COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner 

Argued at Salem, Virginia 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 2267-98-3 JUDGE JERE M. H. WILLIS, JR. 

 APRIL 2, 1999 

DANIEL CURTIS OVERSTREET 

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY 

Kenneth E. Trabue, Judge Designate 

 Eugene Murphy, Assistant Attorney General 

(Mark L. Earley, Attorney General, on 

briefs), for appellant. 

 B. Leigh Drewry, Jr., for appellee. 

 Daniel Curtis Overstreet was indicted for possession of 

cocaine, in violation of Code § 18.2-250, and for possession of 

marijuana, in violation of Code § 18.2-250.1. Appellee filed a 

pretrial motion to suppress evidence of the drugs, contending 

that they were discovered as a result of an unlawful search of 

his person. The trial court granted the motion, and the 

Commonwealth appealed pursuant to Code § 19.2-398(2). For the 

following reasons, we reverse the trial court's decision and 

remand for further proceedings. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
I. 

 In reviewing a trial court's ruling on a suppression 

motion, we consider the evidence in the light most favorable to 

the prevailing party below, and the decision will not be 

disturbed unless it is plainly wrong or without evidence to 

support it. See Lee v. Commonwealth, 18 Va. App. 235, 238, 443 

S.E.2d 180, 181 (1994); Commonwealth v. Grimstead, 12 Va. App. 

1066, 1067, 407 S.E.2d 47, 48 (1991). So viewed, the evidence 

established that on February 18, 1998, Investigator L.T. Guthrie 

of the Campbell County Sheriff's Office arrested Overstreet 

pursuant to a capias from Bedford County. In a search incident 

to arrest, Guthrie found marijuana and cocaine on Overstreet's 

person. 

 At the time of arrest, Guthrie served the arrest process, 

consisting of the capias, and an attached indictment. Although 

Overstreet's name was on the capias, the defendant named in the 

attached indictment was "Curtis Nichols." Guthrie testified 

that he did not read the indictment before serving the capias. 

 At the conclusion of the suppression hearing, the trial 

court granted Overstreet's motion. The trial court ruled as 

follows: 

 I agree with the defendant. It's an 

invalid arrest. I don't think the 

officer did it in bad faith, but the 

. . . inconsistency . . . is on the 

face of the . . . documents, and that 

is it's obvious from reading the capias 

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 that the . . . person named in the 

capias is not the same person that's 

named in the indictment. And, 

therefore, it's an invalid arrest and 

. . . the Motion to Suppress the search 

is sustained. 

Pursuant to Code § 19.2-398(2), the Commonwealth appealed the 

trial court's ruling. 

II. 

 The Commonwealth argues that because the capias was valid, 

the arrest was lawful notwithstanding any error in the attached 

indictment. See Code § 19.2-76 (addressing the execution of a 

capias).1 The Commonwealth further argues that even if the 

process failed to comply with Code § 19.2-232,2 there was no 

 1

Code § 19.2-76 provides: 

 A law-enforcement officer may execute 

within his jurisdiction a warrant, capias or 

summons issued anywhere in the Commonwealth. 

A warrant or capias shall be executed by the 

arrest of the accused, and a summons shall 

be executed by delivering a copy to the 

accused personally. 

2

Code § 19.2-232 provides: 

 When an indictment or presentment is 

found or made, or information filed, the 

court, or the judge thereof, shall award 

process against the accused to answer the 

same, if he be not in custody. Such 

process, if the prosecution be for a felony, 

shall be a capias; if it be for a 

misdemeanor, for which imprisonment may be 

imposed, it may be a capias or summons, in 

the discretion of the court or judge; in all 

other cases, it shall be, in the first 

instance a summons, but if a summons be 

returned executed and the defendant does not 

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violation of Overstreet's Fourth Amendment rights and the 

exclusionary rule is inapplicable for statutory violations. 

Finally, the Commonwealth argues that even if there was a Fourth 

Amendment violation, the good faith exception to the 

exclusionary rule applies in this case and, therefore, the 

evidence obtained by the search of Overstreet was admissible. 

 Assuming, without deciding, that the arrest was defective 

and that Overstreet's Fourth Amendment rights were violated, we 

hold that the drugs seized were admissible pursuant to the good 

faith exception to the exclusionary rule. 

 In United States v. Leon, 468 U.S. 897 (1984), the United 

States Supreme Court held that "suppression of evidence obtained 

pursuant to a warrant should be ordered only on a case-by-case 

basis and only in those unusual cases in which exclusion will 

further the purposes of the exclusionary rule." Id. at 918. 

The deterrent purpose of the exclusionary 

rule necessarily assumes that the police 

have engaged in willful, or at the very 

least negligent, conduct which has deprived 

the defendant of some right. By refusing to 

admit evidence gained as a result of such 

conduct, the courts hope to instill in those 

particular investigating officers, or in 

their future counterparts, a greater degree 

of care toward the rights of an accused. 

Where the official action was pursued in 

 

appear, or be returned not found, the court 

or judge may award a capias. The officer 

serving the summons or capias shall also 

serve a copy of the indictment, presentment 

or information therewith. 

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rationale loses much of its force.

Id. at 919 (citations omitted) (emphasis added). "In short, 

where the officer's conduct is objectively reasonable, 

'excluding the evidence will not further the ends of the 

exclusionary rule in any appreciable way; for it is painfully 

apparent that . . . the officer is acting as a reasonable 

officer would and should act in similar circumstances. 

Excluding the evidence can in no way affect his future conduct 

unless it is to make him less willing to do his duty.'" Id. at 

919-20 (citations omitted).3

 3

In Leon, the Supreme Court established the following test 

to determine whether suppression of evidence is an appropriate 

remedy: 

 Suppression therefore remains an 

appropriate remedy if the magistrate or 

judge in issuing 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 of the 

truth. . . . The exception we recognize 

today will also not apply in cases where the 

issuing magistrate wholly abandoned his 

judicial role. . . . [I]n such 

circumstances, no reasonably well trained 

officer should rely on the warrant. Nor 

would an officer manifest objective good 

faith in relying on a warrant based on an 

affidavit "so lacking in indicia of probable 

cause as to render official belief in its 

existence entirely unreasonable." . . . 

Finally, depending on the circumstances of 

the particular case, a warrant may be so 

facially deficient -- i.e., in failing to 

particularize the place to be searched or 

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 In Virginia, we have applied the good faith exception to 

the exclusionary rule. See Polston v. Commonwealth, 255 Va. 

500, 503, 498 S.E.2d 924, 926 (1998); Derr v. Commonwealth, 242 

Va. 413, 422-23, 410 S.E.2d 662, 667 (1991); McCary v. 

Commonwealth, 228 Va. 219, 232, 321 S.E.2d 637, 644 (1984). "An 

arrest made pursuant to a mistake of fact is valid if (1) the 

arresting officer believed, in good faith, that his or her 

conduct was lawful, and (2) the arresting officer's good faith 

belief in the validity of the arrest was objectively 

reasonable." Barnette v. Commonwealth, 23 Va. App. 581, 584, 

478 S.E.2d 707, 708 (1996). 

 The evidence established that Officer Guthrie acted in good 

faith when executing the capias and arresting Overstreet. 

Although Guthrie relied on the language of the capias and did 

not check the name on the underlying indictment, this omission 

does not require exclusion of the seized items. At the 

suppression hearing, Guthrie testified that he believed he could 

arrest Overstreet based upon the capias alone. This belief was 

reasonable. The capias itself was the process placed in 

Guthrie's hands for execution. It was regular on its face. It 

was a court order commanding him to arrest Overstreet. The 

 

the things to be seized -- that the 

executing officers cannot reasonably presume 

it to be valid. 

Leon, 468 U.S. at 923 (citations omitted). 

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attached indictment was merely an underlying, supporting 

document. 

 No evidence proved that Guthrie's failure to read the 

indictment constituted "willful" or "negligent" conduct, 

requiring suppression of the evidence.4 See Leon, 468 U.S. at 

919. The capias was not "facially deficient." Guthrie 

reasonably presumed it to be valid.5 See id. at 923. His duty 

required him to obey the court order and arrest Overstreet. In 

short, Guthrie made the arrest based upon his good faith, but 

mistaken, belief that the process was correct.6 Accordingly, we 

reverse the trial court's ruling granting the motion to suppress 

and remand for further proceedings. 

 Reversed and remanded.

 4

The trial court specifically noted: "I don't think the 

officer did it in bad faith . . . ." 

5

While Overstreet maintains that there was no valid 

indictment relating to him, there is no evidence in the record 

to support this contention. Rather, the record reflects that on 

June 17, 1998, the indictment charging Overstreet with 

distribution of methaphetamine was dismissed. 

6

Overstreet's reliance upon Leatherwood v. Commonwealth, 215 

Va. 161, 207 S.E.2d 845 (1974), is misplaced. While the Court 

held that an arrest based on an invalid warrant required 

suppression of the evidence in that case, see id. at 163, 207 

S.E.2d at 847, Leatherwood was decided prior the Supreme Court's 

decision in United States v. Leon, 468 U.S. 897 (1984), which 

established the good faith exception to the exclusionary rule. 

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Fitzpatrick, C.J., dissenting. 

 I respectfully dissent. I agree with the majority that 

United States v. Leon, 468 U.S. 897 (1984), controls this case. 

However, we have previously held that the good faith exception 

is not available in four instances: 

(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 magistrate 

totally abandoned his judicial role, (3) the 

warrant was based on an affidavit "so 

lacking in indicia of probable cause" as to 

render official belief in its existence 

unreasonable or (4) where the warrant was so 

facially deficient that an executing officer 

could not reasonably have assumed it was 

valid.

Robinson v. Commonwealth, 19 Va. App. 642, 647, 453 S.E.2d 916, 

918 (1995) (emphasis added). 

 Despite the absence of police misconduct in the instant 

case, I would hold that the fourth situation bars application of 

the Leon good faith exception. See Janis v. Commonwealth, 22 

Va. App. 646, 653, 472 S.E.2d 649, 653, aff'd en banc, 24 Va. 

App. 207, 481 S.E.2d 473 (1996) (noting that evidence may 

nonetheless be excluded in the "absence of police misconduct"). 

While the trial judge ruled that the officer did not act in "bad 

faith" when executing the capias and arresting appellee, the 

evidence clearly supports the trial court's finding that the 

arrest was invalid based upon the inconsistency on the face of 

the documents. Officer Guthrie specifically testified that he 

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did not read the attached indictment before serving the capias 

and that had he done so, he would have investigated the 

inconsistency in the names. In short, the warrant was "so 

facially deficient . . . that the executing officer[ ] [could] 

not presume it to be valid." Leon, 468 U.S. at 923. 

 For the foregoing reasons, I would affirm the trial court's 

decision suppressing the evidence. 

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