‘Pseudo’ Sale Logs Support Search Warrant

In a case of first impression, a Tazewell County Circuit Court upholds the use of logs showing purchases of pseudoephedrine, used in the shake-and-bake method of methamphetamine manufacture, to support a warrant to search defendant’s residence; the logs, showing purchases up to the legal limits by three residents of a property an anonymous tipster said was a drug lab, supported probable cause to search.

Pseudo logs

The issue of using pseudo logs as a basis for probable cause is one of first impression in Virginia. Courts around the country have considered the number of people involving in buying pseudoephedrine, the number of pharmacies frequented, the amount bought, the purchase of other items commonly used to manufacture methamphetamine and the presence of other indicators of a meth lab.

If a search warrant is issued without probable cause, the exclusionary rule applies. However, Virginia law has recognized a good faith exception. The good-faith test is whether the commonwealth can show the officer had an objectively reasonable belief that probable cause existed, considering the totality of the circumstances.

In cases where an officer obtains a warrant, there is prima facie evidence that the officer was acting in good faith. The good faith exception is unavailable when the magistrate was misled by the affidavit and the officer knew the information was false; the magistrate totally abandoned his judicial role; and the warrant was so facially deficient that an executing officer could not reasonably have assumed it was valid.

Good warrant

In this case, there was probable cause to issue a search warrant. It is clear, and the parties agree, that an affidavit based on the truly anonymous tip alone would not have provided sufficient probable cause. Here, however, the officers followed up on the tip by going to the end of the street, where they personally observed defendant at the home and found another person at the house, just like the anonymous tipper indicated.

To verify potential criminal activity, police searched the pseudo logs for defendant and the home’s other two occupants. None of the three individuals purchased pseudoephedrine in excess of the statutory constraints. However, the combination of three people, living at the same address, purchasing pseudoephedrine from multiple pharmacies, getting blocked for purchases in close proximity to each other and that pseudoephedrine is the main ingredient in the shake-and-bake method of manufacturing methamphetamine, gives veracity to the anonymous tip.

The court finds it was reasonable for an officer to believe that methamphetamine activities were taking place at the residence, and the judge had sufficient information to find the anonymous tip credible and thus to find probable cause to issue a search warrant. The court also finds there was sufficient information provided in the affidavit to show a nexus between the defendant, the property to be searched and the alleged criminal activity.

Because there was probable cause to issue the search warrant, the court need not address the issue of the good-faith exception. Nevertheless, the court alternatively concludes the good-faith exception would apply. The search warrant was issued by a circuit court judge. The affidavit was sufficient for a finding of probable cause. There is no evidence the judge and the officer knew the information in the affidavit was false, that the judge totally abandoned his judicial role or that the officer knew the search warrant was faulty. The only evidence suggested by defendant to be misleading is the officer’s use of a 65-day window for the pseudoephedrine purchases and his statement that the purchases were in gross excess of the normal uses. The court finds that this information was not misleading or an intentional falsification of evidence because the officer also included the statutory restrictions on pseudoephedrine purchases in his affidavit. The court knew the law and the facts of this case when presented with the affidavit.

Motion to suppress denied.

Commonwealth v. Cook (Carson) No. CL 16-1300-1304, May 12, 2017; Tazewell County Cir.Ct.; Michael L. Dennis, Comm. Att’y; Dennis H. Lee for defendant. VLW 017-8-049, 5 pp.