
    CIRCUIT COURT OF LOUDOUN COUNTY
    Commonwealth of Virginia v. Trier
    April 5, 1991
    Case No. (Criminal) 7295
   By JUDGE THOMAS D. HORNE

This cause came to be heard before this Court on defense counsel’s motion to suppress the evidence obtained under a search warrant. The matter under advisement to be decided was whether the review by a Commonwealth’s Attorney of an affidavit for a warrant issued by magistrate, which was subsequently found to lack probable cause, creates a bar to its allowability as a good faith exception to the exclusionary rule.

The answer is no, and the motion will be denied based on the following. In United States v. Leon, 468 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 677 (1984), the search warrant application "was reviewed by several district attorneys"; and in Massachusetts v. Sheppard, 468 U.S. 91, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984), the detectiveaffiant had his affidavit checked over by "the district attorney, the district attorney’s first assistant, and a sergeant." 4 LaFave, Search and Seizure 58 (1987). As one former prosecutor put it: "Police-prosecutor consultation is customary in all our cases when Fourth amendment concerns arise." Id. citing Sachs, "The Exclusionary Rule: A Prosecutor’s Defense," 1 Crim. J. Ethics 27, 30 (1982).

On pages 61 and 62 of LaFave volume 4, LaFave discusses a hypothetical of where a police officer would take an affidavit to a prosecutor for his judgment and the prosecutor tells him that it is insufficient for probable cause. The officer takes it to a magistrate anyway, and the magistrate issues the warrant. According to LaFave’s interpretation of Leon, the court could take into account that the police officer knew that the prosecutor rejected the affidavit in determining whether the police officer had good faith in relying on the warrant. Conversely, it seems that where the prosecutor does in fact find probable cause in the affidavit, and the magistrate does so as well, the police officer has even more grounds to assert a good faith reliance on the soundness of the affidavit.  