Brian Jeffrey Turner (“Turner”) appeals the rulings of the Circuit Court of the City of Alexandria (the “circuit court”) 1) declining Turner’s motion to suppress the evidence seized pursuant to a search warrant obtained as a result of a Global Positioning System (“GPS”) tracking device, 2) admitting photographs of mail addressed to Turner as evidence at trial, and 3) finding sufficient evidence to convict Turner of possession of narcotics.
I. BACKGROUND
In February and March 2013, detectives with the Alexandria Police Department’s Vice/Narcotics squad (“the narcotics squad”), with the assistance of three separate confidential informants, identified Turner as a potential supplier in Alexandria’s cocaine trafficking trade. These confidential informants provided detectives with evidence linking Turner to the sale of cocaine in Alexandria, Virginia. Detectives also knew from previous investigations that Turner had previously been arrested and later convicted in July 2009 for possession with intent to distribute a Schedule 1/11 controlled substance. Further evidence established that Turner resided at 3010 Manning Street in Alexandria, Virginia and drove a 2002 tan GMC Yukon registered to the same address. Based upon this information, the detectives sought and obtained a search warrant permitting the placement of a GPS tracking device on Turner’s Yukon on March 13, 2013. The warrant allowed the tracking device to be used for a period of thirty days. The GPS tracker was installed on Turner’s vehicle on March 19, 2013. Shortly thereafter, detectives learned from a confiden tial informant that Turner intended to take his vehicle into a garage to have a tire repaired.
On March 20, 2013, Detective John East of the narcotics squad (“Detective East”) went to the parking lot of a Chevrolet dealership where Turner had taken the vehicle for repair and removed the tracking device to prevent its discovery. In the following days,
On April 11, 2013, the circuit court entered an order extending the authorized tracking period for an additional thirty days because the time Turner’s vehicle was in the repair shop “frustrate[d] the ability to track [its] movements during the authorized period.” Meanwhile, detectives also arranged three controlled purchases of cocaine from Turner through confidential informants. Based upon the detectives’ surveillance and information obtained from confidential informants, detectives sought and obtained a search warrant for Turner’s residence on April 28, 2013.
At approximately 1:30 a.m. on April 30, 2013, officers assigned to the Alexandria Police Department Special Operations Team (the “team”) executed the search warrant at Turner’s home. A member of the team knocked on Turner’s front door, announcing the police presence and advised they had a search warrant. A male voice responded, “Who is it?” Officers then observed a “shadow movement” inside the house and heard a noise that “sounded like somebody was running towards the back of the house.” The team knocked and announced its presence three times before ultimately forcing the door open. On the ground floor, officers observed an individual identified as Kirk Cross sitting on the couch in the living room. Officers searched Cross, but did not find any drugs or contraband on his person.
Meanwhile, detectives of the narcotics squad took up position at the back of the house. Approximately thirty seconds after the officers’ first knock and announce attempt, Detective East, Detective Dan Gordon (“Detective Gordon”), and Detective Nicholas Lion (“Detective Lion”) observed Turner leaving the house and moving towards the back fence and rear alley. Turner was near the rear basement door of the house as he began to run through the backyard. Detective East described Turner as “coming from the back corner exit” and “attempting to run away.” Turner was wearing sweatpants, a t-shirt and socks, but no shoes. Detective Gordon directed Turner to stop and when Turner refused, Detective Gordon tackled him to the ground and secured him in handcuffs. As Turner was tackled, both Detective East and Detective Lion observed a rock of crack cocaine wrapped in plastic fall from Turner’s hand. Subsequent testing revealed the substance tested positive for the presence of cocaine base.
During Detective Gordon’s search of the basement, he discovered a “box of plastic sandwich bags” in the “top right dresser drawer” and a few pieces of mail addressed to Turner on top of the same dresser. Detective Lion also discovered a safe that was “at the foot of the bed and behind some boxes.” Detective Lion pried open the safe with a knife and discovered one plastic shopping bag with nine larger chunks of cocaine and a sandwich bag containing 144 individually wrapped rocks of cocaine. The nine larger chunks of cocaine weighed 280.1 grams, and the 144 individually wrapped rocks weighed 136.0 grams. Detective Lion also found a digital scale on a shelf in the adjoining laundry room.
A grand jury indicted Turner for one count of possession of cocaine with the intent to distribute, third or subsequent offense, and one count of possessing more than 250 grams of a substance containing cocaine base with the intent to distribute. Turner filed several pretrial motions, including a motion in limine to preclude the admission of photographs of mail found in the basement, and two motions to suppress the evidence derived from the GPS tracking device, which were denied. Following a bench trial, Turner was convicted of both offenses.
II. ANALYSIS
A. The GPS Tracker
Turner’s first assignment of error asserts that the trial court erred in denying his motion to suppress the evidence obtained by the use of a GPS tracking device on Turner’s vehicle. Specifically, Turner claims that the reattachment of the GPS tracker constituted
In reviewing a trial court’s denial of a motion to suppress, “we determine whether the accused has met his burden to show that the trial court’s ruling, when the evidence is viewed in the light most favorable to the Commonwealth, was reversible error.”
Roberts v. Commonwealth, 55
Va.App. 146, 150,
1. Reattachment of the GPS Device
First, Turner claims the reattachment of the GPS device constituted a new search and thus required a second warrant. Turner relies on
United States v. Jones,
— U.S. -,
In
Jones,
the government had applied for and received a warrant authorizing the installation of a GPS tracking device for a vehicle registered to Jones’s wife.
Id.
at-,
In this case, on March 13, 2013, detectives obtained a warrant for a GPS tracking device for Turner’s vehicle for a period of thirty days, with the stipulation that the device be installed within fifteen days. The detectives promptly installed the GPS tracking device on Turner’s vehicle on March 19, 2013. Upon learning that Turner intended to take his vehicle in for service, Detective East removed the tracking device to avoid its detection on March 20, 2013. On April 3, 2013, Detective East observed Turner’s vehicle in front of his residence and reinstalled the GPS tracking device. Unlike the government agents in
Jones
who failed to follow the stipulations of the warrant, it is undisputed that the detectives in this
case acted within the scope of the warrant. Notably, both the removal and the subsequent reattachment of the device occurred within the original thirty-day period authorized by the warrant. Consistent with the reasoning of
Jones,
we hold that the removal and reattachment of the GPS tracking device was a
Concluding that reattaching a GPS device that is otherwise within the scope of a valid warrant is an ongoing search and permissible under the Fourth Amendment, we must next determine whether the reattachment of the device constituted a second search requiring a new warrant pursuant to Code § 19.2-56.2. Such determination necessarily involves an exercise of statutory interpretation that, to the extent possible, harmonizes the statute with existing Fourth Amendment precedent.
See Illinois v. Krull,
The primary objective of statutory construction is to “determine the General Assembly’s intent from the words contained in [the] statute.”
Washington v. Commonwealth,
In response to the Supreme Court’s decision in Jones, the General Assembly adopted Code § 19.2-56.2 in 2012, which expressly outlines the procedures for obtaining a warrant for the installation and use of a GPS tracking device. “The search warrant shall authorize the use of the tracking device from within the Commonwealth to track a person or property for a reasonable period of time, not to exceed 30 days from the issuance of the search warrant.” Code § 19.2-56.2(C)(1). “The search warrant shall command the law-enforcement officer to complete the installation authorized by the search warrant within 15 days after issuance of the search warrant.” Code § 19.2-56.2(D)(1). Once a search warrant is obtained, “[Haw-enforcement officers shall be permitted to monitor the tracking device during the period authorized in the search warrant, unless the period is extended as provided for in this section.” Code § 19.2-56.2(D)(3).
In drafting Code § 19.2-56.2, the General Assembly clearly understood that the value of tracking devices is maximized by using such devices over a period of time. Further, the language of the statute illustrates that the General Assembly also contemplated circumstances in which removal of a GPS tracking device may be necessary during the period authorized by the warrant. The statute defines “use of a tracking device” to include “the installation, maintenance, and monitoring of a tracking device but does not include the interception of wire, electronic, or oral communications or the capture, collection, monitoring, or viewing of images.” Code § 19.2-56.2(A).
“Maintenance” is defined as “the labor of keeping something in a state of repair or efficiency.”
Webster’s Third New International Dictionary
1362 (3d ed.1993). “Monitoring” means “to watch, observe, or check (something) for a special purpose over a period of time.”
Id.
at 1460. Read together,
the inclusion of the terms “maintenance” and “monitoring” demonstrates the General Assembly’s intent to allow for removal of the tracking device in certain situations to perform upkeep or repairs or address other issues that may affect the special purpose of the device. Clearly, the purpose of using a GPS tracking device is to track the movements
Turner argues that the statute allows for removal of the tracking device only “to keep the device itself operable.” However, such a narrow reading disregards the plain meaning of the language chosen by the General Assembly and would lead to absurd results. For example, Turner’s interpretation of the statute would require that police obtain a new warrant if the GPS device fell off the vehicle after being struck by road debris. In this case, the “monitoring” of the tracking device required its removal prior to Turner taking his vehicle in for repair. The alternative would have created a substantial risk of Turner’s detection and potential destruction of the device. Further, Turner’s discovery of the tracking device could have severely undermined the criminal investigation.
Given our construction of the statute, we conclude that the removal and reattachment of the GPS tracking device was part of a single, ongoing search that was within the scope of the warrant issued pursuant to Code § 19.2-56.2. 3 As such, on the facts of this case, we hold that the removal and reattachment of the GPS tracking device during the period of time authorized by the warrant was reasonable and permissible under Code § 19.2-56.2 and did not violate Turner’s rights under the Fourth Amendment.
2. “Good Cause Shown ” for Extension of Warrant
Second, Turner argues that any extension of the warrant for a GPS device is unconstitutional because Code § 19.2-56.2 only requires a showing of “good cause” instead of probable cause. Code § 19.2-56.2(E) provides:
Upon request, and for good cause shown, the circuit court may grant one or more extensions for such service for a period not to exceed 30 days each. Good cause shall include, but not be limited to, a continuing criminal investigation, the potential for intimidation, the endangerment of an individual, or the preservation of evidence.
(Emphasis added). However, contrary to Turner’s assertion, and as the context makes clear, the “good cause” language contained in Code § 19.2-56.2(E) applies only to the standard for securing an extension of the temporal scope of the warrant and does not supplant the constitutional and statutory requirement that the warrant itself must be based on probable cause. See Code § 19.2-56.2(C)(1) (providing that a search warrant shall be issued if “there is probable cause to believe that a crime has been committed ... and that there is probable cause to believe the information likely to be obtained from the ... tracking device will be evidence of ... such offense” (emphasis added)). It follows that a timing extension is only proper pursuant to Code § 19.2-56.2(E) if there is “good cause” for an extension and probable cause to support the original warrant still exists at the time of the extension. The circuit court noted:
[T]hat the matter remain[ed] under investigation, that the target of the investigation [was] not aware of the investigation, that the target is continuing his or her criminal acts and ... the GMC Yukon spent several days at a repair shop for tire repair, thereby frustrating the ability to track the Yukon’s movements during the authorized period of tracking.
The record clearly supports the circuit court’s conclusion that there was probable cause to conclude that Turner was involved in continuing criminal activity and that good cause
existed to extend the tracking period. Therefore, in accordance with the plain language of Code § 19.2 — 56(2)(E), the circuit court did not err in entering an order extending the use of the tracking device. Because we find no merit to Turner’s claims that the reattachment of the GPS device required a new warrant and that the extension of the
B. Admission of the Photographs of Mail
Turner’s second assignment of error asserts that the circuit court erred in admitting the photographs of mail found in the basement of Turner’s residence. Specifically, Turner argues that the mail amounted to writings under the best evidence rule, thus requiring the original writings be produced. Turner also claims the evidence was more prejudicial than probative and that such admission violated the completeness rule set forth in Virginia Rule of Evidence 2:106(a).
An appellate court “review[s] the decision of a circuit court with regard to the admission of evidence according to an abuse of discretion standard.”
Branham v. Commonwealth,
The circuit court found that the photographs of the mail were not writings within the contemplation of the rules and therefore were not subject to the completeness rule or best evidence rule set forth in Rules 2:106(a) and 2:1002. We agree.
First, the best evidence rule provides that “[t]o prove
the content
of a writing, the original writing is required.” Rule 2:1002 (emphasis added). Thus, in Virginia, “the best evidence rule provides that ‘where the contents of a writing are desired to be proved, the writing [the primary evidence] itself must be produced or its absence sufficiently accounted for before other evidence of its contents can be admitted.’ ”
Bradshaw v. Commonwealth,
In this case, the photographs of the mail found in the basement near the drugs were not offered to prove the contents of the mail. Instead, the introduction of the photographs was based on their value as circumstantial evidence connecting Turner to the basement of the home. It was the mere existence and location of the mail addressed to Turner that tended to prove Turner had control over the basement area of the home and the drugs recovered there. Further, Detective Gordon testified about his personal observation of the mail and its particular location in the basement. Therefore, even assuming there was merit to Turner’s contention that the writing on the outside of the envelope containing his name created the only connection of Turner to the mail, the contents of the writing, namely Turner’s name and address, are only collaterally related to the issue of whether Turner had dominion and control of the basement area. See Friend & Sinclair, supra at § 18.3 (“[W]hen the fact in issue is one to which witnesses can testify orally from personal observation, any documents which recite the same facts, though they may be admissible, are only ‘collateral’ to the actual fact, and do not have to be produced.”). Therefore, we hold that the best evidence rule does not apply to the photographs of the mail.
Next, Turner claims the circuit court erred in finding the completeness rule did not require the exclusion of the photographs of the mail, given the postmark was not
Finally, Turner argues that the photographs were more prejudicial than probative. Generally, “evidence has relevance if it ‘tends to cast any light’ on any material point.”
Thomas,
The circuit court allowed evidence of mail addressed to Turner that had been found in the basement of the house near the drugs and other evidence of drug distribution. This evidence was certainly potentially damaging to Turner; however, most relevant evidence offered by the Commonwealth in a criminal case is potentially damaging to a defendant. In this case, the evidence was relevant to the issue of whether the cocaine and other evidence of drug distribution was subject to Turner’s control. The evidence was neither misleading nor cumulative. Further, Turner had the opportunity to argue alternative explanations for the presence of the mail. Thus, we conclude that the circuit court’s finding that the probative value of the mail was not substantially outweighed by any prejudice to Turner was not an abuse of discretion. Accordingly, the circuit court did not err in admitting the photographs into evidence.
C. Sufficiency of the Evidence
Turner’s third assignment of error claims that the circuit court also erred in finding sufficient evidence to support his conviction for possessing the narcotics found in the safe. Turner claims the circuit court unreasonably rejected his hypothesis of innocence that the cocaine belonged to either Kirk Cross or some other person who had access to the residence.
When the sufficiency of the evidence is challenged on appeal, “[t]his Court ‘must examine the evidence that supports the conviction and allow the conviction to stand unless it is plainly wrong or without evidence to support it.’ ”
Commonwealth v. McNeal,
Ill CONCLUSION
In summary, we hold that the reattachment of the GPS tracking device during the period authorized by the warrant was permissible under both Code § 19.2-56.2 and the Fourth Amendment. Moreover, we hold that because the extension of the warrant pursuant to Code § 19.2-56.2(E) was supported by both probable cause that Turner continued to be engaged in criminal activity and good cause to extend the time period of the warrant for the tracking device, the circuit court did not err in declining to suppress the evidence obtained as a result of the GPS tracking device. We also hold that the circuit court did not err in admitting photographs of mail addressed to Turner into evidence or finding that there was sufficient evidence to support Turner’s conviction for possession of the narcotics found in the safe. Accordingly, we affirm the judgment of the circuit court.
Affirmed.
Notes
. Turner’s assignment of error does not contest the validity of the warrant, but merely asserts that the scope of the warrant does not permit the reattachment of the GPS device.
. We note that although Turner argues that the reattachment of the GPS device was not permitted by Code § 19.2-56.2, only a finding of a constitutional violation would permit the suppression remedy he seeks.
See Virginia v. Moore,