ABDULLAH MALIK JOPPY A/K/A RICHARD JOPPY v. STATE OF MARYLAND
Court of Special Appeals of Maryland, Moylan, April 27, 2017,
Staleness – Visual surveillance is not absolutely necessary to “refresh” the probable cause on a warrant. Continuing criminal activity by the defendant OR a co-conspirator in furtherance of the conspiracy can also do so.
Judge Moylan is back, taking aim at Agurs and defending Leon
Favorite(?) quote: “He was, after all, convicted of being actively engaged in a conspiracy to distribute something, and that something was not Girl Scout Cookies.”
Facts:
Over 50 local officers and federal agents engaged in a year-long investigation into narcotics trafficking in Montgomery County. During the course of the investigation, Joppy was believed to be part of this drug-distribution network.
Agents obtained a wiretap, and multiple conversations were intercepted between Joppy and the target of the investigation wherein Joppy was attempting to obtain ounces of cocaine. Physical surveillance showed Joppy leaving the apartment to conduct the transaction and then returning to the apartment afterwards.
An FBI investigator applied for a search warrant for Joppy’s apartment, believed to be his primary residence despite not being leased to him.
On execution of the search warrant, 2 baggies of crack (5 grams) were found in a jacket pocket in the apartment.
Joppy challenged the search warrant, arguing that there was an insufficient nexus between the apartment and the crime.
Legal:
Held: The Court disagreed. Where there was evidence that an ongoing drug distribution conspiracy was continuing and no evidence suggesting that the target had moved, a 3-month old observation of the target leaving his residence was not necessarily stale for purposes of a search warrant.
Nexus: The courts have permitted an inference that perpetrators of crimes of violence will likely keep the weapons or other instrumentalities of crime in their homes.
Casts shade on Agurs – 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).
Compare Holmes: Clear nexus where target walked out of house to engage in hand to hand less than a block away.
Benefit of the doubt: Good faith exception interpreted by Holmes. “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. ”
Staleness – Whether the nexus between evidence and a location has gone “stale” depends on how reasonable it is to believe that evidence will still be found at the location to be searched.
As the Court of Special Appeals held (and the Supreme Court upheld):
The likelihood that the evidence sought is still in place is a function of 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?)
The Court noted as an example: 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.
As another example: The nexus between evidence and a location was not stale where a teenage sex-abuse victim remembered the abuser storing pornography (including child porn) in a foot-locker used as a coffee table in the abuser’s apartment back in the early 1980s and a search warrant was sought in 2001 for the abuser’s new residence. Because neither the foot-locker nor the photographs/video were perishable, and because the officer’s affidavit stated that “sexual offenders tend to keep mementoes of prior acts along with pictures and videos,” there was probable cause supporting the warrant.
Good Faith – Is is reasonable for an officer to rely on a
As the Supreme Court has said:
we 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.
There are some cases where a search warrant is not valid, however, where:
– The officer’s affidavit includes lies or reckless falsehoods
– The officer’s affidavit leaves out important evidence that would defeat a showing of probable cause
– The judge never actually read the warrant
– The judge was participating in the investigation
– The warrant doesn’t give a specific location to search
– The warrant doesn’t explain the things that are to be seized (the “object” of the search warrant)
– The affidavit is just a conclusion (“I have received information that this place has evidence of a crime”)