Memorandum For: Elizabeth Fitzwater
From: Kevin Noell
Case: Commonwealth v. King
Subject: Search Warrant
Date: June 18, 2004
STATEMENT OF FACTS
A search warrant was issued to search the premises of Russell King for drugs. The
affidavit in which the search warrant was based did not contain any specific information
in which the issuing magistrate could judge the reliability of the informant. However, the
judge issued the search warrant. In issuing the warrant the magistrate signed the warrant
in the wrong location on the form.
The officers then executed the warrant and recovered a firearm, drugs, and drug
paraphernalia from the residence.
(1) Whether the evidence recovered could be suppressed because the affidavit contained
no specific instances or circumstances revealing the reliability of the informant?
(2) Whether the evidence recovered could be suppressed because the magistrate signed
the search warrant in the wrong location on the warrant form?
(1) A motion to suppress the evidence on the grounds that there were no specific
instances revealing the informant’s reliability is likely to be denied.
(2) A motion to suppress the evidence on the grounds that the magistrate signed the
warrant in the wrong location, and therefore the warrant is invalid, is likely to be denied.
In making a probable cause determination for a search warrant, the task of the issuing
magistrate is simply to make a practical, common-sense decision, whether, given all the
circumstances set forth in the affidavit, including the veracity and basis of knowledge of
persons supplying hearsay information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place. Lanier v. Commonwealth, 10 Va.
App. 541, 547 (1990). The probable cause to issue a warrant breaks down into the
informant’s veracity or reliability and his basis of knowledge. Corey v. Commonwealth, 8
Va. App. 281, 287 (1989). Moreover, in Baker v. Commonwealth the Court noted that
the reliability of any informant can be demonstrated if a search warrant affidavit states
that the informant has:
1. Given information which has proven correct or
2. There is corroboration of other information supplied by the informant or
3. The informant makes a declaration against his own penal interest.
However, a mere allegation that an informant is credible, or that his information is
reliable is insufficient. A magistrate cannot rely on the conclusory averments of the
affiant, or those of the informant, without a showing of why the informant is reliable and
how recently he has given information that proved to be reliable. Baker v.
Commonwealth, 2001 Va. App. LEXIS 343.
In our affidavit, the requirement that the affidavit needs to show the reliability of the
confidential informant seems to have not been met. The affidavit does not appear to
contain any specific information regarding the reliability of the informant other than the
conclusory statement that the informant providing the information to the affiant has
“proven to be reliable and truthful prior to giving this information.” It contains no
specific history or circumstances to show how the informant was reliable.
However, suppression of the evidence on this ground is likely to be denied. Suppression
of evidence, obtained pursuant to a warrant, should be ordered only on a case-by-
case basis and only in those unusual cases in which exclusion will further the
purposes of the exclusionary rule.” United States v. Leon, 468 U.S. 897, 918, 104 S. Ct.
3405 (1984). “The purpose of the exclusionary rule historically was to deter police
misconduct rather than to punish the errors of magistrates. This deterrent is absent
where an officer, acting in objective good faith, obtains a search warrant from a
magistrate and acts within the scope of the warrant.” Derr v. Commonwealth, 242 Va.
413, 422, 410 S.E.2d 662, 667 (1991). “Unless a magistrate has abandoned his
detached and neutral role, suppression is only appropriate if an officer is dishonest
or reckless in preparing his affidavit or could not have harbored an objectively
reasonable belief in the existence of probable cause.” Corey v. Commonwealth, 8 Va.
App. 281, 288, 381 S.E.2d 19, 23 (1989). Here the officer obtaining the warrant
appeared to have acted in good faith with an objectively reasonable belief that marijuana
was located at Mr. King’s House. Therefore, a suppression motion on either of the two
grounds mentioned supra will likely be denied.
Applying the exclusionary rule to this case will likely allow the evidence to be admitted.
Since the officers appeared to act in good faith and their belief in the probable cause was
objectively reasonable the court will deny the motion even if the magistrate signed the
warrant in the wrong location.