Magistrate properly issued arrest warrant

Where a magistrate issued an arrest warrant with two triggering conditions, the magistrate did not wholly abandon his judicial role by doing so.

Conditions

“The subject search warrant, prepared by law enforcement and/or the Commonwealth provides two different triggering events: the first is found on the face of the warrant, which indicates that the warrant may only be served in Arlington County, … the second is found in paragraph 17 of the statement of material facts and indicates that the search warrant will ‘only be executed when the investigation reveals that Johnson is in Arlington County to conduct narcotics transactions.’ …

“This Court previously found that the controlling triggering condition was the condition on the face of the warrant. … The question left open in the June 10, 2022, Memorandum Opinion was whether the Magistrate had wholly abandoned his judicial role by issuing a Search Warrant with two triggering conditions. …

“As a preliminary matter, this Court does not find that the language of the two triggering conditions to be in conflict. Rather, the term on the face of the search warrant contains a logical consolidation of the triggering condition in the statement of material facts.

“Paragraph 16 of the statement of material facts stated that, ‘[i]t does not appear that Johnson makes any other stops in Arlington County that are for any other purpose than meeting with customers purchasing suspected cocaine.’ …

“The following paragraph, the triggering condition, states that the warrant is ‘only be executed when the investigation reveals that Johnson is in Arlington County to conduct narcotics transactions.’

“Because law enforcement believed that Johnson was only ever in Arlington County to conduct narcotics transactions, the language in Paragraph 16 and 17 conflates to reveal that Johnson need only be arrested in Arlington County, as he is only ever present to sell narcotics.

“Therefore, the triggering condition on the face of the warrant reflects the conflated language, at best, and, at worst, reflects one part of the triggering condition contained in paragraph 17 of the statement of material facts.

“It is important to note that the triggering conditions, or limitations in the subject search warrant, were drafted by law enforcement and/or the Commonwealth, not the magistrate himself.”

Not abandoned

“The Court must determine whether the magistrate wholly abandoned his judicial role by issuing this search warrant, considering the two triggering conditions in the verified statement of facts and on the face of the warrant. …

“[T]he Defendant has not identified any evidence in the record that the magistrate wholly abandoned her judicial role. The Defendant merely raises examples of other cases before this Court where the Search Warrants in question contain similar issues with the triggering condition. This is not evidence that the Magistrate in this case abandoned his judicial role in the present case. …

“The Magistrate issued a search warrant that recited facts relating to two known narcotics transactions with undercover informants, text messages evidencing the sale of illicit narcotics, and personal observations by law enforcement in Arlington County that would lead a reasonable officer to conclude that Defendant was selling illicit narcotics in Arlington County.

“There is no question that there was probable cause to issue the subject search warrant.”

Commonwealth v. Johnson, Record Nos. CR21000304-306-00, CR21000389-00, (Memorandum opinion) July 13, 2022, Circuit Court of Arlington County (Fiore II). VLW 022-8-052, 5 pp.