Vol. 2, No. 2 | September 2007

The Virginia Court of Appeals Decides Two Cases Dealing with Probable Cause to Search a Home and Application of the Leon Rule

by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail:  jcall@radford.edu 

            On April 24, 2007, a 3-judge panel of the Virginia Court of Appeals issued unanimous decisions in two important drug cases, Cunningham v. Commonwealth and Sowers v. Commonwealth.  In both cases, the police obtained search warrants and found drugs in the home, but the court determined that there was not probable cause to think drugs would be found there.  In Cunningham, the court ruled that the drugs found during the search were inadmissible because the police unreasonably relied upon the magistrate’s finding of probable cause.  However, in Sowers, the court admitted the drugs, determining that the officers’ reliance on the magistrate’s determination of probable cause was reasonable.

            In Cunningham, Officer Duff lawfully arrested and searched Cunningham after pulling him over for willful and wanton disregard of an officer’s signal to stop.  (Cunningham also told the officer that there was an outstanding warrant for his arrest).  As a result of the search, Officer Duff found on Cunningham’s person a small amount of marijuana and $133 in cash.  In Cunningham’s car, he found empty plastic bags, lighters, and several screens commonly used in marijuana smoking devices.  Officer Duff recited this information in a search warrant application, along with a statement that “people that use marijuana often keep marijuana as well as devices used to ingest marijuana in their residences.”  (Because a small amount of “suspected” cocaine residue had been found on Cunningham, the warrant application also indicated that “cocaine is sold in small quantities and is easily concealed … within a residence.”  This information appears to have played no role in the court’s resolution of the case).

            A search warrant for Cunningham’s home was issued and the search discovered a large enough quantity of marijuana to support a charge of possession with intent to distribute.  The court concluded that the evidence found on Cunningham and in his car provided only a basis for thinking that he was a drug user, not a drug dealer.  As a result, the police lacked probable cause to search the house.  Writing for a unanimous panel, Judge Benton indicated that “[t]he magistrate did not have a substantial basis to find probable cause existed to believe that Cunningham, simply by virtue of being a drug user, kept a supply of illegal narcotics or related paraphernalia at home… The requirement that an affidavit provide a nexus between the contraband and the residence to be searched would mean very little if this generalization gave probable cause to search the residence of every drug user.  Such a per se rule would render the Fourth Amendment’s probable cause analysis for search warrants virtually meaningless…. Second, the nature of possessing drugs for personal use differs greatly from possession by a drug dealer or trafficker.  With drug dealers and traffickers, prospects are greater that their homes contain contraband because those ongoing activities often require a drug supply and a myriad of other tools of the trade, such as scales, packaging materials, and account records.” 

            Since the police had searched Cunningham’s residence with a warrant, the case raised the related issue of whether the evidence found should be excluded.  In U.S. v. Leon (1984), the U.S. Supreme Court ruled that evidence found by the police who rely in good faith on a magistrate’s erroneous determination of probable cause and properly execute the search warrant is still admissible because the purpose of the exclusionary rule is to control police behavior, not the behavior of magistrates.  However, in Leon, the Court identified four circumstances in which the police searching with a warrant that should not have been issued are nevertheless acting in bad faith.  One of those circumstances is when the police should have known that there was no reasonable basis for a finding of probable cause (in spite of the magistrate’s determination that probable cause existed).

            The panel again ruled unanimously that the police could not reasonably rely on the magistrate’s probable cause determination in this case.  “The law is clear on whether searching a person’s residence based solely on suspected drug use unconnected to the residence is constitutionally permissible.  Every case that we found nationwide addressing this issue held that such a search, based upon the arrest of a user of drugs, violates the Fourth Amendment.  Our own jurisprudence has followed suit…. In light of the law on this issue, a reasonable police officer could not have believed the warrant to search Cunningham’s residence was valid based on the facts in the affidavit and the inferences to be drawn from those facts.”  Therefore, the evidence was excluded.

            On the same day that the Cunningham decision was handed down, the court also issue its opinion in Sowers v. Commonwealth.  In that case, police officers pulled Sowers over for driving with a suspended driver’s license.  When a drug detection dog alerted on the vehicle, the police searched it and found a bag of white powder on the floor of the rear seat, a cell phone, and $1263 in cash.  Sowers told the police that he had smoked marijuana in his home (at some unspecified time), but he did not use cocaine and the cocaine found in his car must have been left behind by a friend because it was not his cocaine.

            On the basis of this information, the police obtained a warrant to search Sowers’ home, where they found five or six grams of cocaine, some marijuana, and other evidence linking Sowers to drug dealing.  The court ruled again that the information the police used to obtain a warrant failed to establish probable cause to think that there were drugs in Sowers’ home.  The court reiterated the distinction it made in Cunningham between situations where the government has shown repeated drug transactions involving a suspect, and those in which only one transaction is demonstrated (or at least no evidence of multiple transactions is produced).  In the former situation, it is reasonable to infer that drugs or other evidence of drug dealing are likely to be located in the home, but that inference may not be drawn in the latter situation.  The court noted that an inference of an intent to distribute could be drawn from Sowers’ possession of a substantial amount of money, his possession of a cell phone, his possession of cocaine in his car, and his assertion that he did not use cocaine, but this did not support an inference that Sowers was a “repeat or experienced drug dealer.”   

            The court then turned to the Leon issue.  This case is different from Cunningham, the court concluded.  The facts mentioned in the paragraph above that give rise to a reasonable inference that Sowers had sold drugs at least once make the search warrant application in this case something more than “a ‘bare bones’ affidavit setting forth only conclusory allegations without supporting facts.  Even though the affidavit failed to provide a sufficient nexus between the drugs and Sowers’s residence to support probable cause, it provided some nexus…. Under these circumstances, a reasonable police officer could have believed the warrant was valid.”  Thus the evidence found in Sowers’ home was admissible.

            Cunningham and Sowers are important cases.  First, they make it clear that the police must produce some tangible, specific evidence to create an inference that drugs are in a suspect’s home.  It is simply insufficient to prove that the suspect had drugs in his possession somewhere else.

            Several recent U.S. Supreme Court cases have suggested that courts should give some deference to judgments made by police officers based on their experience.  In Sowers in particular, the officer applying for the search warrant had made a concerted effort to emphasize his experience as a means of buttressing the inference of possession of drugs in the home from proof of possession of drugs elsewhere.  The search warrant application stated that “[i]t is this affiants experience that Marijuana and Cocaine can easily be hidden inside of a residence.  It is also this affiants experience that persons involved in using and Distributing narcotics will not always take everything they have with them when they travel.  It is also this affiants experience that narcotics and the paraphernalia Associated with the use of Narcotics are often hidden inside the user’s residence for safe keeping.”  The court took note of these assertions, but it indicated that “[w]hile a magistrate may consider a police officer’s statement of experience, it is not sufficient by itself to provide a basis for probable cause.  The officer’s statements of experience set forth generalizations about the behavior of drug users and distributors, rather than specific facts.”

            Second, these cases also make it clear that the court is determined to hold the police to a rather high standard of objective reasonableness in its application of the exceptions to the Leon rule.  The evidence was not admitted in Cunningham because courts throughout the country have consistently ruled that an inference of drug possession in the home cannot be drawn from evidence of drug possession elsewhere.  There can be no doubt that the court expected the police officers in that case to know this rule.  Thus, the court seems to be holding the police to a rather high standard of training.

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.