Virginia Lawyers Weekly

An affidavit stating that a woman had observed her boyfriend “with other stolen property in his possession” lacked necessary specific detail such as when the conduct took place or what items she had observed, and a Norfolk Circuit Court suppresses the evidence seized from defendant’s home.

The affidavit in the instant case offers no clue as to when defendant’s girlfriend observed stolen property in his residence. The court is mindful that the magistrate might in some case have sufficient information from which to infer that the activity described occurred recently, even without a specific reference to time; but this is not such a case. If, for example, the girlfriend had stated that she observed other stolen televisions in defendant’s house when she was picking up the television that became the subject of her arrest, the magistrate could have determined from the date of the theft that her observation happened within the previous month. No basis for any such inference appears in the affidavit.

Nor does the warrant in this case support any conclusion of ongoing criminal activity at the residence such that some reference to time might be excused.

Because the magistrate in the instant case had no information about when the informant allegedly observed stolen property in defendant’s home, he could not have determined the existence of probable cause to search the residence.

The court finds that the magistrate lacked probable cause to issue the warrant, and the warrant is therefore invalid.

The court further finds that the generic description of property included in the warrant at issue violates the particularity requirement of the Virginia Constitution and the Fourth Amendment. The Norfolk police officers executing the warrant to search defendant’s house were instructed to seize “any and all items, instrumentalities pertaining to the crime of larceny” not “larceny from Old Dominion University” or “larceny of television sets,” but simply “the crime of larceny.” The court cannot fathom how any officer would have known what to look for based upon that description. The warrant here did not refer to a “specific” crime or enumerate stolen items.

Finally, the court finds the affidavit was so lacking in indicia of probable cause, with no reference to what specific items of stolen property the girlfriend observed, when she observed them, or how she knew that they were stolen, that the executing officer (who was also the affiant) could not have concluded that probable cause existed. Further, the complete lack of any particularity in the description of the items to be seized should have been obvious to an executing officer.

The court holds that the good-faith exception to the exclusionary rule does not apply and will not serve to avoid suppression in this case.

Commonwealth v. Fuller (Hall, J.) No. CR 09-1171, June 17, 2009; Norfolk Cir.Ct.; Donald Harris, Ass’t Comm. Att’y; Joseph A. Pennington for defendant. VLW 009-8-130, 7 pp.

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