Virginia Malicious Shooting Wounding Display Firearm 18.2-51.1 18.2-53.1 Fairfax Alexandria

Virginia Malicious Shooting Wounding Display Firearm 18.2-51.1 18.2-53.1 Fairfax Alexandria

Barnes v. Commonwealth, 279 Va. 22; January 15, 2010

Defendant was indicted by a grand jury in the Circuit Court of the City of Alexandria for the unlawful, felonious and malicious shooting in violation of Code 18.2-51.2 and for the unlawful and felonious use and display of a firearm while committing an aggravated malicious wounding in violation of Code 18.2-53.1.

During a pretrial hearing, Defendant filed a motion to suppress certain evidence that had been seized from his home pursuant to a search warrant. Defendant asserted that the evidence should be suppressed because purportedly the affidavit in support of the search warrant was insufficient to establish probable cause and allegedly the affidavit contained incomplete and "recklessly omitted" information that negated probable cause.

The Court held that it clearly established probable cause based upon information from several witnesses, sufficient to cause a person of reasonable caution to believe that the defendant had committed the crimes. Pursuant to Franks, before a circuit court conducts an evidentiary hearing, the court is required to "set to one side" the alleged false or reckless information or omission and determine whether the warrant affidavit supports a finding of probable cause before conducting an evidentiary hearing.

On the merits, there was sufficient evidence to demonstrate beyond a reasonable doubt that the Commonwealth introduced sufficient evidence to support the convictions for malicious wounding and use or display of a firearm while committing aggravated malicious wounding. The legal standard of probable cause, as the term suggests, relates to probabilities that are based upon the factual and practical considerations in everyday life as perceived by reasonable and prudent persons.

The presence or absence of probable cause is not to be examined from the perspective of a legal technician. Rather, probable cause exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed. Certainly, the facts in the affidavit would cause a person of reasonable caution to believe that the defendant had committed the crimes. Thus, the issuing magistrate had a substantial basis for concluding that probable cause existed.

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