Commonwealth of Virginia v Daniel C. Overstreet

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION* BY
v. 	Record No. 2267-98-3 	JUDGE JERE M. H. WILLIS, JR.
APRIL 2, 1999
DANIEL CURTIS OVERSTREET
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
Kenneth E. Trabue, Judge Designate
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on
briefs), for appellant.
B. Leigh Drewry, Jr., for appellee.
Daniel Curtis Overstreet was indicted for possession of
cocaine, in violation of Code § 18.2-250, and for possession of
marijuana, in violation of Code § 18.2-250.1. 	Appellee filed a
pretrial motion to suppress evidence of the drugs, contending
that they were discovered as a result of an unlawful search of
his person. 	The trial court granted the motion, and the
Commonwealth appealed pursuant to Code § 19.2-398(2). 	For the
following reasons, we reverse the trial court's decision and
remand for further proceedings.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

I.
In reviewing a trial court's ruling on a suppression
motion, we consider the evidence in the light most favorable to
the prevailing party below, and the decision will not be
disturbed unless it is plainly wrong or without evidence to
support it. 	See Lee v. Commonwealth, 18 Va. App. 235, 238, 443
S.E.2d 180, 181 (1994); Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991). 	So viewed, the evidence
established that on February 18, 1998, Investigator L.T. Guthrie
of the Campbell County Sheriff's Office arrested Overstreet
pursuant to a capias from Bedford County. 	In a search incident
to arrest, Guthrie found marijuana and cocaine on Overstreet's
person.
At the time of arrest, Guthrie served the arrest process,
consisting of the capias, and an attached indictment. 	Although
Overstreet's name was on the capias, the defendant named in the
attached indictment was "Curtis Nichols." 	Guthrie testified
that he did not read the indictment before serving the capias.
At the conclusion of the suppression hearing, the trial
court granted Overstreet's motion. 	The trial court ruled as
follows:
I agree with the defendant. 	It's an
invalid arrest. 	I don't think the
officer did it in bad faith, but the
. . . inconsistency . . . is on the
face of the . . . documents, and that
is it's obvious from reading the capias
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that the . . . person named in the
capias is not the same person that's
named in the indictment. 	And,
therefore, it's an invalid arrest and
. . . the Motion to Suppress the search
is sustained.
Pursuant to Code § 19.2-398(2), the Commonwealth appealed the
trial court's ruling.
II.
The Commonwealth argues that because the capias was valid,
the arrest was lawful notwithstanding any error in the attached
indictment. 	See Code § 19.2-76 (addressing the execution of a
capias).1 The Commonwealth further argues that even if the
process failed to comply with Code § 19.2-232,2 there was no
1Code § 19.2-76 provides:
A law-enforcement officer may execute
within his jurisdiction a warrant, capias or
summons issued anywhere in the Commonwealth.
A warrant or capias shall be executed by the
arrest of the accused, and a summons shall
be executed by delivering a copy to the
accused personally.
2Code § 19.2-232 provides:
When an indictment or presentment is
found or made, or information filed, the
court, or the judge thereof, shall award
process against the accused to answer the
same, if he be not in custody. 	Such
process, if the prosecution be for a felony,
shall be a capias; if it be for a
misdemeanor, for which imprisonment may be
imposed, it may be a capias or summons, in
the discretion of the court or judge; in all
other cases, it shall be, in the first
instance a summons, but if a summons be
returned executed and the defendant does not
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violation of Overstreet's Fourth Amendment rights and the
exclusionary rule is inapplicable for statutory violations.
Finally, the Commonwealth argues that even if there was a Fourth
Amendment violation, the good faith exception to the
exclusionary rule applies in this case and, therefore, the
evidence obtained by the search of Overstreet was admissible.
Assuming, without deciding, that the arrest was defective
and that Overstreet's Fourth Amendment rights were violated, we
hold that the drugs seized were admissible pursuant to the good
faith exception to the exclusionary rule.
In United States v. Leon, 468 U.S. 897 (1984), the United
States Supreme Court held that "suppression of evidence obtained
pursuant to a warrant should be ordered only on a case-by-case
basis and only in those unusual cases in which exclusion will
further the purposes of the exclusionary rule." 	Id. at 918.
The deterrent purpose of the exclusionary
rule necessarily assumes that the police
have engaged in willful, or at the very
least negligent, conduct which has deprived
the defendant of some right. 	By refusing to
admit evidence gained as a result of such
conduct, the courts hope to instill in those
particular investigating officers, or in
their future counterparts, a greater degree
of care toward the rights of an accused.
Where the official action was pursued in
appear, or be returned not found, the court
or judge may award a capias. 	The officer
serving the summons or capias shall also
serve a copy of the indictment, presentment
or information therewith.
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rationale loses much of its force.
Id. at 919 (citations omitted) (emphasis added). 	"In short,
where the officer's conduct is objectively reasonable,
'excluding the evidence will not further the ends of the
exclusionary rule in any appreciable way; for it is painfully
apparent that . . . the officer is acting as a reasonable
officer would and should act in similar circumstances.
Excluding the evidence can in no way affect his future conduct
unless it is to make him less willing to do his duty.'" 	Id. at
919-20 (citations omitted).3
3In Leon, the Supreme Court established the following test
to determine whether suppression of evidence is an appropriate
remedy:
Suppression therefore remains an
appropriate remedy if the magistrate or
judge in issuing a warrant was misled by
information in an affidavit that the affiant
knew was false or would have known was false
except for his reckless disregard of the
truth. . . . 	The exception we recognize
today will also not apply in cases where the
issuing magistrate wholly abandoned his
judicial role. . . . 	[I]n such
circumstances, no reasonably well trained
officer should rely on the warrant. 	Nor
would an officer manifest objective good
faith in relying on a warrant based on an
affidavit "so lacking in indicia of probable
cause as to render official belief in its
existence entirely unreasonable." . . .
Finally, depending on the circumstances of
the particular case, a warrant may be so
facially deficient -- i.e., in failing to
particularize the place to be searched or
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In Virginia, we have applied the good faith exception to
the exclusionary rule. 	See Polston v. Commonwealth, 255 Va.
500, 503, 498 S.E.2d 924, 926 (1998); Derr v. Commonwealth, 242
Va. 413, 422-23, 410 S.E.2d 662, 667 (1991); McCary v.
Commonwealth, 228 Va. 219, 232, 321 S.E.2d 637, 644 (1984). 	"An
arrest made pursuant to a mistake of fact is valid if (1) the
arresting 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." 	Barnette v. Commonwealth, 23 Va. App. 581, 584,
478 S.E.2d 707, 708 (1996).
The evidence established that Officer Guthrie acted in good
faith when executing the capias and arresting Overstreet.
Although Guthrie relied on the language of the capias and did
not check the name on the underlying indictment, this omission
does not require exclusion of the seized items. 	At the
suppression hearing, Guthrie testified that he believed he could
arrest Overstreet based upon the capias alone. 	This belief was
reasonable. 	The capias itself was the process placed in
Guthrie's hands for execution. 	It was regular on its face. 	It
was a court order commanding him to arrest Overstreet. 	The
the things to be seized -- that the
executing officers cannot reasonably presume
it to be valid.
Leon, 468 U.S. at 923 (citations omitted).
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attached indictment was merely an underlying, supporting
document.
No evidence proved that Guthrie's failure to read the
indictment constituted "willful" or "negligent" conduct,
requiring suppression of the evidence.4 See Leon, 468 U.S. at
919. 	The capias was not "facially deficient." 	Guthrie
reasonably presumed it to be valid.5 See id. at 923. 	His duty
required him to obey the court order and arrest Overstreet. 	In
short, Guthrie made the arrest based upon his good faith, but
mistaken, belief that the process was correct.6 Accordingly, we
reverse the trial court's ruling granting the motion to suppress
and remand for further proceedings.
Reversed and remanded.
4The trial court specifically noted: 	"I don't think the
officer did it in bad faith . . . ."
5While Overstreet maintains that there was no valid
indictment relating to him, there is no evidence in the record
to support this contention. 	Rather, the record reflects that on
June 17, 1998, the indictment charging Overstreet with
distribution of methaphetamine was dismissed.
6Overstreet's reliance upon Leatherwood v. Commonwealth, 215
Va. 161, 207 S.E.2d 845 (1974), is misplaced. 	While the Court
held that an arrest based on an invalid warrant required
suppression of the evidence in that case, see id. at 163, 207
S.E.2d at 847, Leatherwood was decided prior the Supreme Court's
decision in United States v. Leon, 468 U.S. 897 (1984), which
established the good faith exception to the exclusionary rule.
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Fitzpatrick, C.J., dissenting.
I respectfully dissent. 	I agree with the majority that
United States v. Leon, 468 U.S. 897 (1984), controls this case.
However, we have previously held that the good faith exception
is not available in four instances:
(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.
Robinson v. Commonwealth, 19 Va. App. 642, 647, 453 S.E.2d 916,
918 (1995) (emphasis added).
Despite the absence of police misconduct in the instant
case, I would hold that the fourth situation bars application of
the Leon good faith exception. 	See Janis v. Commonwealth, 22
Va. App. 646, 653, 472 S.E.2d 649, 653, aff'd en banc, 24 Va.
App. 207, 481 S.E.2d 473 (1996) (noting that evidence may
nonetheless be excluded in the "absence of police misconduct").
While the trial judge ruled that the officer did not act in "bad
faith" when executing the capias and arresting appellee, the
evidence clearly supports the trial court's finding that the
arrest was invalid based upon the inconsistency on the face of
the documents. 	Officer Guthrie specifically testified that he
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did not read the attached indictment before serving the capias
and that had he done so, he would have investigated the
inconsistency in the names. 	In short, the warrant was "so
facially deficient . . . that the executing officer[ ] [could]
not presume it to be valid." 	Leon, 468 U.S. at 923.
For the foregoing reasons, I would affirm the trial court's
decision suppressing the evidence.
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