Clarence Jay Lynch v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
CLARENCE JAY LYNCH
OPINION BY
v. 	Record No. 1874-01-3 	JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 15, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge
Melissa W. Friedman (Anthony F. Anderson, on
brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
A jury convicted Clarence Jay Lynch of manufacturing
marijuana not for personal use. 	He assigns two errors: 	(1) the
admission of evidence seized pursuant to a search warrant, and
(2) the failure of the trial judge to recuse himself. 	Finding
no error, we affirm.
On May 17, 1999, a concerned citizen notified police the
defendant was growing marijuana in his residence at 925 Westside
Boulevard N.W. 	The citizen had seen 30 to 50 marijuana plants
and grow lights in the residence as recently as "06[sic]0199."
On July 28, 1999, a second concerned citizen notified police the
defendant was growing and selling marijuana from his residence.
He reported the defendant "had numerous firearms in the

residence and threatened to use them if he came in contact with
the police." 	The police verified the defendant's identity and
address from the city directory and Department of Motor Vehicles
records. 	Police conducted a power consumption analysis from the
electric utility's records for the defendant's residence. 	Over
the previous six-month period, the defendant consumed three
times more power than neighbors, who resided in similar houses.
The defendant's power consumption coincided with the cultivating
and harvesting cycle of marijuana. 	Additionally, the police
twice used a thermal imaging device and detected an extreme heat
source at the rear of the residence.
The investigating detective recited those details in an
affidavit for a search warrant of the defendant's residence that
he prepared on September 9, 1999. 	A magistrate issued the
warrant that evening, and police officers executed it shortly
thereafter. 	The defendant moved to suppress the marijuana
plants, related evidence, and incriminating statements obtained
during the search.
The trial court held the evidence was admissible under the
good faith exception of United States v. Leon, 468 U.S. 897
(1984), even assuming the affidavit was deficient or the warrant
was invalid. 	The trial judge ruled: 	the magistrate did not
abandon his judicial role; the police officers were not
dishonest or reckless in preparing the affidavit and did not
mislead the magistrate; the warrant is not so lacking in
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probable cause or the required information as to render belief
in its existence unreasonable; and the warrant was not so
facially deficient that the executing officers could not
reasonably assume it was valid.
On appeal, the defendant contends the trial court erred in
applying the good faith exception to the exclusionary rule. 	He
argues the thermal imaging surveillance of his residence was
unconstitutional1 and the results must be excised when assessing
the validity of the search. 	He concludes that without the
results of the thermal imaging the affidavit was facially
deficient and reliance on it was unreasonable.
As did the trial court, we do not address the validity of
the search warrant because the good faith exception applies to
the facts of this case. 	The good faith exception is not
available in four situations:
(1) [W]here the magistrate was misled
by information in the affidavit which the
affiant knew was false or should have known
was false, (2) the issuing magistrate
totally abandoned his judicial role, (3) the
warrant was based on an affidavit "so
lacking in indicia of probable cause" as to
render official belief in its existence
unreasonable or (4) where the warrant was so
facially deficient that an executing officer
could not reasonably have assumed it was
valid.
1 Kyllo v. United States, 533 U.S. 27 (2001), ruled thermal
imagery was an unconstitutional search. 	The Supreme Court
rendered its decision after the defendant's suppression hearing
and trial, but before sentencing.
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Adkins v. Commonwealth, 9 Va. App. 462, 464, 389 S.E.2d 179, 180
(1990) (citing Leon, 468 U.S. at 923). 	Only the third or fourth
exceptions could apply in this case, but neither does.
The affidavit stated that two concerned citizens observed
the marijuana plants inside the defendant's home. 	The police
corroborated that the defendant existed and resided at the
address provided. 	A detailed power consumption analysis of the
residence revealed the defendant used an unusual amount of
power, which correlated with the marijuana cultivation cycle.
The investigation tended to corroborate the information provided
by the citizen informants. 	Even excluding the information
derived from thermal imaging, the affidavit did not lack indicia
of probable cause. 	The third exception to the good faith
doctrine does not apply to this case.
At the time the magistrate issued the warrant, the Supreme
Court had not decided Kyllo v. United States, 533 U.S. 27
(2001). 	Indeed, every United States Circuit Court that had
addressed the issue had ruled that the use of the thermal
imagery was permissible. 	Id. at 46 n.4 (Stevens, J.,
dissenting). 	The magistrate and officers were entitled to rely
on the results of that surveillance technique when determining
probable cause for the search warrant. 	They adhered to
established law, and requiring them to anticipate the
constitutional standard announced in Kyllo is not reasonable.
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When the officers conducted their search, they acted under
authority of an apparently valid warrant. 	"[A]n officer cannot
be expected to question the magistrate's probable-cause
determination or his judgment that the form of the warrant is
technically sufficient." 	Leon, 468 U.S. at 921. 	Though
partially based on information derived from thermal imaging, the
warrant was not so facially deficient that the officers were
unreasonable in assuming it was valid. 	The fourth exception to
the good faith doctrine does not apply to this case.
"The purpose of the exclusionary rule historically was to
deter police misconduct rather than to punish the errors of
magistrates. 	This deterrent is absent where an officer, acting
in objective good faith, obtains a search warrant from a
magistrate and acts within the scope of the warrant." 	Derr v.
Commonwealth, 242 Va. 413, 422, 410 S.E.2d 662, 667 (1991)
(citation omitted). 	None of the evils sought to be avoided by
the exclusionary rule are present in this case. 	The trial court
did not err in denying the defendant's motion to suppress the
evidence obtained from execution of this search warrant.
Next, we consider whether the trial judge erred by refusing
to recuse himself. 	Judge Apgar presided at the suppression
hearing. 	By the time the trial began, he had been assigned to a
different court within the circuit. 	Judge Apgar denied a motion
to continue the case until he could preside. 	Judge Doherty
conducted the trial during which the defendant represented
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himself. 	Judge Doherty declared a mistrial and found the
defendant in contempt for misconduct that disrupted his trial.
Judge Doherty denied a motion to have Judge Apgar preside at the
retrial.
The defendant contends Code § 17.1-5032 mandates that the
judge who hears a preliminary matter hear the entire case. 	The
statute forbids a rule of the Supreme Court that would preclude
a judge from hearing a case to its conclusion. 	It simply does
not read as the defendant contends.
The defendant contends the trial judge had a conflict of
interest because he was a former law partner of the defendant's
first attorney whom the defendant discharged. 	He maintains the
judge was biased because he held the defendant in contempt
during the first trial. 	After a full hearing on the motion to
2 Code § 17.1-503 provides in part:
No rule shall hereafter be promulgated . . .
which would avoid or preclude the judge
before whom an accused is arraigned in
criminal cases from hearing all aspects of
the case on its merits, or to avoid or
preclude any judge in any case who has heard
any part of the case on its merits, from
hearing the case to its conclusion.
However, another judge may hear portions of
a case where a judge is required to
disqualify himself, in cases in which a
mistrial is declared, or in cases which have
been reversed on appeal, or in the event of
sickness, disability or vacation of the
judge.
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recuse, the trial judge stated he did not have "any sort of
conflict" and denied the motion.
Whether a judge should recuse in a given case rests within
the exercise of reasonable discretion. 	Deahl v. Winchester
Dep't Soc. Servs., 224 Va. 664, 672, 299 S.E.2d 863, 867 (1983).
The judge's decision will not be reversed absent a showing that
he abused his discretion. 	In Stockton v. Commonwealth, 227 Va.
124, 141, 314 S.E.2d 371, 382 (1984), the trial judge did not
abuse his discretion in not recusing after the defendant had
cursed him during the previous trial. 	In Justus v.
Commonwealth, 222 Va. 667, 673, 283 S.E.2d 905, 908 (1981), the
trial judge did not abuse his discretion when he retried the
defendant after his first capital murder conviction was
reversed.
The defendant provided no support for his claim of conflict
and bias, and none appears from the record. 	The record provides
no indication that the trial judge abused his discretion in not
recusing himself. 	The trial court did not err in denying the
motion to do so.
For the reasons stated, we affirm the conviction.
Affirmed.
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