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Joppy v. State

Court of Special Appeals of Maryland

April 27, 2017

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

          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 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.

[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 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.

(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 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 a Honda. Additionally, while conducting physical surveillance, ...

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