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Taylor v. Commonwealth

Court of Appeals of Virginia

September 13, 2016



          Carletta J. Faletti; James P. Carmody (Faletti Law Firm, on brief), for appellant.

          Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Humphreys, Chafin and Decker Argued in Bristol, Virginia



         The Circuit Court of Tazewell County convicted Rudolph David Taylor of one count of transporting controlled substances into the Commonwealth in violation of Code § 18.2-248.01, and two counts of possessing controlled substances with the intent to distribute them in violation of Code § 18.2-248. Although Taylor pled guilty to these offenses, he reserved his right to challenge the circuit court's decision denying his motion to suppress certain evidence. Taylor contends that the warrant authorizing the search of his home following a controlled delivery of a package containing the substances at issue in this case was not supported by probable cause. Specifically, Taylor argues that:

1. There was [an] insufficient nexus between the intended destination of the parcel and the address to which it was diverted by law enforcement.
2. The conditioned anticipatory search warrant failed to state a triggering event which would satisfy the requirement that there would be a fair probability that contraband would be found inside of Taylor's residence at the time the search warrant was served and the premises searched.
3. The conclusions propounded by law enforcement to obtain the search warrant were not based upon the [affiant officer's] personal knowledge as presented in the affidavit, but upon statements taken from an informant some sixty (60) days prior, whose credibility and reliability were untested and not supported as required within the affidavit.
4. The information contained in the affidavit to secure the search warrant was too stale to be considered reliable by a magistrate.

         For the reasons that follow, we affirm Taylor's convictions.

         I. BACKGROUND

         "In accord with settled principles of appellate review, on appeal of the denial of a motion to suppress, we review the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party prevailing [in the trial court]." Anzualda v. Commonwealth, 44 Va.App. 764, 771, 607 S.E.2d 749, 752 (2005) (en banc). So viewed, the evidence is as follows.

         On October 22, 2013, a Customs and Border Patrol agent intercepted a package containing 116 grams of methylone, a substance commonly referred to as "bath salts, " at a FedEx facility in Alaska. The package was sent from Shijazhaung, China, and addressed to "Dave Taylor" at "106 Dial Rock Road" in Tazewell, Virginia. The Customs and Border Patrol agent delivered the package to the Department of Homeland Security ("DHS"), and a DHS agent agreed to attempt a controlled delivery of the package in Virginia.

         The DHS agent travelled to Tazewell and obtained a warrant to search the residence located at 106 Dial Rock Road. This warrant was anticipatory in nature, and only allowed the agent to search the premises if an individual accepted the package "into the residence." On October 28, 2013, the agent attempted to deliver the package while disguised as a FedEx employee. A resident living at 106 Dial Rock Road informed him that Taylor did not live at that address and refused to accept the package. Thus, the triggering condition of the anticipatory warrant did not occur and the agent and other assisting police officers from the Town of Tazewell did not search the residence.

         The DHS agent contacted the Tazewell County Sheriff's Office ("Sheriff's Office") the next day to inform them about the failed delivery. When the agent inquired about a possible investigation of Taylor's involvement in the distribution of narcotics, officers informed him that they had been investigating Taylor for eight months. In February of 2013, the Sheriff's Office had received information that Taylor was buying bath salts online from a source located in a foreign country, importing them into the United States through the postal system, and selling them. Following this initial report, Taylor's former girlfriend, Elizabeth Elswick, was arrested for possessing bath salts. She claimed that she had received the drugs from Taylor and that he ordered them through the mail.

         Elswick also provided the police with a packaging slip, or "waybill, " concerning one of Taylor's bath salt transactions. The waybill referred to a package addressed to "Rudolph Taylor" at "6555 Pounding Mill Branch Road, Pounding Mill, Virginia, " that had been mailed on August 12, 2013.[1] Like the package intercepted by DHS, the package described in the waybill had been sent from Shijazhuang, China. Records from the Department of Motor Vehicles ("DMV") confirmed that Taylor listed "6555 Pounding Mill Branch Road" as his address.

         Utilizing the supplemental information from the prior investigation of Taylor, Detective Bill Perry of the Sheriff's Office requested a warrant to search the residence located at 6555 Pounding Mill Branch Road. In his affidavit supporting his request for this warrant, Perry stated:

On October 29, 2013 an agent of the Tazewell County Narcotics Task Force contacted . . . an agent of the Department of Homeland Security. This agent advised that he contacted Tazewell Police Department with a package that contained 116 grams of Methylone "bath salts" [which] was intercepted in Anchorage[, ] Alaska[, ] addressed to Dave Taylor at 106 Dial Rock Rd.[, ] North Tazewell[, ] VA. On 10/28/13 they attempted a controlled delivery of the package but the package was refused at this residence. An on-going investigation over the past eight months has revealed by this Detective that Dave Taylor has received on August 12, 2013 a package from the same address from Hersei[, ] China.[2] Mr. Taylor lives [at] 6555 Pounding Mill Branch Rd.[, ] Pounding Mill[, ] Va. On October 30, 2013, this Task Force will be attempting a controlled delivery of the package to Taylor's address on Pounding Mill [Branch] Rd.

         In another section of the affidavit, Perry stated:

Customs has intercepted a package in Anchorage[, ] Alaska[, ] that contains approximately 116 grams of Methylone addressed to Dave Taylor at 106 Dial Rock Rd[, ] North Tazewell[, ] Va. Mr. Taylor has received a package from the same address in China to his residence at 6555 Pounding Mill Br. Rd.[, ] Pounding Mill[, ] Va. Substance was tested by Homeland Security and determined to be Methylone "bath salts." Information received by this detective has revealed that this substance is being ordered and received by U.S. mail, FedEx, and UPS from China.

         While Perry checked a box on the affidavit form indicating that he had personal knowledge of the facts set forth in the affidavit, he provided "a synopsis of the investigation" of Taylor while testifying under oath before the magistrate who reviewed the warrant application.

         Based on Perry's affidavit and testimony, the reviewing magistrate issued a warrant allowing the police to search Taylor's residence at 6555 Pounding Mill Branch Road for evidence of drug distribution. This warrant was similar to the prior warrant authorizing a search of the residence located at 106 Dial Rock Road. Although the warrant did not require the intercepted package to be taken into the residence, it was conditioned on Taylor's acceptance of the package.

         On October 30, 2013, the Tazewell County Narcotics Task Force executed the search warrant at 6555 Pounding Mill Branch Road. Disguised as a UPS employee, Detective Greg Layne delivered the package addressed to 106 Dial Rock Road to Taylor as he was leaving his residence in Pounding Mill. While Layne did not point out the address discrepancy to Taylor, he told him that "he was a hard man to get up with." Taylor accepted the package in his driveway approximately six feet away from the front door of the residence, placed it in the waistband of his pants, and turned to go back into the house. As Taylor was walking toward the house, Layne signaled for other officers hiding in a nearby delivery van to arrest him before he entered the residence with the package.

         When the officers executed the warrant, they seized the package containing the bath salts, documents referencing drug transactions, and other items potentially linked to the distribution of controlled substances. Notably, two documents found on the coffee table of Taylor's living room contained the tracking number for the package the police had just delivered. The officers also seized "various items of narcotics paraphernalia" from the house, including a set of digital scales, two used syringes, and two metal spoons and a glass smoking pipe containing the residue of an unknown substance.

         After Taylor was charged with numerous drug offenses, [3] he filed a motion to suppress the evidence the police obtained following the controlled delivery of the intercepted package. The circuit court denied Taylor's suppression motion in a detailed opinion letter. The circuit court concluded that the totality of the circumstances of this particular case established a nexus between the intercepted package and Taylor's residence in Pounding Mill, explaining that the evidence implied that Taylor would have eventually received the package at his home despite its intended delivery to Dial Rock Road. The circuit court explained that the evidence gathered by Perry in his investigation of Taylor established probable cause to believe that Taylor was ...

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