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POLSTON v. COMMONWEALTH OF VA


POLSTON v. COMMONWEALTH
OF VA


April 17, 1998
Record No. 971536

SHERRI ANN POLSTON, s/k/a
SHERRI ANNE POLSTON

v.

COMMONWEALTH OF VIRGINIA

OPINION BY JUSTICE LEROY R. HASSELL, SR.
FROM THE COURT OF APPEALS OF VIRGINIA

Present: All the Justices


Sherri Ann Polston entered a conditional plea of guilty to the
crime of possession of marijuana with intent to distribute in
violation of Code ? 18.2-248. Pursuant to Code
? 19.2-254, she reserved her right to appeal that portion
of the Chesterfield Circuit Court’s judgment denying her motion
to suppress the marijuana which she claims was the fruit of an
unlawful search. The trial court accepted her guilty plea and
fixed her punishment at 10 years’ imprisonment, which was
suspended subject to certain conditions. The Court of Appeals
affirmed the judgment of the circuit court, Polston v. Commonwealth,
24 Va. App. 738, 485 S.E.2d 632 (1997), and we awarded the
defendant an appeal.

The following facts are relevant to our disposition of this
appeal. Stuart G. Powell, a Chesterfield County detective, along
with an unidentified informant, appeared before a magistrate on
January 6, 1995. Detective Powell submitted an affidavit to the
magistrate which stated in relevant part:

"On this date 1-6-95, a citizen appeared before the
magistrate of the Twelth [sic] Judicial District Court and stated
the following facts under oath and the penalty of purgery [sic].
This citizen stated that within the past 72 hours he/she observed
a quantity of marijuana being stored and being offered for sale
at the apartment mentioned in section two of this document.

* * *

"I was advised of the facts set forth in this affidavit,
in whole or in part, by an informer. This informer’s credibility
or the reliability of the information may be determined from the
following facts:

"The citizen mention[ed] in section 4 of this document
made these statements while under oath and after being advised of
the penalty of purgery [sic] by your affiant. Your affiant has
been a police officer for over six years and is currently
employed in the Vice and Narcotics Unit of the Chesterfield
County Police Department. Your affiant has made several drug
arrests and is familiar with the drug culture in and around
Chesterfield County. The citizen has decided to remain anonymous
for fear of retaliation."

The magistrate questioned the informant under oath, and the
informant stated that he was familiar with the local drug culture
and that he had used marijuana at least once per week for a
number of years. The magistrate or Detective Powell added the
following sentence to the affidavit: "This citizen is a
self-admitted drug user and is familiar with the drug culture in
and around Chestserfield [sic] County."

The magistrate issued a warrant authorizing a search of the
defendant’s apartment. When Detective Powell, along with
Chesterfield County police officers, conducted the search, the
defendant directed them to a dresser in her bedroom which
contained approximately one pound of marijuana. The officers also
found a "bong" in the defendant’s apartment, and the
defendant told the officers that she sold marijuana.

The defendant argues that the magistrate did not have a
substantial basis to find probable cause necessary for the
issuance of the search warrant. The defendant observes that the
"citizen" referred to in the affidavit was actually an
individual who had been arrested by police officers earlier on
the day that the search warrant was issued. Continuing, the
defendant says that Detective Powell "conceded that he had
made no effort of any kind to investigate or verify either the
informant’s credibility or the reliability of the
information" contained in the affidavit. Responding, the
Commonwealth asserts that the magistrate did have a substantial
basis for finding that probable cause existed for the issuance of
the warrant and that the evidence seized pursuant to the warrant
was also admissible on another basis, the good faith exception to
the warrant requirement established in United States v. Leon,
468 U.S. 897 (1984).

In Leon, 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." 468 U.S. at 918; see also Massachusetts
v. Sheppard, 468 U.S. 981, 987-88 (1984). The Supreme
Court also stated that "the exclusionary rule is designed to
deter police misconduct . . . ." Leon,
468 U.S. at 916. This deterrent is not present when a police
officer, acting in objective good faith, obtains a search warrant
from a magistrate and conducts a search within the scope of the
warrant. Derr v. Commonwealth, 242 Va. 413, 422,
410 S.E.2d 662, 667 (1991). We have embraced and applied the good
faith exception to the exclusionary rule. Id. at 422-23,
410 S.E.2d at 667; McCary v. Commonwealth, 228 Va.
219, 232, 321 S.E.2d 637, 644 (1984).

The Supreme Court stated the following test which we must
apply 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 the things to be seized
– that the executing officers cannot reasonably presume it to be
valid." Leon, 468 U.S. at 923 (citations omitted).

We hold that, regardless of the actual validity of the search
warrant, the evidence seized during the search of the defendant’s
apartment is admissible because of the good faith exception to
the exclusionary rule. The evils identified in the Leon
test are simply not present here. When the police officers
conducted the search of the defendant’s apartment, they acted in
good faith, reasonably, and under the authority of an apparently
valid search warrant. The magistrate was not misled by any
information in the affidavit, and he did not abandon his judicial
role. Rather, acting in his judicial role, the magistrate
questioned the informant about the informant’s knowledge of drug
activity in Chesterfield County. Additionally, the warrant is not
so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable, and the warrant is
not facially deficient.

Accordingly, we will affirm the judgment of the Court of
Appeals.

Affirmed.

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