Roger Donovan Freeman v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Agee
Argued at Salem, Virginia
ROGER DONOVAN FREEMAN
MEMORANDUM OPINION * BY
v. Record No. 1584-00-3 JUDGE RICHARD S. BRAY
JULY 24, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Brian H. Turpin (Turpin & Haymore, on brief),
for appellant.
Paul C. Galanides, Assistant Attorney General
(Mark L. Earley, Attorney General; Amy L.
Marshall, Assistant Attorney General, on
brief), for appellee.
Roger Donovan Freeman (defendant) was convicted of "carnal
knowledge of a minor," "statutory rape," two counts of sodomy,
"participating in child pornography," possession of child
pornography, contributing to the delinquency of a minor, and
possession of marijuana with the intent to distribute. On appeal,
he contends the trial court erroneously declined to suppress
evidence seized during the execution of a search warrant issued
without the requisite probable cause and otherwise invalid. We
disagree and affirm the convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
In reviewing a trial court's ruling on a suppression motion,
we consider the evidence in the "light most favorable to . . . the
prevailing party below," the Commonwealth in this instance.
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,
48 (1991). Our consideration of the record includes evidence
adduced at both the trial and the suppression hearing, if any.
DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540,
542-43 (1987).
Because search warrants are favored, and
warrantless searches . . . presumptively
invalid under the Fourth Amendment, . . . a
presumption of validity attaches when a
search is conducted pursuant to a warrant
issued by a neutral and detached magistrate
or judicial officer. Therefore, where the
police conduct a search pursuant to a
judicially sanctioned warrant, the defendant
must rebut the presumption of validity by
proving that the warrant is illegal or
invalid.
Lebedun v. Commonwealth, 27 Va. App. 697, 711, 501 S.E.2d 427,
434 (1998) (citations omitted).
I.
On February 18, 2000, Danville Police Officer David Austin
"knocked at the door" of 226 North Avenue, seeking a juvenile
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"runaway," Rachel Baker, then the subject of an arrest warrant.
Defendant answered and Austin "told him [he] was . . . looking for
. . . Baker . . . and . . . needed to talk to her." Defendant,
replied, "wait a minute" and twice "went downstairs," finally
returning with Baker. Austin then arrested the juvenile,
conducted an incidental search, and discovered three photographs
in her pocketbook, including pictures of defendant "holding his
erect penis" and Baker in sexually suggestive poses. In response
to Austin's questioning, Baker explained "those were pictures that
[defendant] allowed her to take of him masturbating."
Prompted by such information, Austin appeared before Danville
Juvenile and Domestic Relations District Court Judge Dale M. Wiley
to obtain a search warrant of defendant's residence. Austin's
attendant affidavit requested a search "in relation to an offense
described as follows: [p]ossession of obscene photos, pictures,
or film of any person and any camera or video equipment used to
make or show these pictures." The affidavit identified defendant
and his residence, 226 North Avenue, as the "place, person or
thing to be searched" and listed "obscene photos, pictures, film,
and any cameras, video equipment, or tapes that show or contain or
can be used to show, print, or present for viewing obscene
material" as the "things or persons to be searched for." The
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affidavit also detailed the "material facts constituting probable
cause." 1
Based upon the affidavit and an examination of the photos,
the judge issued the warrant and Austin, accompanied by several
additional police officers, returned to defendant's residence to
undertake the related search. Upon execution of the warrant,
police discovered several "obscene" photographs, which defendant
acknowledged variously depicted Baker, another unnamed juvenile
and himself engaged in sexual activity or provocative poses.
Defendant, also found in possession of marijuana, $753 cash and a
pager, was subsequently arrested and indicted for the instant
offenses.
1
Austin's sworn narrative recited, in pertinent part, that
he had
obtained information from the Pitts Co.
Sherriffs [sic] Dept. that a runnaway [sic]
W/F age 17 was in Danville near Claiborne
St. and that she was staying with a W/M only
known to them as "Donnavan." The female's
name is Rachel Annette Baker DOB 11-7-82
XXX-XX-XXXX. She was also wanted for
violation of "outreach" in Pitts Co. I knew
of a Roger Donnavan Freeman W/M DOB-2-13-75
SSN XXX-XX-XXXX who lives at 226 North Ave.
I went to this address and Mr. Freeman
answered the door. He said Ms. Baker was
there and I took her into custody. In her
pocket book I found obscene pictures of
Roger Freeman that Rachel Baker said she
took of him masturbating. She said Mr.
Freeman allowed her to take nude pictures of
himself while masturbating himself and the
pictures were taken with his camera at his
house at 226 North Ave.
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On the morning of trial, defendant moved the court to
suppress evidence gathered in the search. Following a related
evidentiary hearing, the court denied defendant's motion and trial
immediately followed, resulting in the instant convictions and
appeal.
II.
Defendant first contends the search warrant erroneously
"fail[ed] to state the items to be seized" and, "[a]lthough [a]
description was included in the affidavit, there was no evidence
that the affidavit was attached to the warrant, as required by
. . . Code § 19.2-56." However, Commonwealth's "Exhibit 5," a
single exhibit identified by Austin, embraces both the search
warrant and affidavit, attached one to the other. Thus, the
record affirmatively establishes the affidavit was "a part of" the
warrant in accordance with Code § 19.2-56, thereby strengthening
the presumption of regularity. Offering no evidence to the
contrary, defendant clearly failed to carry his burden to "prov[e]
the warrant . . . illegal or invalid" for an infirmity arising
from an insufficient description of the objects sought by police
or otherwise violative of Code § 19.2-56. See Lebedun, 27 Va.
App. at 710-12, 501 S.E.2d at 432-34; Code § 19.2-56.
Defendant next maintains "the description of the items to be
seized was overly broad" but, again, his argument is without
merit.
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Code § 19.2-54 expressly prohibits issuance of a "general
warrant for the search of a house, place, compartment, vehicle or
baggage." See U.S. Const. amend IV; see also Va. Const. art. 1,
§ 10. "The 'distinct objective'" of such limitations "'is that
. . . searches deemed necessary . . . be as limited as possible;'
. . . to prevent 'a general, exploratory rummaging in a person's
belongings.'" Moyer v. Commonwealth, 33 Va. App. 8, 23, 531
S.E.2d 580, 587 (2000) (citation omitted). "The test for
determining the requisite degree of particularity . . . 'is a
pragmatic one: "The degree of specificity required . . . may
necessarily vary according to the circumstances and type of items
involved . . . ."'" Morke v. Commonwealth, 14 Va. App. 496, 500,
419 S.E.2d 410, 413 (1992) (citation omitted). Thus, "[s]o long
as the 'search warrant describe[s] the objects of the search with
reasonable specificity,' it complies with the dictates of the
Fourth Amendment." Id. (citation omitted). "The determination
whether the warrant possesses the requisite degree of specificity
requires a fact-specific, case-specific analysis." Id. at 500-01,
419 S.E.2d at 413.
The instant warrant was issued in relation to the
"Production, Sale, Possession, Etc. Of Obscene Items," supported
by an affidavit that specifically enumerated the "things or
persons to be searched for," all items reasonably "related to
[the] particular offenses." Id. at 502, 419 S.E.2d at 414. Thus,
the pertinent instruments sufficiently detailed the objects
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subject of the search, together with a compelling nexus to the
offenses under investigation, thereby satisfying both
constitutional and statutory safeguards. See id.
Finally, defendant asserts that "[t]he probable cause
requirement was not fulfilled by evidence of the Commonwealth."
Once more, however, defendant fails to demonstrate the necessary
deficiency in the warrant. While "[t]he Fourth Amendment provides
that a search warrant shall issue only upon a showing of probable
cause supported by oath or affirmation," Lebedun, 27 Va. App. at
706, 501 S.E.2d at 431,
"[t]he task of the issuing magistrate is
simply to make a 'practical, common-sense
decision whether, given all the
circumstances set forth in the affidavit
before him, including the veracity and the
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.'
And the duty of a reviewing court is simply
to ensure that the magistrate had a
'substantial basis for . . . concluding'
that probable cause existed.
* * * * * * *
[Thus,] an after-the-fact review of a
magistrate's decision should not be made de
novo[,] . . . great deference should be
given to the magistrate's finding of
probable cause."
Id. (citations omitted) (emphasis added); Code § 19.2-54; see
also Gwinn v. Commonwealth, 16 Va. App. 972, 975, 434 S.E.2d 901,
903 (1993) (magistrate "need only conclude that it would be
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reasonable to seek the evidence in the place indicated in the
affidavit").
Here, Austin's affidavit recited the discovery of "obscene
pictures" of defendant during the search of Ms. Baker, a runaway
juvenile, immediately following her apprehension at defendant's
home. The affidavit further disclosed Baker's contemporaneous
explanation that defendant "allowed her to take [the] nude
pictures of himself while masturbating, . . . with his camera at
his house." The judicial officer had the opportunity to
actually view the pictures seized from Baker, including
photographs of defendant holding his erect penis and sexually
suggestive poses of Baker. We have previously found that
exposure of the aroused male genitalia "to others" constituted
conduct "'substantially beyond' acceptable community standards"
and, therefore, obscene as a matter of law. Copeland v.
Commonwealth, 31 Va. App. 512, 515, 525 S.E.2d 9, 10-11 (2000).
Thus, when considered in totality, the circumstances clearly
gave rise to a "fair probability" that like contraband or
evidence of a crime would be found within defendant's residence
and justified issuance of the disputed warrant.
Defendant mistakenly relies upon Upton v. Commonwealth, 211
Va. 445, 177 S.E.2d 528 (1970), and Lee Art Theater v.
Commonwealth, 210 Va. 315, 170 S.E.2d 769 (1969), to invoke
First Amendment jurisprudence as a heightened threshold of
probable cause to support the warrant in issue. Here, the
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actual photographs and attendant circumstances, including an
explanation of the images, were before the judicial officer
issuing the warrant, providing facts that substantially enhanced
the measure of probable cause in support of the warrant. 2
Accordingly, we find no constitutional or statutory taint
to the affidavit, search warrant or related search and affirm
the trial court.
Affirmed.
2
For the first time on appeal, defendant also contends the
affidavit failed to establish probable cause of an intent to
sell "obscene materials" in violation of Code § 18.2-374, the
offense referenced in the affidavit and warrant. However,
"[t]he Court of Appeals will not consider an argument which was
not presented to the trial court." Ohree v. Commonwealth, 26
Va. App. 299, 308, 494 S.E.2d 484, 488 (1998) (citation
omitted); see also Rule 5A:18.
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