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Marijuana Not Intended for Personal Use

An affidavit established probable cause to search defendant’s residence with its recitation of marijuana seeds and stems and a knotted clear plastic baggie corner obtained during a trash pull from the single can behind defendant’s residence; the affidavit’s omission of additional supporting evidence such as multiple anonymous tips about drug activity at the house did not undermine probable cause to search; the Court of Appeals affirms defendant’s convictions for possession of a controlled substance, manufacturing marijuana and possession of ammunition as a felon.

Defendant argues the affidavit for the warrant failed to establish a sufficient nexus because the anonymous tips were not explained in court and no one inquired as to the tipsters’ veracity. Also, other people could have accessed the trash can, and because the officer did not recall if the bags were sealed, “there were too many possibilities as to how the suspected marijuana got into the bags.”

The officer could have included additional information that she possessed in the warrant application, specifically, that she received numerous anonymous tips about this residence and that she found mail addressed to the residence in the same bags as the suspected indicia of drug activity. However, in light of the deferential review we owe to the magistrate’s interpretation, we cannot say these omissions rendered the warrant deficient.

The warrant specified that the place to be searched was a single story white structure with a white covered front porch with white columns on brick pedestals, and a wood privacy fence that surrounds the rear yard of the residence. The affidavit detailed that the marijuana seeds, stems and knotted baggie corner were in the single trash can directly behind that residence. The trash pull took place in a suburban neighborhood with yard space between houses, where each home set out only one trash can for weekly collection. The officer did not present false or misleading facts, and the omitted information would have supported, not undermined, probable cause. The facts in the affidavit were connected to the search authorized in the warrant in both time and place. We conclude the search warrant was supported by probable cause and the trial court did not err in denying the motion to suppress.

Defendant also challenges the sufficiency of the evidence. He argues the evidence did not prove he possessed the contraband and did not prove he manufactured marijuana for distribution, instead of personal use.

The evidence was sufficient to prove defendant’s constructive possession of the contraband. The officer found the contraband in two locations: in the desk in the office and in the basement. Defendant’s wife testified that she rarely went into the office or the basement. In the office, the officer found defendant’s resume, a family photo and letters addressed to defendant from government authorities. Although law enforcement did not find equally explicit identifying evidence connecting defendant to the marijuana plants in the basement, the desk contained a scale, packaging materials and an “owe sheet” hidden in a prescription pill bottle. The presence of a timer and grow lights around the marijuana plants in the basement suggests an attempt to cultivate, and the evidence from defendant’s desk speaks to distribution. The evidence established that defendant constructively possessed the contraband in the office and the basement.
As to evidence of intent to distribute, law enforcement found only five plants, but these plants were significantly more mature (although they did not yet have buds) than those in Reynolds v. Commonwealth, 9 Va. App. 430 (1990), with a special light and a timer facilitating their growth. Defendant’s office also contained packaging materials in the form of baggies of various sizes, and an owe sheet secreted in a pill bottle. In addition to the small amounts of marijuana found in ashtrays, at least 12 grams were in a metal container in defendant’s office.

We conclude the evidence was sufficient to show that defendant grew the marijuana with intent to distribute.

Bellio-Poates v. Commonwealth (AtLee) No. 1500-14-2, June 16, 2015; Colonial Heights Cir.Ct. (Gill) Nathaniel A. Scaggs for appellant; Victoria Johnson, AAG, for appellee. VLW 015-7-179(UP), 9 pp.

VLW 015-7-179

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