Lamont Alphonso Hawkins v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Bray and Retired Judge Trabue*
Argued at Norfolk, Virginia
LAMONT ALPHONSO HAWKINS
v. 	Record No. 0361-93-4 	MEMORANDUM OPINION** BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA 	JUNE 20, 1995
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Porter R. Graves, Jr., Judge
William P. Robinson, Jr. (Robinson, Madison, Fulton &
Anderson, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellee.
Lamont Alphonso Hawkins (defendant) was convicted by the
trial court for possession of cocaine. 	Defendant complains on
appeal that the court erroneously admitted evidence that was
gathered by police pursuant to an invalid search warrant.
Finding no error, we affirm the conviction.
The parties are fully conversant with the record in this
case, and we recite only those facts necessary to explain our
holding.
Upon appeal from a trial court's denial of a motion to
suppress, we must review the evidence in the light most favorable
to the prevailing party, granting to it all reasonable inferences
fairly deducible therefrom. 	Commonwealth v. Grimstead, 12 Va.
App. 1066, 1067, 407 S.E.2d 47, 48 (1991); Reynolds v.
*Retired Judge Kenneth E. Trabue took part in consideration
of this case by designation, pursuant to Code § 17-116.01.
**Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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Commonwealth, 9 Va. App. 430, 436, 388 S.E.2d 659, 663 (1990).
The findings of the trial court will not be disturbed unless
"plainly wrong," Grimstead, 12 Va. App. 1067, 407 S.E.2d at 48,
and the burden is upon the appellant to show that the denial
constituted reversible error. 	Reynolds, 9 Va. App. at 436, 388
S.E.2d at 663.
Between January 30, 1992 and February 25, 1992, David Allen,
an unpaid police informant, made three "controlled" purchases of
cocaine from defendant. 	Acting on this information, McDorman
made an affidavit in support of a search warrant for defendant's
apartment on February 27, 1992. 	The warrant expressly described
the "PROPERTY [and] OBJECTS . . . SOUGHT IN SEARCH" as:
[c]ontrolled substance, paraphrenalia [sic],
currency, documents, records associated with
the possession and distribution of narcotics,
particularly cocaine and marijuana;
documents, records, material demonstrating
knowledge , purpose, plan, motive, and intent
associated with possession and/or
distribution of drugs, computers and computer
disks, audio tapes including telephone
answering machines/devices, cellular
telephones including memory, paging devices
including memory.
Following issuance of the warrant, McDorman learned through
monitored conversations between Allen and defendant that
defendant's supply of cocaine was temporarily exhausted, and he
delayed the search until Allen made yet another purchase of the
drug from defendant, at the apartment, on March 10, 1992.
Immediately thereafter, McDorman, accompanied by other officers,
executed the warrant, and discovered cocaine, marijuana, two

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digital pagers, approximately twenty-five "Zip-lock" bags, and
several small plastic "baggie corners." 	Defendant was then
arrested for the subject offenses.
"[W]hen a warrant has been issued based upon probable cause,
whether probable cause continues to exist at the time the warrant
is executed depends on the length of delay and the nature of the
observed criminal activity, that is, whether the activity is an
ongoing enterprise or an isolated incident." 	Turner v.
Commonwealth, 14 Va. App. 737, 745, 420 S.E.2d 235, 239-40
(1992). 	"The selling of drugs, by its nature, is an ongoing
activity." 	Id. at 746, 420 S.E.2d at 240. 	"[T]he fact that the
officers delay executing a search warrant until a time the
officer determines will be most opportune to yield a successful
result does not invalidate the warrant so long as probable cause
continued to exist at the time of execution." 	Id. at 747-48, 420
S.E.2d at 241.
Defendant contends that the probable cause established by
the affidavit which supported the search warrant was lost when
Investigator McDorman subsequently learned that cocaine was no
longer present at the apartment, thereby invalidating the
warrant. 	However, like the officers in Turner, the police in
this instance merely postponed execution of the warrant to a time
considered favorable to discovery of the targeted evidence,
thereby promoting, rather than diminishing, the efficacy of the
warrant. 	Id. at 747, 420 S.E.2d at 241. 	This decision in no way
impaired or displaced the original probable cause established by

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the affidavit.
Moreover, defendant's argument overlooks the breadth of the
search expressly authorized by the warrant. 	In addition to
"[c]ontrolled substance," the warrant included "paraphrenalia
[sic], currency, documents, records" and numerous other items
"associated with the possession and distribution of narcotics"
and related evidence, as proper objects of the search. 	While the
record reflects that defendant's supply of cocaine was
temporarily depleted, nothing suggests that the remaining
articles referenced in the warrant were no longer present. 	To
the contrary, the circumstances indicated otherwise.
Accordingly, probable cause continued to exist from the time
the warrant was issued until its execution on March 10, 1992, and
the trial court correctly overruled defendant's motion.
Affirmed.