Marc Joseph Stout v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Pre
Arg
MA
v. 	Rec 	S
OCTOBER
CO
FRO
Bar 	llant.
Richard B. Smith, Special Assistant Attorney General (William C.
Upon conditional guilty pleas, Marc Joseph Stout (appellant) was convicted of two charges
of possessing cocaine with the intent to distribute in violation of Code § 18.2-248, possessing a
controlled substance simultaneously with a firearm in violation of Code § 18.2-308.4, and
possessing a firearm after conviction of a felony in violation of Code § 18.2-308.2. On appeal,
appellant contends the trial court erred in denying his motions to suppress evidence: 1) obtained
by the police after he was seized in violation of his Fourth Amendment rights; 2) seized from his
motel room pursuant to a search warrant; 3) seized from a safety deposit box pursuant to a search
warrant; and 4) obtained by the police through search warrants in violation of Franks v.
sent: 	Judges Kelsey, Petty and Senior Judge Clements
ued at Alexandria, Virginia
RC JOSEPH STOUT
MEMORANDUM OPINION* BY
ord No. 0227-08-4 	JUDGE JEAN HARRISON CLEMENT
20, 2009
MMONWEALTH OF VIRGINIA
M THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Lon E. Farris, Judge
ry A. Zweig (Zweig & Associates, PC, on briefs), for appe
Mims, Attorney General, on brief), for appellee.
Delaware, 438 U.S. 154 (1978). 	We hold the trial court erred in concluding the police lawfully
detained appellant and in refusing to suppress a portion of the evidence. For the reasons that
1
* Pu
1 Judge William D. Hamblen denied appellant’s motion to suppress evidence derived
from his alleged unlawful detention. Judge Richard B. Potter denied appellant’s motions to
rsuant to Code § 17.1-413, this opinion is not designated for publication.

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foll 	ss
evid
mem 	nly those facts and
incidents o 	of
this
court’s ruling on a suppression motion, we view the evidence in
the ‘light most favorable to . . . the prev 	the Commonwealth in this instance,
and he dec
ow, however, we hold the trial court did not err in denying appellant’s motions to suppre
ence seized pursuant to the search warrants.
As the parties are fully conversant with the record in this case, and because this
orandum opinion carries no precedential value, this opinion recites o
f the proceedings as are necessary to the parties’ understanding of the disposition
appeal.
BACKGROUND
“[I]n considering a trial
ailing party below,’
t 	ision of the trial judge will be disturbed only if plainly wrong.” Greene v.
Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138, 139 (1994) (quoting Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)). “‘[T]he burden is upon [the
ndant] to show that the ruling, when the evidence is considered most favorably to the
monwealth, constituted reversible error.’”
defe
Com 	McGee v. Commonwealth, 25 Va. App. 193, 1
S.E.2d 259, 261 (1997) (en banc) (quoting
97,
487 	Fore v. Commonwealth, 220 Va. 1007, 1
.2d 729, 731 (1980)).
On the night of September 23, 2006, Detective Michael Fernald of the Prince William
nty police received an anonymous tip that a Caucasian male and a Caucasian female we
010, 265
S.E
Cou 	re
stay 	g at a 	told
Fer 	The
tipster further advised there was a baby in the subjects’ motel room. Fernald was in the process of
in 	room at the Best Value Inn, and they possessed narcotics and firearms. The tipster
nald the two individuals were traveling in a gray Nissan Altima with large chrome wheels.
press the evidence obtained by search warrants. Judge LeRoy F. Millette, Jr., rul
ellant’s motion to suppress pursuant to
sup 	ed on
app 	Franks and accepted his conditional guilty pleas.
Judge Lon E. Farris sentenced appellant.

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inte 	g the
info
ale, and
app 	rozpuri
dro 	ed
Fer 	ke drug sales at the motel room or in
other locati 	room.
Sul
t of the
Sup
Fer
alked toward
the vehicle
dire 	ve a little
wav 	lked to the passenger
side
frie 	.
Sul 	wanted
him 	lk
to appellant privately at the rear of the vehicle. Appellant opened the door, and Sullivan moved
toward the rear of the vehicle.
As appellant was exiting the vehicle, Sullivan saw a black gun on the right front
floorboard 	f the car. Immediately upon observing the firearm Sullivan pinned appellant to the
rrogating a suspect in the jail when he received the tip. As a result, Fernald passed alon
rmation to Detective Michael Sullivan, who was on duty with Officer Wayne Smith.
Sullivan and Smith drove to the Best Value Inn. They saw Misbah Ferozpuri, a fem
ellant, a Caucasian male, entering a gray Nissan Altima with large chrome wheels. Fe
ve the vehicle, and appellant was the front seat passenger. By telephone, Sullivan contact
nald and asked whether the suspects were reported to ma
ons. Fernald advised that the drug sales took place away from the couple’s motel
livan decided to follow the Altima.
Sullivan and Smith followed the vehicle from the Best Value Inn to the parking lo
er 8 Motel. The Altima backed into a parking space and remained there for several minutes.
ozpuri and appellant did not get out of the vehicle.
Sullivan and Smith exited their vehicle and approached the Altima. Sullivan w
from the left front passenger side, and Smith approached the vehicle from another
ction. Sullivan was wearing a black vest with “police” in white lettering. Sullivan “ga
e” and Ferozpuri waved back as the officers neared the car. Sullivan wa
of the car and spoke to appellant through the opened window.
When Sullivan asked appellant what he was doing there, he replied he was waiting for a
nd. Appellant said he had come from his house, and he was living at the Best Value Inn
livan then asked if appellant would exit the vehicle. Appellant questioned why Sullivan
to do so. The officer replied he did not want to discuss it in front of Ferozpuri, but would ta
o

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veh 	le and 	d
fire 	earched
the
par 	aid
Sul 	d Sullivan’s gesture as
a si nal no 	d not
feel
ben
e
stat 	e Best Value Inn.
The 	olice
pol 	ing hours of
Sep
fire
num 	search warrant
des 	ibed t
app
him 	is
ic 	handcuffed him. Searching appellant incident to arrest for possessing a conceale
arm, Sullivan found $871 in currency in appellant’s left front pocket. Sullivan then s
vehicle and found three pieces of crack cocaine.
At the suppression hearing, appellant testified that he and Ferozpuri remained in the
ked vehicle for only about thirty seconds before the officers approached. Appellant s
livan “motioned for [him] to stay put.” Likewise, Ferozpuri interprete
g 	t to leave. Appellant stated that when Sullivan asked him to get out of the car, he di
free to leave. Appellant said the officer held him against the car and handcuffed him after he
t down to pick up his sunglasses.
Following appellant’s arrest, the police questioned him and Ferozpuri at the polic
ion. Ferozpuri indicated there were guns and drugs in their motel room at th
p 	confirmed that appellant was the guest registered in Room 232 at the motel. The
ice then obtained a search warrant for Room 232 and searched it in the early morn
tember 24, 2006. The search revealed $3,500 in cash, drugs, drug paraphernalia, and
arms.
On September 26, 2006, the police sought a search warrant for “safety deposit box
ber 91” at a Wachovia Bank branch in Dale City. 2 The affidavit for the
cr 	he findings by police during the search of Room 232. The affidavit further indicated
ellant, after his arrest, told the police he had been unemployed for months and supported
self by selling drugs. Appellant offered one of the officers $20,000 to “get [him] out of th
2 At appellant’s trial, where he entered conditional guilty pleas, the Commonwealth
icated that following appellant’s ar	ind 	rest, the police found a key to a safety deposit box “in
[appellant’s] belongings.” The record does not reveal where the key was found. The police
traced the key to the Wachovia Bank safety deposit box registered to appellant and Ferozpuri.
These facts and circumstances were not included in the affidavit for the search warrant of the safety
deposit box.

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mes .” Ba 	it box.
The
Crossland initially was appointed to represent appellant upon the charges. While
app 	ble
for 	ated
in t
roo 	t
app 	attorneys
rep 	sentin 	.
offi 	he trial
cou
con
at least by the time the poli 	cted him to get out of the
car, it had become an investigative detention, probably before that
time.
When the police officer walked up to the car in uniform
and made the gesture, which the police officer characterized as a
wave, I think could be more reasonably interpreted to have been a
gesture to halt or stay where you are, as the police officer
demonstrated, I would view that within the context to be sort of a
ment of the
s 	sed upon this information, the police obtained a search warrant for the safety depos
search of the box revealed $5,000 in cash.
Mark
ellant was incarcerated awaiting trial, he wrote a letter admitting he was solely responsi
the drugs and money in the car, the motel room, and the safety deposit box. Appellant st
he letter that neither Ferozpuri nor his brother, who was with appellant’s child at the motel
m at the time of appellant’s encounter with the police, was involved in selling drugs. A
ellant’s encouragement, Crossland released appellant’s letter of confession to the
re 	g Ferozpuri and appellant’s brother and to the prosecutor during plea negotiations
ANALYSIS
I.
A. The Detention
Appellant contends all the evidence should have been suppressed because the police
cers obtained it as a result of a detention that violated his Fourth Amendment rights. T
rt concluded that although the encounter between appellant and the police initially was
sensual,
ce officer dire
tactical approach that the police officers had adopted to approach
the car.
The way they did it was a calculated way which would, I
think, fairly be objectively construed to have been designed to
limit the movement of the car and limit the move

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occupants.
All that said, he was at least subjected to an investigative
The 	e appellant was detained by the police, the officers had
sufficiently corrob 	spicion to justify the
stop.
Encounters 	etwee 	of three categories.” McGee
occupants of the car and would have been so perceived by the
detention when he was told to get out of the car.
trial court further concluded that at the tim
orated the anonymous tip to provide them with reasonable su
b 	n the police and citizens “generally fall into one 	,
25 Va. App. at 198
Firs
Fou
, 487 S.E.2d at 261.
t, there are consensual encounters that do not implicate the
rth Amendment. Iglesias [v. Commonwealth], 7 Va. App.
,] 99, 372 S.E.2d [170,] 173 [(1988)]. Next, there	[93 	are brief
investigatory stops, commonly referred to as “Terry” stops, which
mu 	be ba 	minal
acti
st 	sed upon reasonable, articulable suspicion that cri
vity is or may be afoot. United States v. Sokolow, 490 U.S.
939). Finally, there are “highly intrusive, full-scale arre
rches that must be based upon probable cause to believe that
pect has committed a crime.
1,
7 (1 	sts” or
sea 	the
sus 	Id.; see also Wechsler v.
Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744, 746-47
(1995).
Id.
per
mo 	en such restraint is imposed is there any foundation whatever
for invokin
For purposes of the Fourth Amendment, an encounter ceases to be consensual and “‘a
son is “seized” only when, by means of physical force or show of authority, his freedom of
vement is restrained. Only wh
g constitutional safeguards.’” Baldwin v. Commonwealth, 243 Va. 191, 196, 413
.2d 645, 647 (1992) (quoting	S.E 	endenhall	United States v. M 	, 446 U.S. 544, 553 (1980)).
“Ex
whe 	tening
pre 	icer,
som
lang 	the
offi 	e such
evidence, otherwise inoffensive contact between a member of the
amples of circumstances that might indicate a seizure, even
re the person did not attempt to leave, would be the threa
sence of several officers, the display of a weapon by an off
e physical touching of the person of the citizen, or the use of
uage or tone of voice indicating that compliance with
cer’s request might be compelled. In the absence of som

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pub
seiz
Id.
lic and the police cannot, as a matter of law, amount to a
ure of that person.”
at 196, 413 S.E.2d at 648 (quoting Mendenhall, 446 U.S. at 554-55).
suspect was seized in violatio	Whether a 	n of his Fourth Amendment rights
presents a mixed question of law and fact that we review de novo
on appeal. In making such a determination, we give deference to
determine whether the manner in which the evidence was obtained
Har
the factual findings of the circuit court, but we independently
meets the requirements of the Fourth Amendment.
ris v. Commonwealth, 276 Va. 689, 694, 668 S.E.2d 141, 145 (2008) (citations omitted
There is good reason for the rule that appellate courts mu
Amendment cases. The fact patterns in such cases arrive in infinite
involve consideration of nuanc
).
st
defer to the factual findings of the trial judge in Fourth
variety, seldom or never exactly duplicated. Moreover, they
es such as tone of voice, facial
expression, gestures and body language seldom discernable from a
prin 	tters
on a
circ
Malbrough v. Com
ted record. The controlling inquiry is the effect of such ma
reasonable person in the light of all the surrounding
umstances.
monwealth, 275 Va. 163, 171, 655 S.E.2d 1, 5 (2008)
fact defendant was not detained for Fourth Amendment
ce at the suppression hearing proved the police officers appr
(deferring to trial
court’s finding of 	purposes).
The eviden 	oached the Altima
in a manner intended to limit the movement of the occupants of the vehicle. Sullivan raised his
hand in a gesture both appellant and Ferozpuri interpreted as an indication they were not free to
leave. At the suppression hearing, the trial court observed Sullivan’s demonstration of the
officer’s movemen 	een a gesture to
halt or stay where 	ehicle. The
evidence thus supports the trial court’s conclusion that appellant’s freedom of movement was
rest 	him
from 	Accordingly, we must grant this factual finding deference on appeal.
t and decided it was “more reasonably interpreted to have b
you are.” The police officer then told appellant to exit the v
rained and he was detained for Fourth Amendment purposes when the police ordered
the car.

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A lawful investiga 	rticulable suspicion
that a person is eng
tive detention must be based upon “reasonable, a
aging in, or is about to engage in, criminal activity . . . .” McGee, 25
Va. App. at 202, 4 	sufficient to authorize
police to stop a pe 	cumstances – the
whole picture.’” L
87 S.E.2d at 263. “In order to determine what cause is
rson, cognizance must be taken of the ‘totality of the cir
eeth v. Commonwealth, 223 Va. 335, 340, 288 S.E.2d 475, 478 (1982)
(quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). In the context of a tip provided to
the police by an anonymous informant, “the informant’s veracity or reliability, and the basis of
his or her knowledge are ‘highly relevant’ factors in the overall totality of the circumstances
analysis.” Harris, 276 Va. at 695, 668 S.E.2d at 145 (quoting Illinois v. Gates, 462 U.S. 213, 230
(1983)).
An anonymous tip has a relatively low degree of reliability,
information contained in the tip. See
requiring more information to sufficiently corroborate the
[Florida v.] J.L., 529 U.S.
[266,] 270 [(2000)]; Jackson [v. Commonwealth], 267 Va. [666,]
informant whose reputation can be assessed and who can be held
anonymous tip alone seldom demonstrates the informant’s basis of
673, 594 S.E.2d [595,] 599 [(2004)]. “Unlike a tip from a known
responsible if her allegations turn out to be fabricated, ‘an
knowledge or veracity.’” J.L., 529 U.S. at 270 . . . .
The indicia of reliability of an anonymous tip may be
the police can use to test the tipster’s basis of knowledge and
bolstered when the tipster provides predictive information, which
credibility. Jackson, 267 Va. at 676, 594 S.E.2d at 600. However,
for such predictive information to bolster the tipster’s basis of
criminal activity. Providing information observable or available to
correctly identify the person whom the tipster [meant] to accuse.”
knowledge or credibility, the information must relate to the alleged
anyone is not predictive information and can only “help the police
J.L., 529 U.S. at 272. An anonymous call that provides no
tipster’s knowledge or credibility.
predictive information leaves the police without a means to test the
J.L., 529 U.S. at 271.
ris	Har 	, 276 Va. at 695-96, 668 S.E.2d at 145-46 (finding anonymous tip that defendant was
ing intoxicated in a particular location not sufficiently reliable or predictive of criminal	driv
behavior to justify a stop).

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In Jackson, 267 Va. at 669, 594 S.E.2d at 596, the Supreme Court of Virginia conside
ther information provided by an anonymous caller was sufficiently corroborated to provi
police with reasonable suspicion to justify an investigatory stop. In that case, police units
e dispatched to the intersection of 34th Street and Jefferson A
red
whe 	de
the
wer 	venue in Newport News based
upon an anonymou 	re disorderly and
one of them brand
s tip that three African-American males in a white Honda we
ished a firearm. Id. at 670, 594 S.E.2d at 597. About five m
t, an officer saw a white Honda with three African-America
informant had named. The officer stopped the vehicle as it
inutes after
receiving the repor 	n males inside it at
the intersection the 	was pulling out of
a gas station. Id. 	saw a bulge under the
shirt of the defendant, who was a passenger in the car. Id.
When the police shone a light inside the vehicle, they
at 671, 594 S.E.2d at 597. The police
ordered the defend 	stband. Id.	ant from the car and seized a firearm from his wai 	The Court
found the anonym 	d failed to contain
predictions about t 	, the tip lacked
sufficient indicia o
ous tip contained no indicia of the informant’s veracity an
he defendant’s future behavior. Thus, the Court concluded
f reliability to justify the stop. Id. at 681, 594 S.E.2d at
, the informant did not provide the police with his identity
the informant did not subject himself to possible arrest if
ed false.
603.
In this case 	or the basis for his
knowledge. Thus, 	the information he
gave Fernald prov 	See Code § 18.2-461. The informant told Fernald a Caucasian man
and 	and
fire
whe 	le’s future movements. The police later saw appellant
and Ferozp 	e
offi 	riminal
beh
a woman were sharing a motel room at the Best Value Inn, where they possessed drugs
arms. The informant indicated the pair was traveling in a gray Altima with large chrome
els. The tip did not predict the coup
uri get into a gray Altima at the Best Value Inn and drive to another motel. Th
cers did not observe appellant or Ferozpuri attempt a drug transaction or engage in c
avior. Thus, the anonymous tip did not provide a sufficient basis to justify the police in

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detaining appellant and ordering him from the vehicle. See Harris, 276 Va. at 694, 668 S
.
B. Suppression of the Evidence
“Ordinarily, evidence obtained as the result of an unlawful search [or seizure] is subje
uppression under the exclusionary rule.”
.E.2d at
145
ct
to s 	Commonwealth v. Jones, 267 Va. 532, 535, 593
.2d 204, 206 (2004). In determining whether evidence is derivative of the illegal act and
efore, barred as “fruit of the poisonous tree,” the question is “‘whether[,] granting
blishment of the primary illegality, the evidence to which the instant objection is made has
n come at by exploitation of that illegality or instead by means sufficiently distinguishab
purged of the primary taint.’”
S.E 	,
ther
esta
bee 	le to
be 	Wong Sun v. United States, 371 U.S. 471, 488 (1963) (quot
n M. Maguire,
ing
Joh 	Evidence of Guilt 221 (1959)).
This attenuation principle should not be confused with a mere “but
supp
for” standard of causation – which, if used for this purpose, would
ress evidence “simply because it would not have come to light
but for the illegal actions of the police.” Wong Sun, 371 U.S. at
made after consideration of all the circumstances of the case.”
488. Instead, “a finding with respect to attenuation . . . can only be
United States v. Wellins, 654 F.2d 550, 554 (9th Cir. 1981). This
circumstances of each case.”
necessarily requires a “careful sifting of the unique facts and
Schneckloth [v. Bustamonte], 412
consider the amount of time between the illegal action and the
circumstances . . ., and the purpose and flagrancy of the official
U.S. [218,] 233 [(1973)]. There being no fixed formula, courts
acquisition of the evidence, the presence of intervening
misconduct. United States v. Seidman, 156 F.3d 542, 548 (4th Cir.
Kye
1998).
r v. Commonwealth, 45 Va. App. 473, 483, 612 S.E.2d 213, 218-19 (2005) (en banc).
We agree with appellant that the $871 seized from appellant’s person in the search
dent to his arrest was derivative of his unlawful detention by the police and shou
pressed. Likewise, appellant’s statement to the police that selling drugs was his so
inci 	ld have been
sup 	le source
of income was obtained in exploitation of the unlawful detention. However, none of the other

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evid
detention.
1. A
App
fou 	on
his
Mir
ence against appellant was subject to the exclusionary rule as a result of the unlawful
ppellant’s Confession Letter
ellant wrote a letter confessing his guilt of possessing the drugs, guns, and money
nd in the car, the motel room, and the safety deposit box. Appellant wrote the statement
own, without the involvement of the police, after he had been advised of his rights under
anda v. Arizona, 384 U.S. 436 (1966), and was appointed counsel to represent him.
“[A] voluntary confession can be an act of free will sufficient to purge the taint of an
ier illegal [detention].”	earl 	Kyer, 45 Va. App. at 484 n.5, 612 S.E.2d at 219 n.5. See also New
York v. Harris, 495 U.S. 14, 21 (1990). The Commonwealth did not obtain appellant’s
fession through exploitation of unlawful conduct on the part of the police. Accordingly	con 	, the
exclusionary rule did not apply to appellant’s written confession.
The Fourth
“pr
2. Evidence Seized from the Vehicle
Amendment
otects people, not places.” Katz v. United States, 389 U
(1967). In order to effectuate the fourth amendment
rantees, the Supreme Court established the “exclusionary
ch prevents evidence obtained in violation of the fourth
ndment from being used against an accused.
.S. 347,
351
gua 	rule”
whi
ame 	.	Reynolds v
Commonwealth, 9 Va. App. 430, 435, 388 S.E.2d 659, 662-
90);
63
(19 	see also Walls v. Commonwealth, 2 Va. App. 639, 651,
S.E.2d 175, 182 (1986). Yet, the protections of the
lusionary rule are only available to individuals whose four
ndment rights have been violated.
347
exc 	th
ame 	Rakas [v. Illinois], 439 U
8,] 134 [(1978)];
.S.
[12 	accord United States v. Salvucci, 448 U.S
(1980);
. 83,
85 	McCoy v. Commonwealth, 2 Va. App. 309, 311, 343
S.E.2d 383, 385 (1986). Thus, before affording the exclusionary
based on the totality of the circumstances, the defendant
and place of the disputed search.” McCoy
rule protections to a defendant, a court must determine whether,
“objectively had a reasonable expectation of privacy at the time
, 2 Va. App. at 311, 343
burden of proving the government conducted an illegal search of a
place where that party had a legitimate expectation of privacy.
S.E.2d at 385. The party asserting fourth amendment rights has the

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Commonwealth v. Ealy, 12 Va. App. 744, 750-51, 407 S.E.2d 681, 685 (1991). Regarding
tor vehicle, an accused has standing to object to a search if he is the “owner or in la
session of it.”
a
mo 	wful
pos 	Hardy v. Commonwealth, 17 Va. App. 677, 680, 440 S.E.2d 434, 436 (1994).
See also Bell v. Commonwealth, 264 Va. 172, 190, 563 S.E.2d 695, 708 (2002) (defendant had
no standing to challenge the sea 	s not authorized to have in his
pos 	ssion
rch of a car he did not own and wa
se 	at the time of the search).
In Rakas, the police stopped a getaway car after a reported robbery. Four people were
oved from the vehicle. Inside the glove compartment the police found a box of ammunitio
a shotgun was underneath the front passenger seat. The defendants in the case, who had
rem 	n,
and
been passengers in the vehicle, asserted no ownership interest in the vehicle or the seized
evidence.
def
The United States Supreme Court found that, under such circumstances, the
endants lacked standing to challenge the search of the vehicle. Id. at 148-50.
Here, the police initially observed appellant as a passenger in the gray Altima. Fer
the driver. At no point in the proceedings did appellant assert any ownership interest in th
ima. At one of the suppression hearings, Ferozpuri referred to the Altima several tim
ozpuri
was 	e
Alt 	es as her
own vehicle. Considering the 	monstrate that he had a
reas 	icle to justify an assertion that the search of the car
violated his Fourth 	d from the vehicle
were not subject to
After she w
se circumstances, appellant failed to de
onable expectation of privacy in the veh
Amendment rights. Thus, the firearm and the drugs seize
exclusion.
3. Ferozpuri’s Statement
as arrested and advised of her Miranda rights, Ferozpur
re guns and drugs in the motel room at the Best Value Inn.
authority, and we are aware of none, permitting him to ass
i made a statement
indicating there we 	Appellant provides
this Court with no 	ert vicariously any
violation of constitutional rights that would result in the exclusion of Ferozpuri’s statement from

- 13 -
evidence at his trial 	uiring an appellant
to provide this Cou 	. Nor did
appellant preserve t 	See
. Appellant has thus failed to comply with Rule 5A:20(e), req
rt with authority to support the positions he advances on appeal
his argument for appellate review by raising it the trial court. 	Rule 5A:18.
Therefore, we need 	uld have been
suppressed in the tr
4. The Bribe Attempt
During questioning by the police, appellant offered one of the officers $20,000 to “get
[him] out of this mess.” Appellant’s attempt to bribe a police officer constituted a violation of
Code § 18.2-438, which makes it a Class 4 felony to “corruptly give, offer or promise to any . . .
police officer . . . any gift or gratuity, with intent to influence his act, . . . decision or judgment on
any matter, question, cause or proceeding, which is or may be then pending . . . .”
We have held that “[t]he exclusionary rule does not . . . prohibit testimony describing the
defendant’s own illegal actions following an unlawful search or seizure.” Brown v. City of
not consider any contention that Ferozpuri’s statement sho
ial court.
Danville, 44 Va. App. 586, 599, 606 S.E.2d 523, 530 (2004). “[I]f a person engages in new and
distinct criminal acts in response to unlawful police conduct, the exclusionary rule does not
apply, and evidence of the events constituting the new criminal activity, including testimony
describing the defendant’s own actions, is admissible.” Id. at 600, 606 S.E.2d at 530. Moreover,
in cases where a defendant has attempted to bribe a police officer following an unlawful arrest,
“the courts have consistently held that the evidence of the attempted bribe – i.e., the statements
of the person in making the bribe offer – is admissible notwithstanding” the prior unlawful
conduct by the police. 6 Wayne R. LaFave, Search and Seizure § 11.4(j) (4th ed. 2004). See,
e.g., People v. Puglisi, 380 N.Y.S.2d 221, 222-23 (N.Y. App. Div. 1976) (where police lacked
reasonable suspicion to stop the defendant, yet arrested him for possessing a gun, defendant’s

- 14 -
sub
atte
II.
Appellant challenges the tria 	he motion to suppress the
evid nce s 	dence
seiz 	l
dete
g
fact
citizen that a white female and a white male were in possession of
Value Inn. The address for the Best Value Inn is 4202 Inn Street[,]
silver/gray Nissan Altima with large chrome wheels. The citizen
room but drive the Nissan to there [sic] customers.
On 9-23-06 Officer Smith and I drove by the Best Value
Nissan Altima with large chrome wheels. We followed the vehicle
parking lot of the Super 8 motel located at Route 234 and Route 1.
Super 8 motel. I walked up to the vehicle and made contact with
where he was coming from and he stated Triangle. I stated where
Stout stated he currently lives at the Best Value Inn. I asked for
step out of the vehicle and when he did so, I observed
a small black gun located on the floor in the passenger’s wheel
searching the vehicle incident to arrest three baggies of Crack
She stated there were guns and drugs located in there [sic] motel
room located at the Best Value Inn.
sequent offers to bribe police officers were admissible). Thus, appellant’s statement
mpting to bribe the police officer with $20,000 was not subject to suppression.
l court’s decision to deny t
e 	eized from Room 232 pursuant to a search warrant. Appellant argues the evi
ed pursuant to the warrant constituted “fruit of the poisonous tree,” namely his unlawfu
ntion by the police.
The affidavit supporting the search warrant for the motel room contained the followin
s:
On 9-23-06 Detective Fernald received information from a
crack cocaine and various firearms located at the motel of the Best
Triangle[,] Virginia, 22172. The citizen also stated they drove a
also stated they make their narcotic sales away from the motel
Inn and observed a white female and male enter a silver/gray
onto Route 95 north bound. . . . The vehicle pulled into the
The vehicle parked backwards in a parking space located at the
Mr. Stout who was in the passenger’s seat. I asked Mr. Stout
in Triangle and he stated his residence at the Best Value Inn. Mr.
Mr. Stout to
well. Mr. Stout was arrested for a Concealed Firearm. In
Cocaine were located in the vehicle.
The driver, Mrs. Ferozpuri was read her Miranda rights.

- 15 -
Value Inn and she stated Room 232 is registered to Marc Stout.
The affidavit thus did not contain any reference to appellant’s possession of $871 and his
statement regarding his vocation as a drug dealer, the only evidence that should have been
suppressed as derivative of the unlawful detention of appellant by the police. Accordingly, we
need not further consider appellant’s argument the search warrant was obtained based upon
tainted evidence.
Appellant also argues the search warrant for Room 232 was not supported by probable
cause. To constitute probable cause for a search warrant,
“the crucial element is not whether the target of the search is
the items to be seized will be found in the place to be searched.”
I spoke to Terri Johnson who is the night clerk for the Best
suspected of a crime, but whether it is reasonable to believe that
United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993). An
the place to be searched pursuant to the warrant.
affidavit must provide a nexus between the contraband sought and
Janis [v.
Commonwealth], 22 Va. App. [646,] 652, 472 S.E.2d [649,] 652
6)]. Thus, to support probable cause for a warrant to search a
residence, an affidavit must establish, with a fair probability, a link
between contraband and the residence to be searched.
Sowers v. C
[(199
ommonwealth, 49 Va. App. 588, 596, 643 S.E.2d 506, 510 (2007).
Considering the totality of the circumstances, the affidavit was sufficient to estab
us between Room 232 and drugs. The magistrate was provided the sworn statement of a
ice officer that an informant had repor
lish a
nex
pol 	ted drugs and guns were in Room 232 and that the
occ pants 	aw
app 	le drive a vehicle that matched the description provided by the informant
from the Best Value Inn to 	ealed that he
possessed a gun, a 	le driver of the
vehicle admitted th 	e Inn.
Investigation later revealed Room 232 at the Best Value Inn was registered to appellant.
u 	of the room were selling narcotics away from the room. Thereafter, Sullivan s
ellant and a fema
the Super 8 Motel. An encounter with appellant rev
nd the police subsequently found drugs in the car. The fema
ere were guns and drugs in their motel room at the Best Valu

- 16 -
Therefore, the tria 	the evidence
seized from Room
Appellant c 	ant contained
tainted evidence an 	er,
evid
l court did not err in denying appellant’s motion to suppress
232 pursuant to the search warrant.
III.
ontends the affidavit for the safety deposit box search warr
d did not provide probable cause for the search. Howev
[i]t is well established that “[t]he inclusion of tainted
ence does not invalidate a search warrant,” United States v.
Wright, 991 F.2d 1182, 1186 (4th Cir. 1993) (citing United States
v. Whitehorn, 813 F.2d 646, 649 (4th Cir. 1987)), and suppressio
ot required “if, excluding the illegally obtained informatio
bable cause for the issuance of the warrant could still be
nd.”
n
is n 	n,
pro
fou 	United States v. Apple, 915 F.2d 899, 910 (4th Cir.
0)[.]
onwealth
199
Williams v. Comm 	, 26 Va. App. 612, 619, 496 S.E.2d 113, 116 (1998
during an
). Because
evidence obtained 	unlawful search or seizure “may not be considered to support [a]
search warrant sub equen 	of the warrant, must
“determine whethe 	for the warrant,
probable cause to 	pport
s 	tly obtained,” the court, in determining the validity
r, when that evidence is excluded from the application
su 	the warrant still existed.” United States v. Moses, 5
rt. denied
40 F.3d 263, 271
(4th Cir. 2008), ce 	, 129 S. Ct. 1640 (2009).
Exc 	gs,
see
luding appellant’s statements to the police that he supported himself by selling dru
id., Fernald averred in the affidavit:
On September 24, 2006, at 0243 hours, the Prince William County
Possession with Intent to Distribute Schedule II Narcotics
on hotel room number 232.
Police Department executed a narcotics search warrant for
(Cocaine) at the Best Value Inn at 4202 Inn Street, Triangle, VA
ounces of cocaine, both crack and powder were recovered in the
00 in US
currency. Marc Joseph Stout, who was arrested for Possession
with Intent to Distribute Cocaine was Mirandized at the East
District Station, and agreed to speak with Detective Bryan Kelly
and I. . . . During the interview with Detective Kelly Mr. Stout
During the execution of the search warrant, approximately four
room along with scales, packaging materials, and $3511.

- 17 -
stated to him, “Dude, I’ll give you twenty grand right now to get
me 	and
exp
that 	ment
that
dru
dep
asso
reco
Appellant c 	provided an
insufficient nexus between him and the items sought in the search. The affidavit stated that
appellant had been arrested for possessing cocaine with the intent to distribute it and drugs had
been found in his motel room. Other evidence found in the motel room tended to prove appellant
was in the business of selling drugs. Appellant offered a police officer a large sum of money,
more than the cash found in the motel room, to help him avoid prosecution. In Fernald’s
experience, those involved in narcotics distribution use safety deposit boxes to hide evidence of
their enterprise, including documents and cash. These facts and circumstances were sufficient to
provide probable cause that evidence of appellant’s drug dealing could be found in a safety
deposit box.
Appellant also contends the affidavit did not provide a sufficient nexus between him and
the particular safety deposit box the police wanted to search. We agree that the affidavit
contained no information to connect appellant with safety deposit box number 91 at a Wachovia
Bank branch in Dale City. However, even assuming arguendo the search warrant affidavit was
deficient in this regard, the trial court was not necessarily required to suppress the evidence
seized during the search. See
out of this mess.” Based upon my training, knowledge
erience as a Street Crimes/Narcotics Detective, I have found
persons dealing with narcotics conceal records and docu
assist the drug trade, such as “owe sheets” which documents
g transactions inside safety deposit boxes. Inside these safety
osit boxes persons in the narcotics trade also conceal money
ciated with the illegal sale of narcotics because there is no
rd of deposit and there is no record of existence.
ontends the search warrant was invalid because the affidavit
Anzualda v. Commonwealth, 44 Va. App. 764, 779, 607 S.E.2d
749, 757 (2005) (en banc).
Evidence seized pursuant to a warrant should be suppressed
“only in those unusual cases in which exclusion will further the
purposes of the exclusionary rule.” United States v. Leon, 468
U.S. 897, 918 (1984). “The exclusionary rule is designed to deter

- 18 -
police misc 	s and
mag
onduct rather than to punish the errors of judge
istrates.” Janis v. Commonwealth, 22 Va. App. 646, 65
.2d 649, 653,
3, 472
S.E 	aff’d en banc, 23 Va. App. 696, 479 S.E.2d
96) (citation and internal quotation marks omitted). “The
mise for the good faith exception lies in the belief that whe
of probable cause, suppressing the evidence will have no
rrent effect.” Marc Zamsky,
534
(19
pre 	n
officers rely in good faith upon a warrant subsequently quashed for
lack
dete 	t	Criminal Procedure: Inconsisten
Application of Good Faith, 64 Temp. L. Rev. 801, 816 (1991)[.]
Adams v. Commonwealth, 48 Va. App. 737, 746, 635 S.E.2d 20, 24 (2006), aff’d, 275 Va. 260,
657 S.E.2d 87 (2008). Nonetheless, the “good faith” exception does not apply
“(1) [w]here the magistrate was misled by information in the
was false, (2) the issuing magistrate totally abandoned his judicial
indicia of probable cause’ as to render official belief in its
deficient that an executing officer could not reasonably have
assumed it was valid.”
Sowers
affidavit which the affiant knew was false or should have known
role, (3) the warrant was based on an affidavit ‘so lacking in
existence unreasonable or (4) where the warrant was so facially
, 49 Va. App. at 602, 643 S.E.2d at 513 (quoting Colaw v. Commonwealth, 32 Va. App.
806, 811, 531 S.E.2d 31, 33 (2000)). On appeal, “we can, and should, ‘look to the totality of the
circumstances incl 	include in [the]
affidavit’ when co
uding what [the executing police officers] knew but did not
nducting the good-faith analysis.” Adams, 275 Va. at 270, 65
ates v. Martin
7 S.E.2d at 95
(quoting United St 	, 833 F.2d 752, 756 (8th Cir. 1987)).
Appellant c 	warrant was based
upon an affidavit s 	the third circumstance
noted above. How 	he police, the affidavit
“contained some f 	ents related to drug
trafficking could b
ontends the good faith exception did not apply because the
o deficient that official belief in it was unreasonable,
ever, when coupled with other information known to t
acts that could lead to the inference” that money or docum
e found in safety deposit box number 91. Sowers, 49 Va. Ap
e police had found the safety deposit box key among appe
he key to the Wachovia Bank safety deposit box registere
p. at 604, 643
S.E.2d at 514. Th 	llant’s belongings.
The police traced t 	d to appellant and
Ferozpuri. Cocaine was found in the gray Altima at the time of appellant’s arrest. In appellant’s

- 19 -
motel room the po 	tion, and cash.
After his arrest, ap 	m] out of this mess.”
Moreover, in Fern 	and other items
associated
warrant
to s 	as
to r
pre
lice found more drugs, firearms, items used in drug distribu
pellant offered a police officer a $20,000 bribe to “get [hi
ald’s experience, drug dealers were known to keep money
with drug trafficking inside safety deposit boxes.
Under these circumstances, a reasonable police officer could have believed that a
earch the safety deposit box was valid. The affidavit was not so lacking in probable cause
ender official belief in the warrant objectively unreasonable, and the good faith exception
vented application of the exclusionary rule. See id. at 603, 643 S.E.2d at 513. Accordingly
trial court did not err in denying the motion to suppress evidence seized from the safety
osit box pursuant to the search warrant.
IV.
Appellant argues the trial court erred in denying his motion to suppress the evidence
ed pursuant to the warrants because the police violated the dictat
,
the
dep
seiz 	es of Franks. In Franks, the
United Sta
a false statement knowingly and intentionally, or with reckless
affidavit, and if the allegedly false statement is necessary to the
hearing be held at the defendant’s request. In the event that at that
established by the defendant by a preponderance of the evidence,
affidavit’s remaining content is insufficient to establish probable
search excluded to the same extent as if probable cause was
lacking on
Franks
tes Supreme Court stated that
where the defendant makes a substantial preliminary showing that
disregard for the truth, was included by the affiant in the warrant
finding of probable cause, the Fourth Amendment requires that a
hearing the allegation of perjury or reckless disregard is
and, with the affidavit’s false material set to one side, the
cause, the search warrant must be voided and the fruits of the
the face of the affidavit.
, 438 U.S. a
[t]o
t 155-56. Thus,
obtain suppression of the fruits of a search under Franks, a
endant must establish that the affidavit supporting the search	def
warrant contained a deliberate falsehood or omission that was
made with reckless disregard for the truth, that the falsehood or

- 20 -
om
om
dete
Gregory v. Comm
ission was made by a police officer, and that the falsehood or
ission negated the basis upon which the probable cause
rmination was made.
onwealth, 46 Va. App. 683, 694, 621 S.E.2d 162, 167
ing upon appellant’s
-68 (2005).
At the hear 	Franks motion, Detective Brian Kelly t
ld received the anonymous tip on September 23, 2006. F
estified he was
present when Ferna 	ernald told Kelly the
suspects were a white male named “Marc” and his girlfriend, who was a white female, and there
was also “a kid.”
Fernald testified that after appellant’s preliminary hearing, Fernald reviewed his report
concerning the inci 	anonymous caller
than he previously 	ale suspect was
named Marc and th 	s
information to Sull
telephoned him to ask if the drug sales were allegedly taking place at the Best Value Inn or at
another location.
Detective Kelly further testified that he questioned Ferozpuri after her arrest. Kelly told
Ferozpuri he was in the process of obtaining a search warrant for her motel room where she had said
she was staying. Eventually, Ferozpuri admitted that her young son was in the room with
appellant’s brother. She stated there were two loaded weapons in the room, and she described the
location of the firearms. When Kelly asked Ferozpuri where the drugs were located, she said she
was unable to describe the type or the amount of the drugs.
Ferozpuri testified that she told Kelly she did not know anything about the cocaine or guns
in the room. However, when Kelly asked about a gun that was between the beds and one in the
closet, she nodded her head.
dent and then recalled receiving more information from the
had revealed. Fernald said the informant told him that the m
e female with him was his girlfriend. Fernald said he passed along thi
ivan. In addition, Fernald recalled after the preliminary hearing that Sullivan had

- 21 -
Under the Franks standard, appellant was required to establish by a preponderance o
ence that Sullivan or Fernald either intentionally or recklessly misrepresented the truth
davits pertaining to the presence of incriminating evidence in the motel room or safety
osit box. Despite inconsistent testimony regarding whether the informant supplied Ferna
h the name “Marc” and whether Ferozpuri admitted there were guns and drugs in the mo
m, the trial court found the officers’ explanations to be credible. Thus, appellant presented
ence the officers intentionally or recklessly misstated facts in the affidavits in order to o
search warrants. Accordingly, the trial court did not err in denying
f the
evid 	in the
affi
dep 	ld
wit 	tel
roo 	no
evid 	btain
the 	the motion to suppress
based upon Franks.
CONCLUSION
Appellant entered conditional guilty pleas pursuant to Code § 19.2-254, which provides
ertinent part:
With the approval of the court and the consent of the
in a felony case, reserving the right, on appeal from the judgment
in p
Commonwealth, a defendant may enter a conditional plea of guilty
,
to a review of the adverse determination of any specified pretrial
motion. If the defendant prevails on appeal, he shall be allowed to
withdraw his plea.
The trial court’s error in denying the motion to suppress the money found on appellant’s person
and his statements to the police following his arrest pertained to the charges of possessing
cocaine with the intent to distribute and the simultaneous possession of drugs and a firearm.
However, the evid 	s conviction of
possessing a firear 	appeal” with respect
to that charge. See
ence that should have been suppressed had no relevance to hi
m after conviction of a felony, so he did not “prevail[] on
Code § 19.2-254. Accordingly, we affirm appellant’s co
m after conviction of a felony, reverse appellant’s conviction
nviction of
possessing a firear 	s of possessing

- 22 -
cocaine with the in 	and a firearm, and
remand the matter 	ode § 19.2-254. 3
Affirmed in part,
tent to distribute and simultaneously possessing cocaine
to the trial court for further proceedings pursuant to C
reversed in part,
and remanded.
3 In Glenn v. Commonwealth, 48 Va. App. 556, 577-87, 633 S.E.2d 205, 216-21 (200
v 	anel of this Court found it inappropriate to conduct a harmless error analysis in the
text of an appeal following a conditional guilty plea. However, upon review en banc and
eal to the Supreme Court of Virginia, the trial court’s decision to deny the motion to suppre
upheld on the merits, thus mooting the panel’s discussion regarding harmless error.
6),
a di ided p
con
app 	ss
was 	See
nn v. Commonwealth	Gle 	, 49 Va. App. 413, 423 n.3, 642 S.E.2d 282, 287 n.3 (2007) (en banc),
aff’d, 275 Va. 123, 137-38, 654 S.E.2d 910, 917 (2008). In this case, we do not consider
whether a harmless error analysis is proper, as this issue was not raised and briefed by the
parties.