COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Overton 

Argued at Norfolk, Virginia 

ANTONIO PEREZ 

 OPINION 

v. Record No. 1235-96-1 BY JUDGE JOSEPH E. BAKER 

 JULY 1, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

John E. Clarkson, Judge 

 Douglas Fredericks for appellant. 

 Steven A. Witmer, Assistant Attorney General 

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

brief), for appellee. 

 Antonio Perez (appellant) appeals from his bench trial 

convictions by the Circuit Court of the City of Norfolk (trial 

court) for possession of cocaine with intent to distribute and 

possession of a firearm while in possession of cocaine with 

intent to distribute. At trial, appellant pled guilty to the 

charges. However, he reserved the right to appeal to this Court 

on the sole issue of whether the trial court erred in refusing to 

suppress evidence1

 found in appellant's apartment following a 

search conducted pursuant to a search warrant issued eleven days 

after the police first acquired probable cause to make the 

search. 

 Appellant contends that the search warrant was issued in 

 

 1Appellant possessed 7.6 grams of cocaine, packaging materials, 

digital scales, a pistol, a rifle, a pager, a police scanner, and 

several dogs, including a Pit Bull, a Rottweiler, a Chow and three 

puppies. 
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violation of his rights granted by the Fourth Amendment to the 

Constitution of the United States because it was based upon stale 

information (eleven days old).2

 See United States v. McCall, 740 

F.2d 1331 (4th Cir. 1984) (evidence seized pursuant to a warrant 

supported by "stale" probable cause is not admissible in a 

criminal trial to establish the defendant's guilt). We must 

decide whether the facts alleged in the warrant furnished 

probable cause to believe that criminal activity existed at 

appellant's residence when the magistrate issued the warrant. 

Viewing the totality of the evidence presented to the trial 

court, we find no error in the trial court's refusal to suppress 

the evidence. 

 On appeal from a magistrate's probable cause determination, 

the standard of review is "whether, considering the totality of 

the circumstances, the magistrate had a substantial basis for 

concluding that probable cause existed." Williams v. 

Commonwealth, 4 Va. App. 53, 68, 354 S.E.2d 79, 87 (1987). The 

record discloses that on December 9, 1994, Norfolk Police 

Officers Hoggard and Alvarez were at the Chesapeake Manor 

apartment complex attempting to serve John Zavala with an 

 

 2In his petition for appeal, appellant raised only this issue. 

 This Court granted review solely on this issue. In his brief, 

however, appellant raises three additional issues. Rule 5A:12(c) 

provides that "[o]nly questions presented in the petition for 

appeal will be noticed by the Court of Appeals." See Cruz v. 

Commonwealth, 12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1 

(1991). We did not grant appellant an appeal on the additional 

issues raised in his brief and will not address them. 
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outstanding capias when Zavala broke away from them. Zavala ran 

to apartment A at 868 Denison Avenue. Zavala opened the 

apartment screen door and coaxed a Pit Bull housed inside the 

apartment to attack the officers. The officers repelled the Pit 

Bull attack until an unknown person called the Pit Bull away from 

them. The officers also observed a Rottweiler and a Chow inside 

the apartment. 

 Hoggard reported the incident to Humane Officer Kumpf of the 

Animal Control Bureau, who removed and impounded the Pit Bull, 

Rottweiler, and Chow on the same day. Kumpf impounded the three 

dogs because they had no defined owner. While at the apartment, 

Kumpf observed five puppies confined in a closet. The puppies 

were standing in their own feces with no food or water. However, 

Kumpf did not impound the puppies. 

 On December 10, 1994, appellant appeared at the S.P.C.A. 

where the dogs were confined, acknowledged ownership of the dogs, 

and provided proof thereof. Kumpf permitted appellant to take 

the dogs with him. On either December 12 or 13, Kumpf advised 

Hoggard that he had released the dogs because without an 

outstanding arrest warrant charging appellant with a dog-related 

offense, Kumpf was not authorized to retain them. 

 On December 15, 1994, Hoggard procured an arrest warrant 

that charged appellant with permitting a vicious dog to run at 

large. Hoggard did not obtain the arrest warrant until December 

15 because he was handling other cases or had days off during the 
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period between December 10 and December 15. Hoggard testified 

that his "command doesn't approve of us coming in on days off to 

execute a misdemeanor warrant." On December 17, Hoggard and 

Kumpf discussed the viciousness of the Pit Bull and the arrest 

warrant Hoggard had obtained. Kumpf informed Hoggard that he 

would obtain a search warrant for the premises where the vicious 

Pit Bull was housed. 

 Kumpf swore out an affidavit to obtain the search warrant 

which alleged "[m]aintaining a vicious dog" and "[f]ailure to 

perform the duties of dog ownership." It contained the following 

statement as probable cause for its issuance: 

 On 12/9/94, Inv. G.S. Hoggard was 

attempting to arrest an individual in the 800 

block of Denison Avenue Norfolk Virginia. 

The subject attempted to enter 868 #A Denison 

Avenue where the subject incited a pitbull 

[sic] inside the dwelling to attack the 

officer. The dog was restrained by another 

subject inside the dwelling. The incident 

accured [sic] at 2:15 PM 12/9/94. At 4:15, 

your affiant, Humane Officer II M.T. Kumpf, 

went to the residence at 868 #A Denison 

Avenue Norfolk Virginia 23513 to determine if 

the dog in question was licensed and 

vaccinated against rabies. A total of eight 

dogs were inside the residence at 868 #A 

Denison Avenue. A pitbull [sic], Chow, and a 

Rottweiler mix were free roaming inside the 

residence and charged at the screendoor [sic] 

attempting to attack this officer. The 

custodian of the dogs identified the owner as 

Anotonio [sic] Perez. After being given 

consent to inspect the residence, the 

remaining five dogs were observed contained 

in a closet space. The dogs appeared to be 

approximately 8-9 week old pitbull [sic] 

puppies. No food or water was evident. The 

floor of the closet had numerous piles of 

feces which the puppies were standing in. In 

this officer's experience, these conditions 
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and breeds of dogs are commonly used for 

fighting and training to fight. 

 On 12/15/94, Inv. G.S. Hoggard secured a 

viciousdog [sic] warrant for Antonio Perez. 

(attached). 

Based upon the evidence presented, the trial court refused to 

suppress the evidence obtained as a result of the search. 

United States v. McCall, 740 F.2d 1331 (4th Cir. 1984), 

cited by appellant, supports the judgment of the trial court. In 

McCall, a seven- to eight-month delay occurred between the 

observance of facts constituting a basis for determining probable 

cause to obtain the search warrant and the time the search 

warrant affidavit was executed. Id. at 1334. In holding that 

the facts supporting the search warrant were not so "stale" as to 

present an impropriety rising to the level of a Fourth Amendment 

violation, the Court said: 

 Cases in which staleness becomes an issue 

arise in two different contexts. First, the 

facts alleged in the warrant may have been 

sufficient to establish probable cause when 

the warrant was issued, but the government's 

delay in executing the warrant possibly 

tainted the search. (Citations omitted). 

 Second, the warrant itself may be suspect because 

the information on which it rested was arguably 

too old to furnish "present" probable cause. 

(Citations omitted.) A reviewing court's task in 

each category of cases is slightly different. In 

testing a warrant in the first category, it must 

decide whether a valid warrant became invalid due 

to the lapse of time; when considering those in 

the second category, it must determine whether 

information sufficient to constitute probable 

cause was ever presented. The court's fundamental 

concern, however, is always the same: did the 

facts alleged in the warrant furnish probable 

cause to believe, at the time the search was 

actually conducted, that evidence of criminal 
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activity was located at the premises searched? 

 This question is not resolved by reference 

to pat formulas or simple rules. "[T]he 

vitality of probable cause cannot be 

quantified by simply counting the number of 

days between the occurrence of the facts 

supplied and the issuance of the affidavit." 

United States v. Johnson, 461 F.2d 285, 287 

(10th Cir. 1972). Rather, we must look to 

all the facts and circumstances of the case, 

including the nature of the unlawful activity 

alleged, the length of the activity, and the 

nature of the property to be seized. Id.

Id. at 1336. 

 In the case before us, appellant's sole contention is that 

the eleven days that passed between the initial sighting of the 

vicious dog and the procurement of the warrant per se requires 

this Court to declare the search warrant invalid. Appellant 

asserts that the evidence presented to the magistrate was "too 

stale" to furnish probable cause to believe the criminal 

activities of maintaining or allowing a vicious dog to run at 

large and failure to perform the duties of dog ownership still 

existed when the warrant was issued. We disagree. Nothing in 

the nature of the activity or the property to be seized suggests 

that the mere passage of eleven days dissipated the probable 

cause which existed on December 9. The facts contained in 

Kumpf's affidavit provided a substantial basis for the magistrate 

to conclude on December 20, 1994, that probable cause existed to 

search the 868 #A Denison Avenue apartment. 

 Upon consideration of all the facts and circumstances, we 

find that the magistrate's issuance of the search warrant was 
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supported by probable cause. Accordingly, the judgment of the 

trial court in refusing to suppress the evidence discovered 

pursuant to the authority of the search warrant is affirmed. 

 Affirmed.