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Brown v. Commonwealth

Court of Appeals of Virginia

March 20, 2018

LAMAR SHELTON BROWN
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Cheryl V. Higgins, Judge

          David Lassiter, Jr. for appellant.

          Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Petty, Beales and AtLee Argued at Richmond, Virginia.

          OPINION

          RANDOLPH A. BEALES JUDGE

         On May 17, 2016, the circuit court convicted Lamar Shelton Brown ("appellant") of possession of cocaine with intent to distribute in violation of Code § 18.2-248. On appeal, appellant claims that the circuit court erred by not granting his motion to suppress evidence that was found during a search of his home.[1] Appellant argues that the police lacked probable cause to search his home because "Detective McKay's affidavit failed to provide a nexus between the items sought . . . and Mr. Brown's residence." Appellant also argues that the circuit court erred by upholding the search warrant through the good-faith exception to the exclusionary rule. For the reasons that follow, we find that the circuit court did not err in denying appellant's motion to suppress, and we affirm appellant's conviction.

         I. Background

         On November 10, 2015, Officer Jon McKay of the Jefferson Area Drug Enforcement (JADE) Task Force, an officer with more than twenty-five years of law enforcement experience (fourteen of those years being with JADE), prepared a sworn affidavit to obtain a search warrant for appellant's home.[2] The magistrate issued the search warrant, and during the search of the home, police found two vacuum-sealed bags that contained a total of 394.55 grams of cocaine along with $4, 551 in U.S. currency.

         The affidavit stated that, on the same day Officer McKay obtained the search warrant for appellant's home, appellant was arrested for attempting to purchase more than five pounds of marijuana. At the time of his arrest, appellant had more than $5, 000 in U.S. currency on his person. Officer Mark Frazier informed McKay that "a firearm was also recovered during [appellant's] arrest." When he was arrested, appellant was the occupant of a GMC Envoy that was registered to his wife, who lived with appellant in the home. Officer McKay's affidavit also stated that Officer Frazier had routinely observed the GMC Envoy parked outside of appellant's home along with other vehicles associated with appellant.[3]

         The affidavit stated, "You[r] affiant [Officer McKay] believes that Lamar S. Brown's residence . . . is a base of operation for his illegal activities involving the distribution of marijuana and other illegal drugs." The affidavit also stated that on November 4, 2015, less than one week before appellant's arrest, "Mr. Brown reported an assault and attempted robbery at his residence."[4] McKay's affidavit elaborated that "subjects involved in the distribution of illegal drugs often accumulate large amounts of cash proceeds derived from those drug sales and are frequently the targets of robberies. Your affiant believes that Lamar Brown was the target of such a robbery at his residence on [November 4, 2015]."[5]

         Officer McKay's affidavit also stated that a confidential informant identified as "Source A" informed the police that he or she "has observed Lamar Brown in possession of multiple pounds of marijuana and large amounts of U.S. Currency on more than 10 occasions in the last 45 days." Regarding the reliability of Source A, the affidavit stated, "Source A is known to your affiant and has provided information that has directly led to the seizure of money derived from the sale of illegal drugs." Source A also provided the police with information that "directly led to the arrest of a subject involved in the distribution of illegal drugs, " and Source A had also provided information "that was against [the source's] penal interest."

         Following a hearing on appellant's motion to suppress, the trial judge found that, "in this case while it is alleged that Mr. Brown was buying marijuana, the Court finds it --- it was of such an amount that there is a reasonable inference that it was for the purpose of distributing in the future." In stating her decision, the trial judge also considered facts related to the 2012 credit union incident and the fact that an informant, who was known to law enforcement, was "providing law enforcement information on what has happened in the past forty-five (45) days" regarding appellant's activities. The trial judge concluded that "when you put all of those factors together that there is indicia of probable cause underlying the search warrant so that . . . the good faith exception is applied."[6] Consequently, the circuit court denied appellant's motion to suppress.

         II. Analysis

         A. Stand ...


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