Ernest Johnson Barnette, Jr. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Coleman and Elder
Argued at Salem, Virginia
ERNEST JOHNSON BARNETTE, JR. OPINION
v. 	Record No. 0997-95-3 	BY JUDGE JOSEPH E. BAKER
DECEMBER 10, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
James Hingeley (Office of the Public
Defender, on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Ernest Johnson Barnette, Jr. (appellant) appeals from his
bench trial conviction by the Circuit Court of the City of
Lynchburg (trial court) for possession of cocaine in violation of
Code § 18.2-250. 	The sole issue is whether the exclusionary rule
as applied to the Fourth Amendment required the trial court to
suppress cocaine discovered in appellant's possession when he was
searched incident to his arrest for violating parole. 	We hold
that the trial court did not err when it denied the motion to
suppress the cocaine evidence discovered during that search.
On appeal from a trial court's denial of a suppression
motion, the burden is on appellant to show, considering the
evidence in the light most favorable to the Commonwealth, that
the denial of his motion to suppress constituted reversible
error. 	Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729,

- 2 -
731 (1980), cert. denied, 449 U.S. 1017 (1980). 	We will disturb
the decision of a trial court only if the decision was plainly
wrong or without credible evidence to support it. 	Commonwealth
v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
The record reveals that on July 24, 1992 appellant was
convicted of distribution of cocaine and sentenced to serve seven
years in the penitentiary. 	He was released from prison on parole
on November 10, 1993. 	Pursuant to Code §§ 53.1-145, 53.1-149,
and 53.1-162, appellant's supervising parole officer, Jeffrey H.
Mosher, caused a warrant for appellant's arrest to be issued on
August 17, 1994. 	The warrant alleged that appellant had violated
terms of his parole, authorized any police officer to arrest him,
and concluded with the following language:
Witness my hand this 17th day of August 1994
(VOID AFTER 60 DAYS)
JEFFREY H. MOSHER
Probation & Parole Officer
At trial, Mosher testified that there was no legal requirement to
place an expiration time on the warrant. 	Mosher said the reason
for inserting the sixty-day period was that he "had previously
received notification from the regional office in Roanoke they
want us to put that on there strictly as a track mechanism . . .
[s]o that if a PB15 which is an arrest warrant is outstanding [we
could] follow through every sixty days and if need be either
issue a new one or seek a capias . . . ."
Lynchburg Police Officer F. D. McFarland received the
warrant prior to October 17, 1994; however, he did not serve it

- 3 -
until October 17, 1994 when he arrested appellant. 	Incident to
that arrest, McFarland searched appellant and found rock cocaine
in appellant's pants pocket.
Appellant argues that McFarland's authority to arrest him
had expired because the arrest occurred the sixty-first day after
the warrant was issued. 	Accordingly, appellant moved the trial
court to suppress the evidence, contending that it was found as a
result of an illegal arrest and search. 	Citing Atkins v.
Commonwealth, 9 Va. App. 462, 389 S.E.2d 179 (1990), the trial
court held that the warrant was not "so facially deficient that
Officer McFarland should have picked up on it, and I don't think
he acted in bad faith."
The warrant was issued on August 17, 1994 and served on
October 17, 1994. 	Appellant conceded at trial that "sixty days
is commonly understood as two months," and service was made
within the period of that common understanding. 	However,
appellant further argues that included in this two-month period
was August which contained thirty-one days and resulted in the
arrest being made the sixty-first day after the warrant was
issued. 	The Commonwealth contends that the phrase "VOID AFTER 60
DAYS" was placed on the warrant for administrative purposes and
did not render the warrant legally void after sixty days.
McFarland's belief that the service was being made within
the time shown on the warrant was a mistake of fact. 	An arrest
made pursuant to a mistake of fact is valid if (1) the arresting

- 4 -
officer believed, in good faith, that his or her conduct was
lawful, and (2) the arresting officer's good faith belief in the
validity of the arrest was objectively reasonable. 	See, e.g.,
Yeatts v. Minton, 211 Va. 402, 177 S.E.2d 646 (1970).
Here, the trial court found that McFarland acted in good
faith in executing the arrest warrant. 	We must determine whether
the evidence supports the trial court's finding that McFarland
acted reasonably within the provisions of the Fourth Amendment.
Guidelines for determining reasonableness as applied to mistakes
of fact may be found in Hill v. California, 401 U.S. 797 (1971).
In that case, an informant gave the police a detailed
description of Hill, a wanted thief, and the address at which he
lived. 	Without either an arrest or search warrant, the police
went to the address to arrest Hill. 	Upon arriving at Hill's
residence, the police found inside a person (Miller) who matched
Hill's description. 	Notwithstanding Miller's protests that he
was not Hill, believing Miller to be Hill, the police arrested
Miller and searched the premises. 	The Hill Court refused to hold
that the Fourth Amendment required the trial court to suppress
the evidence found at Hill's residence. 	The Court noted that
"when judged in accordance with 'the factual and practical
considerations of everyday life on which reasonable and prudent
men, not legal technicians, act,' Brinegar v. United States, 338
U.S. 160, 175 (1949), the arrest and subsequent search were
reasonable and valid under the Fourth Amendment." 	Hill, 401 U.S.

- 5 -
at 804-05. 	Thus, as the Court further said, the "sufficient
probability [of the right to arrest], not certainty,
is the touchstone of reasonableness under the Fourth Amendment
. . . ." 	Id. at 804.
In People v. Tellez, 128 Cal. App. 3d 876, 180 Cal Rptr. 579
(1982), the California Court of Appeals held that, "a reasonable
mistake of fact, entertained in good faith by arresting officers,
will authorize a search or arrest, even if the facts subsequently
prove to be mistaken." 	Id. at 880, 180 Cal Rptr. at 581.
Notwithstanding the fact that the police had subjected the
defendant to a parole search when he was not actually on parole,
the Tellez Court refused to suppress the evidence they found.
This fact, however, does not compel
suppression of the evidence recovered in the
search conducted by the officers. 	It is
uncontradicted that the officers were
informed by appellant's parole officer and
appellant, that he was in fact on parole.
Their reliance on this information was
reasonable and they acted thereon in good
faith. 	As we previously stated in People v.
Spratt (1980) 104 Cal.App.3d 562, 567, 164
Cal.Rptr. 78: "The test of legality of a
search is that of reasonableness and the
court must look to all of the circumstances
known to the officers prior to implementing
the search."
Id. at 880, 180 Cal Rptr. at 581 (emphasis added). 	We agree with
the Hill and Tellez analyses. 	Here, the evidence disclosed that
the supervising parole officer did not intend the warrant to
become ineffective if not served within sixty days of the

- 6 -
issuance. 	Moreover, the arresting officer mistakenly believed
that sixty days equated to the two months between August 17, 1994
and October 17, 1994, and no bad faith or unreasonableness has
been shown which requires exclusion of the evidence.
For the reasons stated, we hold that the decision of the
trial court was not plainly wrong or without evidence to support
it. 	Accordingly, we affirm the judgment.
Affirmed.

- 7 -
Elder, J., concurring.
I concur with the judgment of the Court but not with the
analysis of the majority opinion. 	It is unnecessary to analyze
whether the arresting officer's actions were undertaken in good
faith or whether the arrest and search of appellant were
performed pursuant to a mistake of fact. 	Instead, I would hold
that the trial court did not err in denying appellant's motion to
suppress because the warrant for his arrest was valid. 	"Cases
are to be decided on the narrowest legal grounds available."
Korioth v. Briscoe, 523 F.2d 1271, 1275 (5th Cir. 1975); 21
C.J.S. Courts § 136(1) (1990).
The warrant was valid in this case because the parole
officer's language limiting its duration to sixty days had no
legal effect. 	I find no authority for a parole officer to limit
the time period during which the warrant is effective. 	Clearly a
parole officer has statutory authority to issue a warrant for the
arrest of a parolee whom the officer judges to be in violation of
the terms of his parole. 	Code §§ 53.1-145(4), 53.1-162. 	Logic
suggests that such a warrant remains in force until a competent
judicial official makes a determination regarding the legitimacy
of the parole officer's allegations. 	At trial, the parole
officer did not claim authority to limit the time period of
warrants issued by him. 	Instead, he testified that he inserted
the language in the warrant as a tracking mechanism to aid in the
administration of outstanding warrants. 	Thus, the language in

- 8 -
the warrant indicating that it was void after sixty days was mere
surplusage and the warrant was still valid when it was executed
on October 17, 1994. 	Because appellant's conviction should be
affirmed on the ground that the cocaine was seized pursuant to a
search incident to arrest based on a valid arrest warrant, I find
it unnecessary to address other issues.

- 9 -
Coleman, J., concurring.
I concur with the separate opinions expressed by both my
colleagues, Judges Baker and Elder. 	I agree with Judge Elder
that the probation officer did not render the PB-15 arrest
warrant invalid by placing a sixty-day time limitation upon it
for administrative purposes. 	Therefore, the arrest under
authority of the warrant was valid, in my opinion, and the search
incident thereto was lawful.
However, assuming that the arrest warrant was invalid, as is
the assumption in Judge Baker's opinion, I agree that appellant
was nonetheless validly arrested. 	The officer made the arrest
based upon his good faith, but mistaken, belief that he was
acting upon a valid arrest warrant and that the defendant was
wanted for a probation violation. 	See Hill v. California, 401
U.S. 797 (1971). 	Therefore, in my opinion, the arrest was valid
on either ground and the search incident to that arrest was
lawful.