COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Bray 

Argued at Chesapeake, Virginia 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 2065-99-3 JUDGE RICHARD S. BRAY 

 FEBRUARY 29, 2000 

GEORGE WINSTON SAGE 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

Charles J. Strauss, Judge 

 Kathleen B. Martin, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellant. 

 Jon I. Davey for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 George Winston Sage (defendant) was before the trial court on 

indictments alleging rape, forcible sodomy, attempted rape, 

attempted forcible sodomy, and two counts of object sexual 

penetration and aggravated sexual battery. Defendant successfully 

moved the court to suppress evidence obtained during the execution 

of two search warrants, arguing that the affidavit supporting the 

initial warrant did not establish the requisite probable cause. 

The Commonwealth appeals pursuant to Code § 19.2-398, contending 

that the affidavit was sufficient but, if not, the "good faith 

exception" saves the evidence from the operation of the 

exclusionary rule. We agree and reverse the order. 
 "It is well established that on appeal the burden is on the 

appellant to show, considering the evidence in a light most 

favorable to [defendant], that the [granting] of a motion to 

suppress constitutes reversible error." Commonwealth v. Tart, 17 

Va. App. 384, 390-91, 437 S.E.2d 219, 223 (1993). "Questions of 

. . . probable cause to . . . search are subject to de novo review 

on appeal. 'In performing such analysis, we are bound by the 

trial court's findings of historical fact unless "plainly wrong" 

or without evidence to support them[.]'" Archer v. Commonwealth, 

26 Va. App. 1, 8, 492 S.E.2d 826, 830 (1997) (citations omitted). 

I. 

 Pittsylvania County Detective Boyd Arnold, III, while 

investigating a complaint that defendant, a convicted felon, had 

sexually assaulted three minor girls, learned that defendant 

possessed a "handgun." Acting on information obtained during 

questioning of the mother (mother) and adult half-sister (sister) 

of the alleged victims, Arnold secured a search warrant for 

defendant's residence, supported, in pertinent part, by the 

following affidavit: 

During my investigation of [defendant] I was 

told by [mother] and [sister] that he was in 

possession of a handgun. The handgun was 

described as a semi-automatic pistol. 

[Mother] told me that [defendant] would 

carry the handgun on his person, kept in the 

vehicle, or in the house . . . . A criminal 

history check showed two felony convictions 

(05/18/83 & 01/14/85). 

 * * * * * * * 

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The mother and . . . sister . . . have seen 

the handgun in the possession of [defendant] 

. . . . Both of them are adults and they 

described a handgun to me when I spoke with 

them on 09/30/98. [Mother] told me that she 

last saw the handgun about 2 months ago. 

* * * * * * * 

The informer's [sic] told me that they have 

known [defendant] for about 5-7 years and 

have seen the handgun in his possession. 

The informers appear to have some knowledge 

of what and how a handgun works. The 

informer's [sic] did not tell me anything 

about the handgun until I questioned them 

about it. 

 Upon execution of the warrant on October 21, 1998, police 

discovered no guns but observed "children's underwear" and 

various "cassette tapes" on the premises. Aware that the 

victims had missed certain articles of underclothing after 

"overnight visits" at defendant's home and that defendant had 

been surreptitiously "recording [the] sexual relations" of other 

houseguests, Arnold obtained and executed a second search 

warrant, which resulted in the seizure of "children's panties" 

and numerous cassette tapes. 

 In granting defendant's motion to suppress all evidence 

resulting from both searches, the trial court determined that 

"the statements . . . by the informants appear overly general," 

unsupported by "facts from which the Magistrate could determine 

that at the time the warrant was issued, on October 19th, 1998, 

there was any reasonable likelihood that a firearm would be 

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located in the residence of the defendant" or "how [the 

informants] knew the defendant 'carried the handgun on his 

person . . . or [kept it] in the house.'" The court, therefore, 

concluded that "the facts contained in the Affidavit . . . 

failed to provide . . . the Magistrate . . . probable cause to 

issue the search warrant." The court likewise rejected 

application of the good faith exception established by United 

States v. Leon, 468 U.S. 897 (1984), reasoning that "the warrant 

was based on an Affidavit 'so lacking in indicia of probable 

cause' as to render official belief in its existence 

unreasonable[.]" 

II. 

 Assuming, without deciding, that the affidavit failed to 

provide the requisite probable cause, we, nevertheless, apply 

the good faith exception of Leon to preclude operation of the 

exclusionary rule. "'The exclusionary rule is designed to deter 

police misconduct rather than to punish the errors of judges and 

magistrates. In the ordinary case, an officer cannot be 

expected to question the magistrate's probable-cause 

determination or his judgment that the form of the warrant is 

technically sufficient.'" Tart, 17 Va. App. at 390, 437 S.E.2d 

at 222 (citation omitted). Thus, "[t]he deterrent effect of the 

exclusionary rule 'is absent where an officer, acting in 

objective good faith, obtains a search warrant from a magistrate 

and acts within the scope of the warrant.'" Janis v. 

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Commonwealth, 22 Va. App. 646, 653, 472 S.E.2d 649, 653 (1996) 

(citation omitted). 

 The good faith exception is not available in the following 

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). In declining to apply Leon to the instant search, 

the trial court, and defendant on appeal, rely on the third 

exception to the doctrine. However, our review of the affidavit 

discloses an "objectively reasonable belief that probable cause 

existed" in support of the warrant. 

The task of the issuing magistrate is simply 

to make a practical, commonsense 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 

. . . conclud[ing]" that probable cause 

existed. 

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Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (citation 

omitted). The reliability of an informer's tip depends "on the 

nature of the informer and the manner in which the information 

provided by the informer reaches the magistrate." Polston v. 

Commonwealth, 24 Va. App. 738, 745, 485 S.E.2d 632, 635 (1997). 

"If the informer is a disinterested citizen who is either the 

victim or eyewitness of a crime, the magistrate is permitted to 

infer that reasonable information obtained from the citizen is 

reliable." Id.

 Here, the informants, both citizens known to the 

affiant/Arnold as adult relatives of the several infant victims, 

advised him, during questioning, that defendant, a convicted 

felon, "was in possession of a handgun." Both women had "known" 

defendant for five to seven years, had "some knowledge of what 

and how a handgun works" and "had seen" defendant in possession 

of a specifically described "pistol." The mother stated that 

defendant "would carry the handgun on his person" or "kept [it] 

in the vehicle, or in the house" and had "last" seen the weapon 

"about two months ago." 

 Thus, like Leon, the warrant in issue was not dependent 

upon a "bare bones" affidavit. To the contrary, the instrument 

recited detailed information provided by citizen informers, 

based upon personal observations not too remote in time1 and 

 1

 "The ultimate criterion in determining the 

 degree of evaporation of probable cause, 

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deemed reliable, that defendant feloniously possessed a firearm. 

Clearly, "the affidavit 'provided evidence sufficient to create 

disagreement among thoughtful and competent judges as to the 

existence of probable cause.' Therefore, we cannot say that the 

officers could not have 'harbored an objectively reasonable 

belief in the existence of probable cause.'" Tart, 17 Va. App. 

at 390, 437 S.E.2d at 223 (citations omitted). 

 Accordingly, we reverse the order suppressing the evidence 

and remand for further proceedings consistent with this opinion. 

 Reversed and remanded. 

 

 however, is not case law but reason. The 

 likelihood that the evidence sought is still 

 in place is a function not simply of watch 

 and calendar but of variables that do not 

 punch a clock: the character of the crime 

 (chance encounter in the night or 

 regenerating conspiracy?), of the criminal 

 (nomadic or entrenched?), of the thing to be 

 seized (perishable and easily transferable 

 or of enduring utility to its holder?), of 

 the place to be searched (mere criminal 

 forum of convenience or secure operational 

 base?), etc. The observation of a 

 half-smoked marijuana cigarette in an 

 ashtray at a cocktail party may well be 

 stale the day after the cleaning lady has 

 been in; the observation of the burial of a 

 corpse in a cellar may well not be stale 

 three decades later. The hare and the 

 tortoise do not disappear at the same rate 

 of speed." 

Turner v. Commonwealth, 14 Va. App. 737, 745, 420 S.E.2d 235, 

240 (1992) (quoting Donaldson v. State, 420 A.2d 281, 286 (Md. 

App. 1980) (citation omitted)). 

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