COURT OF APPEALS OF VIRGINIA
Present: Judges Petty , Beales and AtLee Argued at Richmond, Virginia

LAMAR SHELTON BROWN OPINION BY v. Record No . 0184-17-2 JUDGE RANDOLPH A. BEALES MARCH 20, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ALBEMARLE COUNTY Cheryl V. Higgins, Judge David Lassiter, Jr. for appellant. Lauren C. Campbell, Assistant A ttorney General (Mark R. Herri ng, Attorney General, on brief), for appellee.
On May 17, 2016, the circuit court convicted Lamar Shelton Bro wn (“appellant”) of possession of cocaine with intent to distribute in violation of Code § 18.2-248. On appeal, appellant claims that the ci rcuit court erred by not granting h is motion to suppress evidence that was found during a s earch of his home. 1 Appellant argues that the pol ice lacked probable cause to search his home because “Detec tive McKay’s affidavit failed to provide a nexus between the items sought . . . and Mr. Brown’s residence.” Appellant also argues that the cir cuit court erred by upholding the search warrant t hrough the good-faith exceptio n to the exclusi onary rule. For

1 Appellant’s single assignment of error challenges the circuit court’s denial of his motion to suppress and the sufficienc y of the evidence in support of h is conviction. Appellant’s brief, however, does not provide a standa rd of review or any legal arg ument on the question of the sufficiency of the evidence. Consequently, appellant’s claim t hat the evidence was insufficient to convict him under Code § 18.2-248 i s barred under Rule 5A:20 . See Rule 5A:20; see also Bartley v. Commonwealth, 67 Va. App. 740, 800 S.E.2d 199 (2017) (procedurally defaulting appellant’s assignment of erro r based upon appellant’s failure to comply with Rule 5A:20(e)). Therefore, in this opinion, we onl y address appellant’s challen ge to the denial of his motion to suppress.PUBLISHED- 2 - the reasons that follow, we find t hat the circuit court did not err in denying appellant’s motion to suppress, and we affirm a ppellant’s conviction.
I. B ACKGROUND On November 10, 2015, Officer Jon Mc Kay of the Jefferson Area Drug Enforcement (JADE) Task Force, an officer withmore than twenty-five years of law enforcement experience (fourteen of those years being w ith JADE), prepared a sworn aff idavit to obtain a search warrant for appellant’s home. 2 The magistrate issued the s earch warrant, and during the sear ch of the home, police found two vacuum-seale d bags that contained a tota l of 394.55 grams of cocaine along with $4,551 in U.S. currency. The affidavit stated that, on the same day Officer McKay obtai ned the search warrant for appellant’s home, appellant was arrested for attempting to purc hase more than five pounds of marijuana. At the time of his arrest, appellant had more than $5,000 in U.S. currency on his person. Officer Mark Frazier informed McKay that “a firearm wa s also recovered during [appellant’s] arrest.” When he was arrested, appellant was the occupant of a GMC Envoy that was registered to his wife, who lived with appellant in the hom e. Officer McKay’s affidavit also stated that Officer Frazier ha d routinely observed the GMC Envo y parked outside of appellant’s home along with other vehicles associated with appellant. 3

2 Regarding Officer McKay’s tra ining and experience, the affidav it stated, “Your affiant has made over 200 drug related a rrests and has conducted over 2 00 drug related inv estigations. Your affiant has received speci alized training related to drug enforcement from the Virginia Department of Criminal Justice , Commonwealth’s Attorney Service s Council and the U.S. Drug Enforcement Administration.”

3 Officer McKay’s affidavit stated that appellant is the registe red agent of a food truck business and that appellant lis ted his home’s address on docume nts that were filed with the State Corporation Commission. Also, O fficer Frazier routinely observ ed the food truck parked outside of appellant’s home.- 3 - The affidavit stated, “You[r] a ffiant [Officer McKay] believes that Lamar S. Brown’s residence . . . is a base of opera tion for his illegal activiti es involving the distribution of marijuana and other illegal drugs.” The affidavit also stated that on November 4, 2015, less than one week before appellant’s arre st, “Mr. Brown reported an assault and attempted robbery at his residence.” 4 McKay’s affidavit elaborated t hat “subjects involved in the d istribution of illegal drugs often accumulate large amounts of cash proceeds derived f rom those drug sales and are frequently the targets of robberi es. Your affiant believes tha t Lamar Brown was the target of such a robbery at his resi dence on [November 4, 2015].” 5 Officer McKay’s affidavit also s tated that a confidential info rmant identified as “Source A” informed the police that he or she “has observed Lamar Brown in possession of multiple pounds of marijuana and large amo unts of U.S. Currency on more than 10 occasions in the last 45 days.” Regarding the reliabi lity of Source A, the affidavit stated, “Source A is known to your affiant and has provided informa tion that has directly led to t he seizure of money derived from the sale of illegal drugs.” S ource A also provided the police with information that “directly led to the arrest of a subject invol ved in the distribution of ille gal drugs,” and Source A had also provided information “that was aga inst [the source ’s] penal int erest.”

4 During oral argument, appellant ’s counsel argued that the Nove mber 4, 2015 assault and attempted robbery did not occu r at appellant’s residence, a s the affidavit indicated, and that this fact did not est ablish a nexus with appellant’s residence. Rather, appellant’s counsel argued that the assault and attempted r obbery occurred at appellant’s food truck, which was parked near the residence. Contrary to counsel ’s statements at oral argume nt, appellant’s opening brief stated, “Detective McKay attempt ed to use the fact that Mr. Bro wn was the victim of a crime – a reported assault and attempted robbery at his residence on November 4, 2015 – to establish probable cause for a search wa rrant.” (Emphasis added). In de ciding this appeal, we need not resolve the apparent inconsisten cies between these statements b ecause our review of the motion to suppress must be based upon the f acts that were presented inthe search warrant’s affidavit. See Adams v. Commonwealth, 275 Va. 260, 270, 657 S.E.2d 87, 93 (2008).

5 McKay’s affidavit also referen ced another event that well prec eded appellant’s arrest. Specifically, back in Septemb er 2012, a bank teller reported to law enforcement that appellant deposited currency at a local c redit union that “smelled strong ly of marijuana.”- 4 - Following a hearing on appellant’s motion to suppress, the tri al judge found that, “in this case while it is alleged that M r. Brown was buying marijuana, t he Court finds it - -- it was of such an amount that there is a reasonable inference that it was for the purpose of distributing in the future.” In stating her decision, the trial judge also conside red facts related to the 2012 credit union incident and the fact that an informant, who was known to law enforcement, was “providing law enforcement info rmation on what has happened in the past forty-five (45) days” regarding appellant’s activitie s. The trial judge concluded th at “when you put all of those factors together that there is indic ia of probable cause underlying the search warrant so that . . . the good faith exception is applied.” 6 Consequently, the circuit cour t denied appellant’s motion to
suppress.

6 The circuit court denied appell ant’s motion to suppress withou t addressing the question of probable cause; rath er, the circuit court upheld the search warrant under the good faith exception established in United States v. Leon, 468 U.S. 897 (1 984). In Leon, the United States Supreme Court limited the appli cation of the exclusionary rule to “a case-by-case basis and only in those unusual cases in which exclusion will further the purp oses of the exclusionary rule,” 468 U.S. at 918, namely, where police misconduct would be deterred by the rule’s application. The exclusionary rule should not be applied where police conduct wa s objectively reasonable and the officer executing a search wa rrant relied in good faith on the magistrate’s or judge’s probable cause determination. Id. at 922-23. However, despite a search ing officer’s objectively reasonable reliance on a searc h warrant, the good faith excepti on is not available in the following circumstances: (1) [W]here the magistrate was misled by information in the affidavit which the affiant knew was false or should have known was false, (2) the issuing magi strate totally abandoned his jud icial role, (3) the warrant was base d on an affidavit “so lacking in indicia of probable cause” as to render official belief in its existence unreasonable or (4) w here the warrant was so facially deficient that an executing o fficer could not reasonably have assumed it was valid. Atkins v. Commonwealth, 9 Va. App. 462, 464, 389 S.E.2d 179, 18 0 (1990) (quoting Leon, 468 U.S. at 923). See also McCary v. Commonwealth, 228 Va. 219, 23 2, 321 S.E.2d 637, 644 (1984) (adopting Leon’s good faith e xception in the Commonwealt h).- 5 - II. ANALYSIS A. Standard of Review A defendant’s claim that eviden ce was seized in violation of t he Fourth Amendment presents a mixed question of l aw and fact to an appellate court . Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d 836, 838 (2002). When reviewing a den ial of a motion to suppress evidence, an appellate court considers the evidence in the ligh t most favorable to the Commonwealth as the party that p revailed in the t rial court, an d the appellate court accords the Commonwealth the benefit of all re asonable inferences fairly de ducible from that evidence. Gregory v. Commonwealth, 64 Va. App. 87, 93, 764 S.E.2d 732, 73 5 (2014). “In addition, ‘the defendant has the burden of showi ng that even when the evidence is reviewed in that light, denying the motion to suppress was reversible error.’” Id. (qu oting Branham v. Commonwealth, 283 Va. 273, 279, 720 S.E.2d 74, 77 (2012)); see also Lebedun v . Commonwealth, 27 Va. App. 697, 711, 501 S.E.2d 427, 434 (1998) (“[W]here the police condu ct a search pursuant to a judicially sanctioned warrant, th e defendant must rebut the pre sumption of validity by proving that the warrant is illegal or invalid.”). Appe llate courts ar e bound by the trial court’s factual findings “unless those findings a re ‘plainly wrong or unsupport ed by the evidence.’” Ward v. Commonwealth, 273 Va. 211, 218, 639 S.E.2d 269, 272 (2007) (quo ting Pyramid Dev., L.L.C. v. D & J Assocs., 262 Va. 750, 753, 553 S.E.2d 725, 727 (2001)). “However, the trial court’s application of the law is reviewed de novo .” Id.- 6 - B. Probable Cause 7 When reviewing a question of probable cause, appellate courts consider “only those sworn, written facts stated in the search warrant affidavit” as well as “information simultaneously presented to a mag istrate by sworn oral testimon y” or in “supplemental affidavits.” Adams v. Commonwealth, 275 Va. 260, 270, 657 S.E. 2d 87, 93 (2008). “In determining whether the affida vits are sufficient to support th e search warrant, [appellate courts] must look to the totality of the circumstances.” Derr v. Commo nwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666 (1991) (citing Illinois v. Gates, 462 U.S. 213, 230-31 (1983)). Viewing an affidavit’s facts in their tot ality, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision w hether, given all the circums tances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U .S. at 238; see Hicks v. Common wealth, 281 Va. 353, 359, 706 S.E.2d 339, 342 (2011). The magistrate must base his determina tion of probable cause “upon objective facts and reasonable in ferences drawn therefrom.” Gw inn v. Commonwealth, 16 Va. App. 972, 975, 434 S.E.2d 901, 903 (1993). “And the duty o f a reviewing court is simply to ensure that the magistrate ha d a ‘substantial basis for . . . [ concluding]’ that probable cause existed.” Gates, 462 U.S. at 238-39 (alterations in original) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).

7 In deciding the matter before us, w e address the Fourth Amendm ent question of whether the search warrant and i ts affidavit established probab le cause to search appellant’s residence. See Leon, 468 U.S. at 925 (“If the resolution of a particular Fourth Amendment question is necessary to guide f uture action by law enforcement officers and magistrates, nothing will prevent reviewi ng courts from decidi ng that question befor e turning to the good-faith issue.”); see also Anzuald a v. Commonwealth, 44 Va. App. 764, 7 74 n.3, 607 S.E.2d 749, 754 n.3 (2005) ( en banc ) (“[C]ourts both within this Co mmonwealth and elsewhere will f requently bypass the issue of probable cause and proceed directly to the question of whether the good faith exception applies. However, we also believe that consistently sidestepping the issue of probable cause in favor of applying the good faith exception will inevit ably permit the exception to swallow the rule.”).- 7 - In Gwinn v. Commonwealth, we state d, “A magistrate is entitled to draw reasonable inferences about where incrimi nating evidence is likely to be f ound, based on the nature of the evidence and the type of offense.” 16 Va. App. at 975, 434 S.E .2d at 904. 8 One such reasonable inference is that “[i]n the cas e of drug dealers, evidence of t hat on-going criminal activity [drug dealing] is likely to be found w here the dealer resides.” Id. at 976, 434 S.E.2d at 904. This Court in Gwinn also stated that an affidavit does not need to c onclusively show that the evidence sought by law enforcement will be found in the location to be s earched. We said: The magistrate need not determin e that the evidence sought is, in fact, on the premises to be searched or that the evidence is mo re likely than not to be found where t he search is to take place. The magistrate need only conclude tha t it would be reasonable to se ek the evidence in the place indicated in the affidavit. Id. at 975, 434 S.E.2d at 903 (internal citations omitted); see also Derr, 242 Va. at 421, 410 S.E.2d at 666 (stating that the Uni ted States Supreme Court in Illinois v. Gates rejected “hypertechnical, rigid, and legal istic analysis of probable cau se determinations”). Thus, this Court has established that a ma gistrate can reasonably infer, b ased upon facts indicative of the distribution of illegal drugs, t hat evidence of such drug deali ng may be found in a defendant’s home. See Gwinn, 16 Va. App. at 976, 434 S.E.2d at 904.

8 Like this Court’s decision in Gwinn, federal appellate courts and other state appellate courts have upheld search warrant s where a magistrate made reas onable inferences about where incriminating evidence may be found, based upon the nature of t he evidence and the type of offense. See, e.g., United States v. Angulo-Lopez, 791 F.2d 13 94, 1399 (9th Cir. 1986) (“In the case of drug dealers, evidence is likely to be found where the dealers live.”); see also United States v. Anderson, 851 F.2d 727, 729 ( 4th Cir. 1988) (“It was reasonable for the magistrate to believe that the defendant’s gun a nd the silencer would be foun d in his residence. Therefore, even though the affidavit contained no facts that the weapons were lo cated in defendant’s trailer , we reject his argument that the w arrant was defective.” (emphas is added)), cert. denied, 488 U.S. 1031 (1989); State v. Yarbrough, 841 N.W.2d 619, 624 (Minn. 201 4) (holding that the affidavit established a nexus between t he gun and drugs found in the resi dence because the defendant was a “drug wholesaler” who made t hreats with a gun and fled in the direction of the residence in a vehicle that was parked at and r egistered to the residence).- 8 - C. McKay’s Affidavit Provided a S ubstantial Basis for Probable Cause Viewing the facts in the light m ost favorable to the Commonwea lth, as we must because the Commonwealth prevailed in the trial court, the facts allege d in the affidavit support the reasonable inference that appe llant was engaged in the ongoing distribution of illegal drugs. Applying the law to these facts, t he magistrate here had a subs tantial basis to find probable cause existed to issue a search warra nt for appellant’s home. See Gw inn, 16 Va. App. at 975-76, 434 S.E.2d at 904. Officer McKay – who has inves tigated more than 200 drug cases and has received a great deal of specialized training i n drug enforcement – stated in hi s affidavit that appellant was arrested while attempting to purchase more than five pounds of marijuana. A magistrate could reasonably infer that such an a mount was inconsistent with pers onal use, and, in fact, the trial judge explicitly found that such an inference was reasonable. Also, appellant was in possession of more than $5,000 in U.S. currency at the time of his arrest, and law enforcement personnel also recovered a firearm duri ng the arrest. See Logan v. Commo nwealth, 19 Va. App. 437, 445, 452 S.E.2d 364, 369 (1994) ( en banc ) (“The relationship between t he distribution of controlled substances . . . and the possessi on and use of dangerous weapon s is now well recognized.”). The affidavit also establish ed that, in 2012, appellant had de posited at a credit union currency that “smelled strongly of marijuana.” See Pierceall v . Commonwealth, 218 Va. 1016, 1021, 243 S.E.2d 222, 225 (1978) (“[C]ircumstances occurring su bstantially before the issuance of a search warrant can justify t he issuance of the warrant onl y if such past circumstances disclose ‘a probable cause’ of c ontinuous nature so as to suppo rt a rational conclusion that the past probable cause is still opera tive at the time of the issua nce of the warrant.” (citing Sgro v. United States, 287 U.S. 206, 210-11 (1932))). Furthermore, app ellant was the target of an attempted robbery at his home only six days before his arrest, and Officer McKay indicated that- 9 - drug dealers’ homes are frequently the targets of robberies bec ause of the possibility that they contain substantial amounts of cash and drugs. See Gates, 462 U.S. at 231-32 (describing the probable cause standard as not de aling with “hard certainties, but with probabil ities . . . . [T]he evidence thus collected must be seen and weighed not in terms o f library analysis by scholars, but as understood by those versed in the field of law enforcement .” (emphasis added) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981))). Perhaps m ost significant, the affidavit stated that Source A – a confiden tial informant with establishe d reliability – who was known by Officer McKay, informed police th at he or she had observed appe llant with “multiple pounds of marijuana and large amounts of U.S. Currency on more than 10 oc casions” in the forty-five days that preceded appellant’s a rrest. See Byrd v. Commonwealth, 57 Va. App. 589, 600, 704 S.E.2d 597, 602 (2011) ( en banc ) (explaining that an informant’s reliability is sufficiently e stablished by providing accurate informa tion on prior occasions). In his brief, appellant argues that the “warrant was not suppo rted by probable cause” because McKay’s affidavit did not establish a nexus between the items seized and appellant’s home. Appellant argues that McK ay’s affidavit failed to provid e “ direct evidence linking any alleged drug activity or distri bution” to the home. (Emphasis added). Appellant’s brief also stated, “Detective McKay di d not, and could not, show that Sour ce A saw Mr. Brown at any point with such cash or drugs at his residence.” Effectively, appellant’s brief argues that Officer McKay was r equired to meet a legal standard greater than probable cause to obtain a searc h warrant for the home. To th e contrary, Officer McKay was not required to definitively prove that evide nce would be found in the home. See State v. Yarbrough, 841 N.W.2d 619, 622 (Minn. 2014) (“[D]i rect observation of evidence of a crime at the place to be searched is not required.”); see also Gates, 462 U.S. at 246 (“[P]robable cause does not demand the certainty we associate w ith formal trials.”). Rather,- 10 - McKay’s affidavit only needed t o state objective facts that wou ld enable a magistrate to find that a “fair probability” existed t hat evidence of drug distributionwould be found in the home. Gates, 462 U.S. at 238. We find tha t Officer McKay’s affidavit was sufficient to meet this standard and that the issuing mag istrate had a substantial basi s to conclude that probable cause existed to search appellant’s home.
III. C ONCLUSION In summary, taking all of the obj ective facts in the affidavit and viewing them in their totality – each mounting upon the other – the reviewing magistr ate could reasonably infer that appellant was engaged in the distribution of illegal drugs. Co nsequently, there was a reasonable probability that evidence of that crime could be found in appel lant’s home. Therefore, we find that there was a substantial basi s for the magistrate to conclu de that probable cause existed that criminal activity was occurring s o as to justify issuing the se arch warrant for appellant’s home. Furthermore, having found that prob able cause existed under the Fourth Amendment to issue the search warrant, we need not a ddress the good faith exception un der Leon because that exception to the exclusionary rule is not required, of course, where prob able cause of criminal activity actually exists. Therefore, we c onclude, albeit for a differen t reason, that the ci rcuit court did not err in denying appellant’s mo tion to suppress. Consequently, f or these reasons, we affirm appellant’s conviction. Affirmed.