Commonwealth of Virginia v. David William Bickford ( 2011 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Senior Judge Clements
Argued by teleconference
COMMONWEALTH OF VIRGINIA
v. Record No. 0706-11-2
DAVID WILLIAM BICKFORD
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0707-11-2 JUDGE ROBERT J. HUMPHREYS
AUGUST 29, 2011
TRACY RUTH BICKFORD, S/K/A
TRACEY BICKFORD
COMMONWEALTH OF VIRGINIA
v. Record No. 0708-11-2
LARRY EDWARD TURNER, JR.
FROM THE CIRCUIT COURT OF LOUISA COUNTY
Timothy K. Sanner, Judge
Rosemary V. Bourne, Assistant Attorney General II (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellant.
Scott Goodman for appellee David William Bickford. 1
(Allison Rafferty, on brief), for appellee Tracy Ruth Bickford.
(Steven Shareff, on brief), for appellee Larry Edward Turner, Jr.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellees’ motion for leave to file a combined brief of appellees and for leave to have a
single counsel present oral argument on behalf of all appellees is granted.
In this case, the Commonwealth of Virginia (“the Commonwealth”) appeals the Louisa
County Circuit Court’s (“trial court”) suppression of the evidence obtained against David
William Bickford, Tracy Ruth Bickford, and Larry Edward Turner, Jr., (“appellees”) as a result
of a search warrant issued upon an infirm affidavit. Specifically, the Commonwealth contends
the trial court erred in finding (1) that the affiant, Lieutenant Howard Porter of the Louisa
County Sheriff’s Office (“Porter”), acted recklessly in relying on the Louisa County Assessor’s
website to determine the square footage of the target house, (2) that Porter did not sufficiently
corroborate the unnamed informants’ information, (3) that probable cause to believe that a
continuous marijuana grow operation existed at the target house had gone stale, and (4) that the
good faith exception to the exclusionary rule enunciated in United States v. Leon, 468 U.S. 897(1984), did not apply. For the following reasons, we hold that there is insufficient evidence in
the record before us to support the trial court’s factual finding that Porter acted recklessly in
obtaining the search warrant, and we, thus, reverse the trial court’s suppression of the evidence.
Our disposition of this assignment of error renders moot the Commonwealth’s remaining
assignments of error, since the information provided by Porter in the affidavit for the search
warrant clearly both corroborates the information provided by the unnamed informants and,
taken together with the information supplied by those informants, supplies probable cause for the
issuance of the search warrant.
I. Background
On July 7, 2010, Porter obtained a search warrant for the home of appellees, located at
3040 Goldmine Road in Louisa County. Porter requested the search warrant “in relation to” the
manufacture of marijuana at that address. The affidavit for the search warrant contained the
following statement of probable cause:
On June 21, 2010, Lieutenant Howard Porter of the Louisa
Narcotics Task Force received a telephone call from a citizen who
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wished to remain unnamed, who stated that approx[imately] 2
months ago, that they were at the residence of Larry Turner,
located at 3040 Goldmine Road, located in Louisa County Virginia
and observed approx[imately] 30 marijuana plants growing in the
garage. They advised that Larry Turner starts the marijuana plants
as seedlings in the basement of the house. As the plants grow
bigger they are moved to the garage which has been converted
with pots and grow lights, for indoor marijuana grow. This
unnamed person said they have known Larry Turner for several
years and [he] has kept an (sic) constant marijuana grow operation
in the residence and garage. They also advised that he drives an
early 1990’s white Chevy Cavalier, and does not work. Later on
June 21, 2010, Lt. Porter received a 2nd unnamed person who gave
the same information as the first except that he/she saw as many as
100 marijuana plants growing in the garage. Both gave the same
description of the residence and Lt. Porter verified the description
by driving by the residence.
Lt. Porter conducted a DMV check on Larry Turner and found that
Larry Edward Turner, Jr. (DOB 1-15-72) shows his address as
3040 Goldmine Road, Louisa Va. 23903. DMV also shows that
Larry Edward Turner Jr. has a 1994 white Chevy 4-door sedan
registered to him and listing the same address, 3040 Goldmine
Road.
A check with the Virginia Employment Commission shows that
Larry Edward Turner, Jr. has no employment history in Virginia.
On April 10, 2002, Larry Edward Turner was arrested in
Forestville Maryland, for assault and admitted to smoking
marijuana with PCP. On August 18, 1998, he was arrested for
possession of marijuana in Annapolis, Maryland and on March 26,
1993, he was arrested for possession of a controlled dangerous
substance in Anne Arundel County, Maryland.
D.E.A. task force Special Agent Chris Bennett subpoenaed
electricity billing records from Rappahannock Electric Cooperative
for 3040 Goldmine Road and two other residences in the same
area, 3767 Goldmine Road and 5100 Bibb Store Road. Larry
Turner’s residence at 3040 Goldmine Road, a 2,106 square foot
house, used a total of 37,540 kilowatt hours from September, 15,
2009 to June 15, 2010 for an average of 4,570 kilowatt per month.
During the same time frame, 3767 Goldmine Road, a 2240 square
foot house, used 19,858 kilowatt hours for an average of 2206 per
month. Also, during the same time frame, 5100 Bibb Store Road,
a 2,012 square foot house used 9,748 kilowatt hours per month for
an average of 1083 per month. S/A Bennett advised that the high
rate of kilowatt hours used at 3040 Goldmine Road is typical of an
indoor marijuana grow operation.
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On July 7, 2010, Lt. Porter discussed this case with D.E.A. Special
Agent Mark Bertsch who has worked several indoor marijuana
grow operations and he advised that the high rate of kilowatt usage
is usually associated with an indoor marijuana grow operation.
Special Agent Bertsch advised that a typical residence does not use
more than 1 kilowatt per square foot per month.
The affidavit also included a detailed description of the extensive experience and training
Lieutenant Porter, Special Agent Christopher Bennett, and Special Agent Mark Bertsch had in
the investigation of cases involving the distribution and possession of controlled substances.
Finally, the affidavit provided that Porter had “personal knowledge of the facts set forth in this
affidavit OR” that he “was advised of the facts set forth in this affidavit in whole or in part, by an
informer.” The affidavit states:
This informer’s credibility or the reliability of the information may
be determined from the following facts: 1st unnamed person, has
lived in Virginia for over 10 years, maintains a fulltime job, has no
criminal record and is a registered voter. 2nd unnamed person, has
lived in Virginia for over 10 years, maintains a fulltime job, has no
criminal record and is a registered voter.
A magistrate issued the warrant. Upon its execution, the authorities retrieved 40 items associated
with the distribution and possession of controlled substances along with “129 marijuana plants.”
A grand jury indicted appellees for possession with intent to distribute more than one-half
ounce, but less than five pounds of marijuana, in violation of Code § 18.2-248.1. Prior to trial,
appellees each filed a motion to suppress. The trial court held a joint hearing on the motions to
suppress on March 7, 2011. At the hearing, appellees argued that the information provided by
the unnamed informants in support of the warrant had grown stale; that the information provided
by the unnamed informants provided insufficient probable cause for a warrant to issue; that
Porter provided recklessly false information in stating that the residence involved was only 2,106
square feet; and that the credibility of the unnamed informants had not been established.
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In support of their position, appellees presented testimony from Terry McCumber, a
general contractor and friend of one of the appellees, David Bickford. McCumber measured the
home on July 19, 2010, and determined that the living space was 3,611 square feet, the
screened-in porch was 390 square feet, and the workshop was 459 square feet, for a total of
4,460 square feet. McCumber testified that the entire square footage was “all hooked up with
electricity” and stated that the entire house has baseboard heat. When asked whether baseboard
heat uses more electricity than other types of heat, McCumber responded, “tears it up.” On
cross-examination, McCumber acknowledged that he did not look at the county tax assessment
records because “apparently they assess it differently from me.” McCumber also explained that
the porch actually had walls on only three sides and screens on the fourth. He, nevertheless,
considered the porch as “livable square footage.” McCumber also included the basement in his
calculations. The defendants submitted four photographs into evidence: two of the photographs
show the target property, one photograph depicts the house at 3767 Goldmine Road, and one
photograph depicts the property at 5100 Bibb Store Road.
Appellee Larry Turner, who lived in the home during the period in question, testified that
the porch and workshop actually had electrical outlets rather than baseboard heat, and he
explained that, whereas the porch and basement were used for living space, the workshop
“wasn’t used as living space, it was used as work space.” He also testified that the basement was
located under the main part of the house and stated that someone looking at the front of the house
could not see if there was a basement.
The Commonwealth called Porter to testify. Porter explained that he determined the
square footage on the property “off the internet in the [Louisa County] assessor’s office.” He
then drove by the house and observed it from “a couple hundred yards” away. Porter conceded
he was not able to determine the square footage on the house merely by looking at it and stated,
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“I can’t determine square footage unless I walk up to the building . . . with a tape measure.”
Porter also explained that, in preparing the search warrant, he made a mathematical error in his
calculation of the kilowatt usage in the residence. Porter testified the actual kilowatt usage in the
residence during the relevant time period was 4,171 kilowatt hours per month, rather than 4,570.
Porter conceded on cross-examination that he did not inquire as to the type of heat used or
determine the number of persons residing in the three residences referred to in the search
warrant. Porter also could not recall if he had driven by the other two residences referred to in
the search warrant, only stating that he knew he “drove up and down the road a couple of times.”
Porter also conceded on cross-examination that he verified the information given by the
informants regarding their residency, voting, and absence of a criminal record after he obtained
the search warrant. He also admitted on cross-examination that he had “made a mistake.” The
affidavit for the search warrant should have read “no felony criminal record on unnamed person
#2.” Unnamed person #2 had a misdemeanor criminal conviction on his/her record. Porter
stated he made the mistake because he “had no reason to doubt what they were telling [him].”
Porter, thus, did not verify their employment or voter registration status before obtaining the
warrant. Porter testified on re-direct that he obtained a cell phone number from each informant
and was able to contact them at their respective phone numbers.
The trial court questioned whether the affidavit contained sufficient evidence supporting
the informants’ veracity or their basis of knowledge for the tip. The trial court stated, “that’s
why it was very important to establish it was an on-going grow operation with some evidence to
support those blanket conclusory statements that you would have some . . . electricity use
unusual for the size of the house.” The trial court found that Porter’s statement that the average
kilowatt hours were 4,570 instead of 4,171 was misleading but not intentional. However, the
trial court also found that Porter’s reliance on the tax assessment records in stating that the house
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was 2,106 square feet was reckless because a photograph of the house depicted a residence that
“would appear to be substantially larger than 2,106 feet.” The trial court stated, “that looks
nothing like a 2,100 square foot house, that looks like close to what it is, [a] 4,000 square foot
house.” The trial court stated it was troubled by what it considered to be a “great deal of
recklessness” in drafting the affidavit. The trial court found “the arguments of the defendants are
well made” and granted the motions to suppress.
The Commonwealth appeals those decisions pursuant to Code § 19.2-398.
II. Analysis
The Commonwealth contends on appeal that the trial court erred in granting appellees’
motions to suppress. In pertinent part, the Commonwealth assigns error to the trial court’s
finding that Porter’s statements in the affidavit were made in reckless disregard for the truth so as
to mislead the magistrate, as prohibited by the standard set forth in Franks v. Delaware, 438 U.S.
154 (1978). 2 We agree that the trial court erred.
Standard of Review
“In an appeal by the Commonwealth” of a trial court’s suppression order, we view the
evidence in the light most favorable to the defendant, the prevailing party below.
Commonwealth v. Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992) (citing Code
§ 8.01-680)). “[W]e are bound by the trial court’s findings of historical fact unless ‘plainly
wrong’ or without evidence to support them and we give due weight to the inferences drawn
from those facts by resident judges and local law enforcement officers.” McGee v.
2
The Commonwealth correctly notes that the trial court did not follow the proper
procedure and require a substantial preliminary showing of police misconduct under Franks
before finding that Porter acted with reckless disregard for the truth in obtaining the search
warrant. However, because the Commonwealth did not object to the improper procedure at the
suppression hearing, the Commonwealth concedes that it may not pursue that particular assertion
of error on appeal. See Rule 5A:18.
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Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v.
United States, 517 U.S. 690, 699 (1996)). However, we apply a de novo standard of review to
the trial court’s application of defined legal standards such as probable cause and reasonable
suspicion to the particular facts of the case. See Ornelas, 517 U.S. at 699.
Legal Principles Governing the Issuance of a Search Warrant
It is well settled that “a presumption of validity attaches . . . to a warrant issued by a
neutral and detached magistrate or judicial officer.” Lebedun v. Commonwealth, 27 Va. App.
697, 711, 501 S.E.2d 427, 434 (1998) (citations omitted); see also Franks, 438 U.S. at 171.
“Therefore, where the police conduct a search pursuant to a judicially sanctioned warrant,” the
defendant will rebut the presumption of validity only if he proves “the warrant is illegal or
invalid.” Id. (citations omitted). Because “the Fourth Amendment demands a factual showing
sufficient to comprise probable cause, the obvious assumption is that there will be a truthful
showing.” Franks, 438 U.S. at 164-65 (citation omitted). “This does not mean ‘truthful’ in the
sense that every fact recited in the warrant affidavit is necessarily correct . . . [b]ut surely it is to
be ‘truthful’ in the sense that the information put forth is believed or appropriately accepted by
the affiant as true.” Id. at 165.
“Allegations of negligence or innocent mistake are insufficient” to warrant a hearing on
the issue. Id. at 171. Rather, to successfully attack an otherwise properly issued and executed
search warrant, the defendant must plead “allegations of deliberate falsehood or of reckless
disregard for the truth, and those allegations must be accompanied by an offer of proof.” Id.
(emphases added). That is, the defendant must aver in his motion and establish to the
satisfaction of the trial court at any subsequent hearing that “the magistrate or judge in issuing
the warrant was misled by information in an affidavit that the affiant [either] knew was false or
would have known was false except for his reckless disregard for the truth.” Leon, 468 U.S. at
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923 (emphases added) (citation omitted). “The mere fact that the affiant did not list every
conceivable conclusion does not taint the validity of the affidavit. . . . Franks protects [only]
against omissions that are designed to mislead, or that are made in reckless disregard of whether
they would mislead, the magistrate.” United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)
(emphases in original) (citations omitted). The defendant must also show “that the falsehood or
omission negated the basis upon which the probable cause determination was made.” Gregory v.
Commonwealth, 46 Va. App. 683, 694, 621 S.E.2d 162, 168 (2005).
These standards are in keeping with the principle that “the Fourth Amendment ‘probable
cause’ test requires not absolute certainty but only that the government have good reason for
believing in the existence of the necessary facts.” 2 Wayne R. LaFave, Jerold H. Israel &
Nancy J. King, Criminal Procedure § 3.4(d), at 129 (2d ed. 1999). They are also “consistent with
the remedial purpose of the exclusionary rule, ‘to deter police misconduct by denying illegally
obtained evidence from being admitted in [a] defendant’s criminal trial.’” Williams v.
Commonwealth, 26 Va. App. 612, 618, 496 S.E.2d 113, 116 (1998) (emphasis in original)
(quoting Johnson v. Commonwealth, 21 Va. App. 172, 175, 462 S.E.2d 907, 909 (1995)).
Ultimately, whether an officer acted in reckless disregard for the truth is a question of fact, and
we will not reverse the trial court’s finding unless it is “plainly wrong” or without evidence to
support it. West v. Commonwealth, 16 Va. App. 679, 690, 432 S.E.2d 730, 737 (1993).
However, we review de novo “whether misstatements and omissions are material to the finding
of probable cause.” United States v. Dozier, 844 F.2d 701, 705 (9th Cir. 1988).
Although Franks and its progeny require a specific motion and an offer of proof from the
defendant before a hearing on the veracity of the information contained in an affidavit for a
search warrant may be held, this Court has not strictly enforced that requirement. Thus, in this
case, as we have done in numerous prior cases where the Commonwealth has failed to object to
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the procedures followed in the trial court, “we treat the hearing on [appellees’] motion[s] to
suppress as a Franks hearing, despite the absence of ‘any preliminary showing’ by [appellees] of
police misconduct.” Williams, 26 Va. App. at 617, 496 S.E.2d at 115 (emphasis in original)
(quoting West, 16 Va. App. at 689, 432 S.E.2d at 737). Applying the Franks standard to the
record before us, we conclude that the record in this case does not support the trial court’s factual
finding that the information in Porter’s affidavit, obtained from the public records of the Louisa
County Assessor regarding the square footage of the target residence, was made “in reckless
disregard of whether it would mislead, the magistrate.” Although the trial court stated it was
“troubled” by what it considered to be a “great deal of recklessness,” the trial court specified
only one reason in support of its finding that Porter deliberately or recklessly misled the
magistrate into issuing the search warrant; namely, that a picture of the subject home depicted a
residence that “would appear to be substantially larger than 2,106 feet” and thus implicitly, the
trial court apparently concluded that the electricity usage referred to in the affidavit did not
corroborate the unnamed informants’ information. 3
Nothing in the record, however, suggests that Porter knew or should have known that the
target house was, in actuality, more than 2,106 square feet. Porter, unlike McCumber, could not
3
As noted, the trial court expressly found that the mathematical error contained in the
affidavit pertaining to the kilowatt usage on the property was “not intentional.” Moreover, we
note that the trial court made no additional factual finding with respect to the 2nd unnamed
informant’s misdemeanor criminal record. The record does not reflect whether the misdemeanor
conviction was for a crime of moral turpitude which might impact the informant’s credibility,
and in the absence of that information in the record, while we certainly do not condone his
failure to do so, Porter’s failure to verify the informants’ background information until after the
warrant was obtained, while clearly negligent, does not amount to recklessness. Finally, we have
examined the photographic exhibits depicting the target house and the houses used for
comparison purposes, and we conclude that these exhibits do not support the conclusion of the
trial court that the target house “appears to be substantially larger than 2,106 square feet” from
the road from which Porter was able to view it without trespassing upon the property or indeed is
so radically different in size from the comparison houses as to make it obvious that any reliance
on them would constitute recklessness on the part of Porter in evaluating their relative electricity
usage.
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in his capacity as a police officer enter the house in order to measure it before requesting the
search warrant. In fact, Porter testified without contradiction that he could not possibly
accurately determine the square footage on the house unless he could “walk up to the building
. . . with a tape measure,” and the fact that McCumber’s testimony to a different determination of
the square footage was based upon a room-by-room measurement actually corroborated Porter’s
testimony in that regard. Porter, likewise, could not accurately measure the square footage on
either of the houses used for comparison absent permission or obtaining search warrants.
Moreover, since “[t]he Fourth Amendment protects the curtilage of a house,” it would be
presumptively unreasonable for Porter to have entered any of these properties to conduct what
itself would amount to a warrantless search within any of the protected areas of each dwelling to
further his investigation. Robinson v. Commonwealth, 273 Va. 26, 34, 639 S.E.2d 217, 221
(2007) (citations omitted). Thus, insofar as determining whether the electricity usage was
sufficiently high as to corroborate the information provided by the informants, Porter could
either observe these properties from a significant distance, from which the square footage could
not accurately be determined, or he could utilize public records for that purpose.
To that end, we note that the photographs of the target house admitted as defense
exhibits, upon which the trial court relied in rendering its decision, are not sufficiently dissimilar
in depicting relative size of the target house and the houses used for comparison purposes at
3767 Goldmine Road and 5100 Bibb Store Road. These photographs only show the front
elevation exterior of the properties and give no indication, in and of themselves, as to the square
footage of the interior living spaces. Because Porter could not reasonably ascertain the square
footage, by comparison or otherwise, on the target property merely from outward observation, it
was not unreasonable as a matter of law for him to rely upon the county assessor’s records to
determine the square footage. Indeed, though “[a]ll recognize that assessment of property is not
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an exact science,” Southern R. Co. v. Commonwealth, 211 Va. 210, 214, 176 S.E.2d 578, 580
(1970), county tax assessments, in the absence of “a showing of manifest error or total disregard
of controlling evidence,” are presumptively valid, Smith v. Board of Supervisors of Fairfax
County, 234 Va. 250, 257, 361 S.E.2d 351, 355 (1987).
Here, the tax assessment itself is not the issue, but rather the county’s records upon which
that assessment is ultimately based. The public officials of the county rely upon the accuracy of
those records to determine a homeowner’s tax liability and, in the absence of any other
consideration, it is not unreasonable, much less reckless, for other public officials to rely on them
as well. Put another way, in the absence of evidence that Porter knew, or should have known,
that the public records were false or grossly inaccurate, it was not reckless for Porter to include
their content in his affidavit. This record contains no such evidence that Porter acted in bad
faith.
For these reasons, we hold Porter’s failure to alert the magistrate to the possibility that the
house contained more square footage than that which was reported in the county assessor’s office
was, at best, merely negligent rather than deliberately false or reckless. Porter’s assertion that
the house was 2,106 square feet was based upon his search of a public record. Porter testified
without contradiction that without trespassing upon the property, he had no other way of
determining the square footage on the property. “In the absence of clear evidence to the
contrary, courts may presume that public officers have discharged their official duties.”
Robertson v. Commonwealth, 12 Va. App. 854, 856-57, 406 S.E.2d 417-18 (1991) (citation
omitted). McCumber’s testimony that the house contains over 4,000 square feet does not alter
our analysis. McCumber was given access to the interior of the property to make measurements
of it, and he conceded that he included in his measurements a screened-in porch and a workshop
as livable space, even though the porch had only three walls, and the workshop “wasn’t used as
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living space, it was used as work space.” McCumber also included the basement in his
measurements, even though the basement was located under the main part of the house and not
visible to someone observing the house from the outside. Finally, McCumber acknowledged that
he did not look at the county tax assessment records because “apparently they assess it
differently from me.”
Because the record does not support the trial court’s factual finding that Porter exhibited
reckless disregard for the truth so as to mislead the magistrate into issuing the warrant, we find
the trial court erred in excising the relevant information from the affidavit. As the trial court
found, with this information pertaining to the kilowatt usage on the property included, the
affidavit sufficiently supported the magistrate’s conclusion that there was probable cause to
believe appellees were maintaining a continuous marijuana grow operation on the property. It
follows that, if the issuance of the search warrant rested upon a valid affidavit supporting
probable cause, the trial court erred in granting appellees’ motions to suppress. 4 We, therefore,
reverse the trial court and remand the matter for further proceedings consistent with this opinion.
Reversed and remanded.
4
As noted above, if the search warrant and supporting affidavit are considered with this
information included, the magistrate could properly conclude that the information provided by
the informants was corroborated and was not stale. See United States v. Farmer, 370 F.3d 435,
439 (4th Cir. 2004) (“[T]he vitality of probable cause cannot be quantified by simply counting
the number of days between the occurrence of the facts supplied and the issuance of the
affidavit. . . . Rather, we must look to all the facts and circumstances of the case, including the
nature of the unlawful activity alleged, the length of the activity, and the nature of the property to
be seized.” (citations omitted)); See also Pierceall v. Commonwealth, 218 Va. 1016, 1021, 243
S.E.2d 222, 225 (1978) (“[C]ircumstances occurring substantially before the issuance of a search
warrant can justify the issuance of the warrant only if such past circumstances disclose ‘a
probable cause’ of continuous nature so as to support a rational conclusion that the past probable
cause is still operative at the time of the issuance of the warrant.”).
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