COURT OF APPEALS OF VIRGINIA
Present: Judges Pe tty, Russell and AtLee Argued by teleconference

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION  BY v. Record No . 2006-18-1 JUDGE W ILLIAM G. PETTY APRIL 16, 2019 ALEXANDER RAINES PEYTON

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Gary A. Mills, Judge Liam A. Curry, Assistant Attorn ey General (Mark R. Herring, Attorney General, on briefs), for appellant. Timothy G. Clancy (Lisa A. Mallory; Clancy & Walter, P.L.L.C., on brief), for appellee.

The Commonwealth appeals the tr ial court’s order granting Alexa nder Raines Peyton’s motion to suppress evidence seize d pursuant to a search warrant . The trial court held that the search warrant lacked sufficien t probable cause and declined to apply the good faith exception to the exclusionary rule. For the following reasons, we reverse t he trial court’s suppression of the evidence and remand the case for further proceedings.
BACKGROUND Alexander Raines Peyton was charged with conspiracy to possess with the intent to distribute over half an ounce but not over five pounds of marij uana, in violation of Code § 18.2-248.1, and possession with the i ntent to sell, give, or distribute more than one-half ounce, but less than five pounds of mar ijuana, in violation of Code § 18.2-248.1. The charges were brought as a result of evidence obtained following execution of a search warrant on 370

 Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - Francisco Way, Newport News, Virginia. The affidavit attached to the application for search warrant alleged the following: 1. On August 25, 2017, your affiant al ong with other members o f the investigative team were conducting surveillance on the residence of 370 Francisco W ay, Newport News, VA, 23601. At approximately 1150 hours a passenger vehicle parked in the areaof the residence and a black male was observed sitting inside of t he vehicle without exiting. 2. At approximately 1200 hours, a black male wearing a white t-shirt exited the residence of 370 Francisco Way, Newport News , VA, carrying a small object and ent ered the front passenger doo r of the vehicle that was waiting. 3. The vehicle pulled forward a nd turned around in front of th e residence and the black male i n the passenger seat exited the vehicle and entered 370 Francisco Way, Newport News, VA. The vehicle pulled off and other member s of the investigative team followed the vehicle. 4. The vehicle was stopped on Je fferson Avenue for a traffic violation and a small amount of m arijuana was recovered. The driver of the vehicle immediately admitted to being in possessi on of marijuana and provided detail s that matched up with the observation of your affiant and othe r members of the investigat ive team. The driver stated he had pulled onto Francisco Way and a black male had come out and gotten into his vehicle and sold hi m a quantity of marijuana. The driver stated he let the black male get out of his vehicle and return to t he residence before he left t he area. The statements in this affida vit are based on the totality of t he investigations and not all deta ils of the ongoing investigation s are included in this affidavit. This affidavit was prepared for th e limited purpose of establishing prob able cause to search the residence of 370 Francisco Way, Newport News, VA. Additionally this affidavit is based on my training and experie nce as a police officer, trained narc otics investig ator, and on my law enforcement investigations, debr iefs of narcotics users and dea lers, interviews of witnesses and surveillance of the narcotics enterprise. Additionally it is s tandard practices [sic] among those involve d in the distribution of narcotics to s tore additional narcotics and other associated contraband inside of t heir residence. The statement s in this affidavit are based on tot ality of my training and experie nce as a police officer and on my law enf orcement investigations, debr iefs of narcotics users and dealers, interviews of witnesses and surveillance of the na rcotics enterprise.- 3 - The warrant sought to obtain “[a] ny marijuana, monies, ledgers, packaging materials, bank statements, firearms and any ele ctronic data r ecording devices to include but not limited to cellular telephones thatcan be used to store evidence of narco tics activity, and any other drug related paraphernalia.” Peyton filed a motion to suppress the evidence seized at the 3 70 Francisco Way address, arguing that the affidavit for search warrant did not provide s ufficient probable cause to search the residence. The trial court initially ruled that the affida vit set out sufficient probable cause to support the search warrant and de nied the motion to suppress. After requesti ng additional briefing, however, the trial cou rt reversed its prior ruling an d issued a written opinion granting the motion. This appeal followed.
ANALYSIS When the Commonwealth appeals a tr ial court’s order to suppress evidence, “the evidence must be viewed in the li ght most favorable to the [app ellee].” Commonwealth v. Peterson, 15 Va. App. 486, 487 (1992) . The burden is on the ap pellant “to show that when viewing the evidence in such a manner, the trial court committe d reversible error.” Hairston v. Commonwealth, 67 Va. App. 552, 560 (2017). Any claim of Fourth Amendment violation presents “a mixed question of law and fact that we review de novo on appeal.” Harris v. Commonwealth, 276 Va. 689, 694 (2008). Appe llate courts “are b ound by the trial court’s findings of historical fact unless ‘plainly wrong’ or without e vidence to support them” and “give due weight to the inferences draw n from those facts by residentjudges and local law enforcement officers.” McGee v. Commonwealth, 25 Va. App. 193, 198 (1997) ( en banc ). This Court will, however, “determine independently whether, under th e law, the manner in which the evidence was obtained satisfies constitutional requirements.” McCain v. Commonwealth, 261 Va. 483, 490 (2001). The same de novo standard applies to “the tr ial court’s a pplication of- 4 - defined legal standards such as probable cause and reasonable s uspicion to the particular facts of the case.” Hayes v. Commonwealth, 29 Va. App. 647, 652 (1999). Here, the Commonwealth argues th at the trial court erred by sup pressing the evidence obtained from the search warrant because there was probable cau se to search the residence and, even if there was not probable cause, the trial court should have applied the good faith exception to the exclusionary rule. “The Fourth Amendment of the United States Constitution require s that a search warrant be based upon probable cause.” S owers v. Commonwealth, 49 Va. App. 588, 595 (2007). Generally, “[w]here law enforcem ent officers illegally search p rivate premises or seize property without probable cause . . . the i llegally seized evidence will be excluded from evidence.” Colaw v. Commonwealth, 32 Va. App. 80 6, 810 (2000). The exclusionaryrule, created with the intent of deterring police misconduct, “ operates ‘as a ju dicially crea ted remedy designed to safeguard Fourth Amendment rights genera lly through its deterrent effect, rather than [to protect] a personal constitutional right of the party accused.’” United S tates v. Leon, 468 U.S. 897, 906 (1984) (quoting United State s v. Calandra, 414 U.S. 338, 348 (1 974)). However, because “[t]he deterrent effect of the exclusi onary rule ‘is absent where an o fficer, acting in objective good faith , obtains a search warrant from a magistrate and acts within th e scope of the warrant,’” Janis v. Commonwealth, 22 Va. App. 646, 653 ( emphasis added) (quoting Derr v. Commonwealth, 242 Va. 413, 422 (1991)), aff’d en banc, 23 Va. App. 696 (1996) , evidence seized pursuant to an invalid search warrant “is nevertheless admissible if the offic er executing the warrant reasonably believed that the warrant was valid,” Lanier v. Commonwealth, 1 0 Va. App. 541, 547 (1990) (citing Leon, 468 U.S. at 918-21). “ It is the magistrate’s res ponsibility to determine whether the officer’s allegations establis h probable cause and, if so, to i ssue a warrant comporting in form with the requirements of the Fourth Amendment.” Leon, 468 U.S. at 921. “In the absence of an- 5 - allegation that the magistrate abandoned his detached and neutr al role, suppression is appropriate only if the officers were dishone st or reckless in preparing th eir affidavit or could not have harbored an objectively reasonabl e belief in the existence of p robable cause.” Id. at 926. The Commonwealth makes a compelling argument that the affidavit provided sufficient probable cause to justify the issu ance of the search warrant. We need not address that argument, however, because we can resolve t he case on the narrow ground o f whether the officer’s reliance on the search warrant was reas onable. See Commonwealth v. Whit e, 293 Va. 411, 419 (2017) (“[T]he doctrine of judicial restr aint dictates that we decide cases on the best and narrowest grounds available.” (quoti ng Commonwealth v. Swann, 290 Va. 194 , 196 (2015))). We need only to resolve this question because, where, as here, there is room for debate over whether the affidavit established probable cause, an officer’s “reliance onthe magistrate’s determination of probable cause” is objectively rea sonable and applying “the ext reme sanction of exclusion is inappropriate.” Leon, 468 U.S. at 926. 1

1 The United States Supreme Cour t has approved a reviewing court ’s decision to pass on the Fourth Amendment issue and c onsider only the application of the good faith doctrine. If the resolution of a particul ar Fourth Amendment question is necessary to guide future acti on by law enforcement officers an d magistrates, nothing will preven t reviewing courts from decidin g that question before turning to t he good-faith issue. Indeed, it frequently will be difficult to determine whether the officers acted reasonably without resolving the Fourth Amendment issue. Even if the Fourth Amendment quest ion is not one of broad import, reviewing courts could decide i n particular cases that magistra tes under their supervision need to be informed of their errors and so evaluate the officers’ good faith only after finding a violatio n. In other circumstances, those cour ts could reject suppression moti ons posing no important Fourth Ame ndment questions by turning immediately to a considerati on of the officers’ good faith. We have no reason to believe that our Fourth Amendment jurisprudence would suffer by a llowing reviewing courts to exercise an informed discre tion in making this choice. Leon, 468 U.S. at 925.- 6 - A police officer’s reliance on ajudicially authorized search w arrant is not an absolute bar to a court’s applica tion of the remedy of s uppression; that rel iance must be objectively reasonable. There are four circumstances, how ever, where an officer cannot have an objectively reasonable be lief that probable cause exist s for the search and suppression is an a ppropriate remedy: “(1) Wher e the magistrate was misled by information in the affidavit whichthe affiant knew was false or shoul d have known was false, (2) the issuing magistrate totally aba ndoned his judicial role, (3) the warrant was based on an affidavit ‘so lacking in indicia of pro bable cause’ as to render official beli ef in its existence unreasonab le or (4) where the warrant was so faci ally deficient that an executi ng officer could not reasonably have assumed it was valid.” Lane v. Commonwealth, 51 Va. App. 565, 572 (2008) (quoting Cunn ingham v. Commonwealth, 49 Va. App. 605, 618 (2007)). At the motion to suppress, Peyto n argued that the third exception to the good faith rule applies, contending that the underlying affidavit was so lacking in indicia of probable cause that a reas onable police officer would not ha ve believed that the warrant was valid. “The showing of an ‘objectively re asonable belief’ that probabl e cause existed under the good-faith exception is a signifi cantly lesser st andard than a showing of a ‘substantial basis’ for upholding a magistrate’s determ ination of probable cause.” Ada ms v. Commonwealth, 275 Va. 260, 274 (2008); see also Anzualdav. Commonwealth, 44 Va. App. 764, 781 (2005) ( en banc ) (noting that ‘“no substantial ba sis’ does not automatically equ ate to ‘no indicia of probable cause’”). “In fact, Leon states that the third circums tance[, the one upon which Peyton relies,] prevents a finding of objective good faith only when an officer ’s affidavit is ‘so lacking in indicia of probable cause as to r ender official belief in its e xistence entirely unreasonable.’” Adams, 275 Va. at 274 (quoting Uni ted States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002)). Thus, “as long as there is some indicia of probable cause in the underlying affidavit, we will apply the good faith exception [pr ovided that] a reasonable pol ice officer, after assessing the- 7 - facts set forth in the affidavit , could have believed that the warrant was valid.” Midkiff v. Commonwealth, 54 Va. App. 323, 332 (2009) (quoting Anzualda, 44 Va. App. at 781). “[T]he inquiry must be focuse d on the ‘flagrancy of the police misconduct’ at issue,” Davis [v. United States], 564 U.S. [229, ] 238 [(2011)] (citation omitted), a nd employ the “last resort” remedy of exclusion only when nece ssary “to deter deliberate, reckless, or grossly negligent c onduct, or in some circumstance s recurring or systemic negligen ce,” Herring [v. United States], 555 U.S. [135,] 140, 144 [(2009)] (c itation omitted). Collins v. Commonwealth, ___ Va. ___, ___ (Mar. 28, 2019). See Colaw, 32 Va. App. at 813 (“A police officer could not reas onably have belie ved that the warrant was properly issued when it was based on a ‘bare bones’ a ffidavit that contained only co nclusory assertions by a third-party informant about a future event without supporting facts to cons titute probable cause.”); see also United States v. Weaver , 99 F.3d 1372, 1378 (6th Cir. 1996) (“A n affidavit that states suspicions, beliefs, or conclusi ons, without providing some und erlying factual circumstances regarding veracity, r eliability, and basis of knowledge, is a ‘ bare bones’ affidavit.”). The affidavit in this case had s ome indicia of probable cause. The underlying affidavit was not a “bare-bones” affidav it that merely set forth concluso ry allegations with no recitation of the facts supporting those conc lusions. Rather, the underlying affidavit described with particularity the items sought , the place to be searched, and t he transaction that led the police to believe that the items sought would have been found at the plac e to be searched. See Atkins v. Commonwealth, 9 Va. App. 462, 464 (1990) ( holding that warrant was not based on a “bare bones” affidavit because it “cont ained a detailed description o f the nature of the offense, the premises to be searched, the items for which they were searchin g, and the transaction which led the informant to believe that th e drugs would be in this apartm ent”). Here, it is hard to fathom why a police officer would immedia tely recognize the affidavit to be utterly lacking in a factual- 8 - predicate of probable cause whe n the trial court initially rule d that the facts contained in the affidavit were sufficient to s upport a legal fi nding of probabl e cause. Peyton asserted that there were no facts to suggest the residen ce had been used in criminal activity “other than [ the seller] exited it prior to the marijuana sale and returned to it after the isolated sale.” B y this admission, Peyton conceded t hat the affidavit contained, at the very least, some facts to connect evidence of illegal drug distribution to the residence. Because the affidavit contained “some i ndicia of probable cause,” a rea sonable officer could have believed that the warrant was va lid; and the circuit court erre d when it failed to apply the good faith exception to the exclusion ary rule. Anzualda, 44 Va. App . at 781. “In the ordinary case, an officer cannot be expected to ques tion the magistrate’s probabl e cause determination or his judgment that the form of the wa rrant is technically sufficient .” Tart v. Commonwealth, 17 Va. App. 384, 390 (1993) (quoti ng Leon, 468 U.S. at 921). The affidavit in this case is si milar to the affidavit analyzed in Sowers v. Commonwealth. In Sowers, this Court affirme d the trial court’ s application of the good faith exception for a search warrant for Sow ers’s residence wher e police initiated a traffic stop on Sowers and found evidence of drug distribution i n his possession. Sowers, 49 Va . App. at 592-93. Sowers told the officer that he had just left hi s residence and had used mariju ana at his residence in the past. Id. at 593. The affiant also indicate d that it was his experience that “narcotics and the paraphernalia [a]ssociated with the use of [n]arcotics ar e often hidden insid e the user’s residence for safe keeping.” Id. This Court held that it was not a bare bones affidavit because it “indicat[ed] Sowers possessed cocaine, had a large sum of money, and denied he was a user of cocaine. Our cases indicate these facts could support inferences about his intent. ” Id. at 603. Additionally, there

were some facts to support the inference that Sowers was selling drugs—“[ t]he affidavit- 9 - described the items sought and the place to be searched. Under these circumstances, a reasonable police officer could ha ve believed the warrant was v alid.” Id. at 604. Consideration of this Court’s decision in Janis v. Commonwealth is also persuasive. In Janis, this Court reversed Jan is’s convictions, holding that th e trial court erred in applying the good faith exception to the exc lusionary rule. Janis, 22 Va. A pp. at 648. This Court held that it was error to apply the good fait h exception where the underlyin g affidavit stated that Janis was seen entering and leav ing a trail that led to and from a plot o f marijuana plants. Id. at 649-50. Based on those facts, the affiant sought to search Janis’s addr ess without stating in the affidavit, however, what nexus that addr ess had to Janis. Id. at 653. Be cause the officer “might just as easily have supplied the magistra te with an address belonging t o an unrelated third party,” we concluded that “[t]he affidav it gave absolutely no indication t hat the fruits of criminal activity would probably be found at that loc ation, rendering [the office r’s] belief in probable cause, based solely on the affidavit, object ively unreasonable.” Id. This Court did not hold, however, that the failure to establish a sufficie nt nexus between the item sought and the premises to be searched automatically precluded applica tion of the good faith exception . Rather, we held that, where the underlying affidavit failed to provide any connection whatsoever between the alleged criminal activity and the premises to be s earched, that affidavit was so lacking in indici a of probable cause that a reasonable police officer could not have harbored an objectively reasonable belief as to the validity of t he warrant. Id. Janis, therefore, is factually d istinguishable from the present case. Unlike the affidavit in Janis, which contained no infor mation connecting the criminal a ctivity to the premises to be searched, the affidavit here did establish a nexus between ille gal drug activity and the premises to be searched. Specifically, the affidavit at issue in this c ase stated that Peyton left the premises to be searched while in possession o f marijuana. Then after co nducting an illegal drug- 10 - transaction, Peyton immediately r eturned to the premises. The affidavit also indicated that it is standard practice for those involved in the di stribution of ill egal drugs to store additional illegal substances and other associated c ontraband inside their residen ce. Furthermore, the officers sought and obtained the warrant l ess than two hours from when t hey witnessed the drug transaction outside the address . Unlike in Janis, the affidavi t in this case stated a sufficient nexus between the items sought and the pr emises to be searched to app ly the good faith exception to the exclusionary rule. See also Anzualda, 44 Va. App. at 784 ( affirming in plurality opinion application of good faith exception despite affiant’s failure t o state a time frame for when Anzualda received item to be sought at his premises because aff idavit was not bare bones and provided at least a slight nexus between item sought and premis es to be searched).
CONCLUSION Because we hold that there was a sufficient nexus between the illegal activity and the place to be searched to apply the good faith exception to the e xclusionary rule, the trial court erred in concluding otherwise. A ccordingly, we re verse the tri al court’s suppression of the evidence and remand the case for further proceedings. Reversed and remanded.