Suppression motions incorrectly denied

Where a search warrant authorized a search of appellant at a particular residential address, the police had no authority to search him at a gas station two miles away.

Unauthorized search

“Jones contends that the search warrant did not authorize the search of his person unless he was present at 65 Riverside Drive. He also contends that the trial court erred in holding that the good faith exception would apply in the alternative.

“Since we agree that the search warrant was valid but did not permit the search of Jones or the SUV at a gas station two miles from the dwelling listed in the search warrant, we conclude the search of Jones and the SUV was warrantless and the good faith exception does not apply. …

“[T]he warrant authorized the police to search ‘[a]ll persons present including … Jones.’ However, Jones was not ‘present’ at 65 Riverside Drive at any point during the execution of the search warrant.

“In fact, the closest Jones came to the premises to be searched was approximately fifteen to twenty yards from the perimeter established by the officers – not the house.

“In addition, Jones was never within the curtilage of the premises nor was he able to reenter the residence due to Riverside Drive being blocked by police.

“Thus, Jones was not present at 65 Riverside Drive and, although the search warrant was valid, it did not authorize the search of him or the SUV which occurred approximately two miles from the dwelling being searched.”

No good faith

“The Commonwealth asserts that if this Court deems the search warrant invalid for lack of probable cause, the good faith exception to the exclusionary rule should apply because the officers reasonably relied on the search warrant. We disagree. …

“[W]e find that, based on the surveillance and trash pulls, probable cause existed and justified the issuance of a search warrant for the dwelling and for Jones if he was present when the search warrant was executed. So, the search warrant was validly issued.

“However, as previously discussed, Jones was never present on the premises during the execution of the search warrant at 65 Riverside Drive. Thus, the search of Jones and the SUV occurred outside the scope of the warrant. Since we do not find the search warrant invalid, the good faith exception to the exclusionary rule does not apply. …

“Instead, the search of Jones and the SUV was a warrantless search.”

No probable cause

“Jones next contends that he was unlawfully detained because the police lacked probable cause to search him or the SUV at the gas station. He also argues, in the alternative, that no exception to the warrant requirement applies to the unique set of facts here.

“Since we find that the officers lacked probable cause to execute a warrantless search of Jones or the SUV, we need not analyze whether an exception to the warrant requirement applies in this case. …

“We disagree with the Commonwealth that based upon the totality of circumstances here, Officer Pavia had sufficient probable cause to search Jones.

“Although Officer Pavia did find drugs in the trash located outside of 65 Riverside Drive where Jones lived with three other adults, and Officer Pavia was aware that Jones had been charged four previous times with intent to distribute a Schedule I/II narcotic, he lacked probable cause to execute a warrantless search of Jones or the SUV.

“When Jones turned around in his SUV before approaching the house on 65 Riverside Drive, there is no evidence in the record establishing that he was fleeing or that the officers were in hot pursuit.

“To the contrary, Riverside Drive was blocked by law enforcement who had established an outer perimeter to ensure the safety of individuals driving or walking along Riverside Drive.

“During the two-mile distance Officer Pavia followed the SUV, he failed to activate the emergency lights or the siren on the unmarked police cruiser and never initiated a traffic stop of the SUV.

“Officer Pavia finally activated his lights and approached Jones and the SUV only after Jones had already pulled into the gas station parking lot, turned off the SUV, and gotten out of the vehicle.

“There was also no evidence presented that tied Jones, instead of one of the other three residents, to the drugs found during the trash pulls. Nor was there any evidence in support of searching the SUV outside the fact that it had been parked at 65 Riverside Drive several times and that Jones frequently drove it.

“Further, Officer Pavia mistakenly advised Jones that he possessed the authority to search him and his SUV based upon the search warrant, and there was no evidence that suggested Jones had drugs on his person or in the SUV when Officer Pavia searched him at the gas station. …

“Accordingly, the trial court erred by failing to suppress the round of ammunition and red baggy containing methamphetamine found on Jones and the handgun found in the SUV.”

Reversed and remanded.

Jones v. Commonwealth, Record No. 0413-22-3, March 14, 2023. CAV (unpublished opinion) (Athey). From the Circuit Court of the City of Lynchburg (Irby). Carlos A. Hutcherson for appellant. John Beamer, Jason S. Miyares for appellee. VLW 023-7-113, 8 pp.