A police officer’s affidavit provided probable cause to issue a search warrant even though the affidavit stated that the officer would execute it when he knew defendant had drugs for sale.
Waiting to resupply
Defendant Paige is charged with possession with intent to distribute cocaine. He has moved to suppress evidence seized from him. He argues that the police officer’s affidavit in support of the search warrant did not provide probable cause to the issuing magistrate. Paige asserts that there was no probable cause because the officer’s affidavit stated that he would execute it when he knew Paige had drugs for sale.
“The magistrate judge relied upon the affidavit submitted by the investigating officer on June 20, 2019 for the search warrant.
“According to that testimony, pursuant to the officer’s professional experience, drug traffickers keep on their person currency, scales, packaging materials, and cellphones to maintain contact with drug sources and customers. They often possess firearms or other weapons and conduct drug transactions on an ongoing basis.
“The officer also provided that, during the week of April 28, 2019, a controlled purchase of an illegal controlled substance was sold by Paige to a confidential source and that during the sale and controlled purchase, the confidential source ‘observed a surplus of controlled substances’ on Paige’s person.
“Weeks later, during the week of May 12, 2019, Paige again sold, under a controlled purchase by the same confidential source, more illegal controlled substances, during which transaction the confidential informant again observed a surplus of controlled substances on Paige’s person. Prior to each of the controlled sales Paige used his cell phone to make the sale arrangements. …
“In support of the search warrant, the officer further testified that Paige contacted the confidential source in June 2019 and stated ‘that he [Paige] was on his way to resupply with controlled substances for sale and wanted to know if the confidential source wanted to buy any controlled substance.’ …
“After the foregoing probable cause was provided in the affidavit, the investigating officer added in paragraph 12, ‘[I] will execute the search warrant when information is obtained that PAIGE will have a surplus of suspected controlled substances for sale.’ …
“Paige argued that there was no probable cause for the search warrant since Paige was not yet in possession of illegal controlled substances.”
Paige raises three issues: “one, whether there was sufficient probable cause for the magistrate to issue the search warrant, notwithstanding paragraph 12; two, if not, whether the officer could have relied, in good faith, on the warrant issued by the magistrate judge; and three, whether the search warrant was an anticipatory search warrant.
“As for the first issue, as stated, there was sufficient probable cause. While Paige admitted, according to the testimony, that he was about to possess additional drugs and about to sell them, the search warrant authorized seizure from Paige’s person evidence of drug dealing based on Paige’s other stated prior bad acts: two hand to hand incidents of actual sales of cocaine in Arlington County.
“The officer knew by training that drug dealers possess indicia of drug sales such as currency, scales, packaging material, weapons, and cellphones that contain further evidence of sourcing and selling. The search warrant authorized the seizure of those items from Paige’s person. The mere fact the officer wanted to wait until Paige also possessed illegal controlled substance did not dispose of the other evidence of illegal drug sales properly sought.
“Here, the investigating officer simply informed the magistrate that he would wait for information indicating Paige would have additional evidence on his person before executing the warrant. Had the officer kept that thought to himself, no issue would have been raised with the subject warrant, as conceded by Paige during argument.
“An officer is entitled to wait fifteen (15) days before executing a search warrant pursuant to Virginia Code§ 19.2-56. A rule does not exist requiring an officer to proceed directly from the magistrate to where a search warrant would be executed, and to then execute it.”
“Assuming, arguendo, that Paige raised a sufficient basis regarding paragraph 12 to challenge the search warrant, the good faith exception under United States v. Leon would apply. 468 U.S. 897 (1984). The investigating officer was entitled to rely upon the magistrate’s judgement in issuing the search warrant as the basis the officer provided was not ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’”
Because the good faith exception would apply in this case, the court need not reach the issue of whether the warrant was an anticipatory warrant.
The motion to suppress is denied.
Commonwealth v. Paige, Case No. CR 19-917(00), March 1, 2021, Arlington County Cir. Ct. (Fiore) Memorandum Opinion. VLW 021-8-045, 5 pp.