Phillip C. BAY, S/K/A Philip C. Bay v. COMMONWEALTH of Virginia

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Humphreys

Argued at Chesapeake, Virginia

PHILLIP C. BAY, S/K/A

PHILIP C. BAY

OPINION BY

v. Record No. 0585-11-1 JUDGE ROBERT P. FRANK

AUGUST 7, 2012

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

William R. O’Brien, Judge1

James O. Broccoletti (Zoby, Broccoletti & Normile, P.C., on brief),

for appellant.

Jennifer C. Williamson, Assistant Attorney General (Kenneth T.

Cuccinelli, II, Attorney General, on brief), for appellee.

Phillip C. Bay, appellant, was convicted of eleven counts of manufacturing or possession

of a fire bomb or explosive device with intent to manufacture, in violation of Code § 18.2-85,

possession of a weapon of terrorism with intent to terrorize, in violation of Code § 18.2-46.6, two

counts of acts of terrorism, in violation of Code § 18.2-46.5, two counts of soliciting or recruiting

another for acts of terrorism, in violation of Code § 18.2-46.5, and two counts of possession or

use of a sawed-off shotgun or rifle, in violation of Code § 18.2-300. On appeal, he contends the

trial court erred in denying his motion for a change of venue, because all the citizens of Virginia

Beach, as the victims of the alleged crimes, were presumptively prejudiced and incapable of

serving as impartial jurors. He also alleged the trial court erred in denying his motion to

suppress, because police lacked valid consent to search his residence, and because the affidavit

1

While Judge Edward W. Hanson, Jr. ruled on the motion to suppress and the motion for

a change of venue, Judge O’Brien presided over the jury trial and sentencing hearing.

was insufficient to justify a second, more expansive search of the residence. For the reasons

stated, we affirm the judgment of the trial court.

BACKGROUND

On April 5, 2009, Investigator Donald Moss of the Virginia Beach Fire Department

received information that appellant was making pipe bombs at his home and was planning a

Columbine-type attack on a local high school. 2 Based on that information, Moss went to

appellant’s home in Virginia Beach, joining several police officers already at the scene. Moss

met appellant’s mother and told her why he was at the home. Moss asked Mrs. Bay if officers

could interview her son, who was seventeen at the time. She gave permission, and the officers

went inside the home with her.

Moss, Mrs. Bay, and appellant went into the kitchen/dining room area. Moss questioned

appellant about the alleged pipe bombs, and appellant admitted that he had made some pipe

bombs. Appellant also said he had been doing some experimentation and blew up some pipe

bombs in the woods near his home. Later in the interview, Moss asked if there were “any other

things” in the house. Appellant stated that he had a container of sulphur and possibly red cannon

fuse in his room.

After this discussion, Moss asked Mrs. Bay if he could search appellant’s room for these

items and retrieve these items, and to determine if there was anything else that would be

dangerous. Appellant interjected, “Mom, just say no.” When Mrs. Bay asked why, appellant

responded that he would tell her later. The two continued in a loud and heated exchange. Moss

2

Columbine High School in Colorado was the scene of a shooting in 1999, in which two

students shot and killed thirteen people and then killed themselves. Greg Toppo, 10 years later,

the real story behind Columbine (Apr. 14, 2009), http://www.usatoday.com/news/nation/2009-

04-13-columbine-myths_N.htm.

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told Mrs. Bay that he at least wanted to retrieve the two items appellant mentioned. Mrs. Bay

told Moss to do what he had to do, as long as the areas he searched were agreeable to appellant.

Appellant then agreed and said to Moss, “come on up to my room and I will give you the

sulphur and fuse.” For safety reasons, Moss accompanied appellant to his room, along with

Officers Martinez and Binder. The officers recovered the red cannon fuse from appellant’s

closet. The sulphur container was on top of a piano in appellant’s room. As Moss recovered the

sulphur, he looked down and saw a plastic case under appellant’s bed. Moss was not sure if it

was a gun case. He asked appellant what was in the case. Appellant then quickly flipped up his

mattress, revealing a six-inch pipe. Appellant said he forgot it was there. Moss retrieved the

pipe. As Moss turned to leave the room, he saw three or four clear plastic, stackable drawers. In

one of the drawers, Moss could see two nipples and a container marked Pyrodex. 3 Moss asked

appellant about it, and appellant said it was his “stuff” with which he experimented. Moss

observed other containers labeled shot shrapnel, shredded glass, and BBs. There was also a bag

containing a white substance. Appellant said it was soap, which Moss knew could be used to

make napalm.

The officers and appellant took the drawer downstairs. Moss asked Mrs. Bay if he could

take the drawer outside for safety reasons. Mrs. Bay consented but said she wanted her drawer

back. Moss took the drawer to his car, put the contents in his trunk, and returned the drawer to

Mrs. Bay. 4 Moss told Mrs. Bay he would get back to her later. At that point, Moss wanted to

get a second opinion on the items he had taken from the house.

3

Pyrodex® is a propellant designed for use in muzzleloading and black powder cartridge

arms. See http://www.hodgdon.com/pyrodex.html (last visited July 9, 2012).

4

When Moss came inside, either appellant or Mrs. Bay asked him if he wanted to search

the shed. That search produced nothing of value.

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Moss called Investigator Newton to review the items recovered from appellant’s house.

Newton is highly trained in the subject of pipe bombs and other explosives. Moss and Newton

met the next morning, and Newton determined that there was enough to charge appellant with

manufacturing and possession of explosive devices.

Also that morning, Newton learned from Virginia Beach Police Detective Frederick that

an informant reported appellant had eighteen additional pipe bombs hidden in his attic. Newton

executed an affidavit and received a search warrant for appellant’s house. Newton executed the

search warrant that day and found more fire bombs and explosive devices. When questioned,

appellant admitted that he had constructed the devices. Appellant also stated that he and another

juvenile were planning an attack on Landstown High School and that they were going to use the

devices to kill large numbers of people.

This appeal follows.

ANALYSIS

Change of Venue

Appellant contends the trial court erred in denying his motion for a change of venue. The

Commonwealth initially alleges that appellant has failed to provide an adequate record. We

disagree with the Commonwealth.

On appeal, we presume the judgment of the trial court is correct and the burden is on the

appellant to present to us a sufficient record from which we can determine whether the trial court

has erred in the respect alleged by appellant. Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255,

256 (1961). If appellant fails to do so, the judgment will be affirmed. Id.

Rule 5A:8 provides that the transcript of any proceeding is a part of the record when it is

filed in the office of the clerk of the trial court within 60 days after entry of the final judgment.

In lieu of or to supplement a transcript, a party may submit a written statement of facts that has

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been presented to and signed by the trial judge and filed by the clerk of the trial court in

accordance with Rule 5A:8(c).

If . . . the transcript [or statement of facts] is indispensable to the

determination of the case, then the requirements for making the

transcript [or statement of facts] a part of the record on appeal must

be strictly adhered to. This Court has no authority to make

exceptions to the filing requirements set out in the Rules.

Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986); see Anderson v.

Commonwealth, 13 Va. App. 506, 508-09, 413 S.E.2d 75, 77 (1992) (addressing statements of

facts in lieu of a transcript).

“When the appellant fails to ensure that the record contains transcripts or a written

statement of facts necessary to permit resolution of appellate issues, any assignments of error

affected by such omission shall not be considered.” Rule 5A:8(b)(4)(ii). Whether the record is

sufficiently complete to permit our review on appeal is a question of law subject to our de novo

review. See Turner, 2 Va. App. at 99, 341 S.E.2d at 402 (“If we determine that the transcript [or

statement of facts] is indispensable . . . , we must [conclude] that the record on appeal is

insufficient to fairly and accurately determine the issues presented.” (emphases added)).

In this case, appellant timely filed the transcript from the January 6, 2010 pretrial hearing,

at which he argued his motion to suppress and for a change of venue. Appellant did not file a

transcript or written statement of facts from the trial of November 22, 2010.

From the record available to us, it is evident that at the pretrial hearing, the trial court

denied appellant’s motion to suppress. However, the trial court did not rule on appellant’s

motion for a change of venue. Rather, the trial court found the motion premature, concluding

that “[w]hoever tries the case – whichever judge tries the case will have to determine after voir

dire whether or not it’s possible for both sides to get a fair and impartial trial in this city.” The

trial court clearly acted within its discretion, as “‘[a] court may refuse to summon a jury from

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another county until an ineffectual effort has been made to obtain an impartial jury from the

county in which the trial is to take place.’” Ascher v. Commonwealth, 12 Va. App. 1105, 1114,

408 S.E.2d 906, 912 (1991) (quoting Coppola v. Commonwealth, 220 Va. 243, 248, 257 S.E.2d

797, 801 (1979)).

However, we find the transcript of the November 22, 2010 trial is not indispensable to

resolving this issue. Appellant argued below, as he does now, that all residents of Virginia

Beach are disqualified per se to sit on the jury, thus entitling him to a change in venue. Thus, the

voir dire conducted on November 22, 2010 is not relevant to a per se disqualification. 5 It is

evident from the record that the trial court did not change venue nor find every Virginia Beach

resident to be disqualified. Therefore, we will address the merits of this issue.

“An accused has a fundamental right to a trial by an impartial jury.

U.S. Const. amends. VI and XIV; Va. Const. Art. I, § 8.” Barker

v. Commonwealth, 230 Va. 370, 374, 337 S.E.2d 729, 732 (1985);

see also Martin v. Commonwealth, 221 Va. 436, 444, 271 S.E.2d

123, 128 (1980). It is the trial judge’s duty to empanel jurors who

are free from bias and prejudice against the parties. Scott v.

Commonwealth, 1 Va. App. 447, 451, 339 S.E.2d 899, 901 (1986).

The trial judge’s fulfillment of this duty involves the exercise of

sound judicial discretion, which ordinarily is binding on appeal

absent manifest error. Calhoun v. Commonwealth, 226 Va. 256,

258-59, 307 S.E.2d 896, 898 (1983).

Wilson v. Commonwealth, 2 Va. App. 134, 137, 342 S.E.2d 65, 67 (1986).

“‘It is presumed that a defendant can receive a fair trial in the locality where the offense

occurred, and the burden is on the accused to overcome the presumption by clearly

demonstrating widespread prejudice against him.’” Brown v. Commonwealth, 28 Va. App. 315,

336, 504 S.E.2d 399, 409 (1998) (quoting LaVasseur v. Commonwealth, 225 Va. 564, 577, 304

S.E.2d 644, 651 (1983)). “The trial court’s decision whether to grant a motion for change of

5

We note that appellant does not claim any proven bias or prejudice by any of the

veniremen because of their responses to voir dire. His challenge is to each venireman’s status as

a resident of Virginia Beach.

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venue is reviewed for an abuse of discretion.” Cressel v. Commonwealth, 32 Va. App. 744, 753,

531 S.E.2d 1, 8 (2000).

Appellant refers to the definition of terrorism to further his disqualification argument.

Code § 18.2-46.4 defines terrorism:

“Act of terrorism” means an act of violence as defined in clause

(i) of subdivision A of § 19.2-297.1 committed with the intent to

(i) intimidate the civilian population at large; or (ii) influence the

conduct or activities of the government of the United States, a state

or locality through intimidation.

Thus, he contends that because each resident of Virginia Beach is a part of the “civilian

population at large,” the entire population of Virginia Beach could be appellant’s potential

victims. Appellant cites Jaques v. Commonwealth, 51 Va. (10 Gratt.) 690, 693 (1853), for the

proposition that per se disqualification is appropriate when a venireman stands in a near legal

relationship to the victim.

A trial court must excuse for cause a potential juror who “‘has any interest in the cause,

or is related to either party, or has expressed or formed any opinion, or is sensible of any bias or

prejudice’” regarding the action. Spangler v. Ashwell, 116 Va. 992, 996-97, 83 S.E. 930, 931

(1914) (quoting Richardson v. Planters Bank of Farmville, 94 Va. 130, 134, 26 S.E. 413, 414

(1896)). However, “per se rules of disqualification which are based on ‘a presumption of [juror]

bias or prejudice,’ are disfavored in Virginia.” McGann v. Commonwealth, 15 Va. App. 448,

454, 424 S.E.2d 706, 710 (1992) (quoting Scott v. Commonwealth, 1 Va. App. 447, 452, 339

S.E.2d 899, 901 (1986)).

There is no per se disqualification rule for a prospective juror related to a prosecution

witness, Barrett v. Commonwealth, 262 Va. 823, 826, 553 S.E.2d 731, 732 (2001), a current or

past acquaintance between a juror and a prosecution witness, Perez v. Commonwealth, 40

Va. App. 648, 656, 580 S.E.2d 507, 511 (2003), or an association with a law enforcement

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officer, Clozza v. Commonwealth, 228 Va. 124, 135, 321 S.E.2d 273, 280 (1984). Further, there

is no per se disqualification for former clients of the Commonwealth’s Attorney, Elam v.

Commonwealth, 229 Va. 113, 116, 326 S.E.2d 685, 687 (1985), one employed by a corporate

victim, Scott v. Commonwealth, 1 Va. App. 447, 452, 339 S.E.2d 899, 902 (1986), one who has

been a victim of a like crime, Webb v. Commonwealth, 11 Va. App. 220, 223, 397 S.E.2d 539,

541 (1990), or one shares the risk of being a victim of the same crime because of having similar

financial interest as the victim in the case being tried, Melvin v. Commonwealth, 202 Va. 511,

512-13, 118 S.E.2d 679, 680 (1961).

However, there are limited instances where the status of a prospective juror creates a per

se disqualification. In Townsend v. Commonwealth, 270 Va. 325, 619 S.E.2d 71 (2005), the

Supreme Court of Virginia opined that per se disqualification applied when a venireman was a

current client of counsel, id. at 331, 619 S.E.2d at 74-75 (citing Cantrell v. Crews, 259 Va. 47,

49, 523 S.E.2d 502, 503 (2000); City of Virginia Beach v. Giant Square Shopping Ctr. Co., 255

Va. 467, 470-71, 498 S.E.2d 917, 918-19 (1998); Medici v. Commonwealth, 260 Va. 223,

226-27, 532 S.E.2d 28, 30-31 (2000)), or when a venireman’s brother, a police officer, would

testify as to the crime scene, id. (citing Barrett, 262 Va. at 826-27, 553 S.E.2d at 732).

The Supreme Court of Virginia has also found that a stockholder in a company which is a

party to the litigation would be automatically disqualified from serving as a juror, see Salina v.

Commonwealth, 217 Va. 92, 93-94, 225 S.E.2d 199, 200 (1976), as would a venireman who is

related within the ninth degree of affinity to the victim, see Gray v. Commonwealth, 226 Va.

591, 593, 311 S.E.2d 409, 410 (1984).

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The rationale of a per se disqualification is that the prospective juror’s status alone

renders that juror incapable of being fair and impartial. See McGann, 15 Va. App. at 454, 424

S.E.2d at 710. 6

Code § 18.2-46.8 states: “Venue for any violation of this article may be had in the

county or city where such crime is alleged to have occurred or where any act in furtherance of an

act prohibited by this article was committed.” The indictments charging appellant with

numerous acts of terrorism all fall within Article 2.2, Code §§ 18.2-46.4 through 18.2-46.10. 7

It should be noted that in his motion to change venue, appellant asked only that venue be

transferred to another jurisdiction. He did not ask that a jury panel be brought in from another

jurisdiction.

Thus, under the narrow facts of appellant’s motion in this case, Code § 18.2-46.8

expresses the legislature’s intent that it is appropriate to have terrorism charges tried in the

county or city where the offense occurred, despite the fact that the acts of terrorism must be

accompanied by an intent to intimidate the civilian population. Had the legislature intended to

require a change of venue in a terrorism case, it certainly could have written the statute to reflect

that intent. Basic principles of statutory construction hold that “when a statute is plain and

unambiguous, a court may look only to the words of the statute to determine its meaning.”

Caprio v. Commonwealth, 254 Va. 507, 511-12, 493 S.E.2d 371, 374 (1997).

6

The Supreme Court of Virginia has acknowledged that a per se disqualification may

arise in order to maintain public confidence in the judicial system. While neither party raised

this concept, we discern no reason to believe that disqualifying the entire population of Virginia

Beach from sitting on this jury would maintain public confidence. See Townsend, 270 Va. at

332, 619 S.E.2d at 75.

7

Appellant does not base his disqualification argument on the non-terrorism indictments.

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Further, the status of being a resident of Virginia Beach, even as a member of the civilian

population at-large, does not necessarily mean that such status prevents any and every resident of

Virginia Beach from being fair and impartial.

Appellant’s argument would lead to a result that impacts the efficient administration of

justice if a court was required to change venue for every terrorism charge under Article 2.2. We

acknowledge that some residents of Virginia Beach may not be impartial. The proper method to

insure an impartial jury would be to address this issue on voir dire, which the trial court did in

this case. We therefore conclude the trial court did not err in declining appellant’s motion to

change venue. 8

Motion to Suppress 9

Appellant next contends that the trial court erred in denying his motion to suppress

evidence. He argues that police and fire investigators did not have valid consent for the April 5,

2009 search of his residence. He also argues that the April 6, 2009 search was invalid, because

the supporting affidavit did not provide sufficient new facts to justify a warrant for a second,

more extensive search. Appellant contends there was no new probable cause from the previous

8

At oral argument, appellant conceded that his change of venue argument rises or falls on

the resolution of whether all residents of Virginia Beach should be disqualified.

9

Again, the Commonwealth contends appellant failed to provide an adequate record to

permit us to review his challenge to the denial of his suppression motion. Although the record

contains the transcript of the suppression hearing, the trial transcript is not part of the record on

appeal. When an appellate court reviews a suppression ruling, it considers all relevant evidence

adduced at both the suppression hearing and the trial. E.g., DePriest v. Commonwealth, 4

Va. App. 577, 583, 359 S.E.2d 540, 543 (1987). This is so even in a case challenging the

sufficiency of an affidavit supporting the issuance of a search warrant. See, e.g., Adams v.

Commonwealth, 275 Va. 260, 270-71, 657 S.E.2d 87, 93 (2008) (holding a reviewing court is

not limited to the four corners of the affidavit and should consider the totality of the

circumstances, including any sworn oral testimony presented to the issuing magistrate). Here,

because we hold infra in the text that the evidence admitted at the suppression hearing supports

the trial court’s ruling and because appellant does not rely on any evidence introduced at trial as

supporting his argument for a reversal, we reach the merits of his challenges to the suppression

ruling and affirm.

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day. Essentially, appellant argues that because police conducted a full and complete search on

the first day, the affidavit provided no new information that additional items would be found

with the warrant for a second search. He further alleges that the affidavit contained no

information as to the reliability or basis of knowledge of the informant.

“A defendant’s claim that evidence was seized in violation of the

Fourth Amendment presents a mixed question of law and fact that

we review de novo on appeal. In making such a determination, we

give deference to the factual findings of the circuit court, but we

independently determine whether the manner in which the

evidence was obtained meets the requirements of the Fourth

Amendment. The defendant has the burden to show that,

considering the evidence in the light most favorable to the

Commonwealth, the trial court’s denial of his suppression motion

was reversible error.”

Brooks v. Commonwealth, 282 Va. 90, 94-95, 712 S.E.2d 464, 466 (2011) (quoting Jones v.

Commonwealth, 277 Va. 171, 177-78, 670 S.E.2d 727, 731 (2009) (internal citations omitted)).

Furthermore, conflicts in evidence present factual questions, to be resolved by the trial

court. Mills v. Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718, 723 (1992).

“The Fourth Amendment test for a valid consent to search is that the consent be

voluntary, and ‘voluntariness is a question of fact to be determined from all the circumstances.’”

Ohio v. Robinette, 519 U.S. 33, 40 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218,

248-49 (1973)). Appellant argues that the search of his bedroom was illegal because his consent

was coerced. However, his allegation is unsupported by evidence in the record.

The trial court found that the search and seizure of the items in appellant’s room was

consensual. Unless this finding was “clear error,” we will not reverse the trial court’s

conclusion. An appellate court “‘should take care both to review findings of historical fact only

for clear error and to give due weight to inferences drawn from those facts by resident judges and

local law enforcement officers.’” Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d

25, 27 (2000) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).

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In this case, Investigator Moss testified that he explained to appellant’s mother, Mrs. Bay,

why he was at the residence. Mrs. Bay invited Moss and other officers into her home. Moss

further testified that while in the kitchen area, appellant admitted that he had explosive materials

in the house and that he had blown up some pipe bombs in the woods near his home. When

Moss asked Mrs. Bay for permission to search appellant’s room, appellant told his mother to

refuse. After a heated discussion between appellant and his mother, Moss asked Mrs. Bay if they

could at least retrieve the items appellant had admitted to having, in the interest of safety.

Mrs. Bay told Moss to do what he had to do. Appellant agreed to the search and then took the

officers to his room, where he willingly turned over contraband.

Both appellant and his mother consented to the search of appellant’s room, and the only

evidence of coercion came from appellant’s unsupported assertion that officers repeatedly asked

Mrs. Bay for consent to search after she had declined. As the trial court properly concluded, the

testimony of the officers, viewed in the light most favorable to the Commonwealth, clearly and

unequivocally established that Mrs. Bay was always cooperative with officers. After the police

spoke with Mrs. Bay and Mrs. Bay spoke with appellant, Mrs. Bay voiced her consent, and

appellant voluntarily took officers to his room.

Appellant premises his argument on his unsubstantiated claim that officers put pressure

on Mrs. Bay by making repeated requests for consent. There is no evidence of this in the record.

Mrs. Bay testified she did not consent to the search. However, the trial court specifically

declined to credit Mrs. Bay’s testimony, saying it could “best be termed as selective recall.” We

cannot say that the trial court was plainly wrong in doing so. “On appeal, great deference is

given to the factfinder who, having seen and heard the witnesses, assesses their credibility and

weighs their testimony.” Young v. Commonwealth, 275 Va. 587, 590, 659 S.E.2d 308, 310

(2008). We will not disturb the trial court’s judgment with regard to factual matters unless

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plainly wrong or without evidence to support it. Id. Instead, we “‘discard the evidence of the

accused in conflict with that of the Commonwealth, and regard as true all the credible evidence

favorable to the Commonwealth and all fair inferences to be drawn therefrom.’” Blow v.

Commonwealth, 52 Va. App. 533, 536, 665 S.E.2d 254, 256 (2008) (quoting Parks v.

Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)).

We conclude that the trial court correctly ruled that the search of appellant’s room and

the seizure of items found therein was consensual.

Appellant also contends that the trial court should have granted his motion to suppress,

because there was no new probable cause for issuance of the April 6, 2009 search warrant.

Appellant argues the supporting affidavit contained insufficient facts to find probable cause to

search appellant’s residence a second time. He also alleges the affidavit contained no

information as to the reliability or basis of knowledge of the informant.

“[P]robable cause exists when ‘there is a fair probability that contraband or evidence of a

crime will be found in a particular place.’” United States v. Grubbs, 547 U.S. 90, 95 (2006)

(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). In determining whether an affidavit was

sufficient to support a search warrant, we look to the totality of the circumstances. Garza v.

Commonwealth, 228 Va. 559, 563, 323 S.E.2d 127, 129 (1984) (citing Gates, 462 U.S. at 230).

The Supreme Court has consistently held that “after-the-fact scrutiny by courts of the sufficiency

of an affidavit should not take the form of de novo review.” Gates, 462 U.S. at 236. “A

magistrate’s ‘determination of probable cause should be paid great deference by reviewing

courts.’” Id. (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969), overruled on other

grounds by Gates, 462 U.S. at 238).

Upon review, a search warrant will be upheld if the evidence, viewed as a whole,

provided the magistrate with a “‘substantial basis’” for concluding that probable cause existed to

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issue the warrant. Boyd v. Commonwealth, 12 Va. App. 179, 185-86, 402 S.E.2d 914, 918

(1991) (quoting Gates, 462 U.S. at 239); see Tart v. Commonwealth, 17 Va. App. 384, 389, 437

S.E.2d 219, 222 (1993) (“‘Although in a particular case it may not be easy to determine when an

affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal

cases in this area should be largely determined by the preference to be accorded to warrants.’”

(quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)).

In this case, Investigator Moss recovered sulphur, red cannon fuse, a metal pipe that was

threaded on both ends, Pyrodex black powder, shot shrapnel, shredded glass, BBs, and soap,

which Moss knew could be used to make napalm. Appellant admitted to Moss that he had been

experimenting with the black powder and making pipe bombs. Further, Moss showed the items

to Investigator Newton, who had more expertise in pipe bombs and other explosives. After

looking at the items taken from appellant’s home, Newton concluded that there was probable

cause to charge appellant with manufacture and possession of an explosive device. Newton

subsequently wrote and presented an affidavit to a magistrate and received a warrant to search

appellant’s entire home for additional evidence of bomb making.

While the affidavit states that police obtained appellant’s consent to search his home on

April 5, nothing in the record suggests that police searched any parts of the house other than his

room and the outside shed on that date. All of the items seized on the first day were from

appellant’s bedroom, and the trial court so found.

It is reasonable to assume, based on the discovery of explosive devices and related

paraphernalia in appellant’s bedroom, there would also be documents and other materials used to

research and construct explosives in appellant’s bedroom or elsewhere in the home.

Furthermore, because appellant had admitted to police that he and another student were planning

a large-scale attack on their school, it was reasonable for police to search for communications

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between appellant and the other student, as well as information on who else and what other

locations might be involved.

The trial court noted that “[h]aving obtained the items from only the defendant’s room, it

is reasonable that the authorities would proceed the next day to search the remaining rooms and

areas of the residence – without the last sentence of Paragraph 4 of the affidavit,” which

contained information received from an informant. The affidavit also indicated police knew

appellant was planning a Columbine-style attack on his high school. It was also clear, based on

the list of items to be seized, that police intended to search for items and evidence other than

what they had already recovered from appellant’s bedroom.

Even specifically excluding any evidence from an informant, the trial court found that the

remaining information in the affidavit was sufficient to sustain probable cause for the second

day’s search warrant. See Gwinn v. Commonwealth, 16 Va. App. 972, 976, 434 S.E.2d 901, 904

(1993) (“[W]hen other evidence exists in the affidavit, which independently establishes probable

cause without having to consider [‘a conclusory statement by an unidentified informant, whose

veracity and basis of knowledge were not established,’] the magistrate’s decision to issue a

search warrant will not be disturbed because the supporting affidavit contained some evidence,

which, standing alone, would be insufficient to establish probable cause.”). The first day’s

search resulted in officers recovering several pieces of threaded metal pipe, PVC pipe with end

caps and a fuse, powdered sulphur and black powder, and bags labeled shrapnel (metal and

glass). The affidavit for the second day’s search warrant indicated that officers were looking for

“components, chemical compounds, fuses, containers, devices, pipes, end caps, or other items

commonly used to construct an incendiary or explosive device, as well as any computer

equipment, printed, written, typed, or computer-generated material used to research or construct

explosive or incendiary devices.” (Emphasis added). The affidavit provided sufficient new

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probable cause to support a second search of appellant’s home. Therefore, the evidence

supported the trial court’s denial of appellant’s motion to suppress.

Because the evidence, as found by the trial court, supports the conclusion that the

affidavit is more than adequate to show probable cause, we need not address the reliability of the

informant.

CONCLUSION

For the reasons stated herein, we affirm the trial court’s denial of appellant’s motions for

a change of venue and to suppress.

Affirmed.

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