FELTON v. COM., 56 Va. App. 43 (2010)

690 S.E.2d 318

Record No. 2605-08-1.Court of Appeals of Virginia.
March 23, 2010.

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John E. Robins, Jr. (Office of the Public Defender, on brief), for appellant.

Rosemary V. Bourne, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: FRANK, McCLANAHAN and PETTY, JJ.

McCLANAHAN, Judge.

Travis Jerome Felton appeals from his convictions for possession of cocaine and possession of marijuana. He contends the trial court erred in denying his motion to suppress the narcotics discovered pursuant to an “all persons present” clause in a search warrant on the ground the warrant was “stale” when it was executed by police.[1] We affirm the judgment of the trial court.

I. BACKGROUND
Detective Wayne Roberts of the Special Investigations Unit (SIU) for the Hampton Police Department obtained a warrant allowing police to search all persons present at an apartment based on the following affidavit:

In the past seventy-two hours, a reliable confidential informant advised this affiant that he/she was present inside apartment 1 of a multi-family apartment building located at 113 Turret Lane, Hampton, Virginia.[2] While at the said location, the reliable confidential informant observed the sale of marijuana. The reliable confidential informant stated that he/she observed an unknown white male known only as “Eric” who is described as 6’0″ tall, 210 pounds, 25 to 28

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years old, with goatee type facial hair, selling marijuana. The informant advised that all other persons present were possessing, attempting to possess or using marijuana. The informant stated that when he/she left the apartment, approximately one ounce of marijuana was still present.[3]

The search warrant was issued on October 6th and stated the officers were authorized to “forthwith search” for marijuana and other related paraphernalia “a multi-family apartment building located at 113 Turret Lane, Hampton, Virginia, the apartment to be searched is apartment 1, also an unknown white male known only as `Eric’ who is described as 6’0″ tall, 210 pounds, 25 to 28 years old, with goatee type facial hair and all other persons present.”

The warrant was executed October 18th, twelve days after its issuance. At the hearing on the motion to suppress, Detective Roberts produced a log of the SIU’s activities to account for the time between the issuance of the warrant and its execution. On October 17th, SIU conducted surveillance at the Turret Lane apartment but terminated their surveillance after “[Eric] was seen leaving” with a large group of people and did not return. On October 18th, the police executed the search warrant and recovered marijuana and cocaine from Felton in addition to seventeen bags of marijuana and digital scales in the apartment.

II. ANALYSIS
Felton contends the information contained in the affidavit was “too stale” to justify an “all persons present” search at the time the search was executed because “no reasonable person could have concluded that all of the persons who had been present at the time of the observation of the informant had remained on the premises.”

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Pursuant to Code § 19.2-56, a search warrant “shall command that the place be forthwith searched,” as the warrant for the Turret Lane apartment directed.[4] The “forthwith” requirement “is intended to `define[] the policy of the Commonwealth that search warrants be executed as soon as reasonably practical [and] while probable cause continues to exist'” Maye v. Commonwealth, 44 Va.App. 463, 477, 605 S.E.2d 353, 360
(2004) (quoting Turner v. Commonwealth, 14 Va.App. 737, 740, 420 S.E.2d 235, 237 (1992)). Thus, while the statute codifies the constitutional mandate that probable cause exist when the search warrant is executed, it goes further and requires that the officers execute the warrant “with reasonable dispatch and without undue delay.” Id. (internal quotation marks and citation omitted). Accordingly, search warrants must be executed “forthwith,” as required by the statute, and before probable cause has dissipated, as required by the Fourth Amendment. Id. at 477-78, 605 S.E.2d at 360.

Felton does not argue the officers failed to execute the warrant “with reasonable dispatch and without undue delay” but contends the officers failed to execute the warrant before probable cause dissipated because no reasonable person would conclude the same individuals observed by the informant would still be present in the apartment when the warrant was executed.[5] When a challenge is made to the continued existence of probable cause to support execution of a warrant, the proper issue for determination is whether a delay between the warrant’s issuance and execution has somehow vitiated the

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probable cause that existed when the warrant was issued Maye, 44 Va.App. at 480, 605 S.E.2d at 362. In determining whether probable cause dissipated to execute the Turret Lane apartment warrant, our analysis would be based on whether the criminal activity described in the affidavit was of a continuing nature. Turner, 14 Va.App. at 745, 420 S.E.2d at 239-40.[6] But, at oral argument, Felton conceded probable cause to search the apartment still existed. Thus, the proper issue for our consideration was not raised by Felton, but in fact conceded by him.

With regard to the identity issue Felton did raise, the warrant did not specify that police search only those same individuals observed by the informant. Rather, the warrant allowed police to search an individual known as “Eric” and “all other persons present” without regard to their identity.[7] Because Felton has failed to challenge the probable cause supporting the magistrate’s determination that anyone present at the apartment would be engaged in drug activity, we must presume that the warrant was lawfully issued. See Lebedun v. Commonwealth, 27 Va.App. 697, 711, 501 S.E.2d 427, 434
(1998) (presumption of validity attaches to a search conducted by police pursuant to a warrant issued by a magistrate). Thus, the officers were justified in doing exactly what the

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warrant commanded — searching all persons present in the apartment.

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

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