Joppy v. State

232 Md.App. 510

158 A.3d 1112

Abdullah Malik JOPPY a/k/a Richard Joppy

v.STATE of Maryland

No. 533, Sept. Term, 2016

Court of Special Appeals of Maryland.

April 27, 2017

Argued by: Peter Honnef (Renee Hutchins, Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for Appellant

Argued by: Todd W. Hesel (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for Appellee

Panel: Deborah S. Eyler, Reed, Charles E. Moylan, Jr. (Senior Judge, Specially Assigned), JJ.

Moylan, J.

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 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

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).

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:

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...