Opinion
Record No. 1182-93-3
November 8, 1993
FROM THE CIRCUIT COURT OF WISE COUNTY J. ROBERT STUMP, JUDGE.
Virginia B. Theisen, Assistant Attorney General (Steven D. Rosenthal, Attorney General, on brief), for appellant.
David L. Scyphers (T. Shea Cook; Johnson, Scyphers Austin, P.C., on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The Commonwealth contends that the trial court erred in suppressing evidence found in Scott Ray Sluss's home and Sluss's statement regarding that evidence. We agree and reverse.
On August 10, 1992, Officer Mullins stopped Sluss's automobile and arrested him on a capias for failure to appear. Before the arrest, Mullins noticed a pistol between the console and seat of the car. Upon searching the car, Mullins found Federal Bureau of Investigation identification containing Sluss's name and photograph, handcuffs, night sticks, billy clubs, ammunition, mace, a hunting knife, surveillance equipment, and notes of police investigations that Sluss had conducted. Upon contact by Mullins, the FBI denied that Sluss worked for that agency. Previously, people had contacted Mullins and had told him that Sluss had represented himself to be a police officer.
After the arrest, Mullins submitted an affidavit seeking a search warrant for Sluss's residence. The affidavit stated that "Sluss has been representing himself as being a law enforcement officer and interviewing citizens of the county under the pretense of being a law enforcement officer." Mullins also stated in his affidavit that he had personal knowledge "of the facts set forth in this affidavit." Based on the affidavit, a circuit court judge issued a warrant commanding the search of Sluss's residence for evidence that Sluss had impersonated a police officer. Mullins executed the warrant the same day. He found a translucent "tupperware" style plastic box with a lid. To determine its contents, Mullins opened the container and found a mirror and a small amount of cocaine. Sluss stated that the white substance was caffeine, not cocaine.
Sluss moved to suppress as evidence the items found in the search of his home and his statement relating to those items. At the hearing, he argued that no probable cause justified the issuance of the search warrant, that search of the tupperware container exceeded the scope of the search warrant, and that no good faith basis existed for searching his home.
Mullins testified that he thought his affidavit was correct and that he had personal knowledge of Sluss's misrepresentations because persons in the community had told him that Sluss represented himself as a police officer. He stated that he thought that the items he found in Sluss's car gave him probable cause to seek a search warrant for Sluss's residence.
The trial court found that the discovery of the items in Sluss's car did not provide probable cause to search Sluss's house. The court also found that the affidavit was faulty because Mullins had made a false statement that he personally knew that Sluss had claimed to be a police officer when he did not have personal knowledge of that fact. The trial court noted that the day before he arrested Sluss, Mullins had obtained a warrant charging Sluss with assaulting him. For these reasons, the trial court suppressed the evidence seized from Sluss's residence and Sluss's statement.
A review of the issuing authority's "decision should not be made de novo and . . . great deference should be given to the magistrate's finding of probable cause." Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666 (1991). "[T]he duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed." Id. (quoting Illinois v. Gates, 462 U.S. 213, 230-31 (1983).
Under the Fourth and Fourteenth Amendments, Sluss was entitled to a hearing to determine the truthfulness of the statements made by Mullins in his affidavit. However, to justify a hearing to resolve the validity of his allegations of error or false statements, Sluss was required to show that the alleged error or false statement was necessary to the finding of probable cause.Franks v. Delaware, 438 U.S. 154, 171-72 (1978).
Although Mullins's personal knowledge statement was plainly false, the remainder of the affidavit was sufficient to support the issuance of the search warrant. See id. Mullins's affidavit was uncontradicted except for the one inaccurate statement that he had personal knowledge that Sluss had represented himself to be a law enforcement officer. Mullins stated in his affidavit that an inventory of Sluss's vehicle included FBI identification bearing Sluss's picture, handcuffs, night sticks, billy clubs, ammunition, mace, two guns, a hunting knife, surveillance equipment, and investigative notes. Mullins also stated that the FBI advised him that Sluss did not work for them. These facts, without Mullins's personal knowledge statement, gave the issuing judge a substantial basis for finding probable cause that Sluss had impersonated a police officer. See Derr, 242 Va. at 421, 410 S.E.2d at 666.
Sluss argues that the discovery of the seized items in his automobile did not provide probable cause to believe that his home contained evidence of his impersonating a police officer, that an insufficient nexus existed between his car and his home, and that the discovery of the items in his car was, therefore, insufficient to support the issuance of a search warrant for his home. We disagree.
The crime of impersonating a police officer consisted of a continuous and ongoing course of misconduct. Sluss had in his car an array of police equipment and notes of investigations he had performed. It was reasonable to suspect that these items and materials were not acquired and generated by Sluss in his automobile and that other similar items and materials, providing additional evidence of his guilt, might well be found at his home. The nature of the crime and the evidence discovered in the vehicle created a sufficient nexus between Sluss's car and his home supporting the issuing judge's finding of probable cause to issue the search warrant. See Gwinn v. Commonwealth, ___ Va. App. ___, 434 S.E.2d 901 (1993).
The search warrant commanded that the officers seek "[d]ocuments that would show that Scotty R. Sluss has assumed or pretended to be a police officer." The plastic box could well have contained such items. Therefore, opening the box did not exceed the scope of the search warrant.
Having found probable cause for the issuance of the warrant, we need not address the good faith exception to the search warrant requirement.
The search of Sluss's home was proper, the cocaine found therein was properly seized, and Sluss's resulting statement was not the fruit of a "poisonous tree." The trial court erred in suppressing that evidence and that statement.
The judgment of the trial court is reversed, and this case is remanded for further proceedings.
Reversed and remanded.
Judge Stump found nothing in the affidavit for the search warrant to suggest that any evidence existed, other than the evidence found in the automobile, which might show that Sluss had been impersonating a police officer. Furthermore, even if additional evidence of the crime of impersonating a police officer might exist, no basis was contained in the affidavit for believing that Sluss's home contained such evidence. Additionally, the officer executing the search warrant, who was also the affiant, knew that he had no basis for his belief that additional evidence existed or that the evidence would be found in Sluss's home. Accordingly, he had no "good faith" reason to believe that the warrant was valid. Therefore, I would uphold Judge Stump's suppression ruling.