good faith exception in Virginia

2025The Good Faith Exception Applies Here Here, we hold that if the search warrant was deficient, the police acted in good faith and thus the exception applies to validate the search and seizure of Roulhac’s computer.1 We confine the good-faith inquiry “to the objectively ascertainable question whether a reasonably well trained [sic] officer would have known that the search was illegal despite the [judge’s] authorization.” Id. at 268 (quoting Leon, 468 U.S. at 922 n.23).

2025But in United States v. Leon, 468 U.S. 897 (1984), “the United States Supreme Court established a good-faith exception to the exclusionary rule, applicable when a search is conducted pursuant to a warrant subsequently determined to be defective for Fourth Amendment purposes.” Ward v. Commonwealth, 273 Va. 211, 222 (2007).

2023See Atkins v. Commonwealth, 9 Va. App. 462, 464 (1990) (“Under the good faith exception [to the exclusionary rule] evidence illegally seized is admissible if the officer conducting the search reasonably relied on a search warrant issued by a detached and neutral magistrate.”). - 11 -

2009This good faith exception to the exclusionary rule is not available in four instances, two of which apply in the instant case: “(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.” Atkins v. Commonwealth, 9 Va. App. 462, 464 (1990) (quoting or citing United States v. Leon, 468 U.S. 897, 923 (1984)).

2023See Polston v. Commonwealth, 255 Va. 500, 503 (1998) (ruling that the good faith exception applies “when a police officer, acting in objective good faith, obtains a search warrant from a magistrate and conducts a search within the scope of the warrant” (emphasis added)).

2009In United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), “the United States Supreme Court established a good-faith exception to the exclusionary rule, applicable when a search is conducted pursuant to a warrant subsequently determined to be defective for Fourth Amendment purposes,” and “outlined four circumstances in which the good-faith exception to the exclusionary rule would not apply.” Ward, 273 Va. at 222 , 639 S.E.2d at 274 . “(1) [Wjhen the [magistrate] “was misled by information in an affidavit that the affiant knew was false or would have known was false except

2024“Under the good faith exception, ‘[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.’” Lane v. Commonwealth, 51 Va. App. 565, 572 (2008) (alteration in original) (quoting Colaw v. Commonwealth, 32 Va. App. 806, 810 (2000)).

2023“Under the good faith exception, ‘[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.’” Id. (quoting Colaw v. Commonwealth, 32 Va. App. 806, 810 (2000)).

2026But “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 . . . could have believed the warrant was valid.” Anzualda, 44 Va. App. at 781 (emphasis omitted).

2024Cf. Midkiff v. Commonwealth, 54 Va. App. 323, 332 (2009) (“[A]s long as there is some indicia of probable cause in the underlying affidavit, we will apply the good faith exception . . . .” (quoting Anzualda v. Commonwealth, 44 Va. App. 764, 781 (2005) (en banc))).

2024“The good faith requirement ‘protects the integrity of the judicial process by precluding defendants from using a guilty plea as a subterfuge to manipulate the court . . . .’” Hubbard v. Commonwealth, 60 Va. App. 200, 208 (2012) (quoting Cobbins v. Commonwealth, 53 Va. App. 28, 34 (2008)).

2023“The good faith requirement ‘protects the integrity of the judicial process by precluding defendants from using a guilty plea as a subterfuge to manipulate the court . . . .’” Hubbard v. Commonwealth, 60 Va. App. 200, 208 (2012) (quoting Cobbins v. Commonwealth, 53 Va. App. 28, 34 (2008)).

2025But in United States v. Leon, 468 U.S. 897 (1984), “the United States Supreme Court established a good-faith exception to the exclusionary rule, applicable when a search is conducted pursuant to a warrant subsequently determined to be defective for Fourth Amendment purposes.” Ward v. Commonwealth, 273 Va. 211, 222 (2007).

2024In Leon, “‘the United States Supreme Court established a good-faith exception to the exclusionary rule, applicable when a search is conducted pursuant to a warrant subsequently determined to be defective for Fourth Amendment purposes,’ and ‘outlined four circumstances in which the good-faith exception to the exclusionary rule would not apply.’” Midkiff v. Commonwealth, 54 Va. App. 323, 330 (2009) (quoting Ward v. Commonwealth, 273 Va. 211, 222 (2007)), aff’d on other grounds, 280 Va. 216 (2010).

2006Though no Virginia case has adopted the principle in analyzing the good faith exception, the Virginia Supreme Court, in McCary v. Commonwealth, 228 Va. 219, 231 , 321 S.E.2d 637, 643 (1984), and Derr v. Commonwealth, 242 Va. 413, 420 , 410 S.E.2d 662, 665-66 (1991), in their probable cause analyses, noted "an insufficient affidavit may be supplemented or rehabilitated by information disclosed to the issuing magistrate upon application for the search warrant." In McCary , our Supreme Court stated that the supplemental information must be submitted to the magistrate "under oath or affirmation,”

2006Though no Virginia case has adopted the principle in analyzing the good faith exception, the Virginia Supreme Court, in McCary v. Commonwealth, 228 Va. 219, 231 , 321 S.E.2d 637, 643 (1984), and Derr v. Commonwealth, 242 Va. 413, 420 , 410 S.E.2d 662, 665-66 (1991), in their probable cause analyses, noted "an insufficient affidavit may be supplemented or rehabilitated by information disclosed to the issuing magistrate upon application for the search warrant." In McCary , our Supreme Court stated that the supplemental information must be submitted to the magistrate "under oath or affirmation,”

2024“The good faith requirement ‘protects the integrity of the judicial process by precluding defendants from using a guilty plea as a subterfuge to manipulate the court . . . .’” Hubbard v. Commonwealth, 60 Va. App. 200, 208 (2012) (quoting Cobbins v. Commonwealth, 53 Va. App. 28, 34 (2008)).

2023“The good faith requirement ‘protects the integrity of the judicial process by precluding defendants from using a guilty plea as a subterfuge to manipulate the court . . . .’” Hubbard v. Commonwealth, 60 Va. App. 200, 208 (2012) (quoting Cobbins v. Commonwealth, 53 Va. App. 28, 34 (2008)).

2026And this Court can “‘look to the totality of the circumstances including what [the executing police officers] knew but did not include in [the] affidavit’ when conducting the good-faith analysis.” Adams, 275 Va. at 270 (alterations in original).

2025In addition, “we can, and should, ‘look to the totality of the circumstances including what [the executing police officers] knew but did not include in [the] affidavit’ when conducting the good-faith analysis.” Adams v. Commonwealth, 275 Va. 260, 270 (2008) (alterations in original) (quoting United States v. Martin, 833 F.2d 752, 756 (8th Cir. 1987)).

2025The Good Faith Exception Applies Here Here, we hold that if the search warrant was deficient, the police acted in good faith and thus the exception applies to validate the search and seizure of Roulhac’s computer.1 We confine the good-faith inquiry “to the objectively ascertainable question whether a reasonably well trained [sic] officer would have known that the search was illegal despite the [judge’s] authorization.” Id. at 268 (quoting Leon, 468 U.S. at 922 n.23).

2024Similarly, the good-faith exception will “not apply in cases where the issuing magistrate wholly abandoned his judicial role,” because “no reasonably well[-]trained officer should rely on the warrant.” Derr, 242 Va. at 423 (quoting Leon, 468 U.S. at 923 ).

2025Rather, a court must consider “‘the totality of the circumstances including what [the executing police officers] knew but did not include in [the] affidavit’ when conducting the good-faith analysis.” Id. at 270 (alterations in original) (quoting United States v. Martin, 833 F.2d 752, 756 (8th Cir. 1987)).

2025In addition, “we can, and should, ‘look to the totality of the circumstances including what [the executing police officers] knew but did not include in [the] affidavit’ when conducting the good-faith analysis.” Adams v. Commonwealth, 275 Va. 260, 270 (2008) (alterations in original) (quoting United States v. Martin, 833 F.2d 752, 756 (8th Cir. 1987)).

2005See, e.g., United States v. Perez, 393 F.3d 457, 460 (4th Cir.2004) ("Assuming without deciding that the district court correctly concluded the search warrant was invalid for lack of probable cause, we exercise our discretion to proceed directly to the question of good faith.”); United States v. DeQuasie, 373 F.3d 509, 520 (4th Cir.2004) ("Without deciding whether the [specific] warrant is supported by probable cause, we will exercise our discretion and proceed directly to consideration of the Leon exception.”); Polston v. Commonwealth, 255 Va. 500, 504 , 498 S.E.2d 924, 926 (1998) (“We hold t

2005See, e.g., United States v. Perez, 393 F.3d 457, 460 (4th Cir.2004) ("Assuming without deciding that the district court correctly concluded the search warrant was invalid for lack of probable cause, we exercise our discretion to proceed directly to the question of good faith.”); United States v. DeQuasie, 373 F.3d 509, 520 (4th Cir.2004) ("Without deciding whether the [specific] warrant is supported by probable cause, we will exercise our discretion and proceed directly to consideration of the Leon exception.”); Polston v. Commonwealth, 255 Va. 500, 504 , 498 S.E.2d 924, 926 (1998) (“We hold t

2014An objectively reasonable belief that probable cause exists does not exist however, where “the warrant was based on an affidavit ‘so lacking in indicia of probable cause’ as to render official belief in its existence unreasonable.” Id. at 619, 643 S.E.2d at 521 (quoting Colaw, 32 Va. App. at 811 , 531 S.E.2d at 33 ). “[F]or the good faith rule to apply, the affidavit must provide some nexus between the evidence sought and the place to be searched.” Id. (citing Janis, 22 Va. App. at 653-54 , 472 S.E.2d at 653 ).

2014An objectively reasonable belief that probable cause exists does not exist however, where “the warrant was based on an affidavit ‘so lacking in indicia of probable cause’ as to render official belief in its existence unreasonable.” Id. at 619, 643 S.E.2d at 521 (quoting Colaw, 32 Va. App. at 811 , 531 S.E.2d at 33 ). “[F]or the good faith rule to apply, the affidavit must provide some nexus between the evidence sought and the place to be searched.” Id. (citing Janis, 22 Va. App. at 653-54 , 472 S.E.2d at 653 ).

2024Of course, the good faith exception does not apply when “an affidavit [is] so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Ward v. Commonwealth, 273 Va. 211, 222 (2007) (alteration in original) (quoting United States v. Perez, 393 F.3d 457, 461 (4th -5- Cir. 2004)).

2009In United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), “the United States Supreme Court established a good-faith exception to the exclusionary rule, applicable when a search is conducted pursuant to a warrant subsequently determined to be defective for Fourth Amendment purposes,” and “outlined four circumstances in which the good-faith exception to the exclusionary rule would not apply.” Ward, 273 Va. at 222 , 639 S.E.2d at 274 . “(1) [Wjhen the [magistrate] “was misled by information in an affidavit that the affiant knew was false or would have known was false except

2024“Thus, for the good faith rule to apply, the affidavit must provide some nexus between the evidence sought and the place to be searched.” Cunningham v. Commonwealth, 49 Va. App. 605, 619 (2007) (emphasis added).

2024In any event, the totality of all of these facts provided the officers with at least the requisite “some nexus between the evidence sought and the place to be searched.” Cunningham, 49 Va. App. at 619 (emphasis added). -8- As the Virginia Supreme Court has held, “The showing of an ‘objectively reasonable belief’ that probable cause existed under the good-faith exception is a significantly lesser standard than a showing of a ‘substantial basis’ for upholding a magistrate’s determination of probable cause.” Adams, 275 Va. at 274 .

2023This Court has held that “as long as there is some indicia of probable cause in the underlying affidavit, we will apply the good faith exception [provided that] a reasonable police officer, after assessing the facts set forth in the affidavit, could have believed the warrant was valid.” Sowers v. Commonwealth, 49 Va. App. 588, 603-04 (2007) (quoting Anzualda v. Commonwealth, 44 Va. App. 764, 781 (2005) (en banc)).

2023Cf. Gwinn, 16 Va. App. at 975-76 (holding -8- that the magistrate could infer from defendant’s repeated drug transactions that evidence of drug-dealing was in his home); see also Sowers, 49 Va. App. at 604 (holding that the good faith exception applied because affidavit contained at least some indicia of criminal activity satisfying probable cause and nexus requirements); Anzualda, 44 Va. App. at 787-88 (same).

2024In Leon, “‘the United States Supreme Court established a good-faith exception to the exclusionary rule, applicable when a search is conducted pursuant to a warrant subsequently determined to be defective for Fourth Amendment purposes,’ and ‘outlined four circumstances in which the good-faith exception to the exclusionary rule would not apply.’” Midkiff v. Commonwealth, 54 Va. App. 323, 330 (2009) (quoting Ward v. Commonwealth, 273 Va. 211, 222 (2007)), aff’d on other grounds, 280 Va. 216 (2010).

2024Cf. Midkiff v. Commonwealth, 54 Va. App. 323, 332 (2009) (“[A]s long as there is some indicia of probable cause in the underlying affidavit, we will apply the good faith exception . . . .” (quoting Anzualda v. Commonwealth, 44 Va. App. 764, 781 (2005) (en banc))).

2009See also Tart v. Commonwealth, 17 Va. App. 384, 389-90 , 437 S.E.2d 219, 222-23 (1993) (Assuming, arguendo, that the search warrant in dispute was not issued upon probable cause, this Court held that the good faith exception under Leon applied because the supporting affidavit was sufficient to establish “[a]n objectively reasonable belief [by a police officer] that probable cause existed.”). 3 As in Lane, the Commonwealth in this case does not present on appeal the question of whether the affidavit established probable cause, but rather presents only the question of whether the affidavit suppo

2009See also Tart v. Commonwealth, 17 Va. App. 384, 389-90 , 437 S.E.2d 219, 222-23 (1993) (Assuming, arguendo, that the search warrant in dispute was not issued upon probable cause, this Court held that the good faith exception under Leon applied because the supporting affidavit was sufficient to establish “[a]n objectively reasonable belief [by a police officer] that probable cause existed.”). 3 As in Lane, the Commonwealth in this case does not present on appeal the question of whether the affidavit established probable cause, but rather presents only the question of whether the affidavit suppo

2023Anzualda, 44 Va. App. at n.3. “[C]onsistently sidestepping the issue of probable cause in favor of applying the good faith exception will inevitably permit the exception to swallow the rule.” Id. -7-

2022Because we conclude that, even if we were to assume that the magistrate lacked a substantial basis to issue the search warrant, the good faith exception allowed officers to rely on the warrant to search the premises, we limit our analysis to the trial court’s ruling regarding good faith. 12 Although the Fourth Amendment requires that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized[,]” the United States Supreme Court has long recognized that “[w]hether the exclusiona

2022Exceptions to this general rule include when the search warrant affidavit contains statements the officer knows are false or that represent a reckless disregard for the truth, Franks v. Delaware, 438 U.S. 154, 156 (1978); when the magistrate has acted with disregard for his role as a neutral and detached judicial officer, Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-27 (1979); when the warrant “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 (quoting Brown v. Illinois, 422 U.S. 59 , 610-1

2017Request for a Franks Hearing In Franks, the United States Supreme Court addressed whether “a defendant in a criminal proceeding [has] the right . . . subsequent to the ex parte issuance of a search warrant, to challenge the truthfulness of factual statements made in an affidavit supporting the warrant . . . .” 438 U.S. at 155 .

2024Davis v. United States, 564 U.S. 229, 235-40 (2011).

2024In other words, because the mistake made by the police officer in Herring was the result of negligence not attributable to any systemic police practices but was instead an anomalous event, the exclusionary rule did not apply. - 11 - In Davis, the Court applied the good faith exception to the exclusionary rule, noting again that “[t]he rule’s sole purpose . . . is to deter future Fourth Amendment violations” and that “the deterrence benefits of exclusion ‘var[y] with the culpability of the law enforcement conduct’ at issue.” 564 U.S. at 236, 238 (alteration in original) (quoting Herring, 555 U.

2024“Under the good faith exception, ‘[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.’” Lane v. Commonwealth, 51 Va. App. 565, 572 (2008) (alteration in original) (quoting Colaw v. Commonwealth, 32 Va. App. 806, 810 (2000)).

2009As we recently explained in Lane v. Commonwealth, 51 Va. App. 565 , 659 S.E.2d 553 (2008), even if a search warrant was not issued upon probable cause, under the good faith exception “‘evidence seized pursuant to the warrant is nevertheless admissible if the officer executing the warrant reasonably believed that the warrant was valid.’” Id. at 571 , 659 S.E.2d at 556 (quoting Lanier v. Commonwealth, 10 Va. App. 541, 547 , 394 S.E.2d 495, 499 (1990) (citing Leon, 468 U.S. at 918-21 )).

2007Lastly, the Supreme Court in Leon stated the good-faith exception will not apply where a warrant is "so facially deficient - i.e., in failing to particularize the place to be searched or the things to be seized - that the executing officers cannot reasonably presume it to be valid." Leon, 468 U.S. at 923 , 104 S.Ct. 3405 (citing Massachusetts v. Sheppard, 468 U.S. 981 , 988-991, 104 S.Ct. 3424 , 82 L.Ed.2d 737 (1984)).

2007Lastly, the Supreme Court in Leon stated the good-faith exception will not apply where a warrant is "so facially deficient - i.e., in failing to particularize the place to be searched or the things to be seized - that the executing officers cannot reasonably presume it to be valid." Leon, 468 U.S. at 923 , 104 S.Ct. 3405 (citing Massachusetts v. Sheppard, 468 U.S. 981 , 988-991, 104 S.Ct. 3424 , 82 L.Ed.2d 737 (1984)).

2025See Commonwealth v. White, 293 Va. 411, 498 (2017) (This Court decides cases “on the best and narrowest grounds available.” (quoting Commonwealth v. Swann, 290 Va. 194, 196 (2015) (per curiam))).

2025See Commonwealth v. White, 293 Va. 411, 419 (2017) (“[T]he doctrine of judicial restraint dictates that we decide cases ‘on the best and narrowest grounds available.’” (quoting Commonwealth v. Swann, 290 Va. 194, 196 (2015))).

2024Nevertheless, the good-faith exception has been applied in contexts beyond defective warrants, including to searches carried out in reasonable reliance on statutes that were later invalidated, Illinois v. Krull, 480 U.S. 340 (1987), “clerical errors of court employees,” Arizona v. Evans, 514 U.S. 1, 16 (1995), and erroneous information in a warrant database maintained by police employees, Herring v. United States, 555 U.S. 135, 137-38, 142-47 (2009).

2024In other words, because the mistake made by the police officer in Herring was the result of negligence not attributable to any systemic police practices but was instead an anomalous event, the exclusionary rule did not apply. - 11 - In Davis, the Court applied the good faith exception to the exclusionary rule, noting again that “[t]he rule’s sole purpose . . . is to deter future Fourth Amendment violations” and that “the deterrence benefits of exclusion ‘var[y] with the culpability of the law enforcement conduct’ at issue.” 564 U.S. at 236, 238 (alteration in original) (quoting Herring, 555 U.

2024Nevertheless, the good-faith exception has been applied in contexts beyond defective warrants, including to searches carried out in reasonable reliance on statutes that were later invalidated, Illinois v. Krull, 480 U.S. 340 (1987), “clerical errors of court employees,” Arizona v. Evans, 514 U.S. 1, 16 (1995), and erroneous information in a warrant database maintained by police employees, Herring v. United States, 555 U.S. 135, 137-38, 142-47 (2009).

2019Applying the good-faith exception to searches performed in reliance on subsequently invalidated statutes comports with the purpose of the exclusionary rule because, where a “statute is subsequently declared unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to enforce the statute as written.” Illinois v. Krull, 480 U.S. 340, 350 (1987).

2025Similarly, “we review the trial court’s determination that the good faith exception applied de novo.” Adams v. Commonwealth, 48 Va. App. 737, 745 (2006).

2018“An officer ordinarily cannot be expected to question the magistrate’s determination of probable cause.” Adams, 48 Va. App. at 747 , 635 S.E.2d at 24 .

2025See Jeffers, 62 Va. App. at 160 n.2 (upholding a search conducted pursuant to a warrant on the merits and declining to consider application of the good-faith exception); Sanders v. Commonwealth, 64 Va. App. 734 , 742 n.3 (2015) (concluding that a ruling that the challenged activity was not a search provided the best and narrowest ground for decision and not conducting a good-faith analysis). 8 The February 5, 2024 transcript makes clear that Hamm’s guilty plea was conditional, preserving her right to appeal the suppression issue.

2025See Jeffers, 62 Va. App. at 160 n.2 (upholding a search conducted pursuant to a warrant on the merits and declining to consider application of the good-faith exception); Sanders v. Commonwealth, 64 Va. App. 734 , 742 n.3 (2015) (concluding that a ruling that the challenged activity was not a search provided the best and narrowest ground for decision and not conducting a good-faith analysis). 8 The February 5, 2024 transcript makes clear that Hamm’s guilty plea was conditional, preserving her right to appeal the suppression issue.