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Bartley v. Commonwealth

Court of Appeals of Virginia

June 20, 2017

TIMOTHY KENNETH BARTLEY
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO Charles L. Ricketts, III, Judge

          Michael J. Hallahan, II, for appellant.

          John I. Jones, IV Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Petty, Alston and Russell

          OPINION

          WILLIAM G. PETTY JUDGE

         Timothy Kenneth Bartley was convicted of possession of methamphetamines in violation of Code § 18.2-250. Bartley argues on appeal that the trial court erred in denying his motion to suppress because the search of his car was invalid. Bartley's assignment of error is procedurally defaulted under Rule 5A:20(e); therefore, we affirm his conviction.

         Background

         Waynesboro City police were executing a search warrant for methamphetamines at the residence of a suspected methamphetamine distributor (distributor) when the distributor identified Bartley as his "supplier." The search warrant authorized a search of the residence as well as a search of "all persons therein [and] all vehicles associated" with the residence. Before the search was finished, and with the agreement of the police, the distributor called Bartley and placed an order for methamphetamines. When Bartley arrived at the distributor's residence a short time later, police searched Bartley's car and found a set of scales coated in methamphetamine residue.

         Analysis

         Bartley argues in his single assignment of error that police improperly "lured" him to the residence in order to bring him within the scope of the search warrant. He further states that there was no probable cause to search his car without a search warrant because the distributor was not a reliable informant. His entire argument, unedited, supporting that assignment of error states:

There is no dispute as to the facts in this case. The only dispute is whether or not the search of the appellant's vehicle was legal. The Commonwealth's position is that since this search warrant covered all persons and vehicles at said address, and the appellant arrived during the execution of the search warrant that the appellant was lawfully searched under the authority of the search warrant. The appellant believes that the Court should suppress all evidence as a result of the search because the appellant because he was not named or targeted in said search warrant, the appellant only appeared at said residence because he was invited over, at the request of law enforcement, and the appellant does not believe that it is lawful for law enforcement, during the execution of a valid search warrant, to lure third parties onto the property so they can be searched too. (Appendix p. 94) The Carroll case allows the search of a vehicle when the officer has probable cause that a crime has been committed and the Commonwealth argues that the appellant could have been searched in this case, even if there was no active search warrant, because they would have had probable cause to search him because the target of the search warrant said that the appellant was his supplier and he came right over, but there is no evidence that the target is a reliable informant, and without that, the unreliable testimony of the informer would not rise to the level of probable cause. The fact that the appellant arrived and did not have meth with him to sell to the target goes to the target's unreliability, working against the Commonwealth. If law enforcement had simply asked for permission to search, or gotten another warrant, there would be no argument here.
The appellant agrees that search warrants are presumed valid, see Lebedun, and that the search warrant in this case covers all persons and vehicle present at that address, and the appellant even agrees that it would also cover people arriving at the residence during its execution, on their own, but the appellant argues that the search warrant absolutely doesn't cover anyone that law enforcement can lure over or invite onto the property, as they did in this case. It is clear that the appellant only came over because he was asked to by law enforcement, via the target, and the appellant would of otherwise not been there. Law enforcement clearly thought they could side step getting a search warrant to go after the appellant. The appellant believes that the trial court should have granted the appellant's Motion to Suppress and suppressed the evidence found as a result of the search of the appellant's vehicle, and all fruits obtained from it. That would have suppressed all of the contraband offered into evidence by the Commonwealth and with nothing left, the trial court should have dismissed the charge against the appellant.
In summary, luring the appellant over to the address of the search warrant and using the authority of the search warrant to then search his vehicle was clearly outside the scope of the search warrant and there wasn't sufficient ...

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