circumstances provided the magistrate with a substantial basis to conclude that probable 

cause justified the search. “Ordinarily, an informant’s controlled buy may constitute probable 

cause sufficient for a magistrate judge to issue a warrant.” McGuire v. Commonwealth, 31 

Va. App. 584, 596, 525 S.E.2d 43, 49 (2000). The affidavit provided a detailed description of 

the reliable informant who, after giving “buy money” to the unwitting informant, saw him knock 

on the door of the Tara Court residence, walk in with U.S. currency, and return to hand the 

confidential informant cocaine that he had purchased. The reliable informant stated that he had 

taken the unwitting informant to the same address several times with the same result. Appellant 

stipulated that the confidential informant was reliable, and it is his credibility that forms the basis 

for the warrant. The unwitting informant was merely an instrument of the controlled buy. We 

therefore hold that the totality of the circumstances provided the magistrate with a substantial 

basis to find that probable cause justified the search. 
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II. SUFFICIENCY OF THE EVIDENCE 

Appellant next contends that the evidence was insufficient to convict him of possession 

with intent to distribute cocaine. He argues that he should have been believed when he denied 

that he sold drugs, and without such testimony the Commonwealth’s evidence shows mere 

possession. This argument is without merit. 

“When the sufficiency of the evidence is challenged on appeal, we determine whether the 

evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the 

reasonable inferences fairly deducible from that evidence support each and every element of the 

charged offense.” Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 

(1999). “In so doing, we must discard the evidence of the accused in conflict with that of the 

Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and 

all fair inferences that may be drawn therefrom.” Watkins v. Commonwealth, 26 Va. App. 335, 

348, 494 S.E.2d 859, 866 (1998). “Witness credibility, the weight accorded the testimony and 

the inferences to be drawn from proven facts are matters to be determined by the fact finder. The 

trial court’s judgment will not be set aside unless it appears that the judgment is plainly wrong or 

without supporting evidence.” Foster v. Commonwealth, 38 Va. App. 549, 554, 567 S.E.2d 547, 

549 (2002) (internal citations and quotations omitted). 

 Detective Nesbitt testified that when he asked appellant why he was selling cocaine, 

appellant responded, “Times are tough. I’m just trying to support my family.” 

The credibility of a witness and the inferences to be drawn from 

proven facts are matters solely for the fact finder’s determination. 

In its role of judging witness credibility, the fact finder is entitled 

to disbelieve the self-serving testimony of the accused and to 

conclude that the accused is lying to conceal his guilt. 
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Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998) (internal citation 

omitted). The trial judge was not required to believe appellant’s denial that he confessed to 

distributing cocaine. 

 Additionally, the police recovered over two and a half grams of cocaine on appellant’s 

coffee table, and over ten and a half grams of cocaine hidden over a sliding glass door to 

appellant’s apartment, digital scales and packing materials including plastic baggies in the 

kitchen, and $900 in U.S. currency in appellant’s front pocket. See Servis v. Commonwealth, 6 

Va. App. 507, 524, 371 S.E.2d 156, 165 (1988) (circumstantial evidence may be used to indicate 

intent to distribute); McCain v. Commonwealth, 261 Va. 483, 493, 545 S.E.2d 541, 547 (2001) 

(the quantity of the drugs seized, the manner in which they are packaged, and the presence of 

equipment related to drug distribution are indicia of distribution); Hunter v. Commonwealth, 213 

Va. 569, 570, 193 S.E.2d 779, 780 (1973) (proof that quantity possessed exceeds that normally 

intended for personal use, without more, is sufficient to show intent to distribute); Welshman v. 

Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d 122, 130 (1998) (en banc) (possession of a 

quantity greater than that ordinarily possessed for personal use may be sufficient to establish an 

intent to distribute); Gregory v. Commonwealth, 22 Va. App. 100, 110, 468 S.E.2d 117, 122 

(1996) (finding sufficient evidence of intent to distribute based on several baggies containing 3.7 

grams of cocaine). We cannot say that the trial court was plainly wrong in finding this evidence 

sufficient to convict appellant of possession with intent to distribute cocaine. 

 Accordingly, we affirm the judgment of the trial court. 

 Affirmed.