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Commonwealth v. Campbell

Supreme Court of Virginia

December 14, 2017

COMMONWEALTH OF VIRGINIA
v.
JAMES WILLIS CAMPBELL, SR.

         FROM THE COURT OF APPEALS OF VIRGINIA

          PRESENT: All the Justices

          OPINION

          STEPHEN R. McCULLOUGH, JUSTICE

         We consider in this appeal whether evidence of a search must be suppressed under Code § 19.2-54 because a magistrate incorrectly faxed only portions of a search warrant to the clerk of the circuit court. The Court of Appeals concluded that this delivery defect meant that the search warrant did not satisfy the requirements of Code § 19.2-54 and, as a consequence, the warrant, and the search made under the authority of that warrant, were invalid. We will assume that the magistrate's incomplete faxing rendered the search warrant invalid under Code § 19.2-54, but we will reverse on the alternate ground that the search was justified as a warrantless search under the exigent circumstances exception to the warrant requirement.

         BACKGROUND

         I. A TIP ARRIVES ABOUT AN IMMINENT METHAMPHETAMINE "COOK."

         For over a week in early August 2014, Sheriff's Office Investigator James Begley had been in contact with a paid informant about a possible "meth cook" at James Campbell's house. A "cook" refers to the process for making methamphetamine. Initially, Campbell's efforts were thwarted because he could not locate sufficient quantities of pseudoephedrine to proceed. Finally, on August 6, 2014, Investigator Begley received multiple phone calls from the informant, who told him "it looked like . . . there was going to be a cook at Mr. Campbell's house." The informant, who was present at the scene, described to Investigator Begley what was occurring on Campbell's property in anticipation of the "cook, " such as rolling up aluminum foil and crushing Sudafed.

         Begley told the informant to keep him "apprised." He then contacted a specialized team at the State Police as well as his superiors within the Sheriff's Office. As Investigator Begley was making his preparations, the informant told Begley that Campbell was "preparing the stuff now in the shed." While other law enforcement officers were positioning themselves near Campbell's shed, Begley applied for and obtained a search warrant. Investigator Begley signed his copy of the application for the search warrant at 10:30 p.m. The warrant reflects that the magistrate issued the warrant at 10:47 p.m. Investigator Brandon Hurt was able to observe the activity on Campbell's property for between 45 minutes to an hour before the team executed the warrant.

         Law enforcement officers drove to a location near Campbell's property and assembled in the woods to observe. The "cook" was to take place in a small shed on Campbell's property. Begley estimated the shed's dimensions were, at most, 10 feet by 12 feet. Campbell's trailer is located near the shed, and a driveway separates Campbell's trailer from the shed. Another mobile home is located 25 to 30 yards from the shed. Investigator Brandon Hurt with the Sheriff's Office took a position approximately 25 to 30 yards from the shed. He watched for approximately 45 minutes to an hour. Four persons were present at Campbell's home: the defendant, his daughter, Timothy Birch, and the informant. Investigator Hurt could see a woman taking a roll of aluminum foil from the trailer to the shed. He also observed a man taking a short piece of hose into the shed. Hurt could see "a lot of smoke" coming from inside the shed and he could hear people talking "either in front of the shed or inside the shed."

          Special Agent Glen Phillips of the Virginia State Police explained that the manufacture of methamphetamine presents a significant fire hazard. In addition, manufacturing methamphetamine employs and creates toxic substances, including ammonia gas, which can cause respiratory difficulties or blindness and even death. Investigator Begley, who has experience with methamphetamine investigations and who has been trained on the subject, testified that methamphetamine is manufactured with volatile chemicals that are highly combustible. It can produce an "extremely carcinogenic" gas, including phosphine gas and chlorine gas. Investigator Begley acknowledged he did not know what the "blast radius" would be for the type of methamphetamine "cook" that occurred at the shed.

         The informant, who was present at the scene, stepped aside to call Investigator Begley on his cell phone and plead with him, "where y'all at, where y'all at, they're starting to make this thing, man." Police executed the search warrant around 11:52 p.m., approximately an hour after Investigator Begley submitted his search warrant application to the magistrate. Police recovered methamphetamine and precursors to methamphetamine during the search.

         II. The suppression motion, trial and appeal.

         Code § 19.2-54 imposes a number of requirements for search warrants. As relevant here, it requires a judicial officer issuing a warrant, usually a magistrate, to file the affidavit submitted in support of the warrant by law enforcement personnel with the clerk of the circuit court of the city or county where the search is to take place, either in person, by mail, or electronically, within seven days. The final paragraph of Code § 19.2-54 provides as follows:

Failure of the officer [here, a magistrate] issuing such warrant to file the required affidavit shall not invalidate any search made under the warrant unless such failure shall continue for a period of 30 days. If the affidavit is filed prior to the expiration of the 30-day period, nevertheless, evidence obtained in any such search shall not be ...

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