Delio ANZUALDA, Jr. v. COMMONWEALTH of Virginia.
Record No. 1719-02-1.
Court of Appeals of Virginia, Richmond.
Jan. 25, 2005.
607 S.E.2d 749
Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: FITZPATRICK, C.J., BENTON, ELDER, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY, JJ., and ANNUNZIATA, S.J.*
UPON REHEARING EN BANC
HUMPHREYS, Judge.
Delio Anzualda, Jr. appeals his convictions, following a conditional plea of guilty, for one count of possession of cocaine with intent to distribute, in violation of
I. Background
In accord with settled principles of appellate review, on appeal of the denial of a motion to suppress, we review the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party prevailing below. Sabo v. Commonwealth, 38 Va.App. 63, 69, 561 S.E.2d 761, 764 (2002); Shaver v. Commonwealth, 30 Va.App. 789, 794, 520 S.E.2d 393, 396 (1999).
So viewed, the evidence here establishes that, on September 15, 2000, Officer David Doughty, an investigator with the Northampton County Sheriff‘s Office, executed a search warrant at Anzualda‘s home. The warrant was based on an affidavit sworn to by Doughty on the same day. The affidavit stated the “material facts constituting probable cause” for the search as follows:
On March 17, 2000, Carlos Tolentito and Hildeberto Velasco were shot to death with 9 millimeter rounds on Occohannock Neck Road. An individual incarcerated in the Northampton County Jail has become a suspect in the offense in that he has made incriminating statements to at least three persons. An intimate friend of the suspect has informed the undersigned that the suspect informed the intimate friend that he had traded a pistol to an individual named as “Cowboy” for marijuana, “Cowboy” being known to her as residing at the place to be searched. The undersigned has personal knowledge that “Cowboy” is Delio Anzualda.
The affidavit described the “thing to be searched for” as a “9 millimeter pistol and/or ammunition,” and the place to be searched as the:
dwelling house (single-wide trailer), outbuildings, motor vehicles and any other structures or containers on the property located at 9182 Franktown Road, Franktown, Va.... The property is occupied by Delio Anzualda and family.
After Officer Doughty arrested Anzualda, Anzualda made several incriminating statements relating to the drugs and other items discovered during the search. A grand jury subsequently indicted Anzualda on several charges, including possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and possession of a firearm while in possession of cocaine.
Before a trial on the merits, Anzualda filed a motion to suppress the evidence seized from his home, contending that both the evidence and his resulting statements were obtained in violation of the “Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States, Article 1, Section 10 of the Constitution of Virginia.” At the hearing on the motion to suppress, Anzualda argued specifically that the evidence and statements should be suppressed because the affidavit, upon which the warrant was based, failed to “set sufficient facts on its face to cause a reasonably detached magistrate to believe that the subject matter of the search for a pistol was at [Anzualda‘s] home,” reasoning that the affidavit failed to provide a sufficient nexus between the item sought and the place to be searched. Anzualda further argued that, because the affidavit alleged that the murders occurred on March 17, 2000, but the warrant was not issued until September 15, 2000, “there [was] no way to conclude that the evidence [police] want[ed] to seize or look for [was] at [Anzualda‘s] residence.”2 The trial court denied the motion to suppress, reasoning that, even if the warrant was not supported by
Anzualda subsequently entered a conditional plea of guilty to each of the drug-related charges. On appeal, a divided panel of this Court reversed the judgment of the trial court and remanded the case for a new trial. See Anzualda v. Commonwealth, 42 Va.App. 481, 592 S.E.2d 761 (2004). We granted the Commonwealth‘s petition for en banc review, stayed the mandate of the panel decision, and reinstated the appeal. Upon rehearing en banc, we affirm the judgment of the trial court and reinstate Anzualda‘s conviction.
II. Analysis
Anzualda contends the trial court erred in denying his motion to suppress for two reasons. First, Anzualda argues that the search warrant was defective because it was not based upon probable cause, reasoning that the underlying affidavit “lack[ed] specificity with respect to the time between the communication of the information, and the issuance thereof.” Second, Anzualda argues the warrant cannot be “saved” under the good faith exception because it was “so lacking in the indicia of probable cause as to be fatally defective on its face.” Specifically, Anzualda contends that the affidavit failed to set forth “any” facts establishing a connection between “the premises to be searched, and a reasonable belief that the evidence to be seized would be located on the premises.”
We begin by noting that, although “[w]e are bound by the trial court‘s findings of historical fact unless ‘plainly wrong’ or without evidence to support them,” we review de novo the trial court‘s application of legal standards to the particular facts of the case. McCracken v. Commonwealth, 39 Va.App. 254, 258, 572 S.E.2d 493, 495 (2002) (en banc) (quoting McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc)) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). Further, “[i]n reviewing a trial court‘s denial of a motion to suppress, ‘the burden is upon [the appellant] to show that the ruling constituted reversible error.‘” McGee, 25 Va.App. at 197, 487 S.E.2d at 261 (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).
A. Whether the Warrant Was Supported by Probable Cause3
Generally, “[t]he existence of probable cause is determined by examining the ‘totality-of-the-circumstances.‘” Janis v. Commonwealth, 22 Va.App. 646, 651-52, 472 S.E.2d 649, 652 (quoting Miles v. Commonwealth, 13 Va.App. 64, 68, 408 S.E.2d 602, 604 (1991)), aff‘d en banc, 23 Va.App. 696, 479 S.E.2d 534 (1996). Accordingly, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the
However, “[i]t is well settled ‘that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.‘” Tart, 17 Va.App. at 388, 437 S.E.2d at 221 (quoting Gates, 462 U.S. at 236, 103 S.Ct. at 2331). Rather, “the duty of the reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... conclud[ing]’ that probable cause existed.” Id. at 387, 437 S.E.2d at 221 (quoting Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332) (alterations in original) (internal quotations omitted); see also Janis, 22 Va.App. at 652, 472 S.E.2d at 652. This deferential standard of review “is appropriate to further the Fourth Amendment‘s strong preference for searches conducted pursuant to a warrant.” Tart, 17 Va.App. at 388, 437 S.E.2d at 221 (quoting Williams, 4 Va.App. at 68, 354 S.E.2d at 87); see also Leon, 468 U.S. at 914, 104 S.Ct. at 3416 (“Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according ‘great deference’ to a magistrate‘s determination.“).
Anzualda argues that, considering all of the circumstances of this case, the information set forth in the affidavit was insufficient to provide the magistrate with a “substantial basis” for finding probable cause to believe that the pistol sought would be found in Anzualda‘s home. We agree.
Generally, “[t]here is no fixed standard or formula establishing a maximum allowable interval between the date of events recited in an affidavit and the date of a search warrant.” Johnson v. Commonwealth, 259 Va. 654, 671, 529 S.E.2d 769, 778 (2000). “Instead, a warrant will be tested for ‘staleness’ by considering whether the facts alleged in the warrant provided probable cause to believe, at the time the search actually was conducted, that the search conducted pursuant to the warrant would lead to the discovery of evidence of criminal activity.” Id.; see also Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932); United States v. McCall, 740 F.2d 1331, 1336 (4th Cir.1984); Huff v. Commonwealth, 213 Va. 710, 715-16, 194 S.E.2d 690, 695 (1973); Perez v. Commonwealth, 25 Va.App. 137, 142-43, 486 S.E.2d 578, 581-82 (1997). As we have noted:
“‘The vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit.’ United States v. Johnson, 461 F.2d 285, 287 (10th Cir.1972). Rather, we must look to all the facts and circumstances of the case, including the nature of the unlawful activity alleged, the length of the activity, and the nature of the property to be seized. Id.”
Perez, 25 Va.App. at 142, 486 S.E.2d at 581 (quoting McCall, 740 F.2d at 1336).
Moreover, we agree that the information provided in the warrant fails to provide a sufficient nexus between the item sought (the pistol) and the premises to be searched. At most, the warrant indicates that: (1) six months earlier, two individuals had been murdered with a pistol; (2) a prison inmate informed three people that he had committed the murders; (3) a friend of the inmate informed the police that the inmate had traded a pistol to “Cowboy” in return for marijuana; (4) “Cowboy” is Anzualda; and (5) Anzualda lived at the premises to be searched.
Based on these facts, the magistrate could have inferred that Anzualda might have had a pistol that might have been given to him by the murder suspect. However, “[t]he critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is [probable] cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 1976-77, 56 L.Ed.2d 525 (1978). Noticeably absent from this affidavit are any facts that would have permitted the magistrate to infer not only that Anzualda had a pistol, but that he was keeping that pistol at his home. Although it is generally true that, “in the case of drug dealers, evidence is likely to be found where the dealers live,” United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986), this affidavit does not provide any facts supporting the inference that Anzualda was, in fact, a known drug dealer.4 The affidavit describes but a single drug transaction, which could have been an isolated transaction just as readily as it could have been part of a larger scheme. The affidavit similarly contains no assertion that persons involved in drug transactions tend to keep the fruits of those transactions in their home. Nor does the affidavit indicate that a pistol had been observed in either Anzualda‘s possession or in his home.
Although the magistrate is entitled to draw reasonable inferences from the facts set forth in the affidavit, suppositions and guesswork cannot equate to a “substantial basis” for concluding that there is a “fair probability” that the item sought will be found at the place to be searched. Thus, although the facts listed in the affidavit do provide some basis for believing that the pistol might be at Anzualda‘s home, this nexus is too tenuous to support a finding of probable cause. See Janis, 22 Va.App. at 652, 472 S.E.2d at 652 (holding that the magistrate “lacked a substantial basis for finding that probable cause existed” because “[t]he affidavit, while not a ‘bare bones’ affidavit, failed to provide a ‘nexus’ that linked the [item sought] to [the place searched]“); cf. United States v. Kenney, 595 F.Supp. 1453, 1461 (D.Me.1984) (“[W]ithout more
Accordingly, despite the deference we must pay to the magistrate‘s determination of probable cause, we hold that the magistrate here lacked a “substantial basis” for finding that the facts set forth in the affidavit established probable cause. See Leon, 468 U.S. at 915, 104 S.Ct. at 3416-17 (“Even if the warrant application was supported by more than a ‘bare bones’ affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant was invalid because the magistrate‘s probable-cause determination reflected an improper analysis of the circumstances....“).
B. Application of the Good Faith Exception
Our conclusion that the search warrant was not supported by probable cause does not, however, end our inquiry into whether the trial court should have granted Anzualda‘s motion to suppress. Generally, “[w]here law enforcement officers illegally search private premises or seize property without probable cause ... the illegally seized evidence will be excluded....” Colaw v. Commonwealth, 32 Va.App. 806, 810, 531 S.E.2d 31, 33 (2000) (citing Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691-92, 6 L.Ed.2d 1081 (1961)). The exclusionary rule, created with the intent of deterring police misconduct, “operates ‘as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than [to protect] a personal constitutional right of the party accused.‘” Leon, 468 U.S. at 906, 104 S.Ct. at 3412 (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974)); see also Derr v. Commonwealth, 242 Va. 413, 422, 410 S.E.2d 662, 667 (1991); Colaw, 32 Va.App. at 810, 531 S.E.2d at 33. However, because “[t]he deterrent effect of the exclusionary rule ‘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,‘” Janis, 22 Va.App. at 653, 472 S.E.2d at 653 (quoting Derr, 242 Va. at 422, 410 S.E.2d at 667), evidence seized pursuant to an invalid search warrant “is nevertheless admissible if the officer executing the warrant reasonably believed that the warrant was valid.” Lanier v. Commonwealth, 10 Va.App. 541, 547, 394 S.E.2d 495, 499 (1990) (citing Leon, 468 U.S. at 918-21, 104 S.Ct. at 3418-19); see also Atkins v. Commonwealth, 9 Va.App. 462, 464, 389 S.E.2d 179, 180 (1990).
Under the “good faith” exception, then, “[w]here a police officer has an objectively reasonable belief that the issuing magistrate had probable cause to issue the search warrant, the officer may rely upon the magistrate‘s probable cause determination and the evidence will not be excluded, even though the affidavit may not have provided the magistrate ... with probable cause to issue the warrant.” Colaw, 32 Va.App. at 810-11, 531 S.E.2d at 33. In this case, although we have determined that the underlying affidavit did not provide the magistrate with probable cause to issue the warrant, there is no evidence that Officer Doughty acted other than in good faith and with a reasonable belief that the warrant was valid. See United States v. Merritt, 361 F.3d 1005, 1013 (7th Cir.2004) (observing that the officer‘s “decision to obtain a warrant is prima facie evidence of good faith“).
There are, however, four recognized situations in which the good faith exception will not be applied, specifically: (1) Where 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. Colaw, 32 Va.App. at 811, 531 S.E.2d at 33 (citing Atkins, 9 Va.App. at 464, 389 S.E.2d at 180); see also Robinson v. Commonwealth, 19 Va.App. 642, 647, 453 S.E.2d 916, 918 (1995). Here, Anzualda argues that the third exception to the
As discussed above, the magistrate in this case lacked a “substantial basis” for determining that there was probable cause to issue the warrant. The absence of a “substantial basis,” however, does not necessarily mean that the affidavit was so entirely lacking of indicia of probable cause that a police officer could not have harbored an objectively reasonable belief in the validity of the warrant. In other words, “no substantial basis” does not automatically equate to “no indicia of probable cause.” As aptly noted by the Fourth Circuit,
“Substantial basis” provides the measure for determination of whether probable cause exists in the first instance. If a lack of a substantial basis also prevented application of the Leon objective good faith exception, the exception would be devoid of substance. In fact, Leon states that the third [exception to the good faith rule] prevents a finding of objective faith only when an officer‘s affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923, 104 S.Ct. at 3421 (citation omitted). This is a less demanding showing than the “substantial basis” threshold required to prove the existence of probable cause in the first place.
United States v. Bynum, 293 F.3d 192, 195 (4th Cir.2002) (citation omitted). “Thus, it is entirely possible that an affidavit could be insufficient for probable cause but sufficient for ‘good-faith’ reliance.” United States v. Washington, 380 F.3d 236, 241 (6th Cir.2004). Hence, as long as there is some indicia of probable cause in the underlying affidavit, we will apply the good faith exception as long as a reasonable police officer, after assessing the facts set forth in the affidavit, could have believed that the warrant was valid.
Here, we find that the underlying affidavit does contain some indicia of probable cause. The underlying affidavit
As noted above, the underlying affidavit does fail to list the dates on which the described events allegedly occurred. But a reasonable police officer would not necessarily have concluded that the warrant was invalid merely because the affidavit failed to specifically identify the dates on which the described activities occurred. “‘In the ordinary case, an officer cannot be expected to question the magistrate‘s probable cause determination or his judgment that the form of the warrant is technically sufficient.‘” Tart, 17 Va.App. at 390, 437 S.E.2d at 222 (quoting Leon, 468 U.S. at 921, 104 S.Ct. at 3419). Here, a reasonable police officer, after reading the affidavit, would have concluded that the events described occurred within the previous six months. It was not unreasonable for the officer to have also concluded that the pistol, obtained sometime within the preceding six months, could still
Thus, the affidavit‘s failure to identify the specific dates upon which the described events occurred does not, as the dissent asserts, render the affidavit so lacking in probable cause that a reasonable police officer could not have concluded that it was valid. See, e.g., United States v. Anderson, 851 F.2d 727, 729-30 (4th Cir.1988) (where defendant allegedly possessed a gun suspected to have been used in an unrelated murder, court applied the good faith exception to admit the gun and silencer
As discussed above, the underlying affidavit also failed to provide a sufficient nexus between the item sought and the premises searched. This does not mean, however, that the affidavit failed to provide any nexus between the pistol and Anzualda‘s residence. The facts listed in the affidavit indicate that Anzualda had obtained a pistol from a murder suspect. The affidavit also indicates that Anzualda resided at the premises to be searched. And, because a reasonable police officer could also infer that Anzualda was keeping the pistol at his home, the affidavit does establish a nexus—however slight—between the item sought and the premises to be searched. See, e.g., United States v. Maneti, 781 F.Supp. 169, 177 (W.D.N.Y.1991) (“In the case of firearms . . . [it is] reasonable [to] infer[] [that] . . . one would likely keep such evidence [] at home.“).
Anzualda, however, argues that our decision in Janis mandates a finding that, because there was an insufficient nexus between the pistol and the premises searched, the affidavit was so lacking in probable cause that a reasonable police officer would have known that the warrant was invalid. In Janis, we declined to apply the good faith exception where the underlying affidavit described certain criminal activities and provided an address to be searched, but failed to indicate why that address was being searched (e.g., because one of the suspects resided at or was otherwise connected to that address). See 22 Va.App. at 652, 472 S.E.2d at 653. Because the officer “might just as easily have supplied the magistrate with an address belonging to an unrelated third party,” we concluded that “[t]he affidavit gave absolutely no indication that the fruits of criminal activity would probably be found at that location, rendering [the officer‘s] belief in probable case,
In Janis, then, we did not hold that the failure to establish a sufficient nexus between the item sought and the premises to be searched automatically precluded application of the good faith exception. Rather, we held that, where the underlying affidavit failed to provide any connection whatsoever between the alleged criminal activity and the premises to be searched, that affidavit was so lacking in indicia of probable cause that a reasonable police officer could not have harbored an objectively reasonable belief as to the validity of the warrant.6
Janis, therefore, is factually distinguishable from the present case. Unlike the affidavit in Janis, which contained no information connecting the criminal activity to the premises to be searched, the affidavit here did establish a nexus (albeit an insufficient nexus for a finding of probable cause) between the pistol and the premises to be searched. Specifically, the affidavit at issue in this case states that Anzualda was “known to [the confidential informant] as residing at the place to be
United States v. Carpenter, 360 F.3d 591 (6th Cir.), cert. denied, — U.S. —, 125 S.Ct. 261, 160 L.Ed.2d 84 (2004), a recent case from the Sixth Circuit, is also instructive. In Carpenter, the court concluded that the magistrate did not have a “substantial basis” for a finding of probable cause because the facts contained in the underlying affidavit “were too vague, generalized, and insubstantial” to establish a sufficient nexus between the place to be searched and the evidence sought. Id. at 595. The court, however, admitted the seized evidence under the good faith exception, reasoning that “the affidavit was not completely devoid of any nexus between the residence and the [item sought].” Id. at 595-96. Noting that “the affidavit was not totally lacking in facts connecting the residence to the [item sought],” the court concluded that “the affidavit contained a minimally sufficient nexus between the illegal activity and the place to be searched to support an officer‘s good-faith belief in the warrant‘s validity,” despite the fact that these facts “were too vague to provide a substantial basis for the determination of probable cause.” Id. at 596.
Similarly, here, the affidavit did provide some facts linking the pistol to the premises to be searched, and these facts “were not so vague as to be conclusory or meaningless.” Id. Thus, we hold that the affidavit was not so lacking in indicia of probable cause that a reasonable police officer would not have believed that it was valid. Cf. United States v. Beckett, 321 F.3d 26, 32 (1st Cir.2003) (holding that, although the affidavit‘s “support of a nexus between evidence of the murders and [the defendant‘s] residence is less than overwhelming[,] . . . the
III. Conclusion
In Leon, the United States Supreme Court recognized a constitutional preference that police officers seek search warrants from neutral and detached magistrates, holding that “suppression of evidence obtained pursuant to a warrant [issued by a magistrate] 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.” Leon, 468 U.S. at 918, 104 S.Ct. at 3418; see also Massachusetts v. Sheppard, 468 U.S. 981, 987-88 (1984), 104 S.Ct. 3424, 3427-28, 82 L.Ed.2d 737 (1984). This is not one of those “unusual cases.” Rather, “[a]lthough certainly not a thing of beauty, the affida-
Affirmed.
KELSEY, J., with whom BUMGARDNER, J., joins, concurring, in part, dissenting, in part.
I concur in Part II(B) of the majority opinion applying the Leon good-faith immunity to this case. I do not join in Part II(A), which offers an advisory opinion on probable cause principles. Because Leon applies, it renders any further dissection of the warrant logically and legally unnecessary—as Virginia courts, both federal and state,8 and the great majority
That said, I do not deny we have the discretion to reverse the normal sequencing to resolve a “novel question of law” embedded solely in the probable cause analysis. Id. at 820 (quoting Illinois v. Gates, 462 U.S. 213, 264 (1983) (White, J., concurring)). In this case, however, I see no legal novelties or precedential conflict in the authorities cited. Nor am I aware of any other “compelling reasons” to go beyond the Leon holding. Id. at 821. I thus think it more consistent with first principles to say no more. “Faithful adherence to the doctrine of judicial
BENTON, J., with whom FITZPATRICK, CJ., ELDER, and FRANK, JJ., join, dissenting.
As the majority rightly recognizes, the warrant was devoid of probable cause. I agree, therefore, with the majority opinion‘s holding that the affidavit was insufficient to support a conclusion that a fair probability existed of finding the pistol in the residence. The same facts that support this holding compel a further conclusion, however, that the warrant failed to satisfy the requirements necessary for the good faith exception as described in United States v. Leon, 468 U.S. 897 (1984). Therefore, I dissent.
When the Supreme Court adopted in Leon an “objective reasonableness” standard for the good faith exception to the exclusionary rule, the Court required “officers to have a reasonable knowledge of what the law prohibits.” 468 U.S. at 919 n. 20. See, e.g., United States v. King, 227 F.3d 732, 753-54 (6th Cir.2000) (holding that an officer who searched the basement of a duplex did not act with objective reasonableness when the basement area was not mentioned in warrant). In adopting this standard the Supreme Court noted, however, that “it frequently will be difficult to determine whether the officers acted reasonably without resolving the Fourth Amendment issue.” Leon, 468 U.S. at 925. In this case, the resolution of the probable cause issue establishes that the facts in the affidavit provide virtually no basis for believing the pistol would be in the residence.
The Supreme Court held in Leon that an officer does not “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.‘”
To invoke the good faith exception, the Commonwealth must present evidence to establish the officer‘s reliance on this defective warrant was based on “objective reasonableness.” Id. at 924. In considering these matters, we review de novo the trial judge‘s ultimate conclusion concerning the applicability of the good faith exception to the exclusionary rule. King, 227 F.3d at 753; United States v. Manning, 79 F.3d 212, 221 (1st Cir.1996).
The record in this case fails to establish that the officers acted with objective reasonableness because the timing nexus surrounding the events is so woefully deficient in this affidavit as to be nonexistent. It is beyond dispute that a reasonably trained officer should be familiar with the warrant requirement of a temporal component connecting the events in the affidavit and the warrant. When, upon an examination of the four corners of the affidavit, the omission of any reference to the time of the critical events is so complete that the nexus between them cannot be reasonably inferred, it cannot be said that an officer‘s good faith cures the defect. Herrington v. State, 287 Ark. 228, 697 S.W.2d 899, 901 (1985). See also United States v. Huggins, 733 F.Supp. 445, 449 (D.D.C.1990) (holding that the Leon good faith exception is inapplicable where the dates of critical events are not disclosed in the affidavit).
The only date or time reference contained in the affidavit is March 17, 2000, the date of the homicides. In the absence of dates regarding the other critical events alleged in the affida-
Indeed, the absence of any critical dates and times in the affidavit leaves vague and undisclosed the connection of the “suspect” to the homicides. The affidavit notes only that an individual incarcerated in jail “has become a suspect in the offense in that he has made incriminating statements to at least three persons.” If the individual became a suspect merely because he told the informant and others that he traded a pistol to Anzualda, then nothing in the affidavit links the March 17, 2000 killings and the pistol. Only by assuming that the suspect‘s statements suggested he was the killer could the magistrate conclude the transfer of the pistol occurred after March 17, 2000. Such an assumption, however, is grounded in no fact that is recited in the affidavit. Thus, the affidavit renders speculative whether the suspect was present during the homicides, whether he knew the identity of the killer, or whether he implicated himself as the killer. Most significant, the affidavit renders speculative the date or time when the transfer of the pistol occurred. The omission of dates or times renders any connections between the alleged critical events indiscernible from the face of the affidavit and, thus, negates any conclusion that the officials acted with objective reasonableness.
When the staleness or timing nexus is viewed in relation to the nature of the other activity that is alleged in the warrant, it is clear both that the affidavit was facially “so lacking in indicia of probable cause as to render official belief in its
Specifically, the lack of any dates or times in the affidavit led to three unsupportable assumptions. First, the lack of a date made it purely speculative when the suspect traded the pistol—whether the suspect transferred the pistol before or after the homicides. Thus, there was no basis to conclude the pistol was used to commit the homicide. Second, the affidavit does not contain even a suggestion of when, if ever, the pistol was seen in the residence or even where the trade occurred. Thus, the information communicated by the suspect does not disclose a reasonable probability that the pistol the suspect traded would be at the residence on September 15, the date the warrant was issued and executed. Finally, the affidavit‘s statement of material facts does not even disclose whether the pistol the suspect traded was a “9 millimeter” firearm or was believed to be a weapon capable of discharging “9 millimeter rounds.” This deficiency is directly connected to the affidavit‘s failure to provide any critical dates or times because, by failing to allege that the pistol was traded at a time so as to be connected with the homicide, no inferences could be drawn from the four corners of the affidavit about the pistol‘s connections to the event.10
The omission of critical dates simply does not permit any objectively reasonable officer or magistrate to draw inferences about the recency of the events and, therefore, the nexus requirement became merely a matter of guesswork and supposition. Simply put, the absence of times and dates renders these critical events mere speculative assumptions. These leaps of logic negate any suggestion of “objective reasonableness” and are based upon suppositions that no reasonable officer or magistrate could make. For these reasons, the “warrant [was] based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence as entirely unreasonable.‘” Leon, 468 U.S. at 923 (citation omitted). I would hold, therefore, that the circuit court erred in refusing to suppress the evidence.
Notes
Here, the concurrence suggests that we should avoid any discussion of whether the magistrate had a “substantial basis” for concluding that probable cause existed. However, if we repeatedly fail to address the threshold question of probable cause, we will continue to neglect our duty to adequately educate our magistrates and to provide them with discrete legal guidelines, concomitantly reducing their role in the issuance of warrants to little more than that of a rubber-stamp. Considering the dearth of recent Virginia caselaw on this specific question, and mindful of the fact that we are issuing this opinion en banc, we elect to substantively address the question.
Other jurisdictions, after concluding that a warrant was not supported by probable cause because the information contained in the underlying affidavit was stale, have also been willing to admit evidence under the good faith exception. See, e.g., United States v. Beckett, 321 F.3d 26, 33 (1st Cir.2003) (concluding that good faith exception applied to admit evidence recovered during a search for a murder weapon despite a “six-year lag between the [] murder and the search“); United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars & Fifty-Seven Cents, 307 F.3d 137, 148 (3d Cir.2002) (rejecting defendant‘s “argument that [an] 11-month gap rendered the information in the affidavit so clearly stale that reasonable officers could not have believed that the warrant was valid“); United States v. White, 883 F.Supp. 766, 773-74 (D.Me.1995) (admitting evidence under good faith exception where the most recent information contained in the warrant was at least two years old, noting that, “[a]lthough the magistrate judge erred in issuing a warrant upon affidavits that did not contain current information[,] ... such defects are not of the kind which would alert an executing officer” because the officer would not necessarily “be expected to note the particular time frame of the many facts alleged“); see also Bynum, 293 F.3d 192 (three-month gap); United States v. Rugh, 968 F.2d 750 (8th Cir.1992) (sixteen-month gap); United States v. Kleinebreil, 966 F.2d 945 (5th Cir.1992) (one-year gap).