Joppy v. State

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 533
September Term, 2016
_________________________
ABDULLAH MALIK JOPPY
A/K/A RICHARD JOPPY
v.
STATE OF MARYLAND
_________________________
Eyler, Deborah S.
Reed,
Moylan, Charles E., Jr.,
(Senior Judge, Specially Assigned),
JJ.
_________________________
Opinion by Moylan, J.
_________________________
Filed: April 27, 2017
There is in this case a yawning disconnect between the suppression issue argued
before Judge Nelson W. Rupp, Jr., in the Circuit Court for Montgomery County on
December 10, 2015 and the more academically nuanced contention now being presented
on appellate review. We do not mean to be critical of the more nuanced argument. It may
well be a stronger argument than that actually made at the suppression hearing. It has been
thoroughly researched. It has been articulately delivered, both in appellate brief and in oral
argument before this Court on March 9, 2017. None of that, however, matters. The
argument’s fatal flaw is that it is not the one that was made at the suppression hearing. Our
jurisdictional authority is limited to reviewing the suppression hearing that was and not the
law school hypothetical that might have been.
It would be tempting to dismiss the entire suppression issue, which is the heart of
the present appeal, on the ground that what was argued at the suppression hearing is not
the subject of an appellate contention and, conversely, that what is now contended on
appeal was never raised at the suppression hearing. That, however, might be too glib, so
we will at least give the appellant the benefit of several “arguendo” considerations in the
course of announcing several alternative holdings.
The Case Before Us
The appellant, Abdullah Malik Joppy, a/k/a Richard Joppy, was convicted in a jury
trial, presided over by Judge Marielsa Bernard, of 1) possession with intent to distribute a
controlled dangerous substance (“CDS”) and 2) of conspiring to do so. On appeal, he raises
two contentions, the first one of which is in three parts.
I. Judge Rupp erroneously failed to suppress the physical evidence seized in a
warranted search of the apartment of Victoria Gaines at 3320 Teagarden
Circle,
A. because the evidence was not legally sufficient to establish a nexus
between the criminal activity of the appellant and 3320 Teagarden Circle;
B. because any evidence tending to establish such a nexus was stale; and
C. because, refuting in advance an anticipated arguendo argument by the
State, the Good Faith Exception to the Exclusionary Rule is not available
when the judicial error is one involving the nexus between the crime and
the place to be searched.
II. Judge Bernard erroneously failed to grant in part a Motion for Acquittal
because the State’s evidence was not legally sufficient to support the
conviction for possession of CDS.
The Bigger Picture
Beginning in mid-2014, the Federal Bureau of Investigation (“FBI”) and the
Montgomery County Police Department began a joint investigation into illegal drug
dealing in crack cocaine and heroin in the area surrounding the Bel Pre Square apartments
in Montgomery County. The investigation involved the extensive use of surveillance,
wiretapping, pen registers, and controlled drug buys by undercover agents. The
investigation was conducted by over fifty local officers and federal agents in a year-long
effort. The primary target of the investigation was George Gee, the kingpin of the illicit
drug distribution network.
In early February 2015, the investigators obtained a warrant to conduct the
electronic surveillance of telephones used by George Gee. When the initial authorization
expired, the officers obtained renewed authorization through May 2, 2015. One of the key
investigators was FBI Special Agent Charles Adams. It was Special Agent Adams who
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applied for the search warrant that was issued, executed, and subsequently submitted to
Judge Rupp for his review at the suppression hearing of December 10, 2015.
It was in the course of this larger investigation that the appellant was discovered to
be one of the operatives of the drug distribution network run by George Gee.
The Search of 3320 Teagarden Circle
The broad search warrant for which Special Agent Adams applied was aimed at
three separate residences: 1) 51 Baileys Court in Silver Spring, which was described as the
“primary residence” of drug kingpin George Gee, 2) 11 Farmcrest Court in Silver Spring,
which was described as the “primary residence” of co-conspirator Andre Napper, and 3)
3320 Teagarden Circle, Apartment 104, which was described as the “primary residence”
of the appellant. It is not without significance that not one of the “primary residences” was
formally owned by or leased to George Gee, Andre Napper, or the appellant. Patterns do
begin to emerge when looking at the totality that would completely escape us when looking
only at an individual instance. We are less likely to believe that all three men were just
casual “overnight guests.” We must never ignore the totality.
The search warrant was issued by Chief Magistrate Judge William Connelly in the
United States District Court on June 1, 2015. When it was executed at 3320 Teagarden
Circle on the morning of June 8, 2015, both the appellant and his girlfriend, Victoria
Gaines, were still asleep in the bedroom. In a closet in the bedroom, the investigators found,
in a jacket pocket, a prescription pill bottle with two baggies of crack cocaine, weighing a
total of five grams. In a suitcase in the same closet, the investigators found a digital scale.
The Yawning Disconnect Between Suppression Hearing and Appeal
3
It is not we, of course, who are called upon to decide whether Special Agent
Adams’s application established probable cause to support a warrant to search the
appellant’s “primary residence” of 3320 Teagarden Circle. Chief Magistrate Judge
Connelly decided that on June 1, 2015. In reviewing that decision on December 10, 2015,
Judge Rupp decided that Magistrate Judge Connelly had had a substantial basis for issuing
the search warrant.
Our limited role is to decide whether Judge Rupp was in error when he declined to
grant the appellant’s motion to suppress the physical evidence. The propriety of Judge
Rupp’s decision was based, of course, upon the evidence that was presented to him at the
suppression hearing, to wit, the warrant application itself, and the arguments made by
counsel. That hearing of December 10, 2015 produced a 13-page transcript. Eleven of the
13 pages reflect the argument of defense counsel. As he analyzed each intercepted phone
call and each visual surveillance, the total thrust of the attack was that there was no
probable cause to believe that the appellant was engaged in any criminal activity. Counsel
announced his position as he began his argument, “It’s our position that the application for
the search warrant . . . does not show probable cause as it relates to [the appellant].” He
went on more fully:
There is nothing in here to indicate that Mr. Joppy was distributing anything
or possessing with intent to distribute anything. There is no indication that
the agent applying for the search warrant has observed any transaction
between Mr. Joppy and any other individual.
(Emphasis supplied).
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After a very brief and pro-forma response by the State, Judge Rupp ruled almost
summarily that Magistrate Judge Connelly had had a substantial basis to issue the search
warrant.
Of present pertinence is the fact that nothing at that suppression hearing made the
remotest allusion to the issue of nexus. The word “nexus” was never used, nor even
implied. No judicial opinion dealing with nexus was ever cited. The exclusive battle was
over whether the appellant was in any way a criminal agent. The degree of attenuation
between his behavior and 3320 Teagarden Circle was never raised. Judge Rupp was never
called upon to make a ruling about nexus. There was no suggestion by anyone at the hearing
that a potential sub-issue such as nexus even existed. The present contention, therefore,
appears out of nowhere. It challenges nothing that was at issue at the suppression hearing
of December 10, 2015. It raises a totally new issue for the first time on appeal. The very
wording of the sub-contention leaves no doubt with respect to its exclusive argument:
The Magistrate Did Not Have a Substantial Basis to Issue the Search Warrant
Because the State Did Not Establish a Nexus Between the Suspected
Criminal Activity and the Residence that Was Searched.
(Emphasis supplied). The very opening bar of the argument announced unequivocally its
unmistakable leitmotif:
The trial court erred in deciding not to suppress evidence found during the
execution of the search warrant because the warrant application did not
establish the required nexus between suspected criminal conduct and the
location to be searched. In the absence of such a connection, there was no
substantial basis for the magistrate to approve the warrant.
(Emphasis supplied). Indeed, at the very beginning of oral argument on March 9, 2017,
this Court put what was, in effect, the following inquiry to counsel for the appellant:
5
In an effort to reduce the clutter, let us see if we can narrow the key issue
before us. It seems clear from your brief that you are not contesting, as an
issue on the subject of suppression, the criminality of the appellant himself
but only the nexus between the observed criminal behavior of the appellant
and 3320 Teagarden Circle as the place to be searched. Is that correct?
Counsel gave us express reassurance that our reading of the brief was correct and
that the exclusion issue raised in the key sub-contention was the adequacy of the proof of
nexus. That concession, however, was not critical, because a reading of the appellant’s
brief itself would permit no other conclusion. Our bottom line holding is that this entire
line of argument, raised for the first time on appeal, was never mentioned at the suppression
hearing ostensibly under review and has, therefore, not been preserved for appellate review.
“Even If, Arguendo, . . .” No.1:
Proof of the Nexus
Even if, purely arguendo, the appellant’s challenge to the proof of the nexus had
been preserved by having been raised and ruled upon at the suppression hearing, we would
not hesitate to hold as an alternative resolution of this appeal that the evidence was
sufficient to establish the necessary nexus. This three-month long investigation by over 50
agents, using telephone wiretaps, pen registers, and visual surveillance, was not aimed at
low-level drug pushers making street sales. It was aimed at high-level operatives in the
George Gee network, at the communication among these operatives, and at the subsequent
movement of drug supplies in one direction and of cash in the other direction. Far more so
than in the case of mere street dealers, the expert observation of Special Agent Adams in
the application for the warrant, based upon his training and experience, places the issue of
nexus at this level of a drug distributing network in necessary perspective.
6
[I]t is common for drug dealers to conceal contraband, proceeds of drug sales,
and records of drug transactions in secure locations within their residences,
vehicles and/or businesses for ready access; that it is common for drug
dealers to conceal proceeds from law enforcement authorities and rival
narcotics traffickers; that drug dealers routinely use cellular telephones to
facilitate their drug distribution operations; that drug dealing is an ongoing
process that requires the development, use, and protection of a
communications network to facilitate daily drug distribution; that drug
dealers use telephones to thwart law enforcement efforts to penetrate the drug
dealers’ communication networks; and that narcotics traffickers commonly
use “coded” language when speaking with other drug traffickers in order to
thwart detection by law enforcement agents who may be intercepting their
communications.
(Emphasis supplied).
The appellant is being naïve when he focuses on the lack of evidence of low-level
street sales at or near the residences of the three key operatives in this case. Such evidence
is not to be expected. Once the criminal nature of the network itself is established, the nexus
challenge is largely one of identifying the primary residences of the three key operatives
(a particularly vexing problem when they do not assist the police by formally signing up
for the ownership or rental of their primary residences). Significantly, at the suppression
hearing when Special Agent Adams’s warrant application was being reviewed, the
appellant neither challenged the accuracy nor the pertinence of the agent’s observation
about the close connection between the high-level drug dealer and his residence.
Three of the intercepted telephone calls involving the appellant coupled with the
visual surveillance conducted after each of those telephone intercepts tie down the nexus
between the appellant’s criminal activity and 3320 Teagarden Circle. On February 27, 2015
at 3:00 p.m., the investigators intercepted a call from the appellant to George Gee. The
7
warrant application described the substance of the call and of the surveillance that
followed.
Based on my training, experience, and knowledge of this investigation, your
affiant believes that GEE and [the appellant] are arranging a drug transaction.
During the conversation, GEE directed [the appellant] to meet him “around
Joe Thomas’ joint,” which your affiant believes to be the area of Bel Pre
Drive, also known as “Bel Pre Square.” After intercepting this call, law
enforcement officers conducted surveillance of Bel Pre Drive. At
approximately 3:24 pm, officers observed [the appellant] exiting Bel Pre
Drive driving a green Honda sedan, Maryland registration number 5BL6871.
Law enforcement officers kept constant surveillance of [the appellant] and
observed him driving to and entering SUBJECT PREMISES #1 at
approximately 4:10 pm. Based on the above described call, your affiant
believes that, at the time he entered the SUBJECT PREMISES #1 [the
appellant] was in possession of drugs.
(Emphasis supplied).
The investigation on March 4, 2015 involved two intercepted calls from the
appellant to George Gee and the intervening surveillance between the calls. The first call,
from the appellant to George Gee, was at 4:59 p.m. Special Agent Adams described the
call and the surveillance that followed.
Based on my training, experience, and knowledge of this investigation, your
affiant believes that [the appellant] and GEE were arranging a meeting to
conduct a drug transaction. During the conversation, GEE asked [the
appellant] what quantity of drugs he wanted (“what you trying to do”). [The
appellant] replied that he wanted two ounces of drugs (“two”). GEE then
directed [the appellant] to meet him at a specified location near Bel Pre
Square (“oh yeah that’s perfect, shit meet me over there, uh, on the Good
Hope [Road] side man”).
22. After intercepting this call, law enforcement officers conducted
surveillance in the area of GEE’s prior residence, 1367 Elm Grove Circle,
Silver Spring, Maryland and in the area of SUBJECT PREMISE #1. At
approximately 5:15 pm, officers observed [the appellant] enter SUBJECT
PREMISE #1. At approximately 5:45 pm, [the appellant] exited SUBJECT
PREMISE #1, entered the green Honda sedan, and drove out of the
neighborhood toward Good Hope Road.
8
(Emphasis supplied).
At 5:43 p.m., the appellant placed a follow-up call to George Gee. Special Agent
Adams interpreted that call as one signaling a slight change in plans.
Based on my training, experience, and knowledge of this investigation, your
affiant believes that [the appellant] called GEE to let him know he is close to
the agreed upon location for the drug transaction. GEE then informed [the
appellant] that he was sending another person (“my son bout to come out
there and see you”) to conduct the drug transaction.
25. At approximately 5:49 pm, law enforcement officers intercepted an
incoming call to GEE’s CELLPHONE from a cellular telephone number
utilized by Andre NAPPER.
...
Based on my training, experience, and knowledge of this investigation, your
affiant believes that GEE wanted to meet with NAPPER to provide NAPPER
with drugs to give to [the appellant]. Law enforcement officers subsequently
observed NAPPER, driving a black Toyota Camry bearing Maryland tag
number 2BL6017, pull into GEE’s neighborhood and park in front of GEE’s
prior residence at 1367 Elm Grove Circle. A short time later, GEE was
observed exiting his residence and meeting with NAPPER at NAPPER’s
Toyota Camry. After this meeting, GEE returned to his prior residence at
1367 Elm Grove Circle and NAPPER left the area. Officers continued to
conduct surveillance on NAPPER, who drove to the area of Twig Road in
Silver Spring, Maryland. A short time after NAPPER arrived on Twig Road,
law enforcement officers observed [the appellant] leaving the area of Twig
Road. Although officers did not observe NAPPER and [the appellant] meet,
based on my training, experience, and knowledge of this investigation, your
affiant believes that NAPPER served as a “middle man” and delivered the
drugs from GEE to [the appellant] on Twig Road. Shortly after this
transaction, officers observed NAPPER’s Toyota Camry parked in front of
SUBJECT PREMISE #2.
(Emphasis supplied).
A conclusory call from the appellant to George Gee assured Gee that everything had
gone according to plan.
Based on my training, experience, and knowledge of this investigation, your
affiant believes that [the appellant] called GEE to ensure GEE knew that [the
9
appellant] met with NAPPERS (referred to as “my son”) and conducted the
drug transaction (“I wasn’t trying to look around. I was just, you know,
making sure, you know”). GEE also confirmed that [the appellant] received
two ounces of drugs (“that was two joints there”).
At 9:42 a.m. on April 9, 2015, the agents intercepted a call from the appellant to
George Gee. Special Agent Adams interpreted the call. His interpretation was that the
appellant was at 3320 Teagarden Circle (“Subject Premise #1”), had cash with him at that
location, and referred to that location as “the crib.”
Based on my training, experience, and knowledge of this investigation, your
affiant believes that [the appellant] wanted an ounce of drugs from GEE
(“[a]in’t nothing, trying to grab one time”). GEE then directed [the appellant]
to meet at a specific location, Good Hope Road, to conduct the transaction
(“go around the Hope, young”). [The appellant] also indicated that he was at
the SUBJECT PREMISE #1 3320 Teagarden Circle (“Alright, bout to leave
the crib now”) and presumably had drug proceeds with him at the SUBJECT
PREMISE #1 to complete the transaction with GEE.
(Emphasis supplied).
Quite aside from the telephone intercepts and the visual surveillance, there was
direct evidence establishing 3320 Teagarden Circle, Apartment 104, as the primary
residence of the appellant. Such evidence makes counsel’s reference to the appellant as “an
overnight guest at the apartment where the warrant was executed” deliberately
disingenuous. On April 2, 2015, the investigators interviewed the manager of the
Knightsbridge Apartments, where 3320 Teagarden Circle is located, to inquire about the
residential status of the appellant. The application for the search warrant recites:
On April 2, 2015, law enforcement officers showed the manager of the
“Knightsbridge Apartments” a photograph of JOPPY and the manager
immediately recognized JOPPY as an individual that lives with GAINES in
apartment #104, but is not on the lease. The manager stated that he has
observed JOPPY at the apartment frequently and he believes JOPPY drives
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a Honda. Additionally, while conducting physical surveillance, law
enforcement officers have observed JOPPY routinely entering and exiting
SUBJECT PREMISE #1.
(Emphasis supplied).
In support of this sub-contention, the appellant cites two opinions by the Court of
Appeals: Holmes v. State, 368 Md. 506, 796 A.2d 90 (2002) and Agurs v. State, 415 Md.
62, 998 A.2d 868 (2010). The citation seems to be of dubious utility. In Agurs, the failure
of the State to establish a nexus between observed criminal activity and one of the
appellant’s residences was not in dispute. It was a given. The legal question that was the
subject of the opinion was whether the Good Faith Exception to the Exclusionary Rule
should apply to the case. The overarching disutility of the citation, however, is that in Agurs
v. State there was no authoritative opinion of the Court. Seven judges produced five
opinions (one of which was a non-opinion). Judge Greene wrote a plurality opinion, joined
by Chief Judge Bell and Judge Harrell. Judge Battaglia joined in the decision not to apply
the Good Faith Exception, but she expressly declined to join in the opinion. Judge Barbera
filed a dissenting opinion. Judge Adkins filed a dissenting opinion. Judge Murphy filed a
concurring and dissenting opinion, expressly declining to join in the result. The appellant
nonetheless quotes the plurality opinion as if it were the unblemished repository of
authoritative law. It is not.
The authoritative Court of Appeals case on nexus is Holmes v. State (wherein seven
judges produced a single opinion). Holmes, however, is not the best candidate for a “color
patch” comparison with the case now before us, because it involved a direct police
observation of Holmes engaging in a single street sale of drugs immediately after walking
11
out of his home, which was less than a block away. That’s easy. Holmes v. State held, of
course, that the nexus was solidly established. The appellant now uses Holmes to argue
that the more circumstantial nexus here is not as indisputable as was the directly observed
nexus there. To be sure! Holmes v. State is a good teaching example of how not to over-
read an opinion. In reciting, quite properly, the unusually strong set of facts then before it,
Holmes was not promulgating a sine qua non by which to disdain all less overwhelming
proffers of nexus that might follow. The appellant, however, would seem to argue, in effect,
that no baseball team could ever aspire to be a World Series champion unless it could
compare favorably with the 1927 New York Yankees (“Who are these presumptuous
upstarts from 2016 Chicago? They don’t have a Babe Ruth or a Lou Gehrig in their lineup,
let alone both.”). The bar, fortunately, is not set that high.
Ironically, the very full and edifying analysis of the nexus issue in Holmes turns out
to be extremely helpful to the State. Holmes, 368 Md. at 520, pointed to Mills v. State, 278
Md. 262, 363 A.2d 491 (1976) and State v. Ward, 350 Md. 372, 712 A.2d 534 (1998) as
precedents for the permitted inference that perpetrators of crimes of violence will likely
keep the weapons or other instrumentalities of crime in their homes. Mills had used a large
hunting knife in the perpetration of a kidnapping, robbery, and rape. When arrested several
days later, he was not in possession of the knife. In affirming the establishment of nexus in
the Mills case, the Holmes opinion observed:
Citing a number of Federal and State decisions, we concluded that a
reasonable inference could be drawn from the facts that a specifically
described weapon was used and that Mills was not in possession of it when
captured the next day, that it likely might be found in his house, and we
therefore sustained the warrant.
12
Holmes, 368 Md. at 520 (Emphasis supplied). Citing Jones v. United States, 362 U.S. 257,
270, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), Mills v. State itself, 278 Md. at 280, stated the
test:
Although in a particular case it may not be easy to determine when an
affidavit demonstrates . . . probable cause, the resolution of doubtful or
marginal cases in this area should be largely determined by the preference to
be accorded to warrants.
In the Ward case, the murder weapon was a handgun. When arrested several days
later, Ward was unarmed. A warrant was issued to search both his home and his car for the
missing weapon. Holmes described, 368 Md. at 521, the successful establishment of the
nexus in State v. Ward.
[W]e held that a neutral magistrate could reasonably conclude that Ward was
a person likely to possess a handgun and would not likely dispose of it. From
the further facts that Ward did not have such a weapon on him when he was
first arrested within 48 hours after the murder and that one was not seen in
his car, we held that a neutral magistrate could also reasonably infer that the
weapon could be found either in his home or secreted in his car. Relying
on Mills and a number of out-of-State cases, we determined that the case was
one of those “doubtful or marginal cases” spoken of in Jones and United
States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965),
that “‘should be largely determined by the preference to be accorded to
warrants.’”
(Emphasis supplied). Judge Wilner’s opinion for the Court of Appeals in Holmes, 368 Md.
at 521–22, went on to apply the lessons of Mills and Ward to cases involving drugs as well
as weapons.
That same kind of deductive approach, based on reasonable factual
assumptions, has been used by a number of courts in finding a nexus between
observed or documented drug transactions and the likelihood that drugs or
other evidence of drug law violations may be found in the defendant’s car or
home. The reasoning, supported by both experience and logic, is that, if a
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person is dealing in drugs, he or she is likely to have a stash of the product,
along with records and other evidence incidental to the business, that those
items have to be kept somewhere, that if not found on the person of the
defendant, they are likely to be found in a place that is readily accessible to
the defendant but not accessible to others, and that the defendant’s home is
such a place.
(Emphasis supplied).
Holmes went on to cite cases from nine federal circuit courts of appeal using the
same type of, what it called, “deductive approach.” Once one gets beyond a cherry-picked
sentence or two, the Holmes opinion, as a totality, is counter-productive to the appellant’s
case.
In State v. Coley, 145 Md. App. 502, 805 A.2d 1186 (2002), this Court followed
Holmes’s lead on the nexus issue. In Coley, because the two controlled buys at issue had
not occurred inside the suspect’s home, the trial judge suppressed evidence later found in
a warranted search of the home, finding that a sufficient nexus had not been established.
The State appealed the ruling to this Court. We reversed the trial court and held that a
sufficient nexus had been established. We first held that the suppression hearing judge had
not been sufficiently deferential in reversing an earlier decision by another judge to issue
the search warrant.
A review of the motion court’s quite thorough and detailed ruling . . .
suggests that the motion court engaged in a de novo review of the existence
of probable cause in the search warrant. The court’s responsibility, however,
was not to assess to its satisfaction the existence of probable cause, but,
rather, to determine if the issuing magistrate’s decision was supported by
substantial evidence. In making that determination, the magistrate’s decision
is to be afforded great deference.
145 Md. App. at 521.
14
Coley pointed out, 145 Md. App. at 521, how the “substantial basis” standard,
appropriate when a suppression hearing judge is reversing another judge’s earlier decision
to issue a warrant, is less demanding than would be required when making a de novo
determination of probable cause per se.
The substantial basis standard involves “something less than finding
the existence of probable cause,” [State v. Amerman], 84 Md. App. at 470–
71, 581 A.2d 19 (citing Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.
Ct. 2085, 80 L. Ed. 2d 721 (1984)), and “is less demanding than even the
familiar ‘clearly erroneous’ standard by which appellate courts review
judicial fact finding in a trial setting.” Amerman, 84 Md. App. at 472,
581 A.2d 19.
Thus, while the “clearly erroneous” test demands some legally
sufficient evidence for each and every element to be proved—to wit,
that a prima facie case be established—Illinois v. Gates rejected such
a rigorous standard for establishing probable cause and opted instead
for a “totality of circumstances” approach wherein an excess of
evidence as to one aspect of proof may make up for a deficit as to
another. Illinois v. Gates, 462 U.S. at 235, 103 S. Ct. at
2330, expressly stated that a legally sufficient or prima facie showing
[of probable cause] is not required[.] Amerman, 84 Md. App. at 473,
581 A.2d 19.
Coley, 145 Md. App. at 521, 805 A.2d 1186.
In holding that the nexus had been adequately established, Coley applied the Holmes
analysis.
In Holmes, the nexus test was satisfied with very little, if any, direct
evidence. Instead, there was adequate circumstantial evidence that, when
combined with reasonable inferences generated from that evidence, would
support the finding of probable cause by the issuing magistrate. We can infer
probable cause based on “the type of crime,” i.e., possession and distribution
of CDS; “the nature of the items sought,” i.e., contraband and other drug
trafficking materials (usually found in a drug dealer’s home); “the
opportunity for concealment,” i.e., most likely in a residence considering the
nature of the itemization and packaging of CDS and record-keeping
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materials; “and reasonable inferences about where the defendant may hide
the incriminating items[.]”
Id. at 530 (Emphasis supplied).
In State v. Faulkner, 190 Md. App. 37, 985 A.2d 627 (2010), the defendant was a
drug dealer who maintained several different homes. With respect to the more far removed
of those homes, the suppression hearing judge ruled that the search warrant did not
establish an adequate nexus as to it. The State appealed to this Court. We reversed the
suppression order. Judge Eyler’s opinion began by reminding us of the appropriate standard
of appellate review to be applied.
When evidence has been recovered in a warrant-authorized search, it is not
the task of a court ruling on a motion to suppress, or an appellate court
reviewing the suppression decision on appeal, to conduct a de novo review
of the issuing judge’s probable cause decision. State v. Jenkins, 178 Md.
App. 156, 163, 941 A.2d 517 (2008). Rather, those courts are to determine
whether the issuing judge had a “substantial basis” for finding probable cause
to conduct the search. Id. “The substantial basis standard involves something
less than finding the existence of probable cause, and is less demanding than
even the familiar ‘clearly erroneous’ standard by which appellate courts
review judicial fact finding in a trial setting.”
190 Md. App. at 46–47 (Emphasis supplied).
The suppression hearing judge in Faulkner had made the mistake of deciding de
novo the issue of probable cause as to nexus.
The transcript of the suppression hearing in the case at bar reveals that the
motion judge was making his own de novo decision as to whether there was
probable cause to believe there would be evidence of drug dealing in the
Plainfield Apartment. “The court’s responsibility, however, was not to assess
to its satisfaction the existence of probable cause, but, rather, to determine if
the issuing magistrate’s decision was supported by substantial
evidence.” Coley, 145 Md. App. at 521, 805 A.2d 1186. Thus, the motion
court erred in deciding the issue of probable cause de novo.
16
Id. at 48 (Emphasis supplied).
After reviewing a number of federal circuit court decisions in detail, Faulkner held
that nexus had been adequately established.
Applying the same deductive reasoning the Court applied in Holmes, we
answer that question affirmatively. The evidence showed
that Faulkner actively was engaging in drug selling in Baltimore City, in bulk
quantities, and that the nature of those crimes required him to have locations
for processing narcotics for sale and for storing the narcotics, records of drug
sales, and the profits from the drug sales.
Id. at 59 (Emphasis supplied).
Finally, Faulkner reminded us of the appropriate tie-breaker when making the close
calls.
Even if this case were a “close call” on probable cause, however, our task is
not to decide probable cause but instead to decide whether there was a
substantial basis for the issuing court’s probable cause finding; and in doing
so, we are to resolve a marginal case with preference to the warrant. We hold
that the issuing judge had a substantial basis for finding probable cause to
search the Plainfield Apartment.
Id. at 60 (Emphasis supplied).
Were this issue of nexus properly before us, we would not hesitate to hold that
Magistrate Judge Connelly had a substantial basis for concluding that the warrant
application adequately established a nexus between the criminal activities of the appellant
and 3320 Teagarden Circle, Apartment 104 and that Judge Rupp did not err in so ruling.
The Second Sub-Contention:
Staleness of the Proof of Nexus
The appellant’s second sub-contention is that even if the application for the search
warrant had once shown a nexus between the appellant’s criminal behavior and 3320
17
Teagarden Circle, that information had become fatally stale by the time Magistrate Judge
Connelly issued the warrant on June 1, 2015. The thrust of the sub-contention was
indisputably clear as the appellant’s brief framed it in the following express terms:
Even If the State Had Demonstrated a Nexus Between Victoria Gaines
Apartment and George Gee’s Suspected Drug Conspiracy, the Search Was
Still Improper Because the Only Information Related to the Apartment Was
More Than Three Months Old by the Time the Search Warrant Was Finally
Executed.
(Emphasis supplied).
This particular argument covered three pages in the brief. The opening sentence well
summarized the entire argument.
Even if the surveillance on February 27 and March 4, 2015 created a nexus
that could lead to a finding of probable cause, this information was stale by
the time the search warrant was executed more than three months later on
June 8, 2015.
(Emphasis supplied).
Just as in the case of appellant’s first sub-contention, there is an unbridgeable gap
between what is now being argued on appeal and what was decided at the suppression
hearing before Judge Rupp. It is not for us to decide de novo whether the proof of nexus in
the search warrant application was or was not stale. Our limited function is to decide
whether Judge Rupp committed reversible error in ruling as he did. Our review, moreover,
is confined to the four corners of the suppression hearing transcript. Whether Judge Rupp
committed error depends upon his response to the evidence presented to him, to the
arguments made by counsel before him, and to the precise issues he was called upon by
the parties to resolve.
18
At the suppression hearing, the word “staleness” was never used and the very notion
of the staleness of the proof of nexus never came up. It is a fascinating little enclave of
Fourth Amendment law, but one that was never remotely raised at the suppression hearing.
Our primary holding is that no issue with respect to the staleness of the proof of nexus has
been preserved for appellate review.
“Even If, Arguendo, . . .” No.2:
The Evaporation Rate of Probable Cause
Even if, purely arguendo, an issue as to staleness of the proof of nexus were properly
before us, the appellant would still not prevail on the merits. From our very beginning as
an institution, this Court has been acutely alert to the issue of staleness. In Clayton v. State,
1 Md. App. 500, 503, 231 A.2d 717 (1967), we took up the issue as one of first impression.
There is no statute in this State providing that the facts in the application, set
forth to establish probable cause, must result from observations made within
a designated time before the issuance of the warrant . . . .
We also found that there was no Maryland caselaw on the subject, as we went on to
state “the remoteness of the facts observed from the date of issuance of the warrant is an
element to be considered in each instance by the issuing authority in his determination . . .
of whether it appears that there is probable cause. We do not feel compelled or persuaded
to the contrary by the cases relied on by the appellant.” Id. See also Johnson v. State, 14
Md. App. 721, 729–31, 288 A.2d 622, cert. denied, 266 Md. 738 (1972); State v. Edwards,
266 Md. 515, 521–24, 295 A.2d 465 (1972); Washburn v. State, 19 Md. App. 187, 195,
310 A.2d 176 (1973).
19
It was in Andresen v. State, 24 Md. App. 128, 172, 331 A.2d 78, cert. denied, 274
Md. 725 (1975), and aff’d, Andresen v. Maryland, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed.
2d 627 (1976), that we set out definitely the controlling criteria:
The ultimate criterion in determining the degree of evaporation of probable
cause, however, is not caselaw but reason. The likelihood that the evidence
sought is still in place is a function not simply of watch and calendar but of
variables that do not punch a clock: the character of the crime (chance
encounter in the night or regenerating conspiracy?), of the criminal (nomadic
or entrenched?), of the thing to be seized (perishable and easily transferable
or of enduring utility to its holder?), of the place to be searched (mere
criminal forum of convenience or secure operational base?), etc. The
observation of a half-smoked marijuana cigarette in an ashtray at a cocktail
party may well be stale the day after the cleaning lady has been in; the
observation of the burial of a corpse in a cellar may well not be stale three
decades later. The hare and the tortoise do not disappear at the same rate of
speed.
When Andresen v. Maryland went before the Supreme Court, Andresen “argued
that there was a three-month delay between the completion of the transactions on which
the warrants were based, and the ensuing searches, and that this time lapse precluded a
determination that there was probable cause to believe that petitioner’s offices contained
evidence of the crime.” 427 U.S. at 478–79, n. 9. The Supreme Court rejected Andresen’s
claim of staleness. In Peterson v. State, 281 Md. 309, 317, 379 A.2d 164 (1977), the Court
of Appeals quoted in full and with approval this Court’s statement of the controlling
criteria. See Patterson v. State, 401 Md. 76, 93, 930 A.2d 348 (2007) (“The Court of Special
Appeals explained the general rule of stale probable cause in Andresen v. State . . . , which
we adopted in Peterson.”). See also Greenstreet v. State, 392 Md. 652, 674, 898 A.2d 961(2006); West v. State, 137 Md. App. 314, 347, 768 A.2d 150 (2001).
20
Whereas Andresen v. State spoke of an item of proof that might not be stale even
after 30 years, Behrel v. State, 151 Md. App. 64, 823 A.2d 696 (2003) turned that sort of
evidentiary endurance (16-18 years) into solid precedent. A teenaged sexual abuse victim
had seen the priest/teacher sexual abuser place a pornographic video movie in a footlocker
in his apartment at the St. James School near Hagerstown, Maryland on several occasions
between 1983 and 1985. A later investigating officer testified that he had “learned through
his training that sexual offenders tend to keep memories of prior acts along with pictures
and videos.” That observation by the teenager in the early 1980’s led to the issuance of a
warrant for the search of the footlocker in Grayslake, Illinois on February 2, 2001, 16 to
18 years later. The defense claimed that the probable cause was stale.
Applying the Andresen criteria, Behrel v. State, 151 Md. App. at 90–91, held that
the proof of probable cause was not stale.
[C]ontrary to appellant’s suggestion, the mere passage of time and change of
residence are not dispositive, because “[t]he likelihood that the evidence
sought is still in place is a function not simply of watch and calendar . . .
.” Andresen, 24 Md. App. at 172[.]
The Behrel opinion further explained:
Instead, it was the nature of what was sought that was important here.
According to the affidavit, both victims indicated that a footlocker
in Behrel’s campus apartment served as both a coffee table and a repository
for sexual aids and pornographic materials. To the extent that the footlocker
functioned as a piece of furniture and a repository for pornographic materials,
it never lost its utility. Nor was it perishable. Furthermore, possession of the
trunk was not incriminating in itself, so that it would not have been disposed
of as contraband. And, the footlocker was readily transportable from
one state to another. See Andresen, 24 Md. App. at 172[.]
21
151 Md. App. at 96 (emphasis supplied). See also West v. State, 137 Md. App. 314, 321,
768 A.2d 150 cert. denied, 364 Md. 536 (2001).
It is even so with respect to the observations about the primary residences of the
three executives of the on-going drug distribution network in this case. Those observations
did “not punch a clock.” They ran from February through June of 2015. The “character of
the crime” was that of “a regenerating conspiracy” and not “a chance encounter in the
night.” The conspiracy in this case had been fully operational for between three and four
months. The appellant was “entrenched” and not “nomadic.” He remained at 3320
Teagarden Circle throughout the life of the conspiracy. The “place to be searched” was a
“secure operational base” and not a “mere criminal forum of convenience.” This was no
random street crime. Each of the three key conspirators operated from an unchanging
primary residence.
Once a nexus between the appellant and 3320 Teagarden Circle is established, it is
not only the visual surveillance of the residence itself that will serve to keep the probable
cause fresh. The continuing criminal activity of the appellant himself will do so. Absent
indications that the appellant has in the meantime moved away from his primary residence,
his criminal activities in April and May served to keep alive the nexus that was established
in February and March. The appellant frames much too narrow a focus. 3320 Teagarden
Circle remained the appellant’s primary residence and it was his ongoing criminal activity
that kept the nexus fresh. See Connelly v. State, 322 Md. 719, 734. 589 A.2d 958 (1991)
(“It is also possible to determine that the affiants, in preparing the affidavit, and relating
their investigatory observations, were describing a continuing criminal enterprise, ongoing
22
at the time of their application, and thus the probable cause relied upon was not stale.”)
(emphasis supplied).
We do not, moreover, look at 3320 Teagarden Circle in a vacuum. There is at work
an almost Newtonian law of motion: An object at rest will remain at rest unless acted upon
by a force. The modality of keeping the evidence of nexus alive and fresh is a broad one.
The observation, both by telephonic wiretap and by visual surveillance, of both George
Gee and Andre Napper revealed that the criminal network was still functioning and, absent
any indication to the contrary, the permitted inference is that the appellant remained an
active member of that network and that his primary residence had not moved. What the
appellant conveniently forgets is that once the appellant’s participation in the George Gee
conspiracy was established (as it most assuredly was), he and his primary residence were
implicated by the criminal behavior of his co-conspirators as well as by his own. That larger
complicity applies, moreover, not simply when proving guilt at trial but also when proving
both probable cause and nexus in a warrant application. The appellant and his primary
residence will be viewed in their fuller context and not in a vacuum. Had this sub-
contention of staleness been properly preserved for appellate review, we would not hesitate
to decide, as an alternative holding, that the proof of the nexus was not stale.
“Even If, Arguendo, . . .” No.3:
The Good Faith Exception
The possible applicability of the Good Faith Exception to the Exclusionary Rule is
always available as an alternative holding to a ruling on a Fourth Amendment warrant. In
her next to last sentence of argument at the suppression hearing, the Assistant State’s
23
Attorney pointed out that “the officer relied on the warrant in good faith.” The reference,
of course, is to the landmark 1984 Supreme Court Case of United States v. Leon, 468 U.S.
897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 and its companion case of Massachusetts v.
Sheppard, 468 U.S. 981, 104 S. Ct. 3424, 82 L. Ed. 2d 737.
In State v. Jenkins, 178 Md. App. 156, 194–95, 941 A.2d 517 (2008), this Court
reduced the purpose of the Good Faith Exception to a nutshell:
The basic rationale of Sheppard and Leon is easy. The Exclusionary Rule is
intended to deter unreasonable police behavior, not judicial error. The judge
may have made a mistake in issuing the warrant, but the officer is not
unreasonable in relying on the judge’s legal judgment. Accordingly, the
officer is not unreasonable in executing a judicially issued warrant and thus
exclusion is not called for even if the warrant is bad.
The launching pad for all further analysis is the recognition
by Sheppard and Leon that the police officer is not a lawyer and that the
reasonableness of his investigative behavior, therefore, is not to be assessed
as if he were. After reaffirming that the only purpose of the Exclusionary
Rule of Evidence is to deter unreasonable police behavior in the course of
searching or seizing, Massachusetts v. Sheppard, 468 U.S. at 989–90, 104 S.
Ct. 3424, stated emphatically that it is not unreasonable for an officer to rely
upon a warrant issued by a neutral and detached judge.
(Emphasis supplied).
Massachusetts v. Sheppard pointed out that the only purpose of the Exclusionary
Rule is to deter unreasonable police behavior and that the officer who relies upon the
judge’s decision is being quintessentially reasonable. The Supreme Court also made it
pellucidly clear in Sheppard that the deterrent function of the Exclusionary Rule is aimed
at the officer who conducts the search and not at the judge who issues the warrant.
[W]e refuse to rule that an officer is required to disbelieve a judge who has
just advised him, by word and by action, that the warrant he possesses
authorizes him to conduct the search he has requested. In Massachusetts, as
24
in most jurisdictions, the determinations of a judge acting within his
jurisdiction, even if erroneous, are valid and binding until they are set aside
under some recognized procedure. If an officer is required to accept at face
value the judge’s conclusion that a warrant form is invalid, there is little
reason why he should be expected to disregard assurances that everything is
all right . . . .
. . . An error of constitutional dimensions may have been committed with
respect to the issuance of the warrant, but it was the judge, not the police
officers, who made the critical mistake. “[T]he exclusionary rule was
adopted to deter unlawful searches by police, not to punish the errors of
magistrates and judges.”
Sheppard, 468 U.S. at 989–90 (Emphasis supplied).
The Leon opinion emphasized that the core protection provided by the Fourth
Amendment is the warrant requirement. The Good Faith Exception’s deference to the
warrant is a way of encouraging resort by the police to that basic citizen protection from
unreasonable searches and seizures.
Because a search warrant “provides the detached scrutiny of a neutral
magistrate, which is a more reliable safeguard against improper searches than
the hurried judgment of a law enforcement officer ‘engaged in the often
competitive enterprise of ferreting out crime,’” we have expressed a strong
preference for warrants and declared that “in a doubtful or marginal case a
search under a warrant may be sustainable where without one it would
fall.” Reasonable minds frequently may differ on the question whether a
particular affidavit establishes probable cause, and we have thus concluded
that the preference for warrants is most appropriately effectuated by
according “great deference” to a magistrate’s determination.
Leon, 468 U.S. at 913–14 (Emphasis supplied).
The very core of the Good Faith concept is that it is reasonable for the police officer
to defer to the warrant. In State v. Jenkins, 178 Md. App. at 196, we summed up that core
purpose of the Good Faith Exception.
25
When, therefore, the Leon thesis proceeds, the officer has abided by this core
Fourth Amendment commandment to submit the decision to search and seize
to a neutral and detached judicial figure, the officer has been eminently
reasonable and should not suffer the exclusion of valuable evidence, because
exclusion is only intended to be a sanction for unreasonable police conduct.
It will be, therefore, only in rare and unusual cases that exclusion will still be
appropriate in cases where the officer has obtained a judicially-issued search
warrant.
(Emphasis supplied).
It follows from these fundamental precepts that even if, purely arguendo, the nexus
issue had been preserved for appellate review, and even if, again arguendo, the evidence
had been inadequate to support a finding of nexus, the officers still acted reasonably in
relying upon Magistrate Judge Connelly’s issuance of the warrant, and, pursuant to the
Good Faith Exception, the Exclusionary Rule should not have been applied.
For all practical purposes, the Good Faith Exception was available to the State
whenever the police obtained a search warrant. There was not much “wiggle room.” In
Herbert v. State, 136 Md. App. 458, 488, 766 A.2d 190 (2001), this Court described that
all but absolute foreclosing effect.
A second strong incentive for searching with warrants is the almost “fail-
safe” security of being able to fall back on the “good faith” exception to the
Exclusionary Rule. Even when the warrant is bad, the mere exercise of
having obtained it will salvage all but the rarest and most outrageous of
warranted searches . . . . Under the Sheppard–Leon “good faith” exception to
the Exclusionary Rule, it is hard for the State to lose a suppression hearing. It
is equally hard to figure out why the State would not do everything in its
power to exploit that overwhelming advantage whenever possible.
(Emphasis supplied).
26
Leon had been careful, however, to leave the door ever so slightly ajar. The opening,
to be sure, was infinitesimally slight, prompting our observation in State v. Jenkins, 178
Md. App. at 194:
Leon, to be sure, was careful “never to say never.” There is, however, the
almost Gilbert and Sullivan refrain of “Never? Well, hardly ever.”
When a door is left ajar, there is an inevitable tendency, as the years go by, to push
it, by small increments but unrelentingly, further open. In State v. Jenkins, 178 Md. App.
at 199, we rued the tendency but accepted its inevitability.
Everybody, in 1984 at least, appreciated how sweeping the good faith
exception was and how truly rare the Leon exemptions from it would be.
With the passage of a quarter of a century, however, sensitivity to the rarity
of the exemptions seems to be sadly waning. The Sheppard–Leon doctrine
took the issuance of bad warrants for granted but routinely applied the good
faith exception. What we are now seeing, however, is an almost epidemic
tendency to treat the mere issuance of a bad warrant as if it were what Herbert
v. State, id., characterized as “the rarest and most outrageous of warrants.”
The exemptions from the rule are threatening to swallow the rule, despite
Leon’s assurance, 468 U.S. at 924, 104 S. Ct. 3405, that “[w]hen officers
have acted pursuant to a warrant, the prosecution should ordinarily be able
to establish objective good faith without a substantial expenditure of judicial
time.” It is that reassurance that is of late being seriously compromised.
(Emphasis supplied).
The appellant now joins in that crusade to eviscerate the Good Faith Exception.
Instead of limiting the exemption from the Good Faith Exception to “the rarest and most
outrageous warrants,” he would extend it to any case where “a reasonably well trained
officer would have known that the search was illegal despite the magistrate’s
authorization.” Such phrases and even whole sentences may be found in the multitudinous
27
caselaw, but such cherry-picking of tempting language does not represent stare decisis. An
awareness of the bigger picture must predominate.
The Good Faith Exception was a watershed. Read in their totality, Leon and
Sheppard explain that the Fourth Amendment’s fundamental protection consists of taking
the decision to search or to seize out of the hands of the officer, engaged in the often
competitive enterprise of ferreting out crime, and entrusting it to the neutral and detached
judicial figure. That location of the decision-making authority in the judge, whenever
possible, is the very function and purpose of the Fourth Amendment’s warrant clause.
The entire philosophy expounded by Leon and Sheppard is to encourage the transfer
of decision-making authority to the neutral and detached magistrate. Everything in those
two opinions sends the unmistakable message that the officer should defer to the judge,
and for the officer to do so is per se reasonable. To tweak some random phraseology from
the caselaw in order to suggest the absolute opposite—to wit, that “the well-trained officer
who is presumed to know the law” should, in effect, second-guess the judge—would be a
180-degree repudiation of the fundamental message that Leon and Sheppard delivered.
Obviously, they do not stand for that counter-proposition. Leon and Sheppard, moreover,
have not been overruled. The appellant promiscuously over-reads what Leon actually said.
Patterson v. State, 401 Md. at 105, quotes with approval the decision of the Fourth
Circuit Court of Appeals in United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002), in
which Judge Diana Motz explained that if the officer were required to follow his own view
of the warrant’s propriety rather than to defer to the judge’s determination in that regard, it
would eviscerate the entire purpose of the Good Faith Exception.
28
If a lack of a substantial basis also prevented application of
the Leon objective good faith exception, the exception would be devoid of
substance. In fact, Leon states that . . . a finding of objective good faith is
[prevented] . . . when an officer’s affidavit is “so lacking in indicia of
probable cause as to render official belief in its existence entirely
reasonable.” Leon, 468 U.S. at 923, 104 S. Ct. 3405, 82 L.Ed.2d
677 (citations omitted). This is a less demanding showing than the
“substantial basis” threshold required to prove the existence of probable
cause in the first place.
As a guide for where to look for the legal precepts controlling the Good Faith
Exception, a good starting point might be State v. Jenkins, 178 Md. App. at 200:
As the years since Leon’s promulgation have gone by, however, there has
been an insidious tendency not to go back to the primary source but to rely
on secondary sources, with their inevitable accretions of new language. For
any serious student of history, it is an article of faith not to look to secondary
sources if the primary source is available. Analysis is always treacherous
when we take secondary and even tertiary sources as the starting point of that
analysis. Lawyers, however, are notoriously poor students of history. The
nature of their profession inclines them to exploit its possibilities rather than
to cherish its accuracy. If one looks at a gloss and then at a gloss upon a gloss,
with each additional gloss adding new accretions of language, the original
message can easily become lost. If one wants to know what Leon said,
reread Leon.
(Emphasis supplied).
As a limitation on the Good Faith Exception to the Exclusionary Rule, Leon points
out, 468 U.S. at 922–923, that there might be “some circumstances” in which the officer
would not be reasonable in believing that “the warrant was properly issued.”
Nevertheless, the officer’s reliance on the magistrate’s probable-cause
determination and on the technical sufficiency of the warrant he issues must
be objectively reasonable, . . . and it is clear that in some circumstances the
officer will have no reasonable grounds for believing that the warrant was
properly issued.
(Emphasis supplied).
29
Those circumstances, Leon made clear, would be rare and truly extreme. In a single
paragraph, Leon listed four such sets of extreme circumstances. The first is the self-
evidently unreasonable situation in which the officer himself has furnished the judge with
false and perjurious information. It is an extreme circumstance that, since 1978, has been
handled by the special procedure set forth by Franks v. Delaware, 438 U.S. 154, 98 S. Ct.
2674, 57 L. Ed. 2d 667 (1978).
Suppression therefore remains an appropriate remedy if the magistrate or
judge in issuing a warrant was misled by information in an affidavit that the
affiant knew was false or would have known was false except for his reckless
disregard of the truth. Franks v. Delaware[.]
Leon, 468 U.S. at 923. See also Patterson v. State, 401 Md. 76, 105–06, 930 A.2d 348(2007). This exemption rarely poses a problem.
The second of the rare situations listed by Leon as an exemption from the Good
Faith Exception is that in which the judge has totally abdicated his judicial role.
The exception we recognize today will also not apply in cases where the
issuing magistrate wholly abandoned his judicial role in the manner
condemned in Lo–Ji Sales, Inc. v. New York.
Id. The lone example given is Lo–Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S. Ct. 2319,
60 L. Ed. 2d 920 (1979), a case in which the judge actually participated in the search for
pornographic film after issuing an open-ended warrant and indicated that he would review
various items for their obscenity after they had been seized. This is also an extremely rare
exemption from the Good Faith Exception. See Patterson v. State, 401 Md. at 106.
30
It is at this point convenient to jump ahead and to look at Leon’s fourth and final
listed exemption. It concerns the rare case in which the warrant is facially deficient in that
it fails to specify the place to be searched or the thing to be seized.
Finally, depending on the circumstances of the particular case, a warrant may
be 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. Leon’s companion case, Massachusetts v. Sheppard, is cited as the
only example. In Sheppard there had been a woeful non-compliance with the particularity
clause. See Patterson v. State, 401 Md. at 110. None of the three exemptions listed above
typically poses any problem in applying the Good Faith Exception.
It is the third of Leon’s list of special circumstances that has tempted the defense
bar to expand its contours beyond anything imagined by Leon itself and, indeed, to urge an
interpretation incompatible with Leon’s core message.
Nor would an officer manifest objective good faith in ruling on a warrant
based on an affidavit “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.”
Leon, 468 U.S. at 923.
Citation is then made to the concurring opinion of Justice White in Illinois v. Gates,
462 U.S. 213, 264, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), in which he refers to situations
in which “it is plainly evident that a magistrate or judge had no business issuing a warrant.”
The citations given by Justice White in his concurrence in Gates and by the Leon opinion
itself serve to keep the exemption from the Good Faith Exception within bounds by
illustrating the extreme circumstances with which it is intended to deal. This Leon
31
exemption was clearly intended to cope with a purely conclusory statement in a warrant
application which lacks further supportive data. One example there given of a purely
conclusory warrant application was Aguilar v. Texas, 378 U.S. 108, 109, 84 S. Ct. 1509,
12 L. Ed. 2d 723 (1964), where the application simply recited:
“Affiants have received reliable information from a credible person and do
believe that heroin, marijuana, barbiturates and other narcotics and narcotic
paraphernalia are being kept at the above described premises for the purpose
of sale and use contrary to the provisions of the law.”
(Emphasis supplied).
The second example cited was Nathanson v. United States, 290 U.S. 41, 44, 54 S.
Ct. 11, 78 L. Ed. 159 (1933), in which the warrant application was even more nakedly
conclusory.
Francis B. Laughlin has stated under his oath that he has cause to suspect and
does believe that certain merchandise [which is then described] is now
deposited and contained within the premises of J.J. Nathanson [with the
address then being given].
(Emphasis supplied).
The final example of such a “bare bones” or purely conclusory application was
Giordenello v. United States, 357 U.S. 480, 481, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958),
in which the self-evidently inadequate application recited simply:
That on or about January 26, 1956, at Houston, Texas in the Southern District
of Texas, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit:
heroin hydrochloride with knowledge of unlawful importation; in violation
of Section 174, Title 21, United States Code.
These three examples tell us what Leon meant by “bare bones” or “conclusory”
warrant application. The condemnation does not apply to every warrant application that is
32
inadequate, even if a well-trained police officer might be able to second-guess the judge in
that regard. If we truly wish to know, therefore, what Leon meant by a “purely conclusory”
or “bare bones” warrant applications, we must look to the three examples of such given in
Leon. We must then measure the application now before us against the applications found
to have been “purely conclusory” in the Aguilar, Nathanson, and Giordenello cases.
The application before us was made by Special Agent Charles Adams of the Federal
Bureau of Investigation. It was a tightly packed 29-page affidavit, recounting in full detail
a three-month investigation by over 50 local and federal agents. It included a controlled
buy of narcotics by an undercover officer. It included the full report of and interpretation
of 13 separate telephone intercepts. It included details of six separate automobile
surveillances. This was the polar opposite of Aguilar’s “received reliable information from
a credible person and do believe” or of Nathanson’s “has cause to suspect and does
believe.” Giordenello does not allege even that much. To characterize the fully fleshed out
affidavit in this case as a “bare bones” application is to push the metaphor beyond its limit.
There is no comparison. This warrant application was not “conclusory” or “bare bones.”
This is the view of the Good Faith Exception that has been applied consistently by
the Court of Appeals. Connelly v. State, 322 Md. 719, 725–35, 589 A.2d 958 (1991); Minor
v. State, 334 Md. 707, 712–20, 641 A.2d 214 (1994) (“A test that looks to whether the
police officer knew that the warrant issued by the judge should not have been issued would
seem to place the police officer in the position of reviewing the decision made by the judge,
but that is not what Leon requires.”); McDonald v. State, 347 Md. 452, 467–73, 701 A.2d
675 (1997); Patterson v. State, supra, 401 Md. at 104–111 (“Officer Haak’s affidavit was
33
not ‘so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable.’”); Marshall v. State, 415 Md. 399, 408–12, 2 A.3d 360 (2010)
(“Cases in which courts have refused to apply the good faith exception demonstrate that
the safe harbor of the exception is foreclosed only when there exists essentially no evidence
to support a finding of probable cause.”). This Court has also been consistently in line.
West v. State, 137 Md. App. 314, 351–56, 768 A.2d 150 (2001) (“The points appellant
raises regarding Leon are the very reasons for which we found that the warrant was based
on insufficient probable cause. That is precisely why the Leon good-faith exception
exists—it is applicable in cases like this where there is not quite enough probable cause to
support the issuance of a warrant, but the warrant should nevertheless be upheld because
the police officers relied upon it in good faith, pursuant to the standards articulated in Leon,
supra. We point out to appellant that there would be no need for exceptions to laws if the
standards are the same for both the law and its exception.”); State v. Jenkins, supra.Even if, arguendo, the warrant application in this case were held to be inadequate,
the police would nonetheless have behaved reasonably in relying upon the judicially issued
warrant and the Good Faith Exception to the Exclusionary Rule would dictate that Judge
Rupp did not err in denying the appellant’s motion to suppress the evidence.
Legal Sufficiency of the Evidence
The appellant’s second contention is that the evidence was not legally sufficient to
support his conviction for the possession of cocaine. The State makes the threshold
challenge that the appellant’s Motion for Judgment of Acquittal was unilluminatingly
generic and did not satisfy Rule 4–324(a)’s requirement that such a motion “state with
34
particularity all reasons why the motion should be granted.” In this case, however, we
believe that a holding of non-preservation would be a bit harsh. We would agree that an
issue as subtle as nexus would not be preserved by a non-particularized motion for
acquittal, nor would an issue as nuanced as staleness. On the other hand, even a non-
particularized motion packs more preservative punch than does a non-motion. We will treat
the motion as sufficient to challenge whether the State has met the single, linear, one-on-
one requirement of offering some evidence of guilt of the core crime charged. We will
permit a generic motion for acquittal to preserve for appellate review the question of
generic legal sufficiency. We will not, however, indulge a generic motion more broadly
than that.
We make another threshold observation. The appellant has not challenged the legal
sufficiency of the evidence to support his conviction for conspiracy. He was convicted of
conspiracy and received a concurrent sentence of 17 years for conspiracy. The appellant’s
contention makes its limited coverage expressly clear.
THE TRIAL COURT ERRED IN DENYING THE MOTION FOR
ACQUITTAL BECAUSE THE STATE PRESENTED INSUFFICIENT
EVIDENCE AS A MATTER OF LAW TO CONVINCE A REASONABLE
TRIER OF FACT THAT MR. JOPPY POSSESSED THE CONTROLLED
SUBSTANCE FOUND IN HIS GIRLFRIEND’S RUNNING JACKET.
(Emphasis supplied).
In reading the contention carefully, we also note that it is confined to “the controlled
substance found in his girlfriend’s running jacket.” The appellant thus does not challenge
the finding of the scales found in the closet of what could inferentially be deemed to be his
bedroom. Nor does the appellant challenge the possible inference that the appellant was in
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constructive possession of other drugs during the course of the three-month old conspiracy.
He was, after all, convicted of being actively engaged in a conspiracy to distribute
something, and that something was not Girl Scout Cookies. The appellant, significantly,
raises no challenge to such a permitted inference.
The appellant insists that he was nothing more than a casual overnight guest at the
apartment of his girlfriend. That, of course, is a possibility. There is also another possibility,
however, namely that, as the warrant application alleged, 3320 Teagarden Circle was his
primary residence throughout the three-month life of the conspiracy. To help us resolve a
choice such as this, we are enjoined, as a matter of law, to take that version of the evidence
most favorable to the prevailing party, to wit, the State. We are dealing with the burden of
production and not with the burden of persuasion. That version of the evidence most
favorable to the State is that 3320 Teagarden Circle was the primary residence of the
appellant throughout the life of the investigation. According to that version, the appellant
was asleep in his own bedroom when the search party barged in. The closet that was
searched belonged to that bedroom. The jacket in the pocket of which the pill bottle was
found may have belonged either to the appellant or to his girlfriend. The State’s best version
of the evidence requires that we draw the former conclusion. The ownership of the jacket,
however, was inconsequential. The body of evidence that permitted the jury to find that the
appellant was a distributor, and not a mere possessor, of drugs was the entire four-month
investigation and not the gender of the jacket containing a pill bottle.
When the police searched 3320 Teagarden Circle on the morning of June 8, 2015,
they found the appellant asleep in his bedroom, along with his girlfriend. The closet
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searched was the closet of that bedroom. The closet contained men’s clothing and women’s
clothing. Assuming that the evidence could not connect both the appellant and Victoria
Gaines to the drugs and that a choice had to be made between them, the more likely
candidate would certainly be the one who had been, for three months, an active participant
in a drug distribution network rather than Victoria Gaines, against whom no such
involvement had been demonstrated.
Testifying as an expert on the drug trade, Sergeant Jason Cokinos stated that the
quantity of drugs found in the bedroom closet on June 8 suggested drug distribution and
not personal use. It was the appellant whom the evidence showed to be a drug distributor.
During the search, a pill bottle was found in a jacket pocket. The pill bottle contained two
baggies of what turned out to be cocaine. Each baggie contained approximately 3.5 grams
of cocaine.
We hold that the evidence was legally sufficient to connect the appellant with the
cocaine found in his bedroom closet on June 8, 2015. We further hold that the evidence
was legally sufficient to support the conviction of the appellant for the possession of
cocaine with the intent to distribute it.
JUDGMENTS AFFIRMED; COSTS TO BE
PAID BY APPELLANT.
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