Joppy v. State

⁵¹³ 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; ⁵¹⁴ 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. ⁵¹⁵ 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 Teagar-den 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. ⁵¹⁶ 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 ⁵¹⁷ 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 exclusive 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. ⁵¹⁸ “Even If, Arguendo, ...” No.l: 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 naive 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 ⁵¹⁹ 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 ⁵²⁰ 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. [[Image here]] ⁵²¹ 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 affi-ant 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 ⁵²² 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 Tea-garden 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, 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. ⁵²³ 506, 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 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? ⁵²⁴ 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 , 796 A.2d 90 , 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. Holmes, 368 Md. at 520 , 796 A.2d 90 (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 , 363 A.2d 491 , 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. WTien 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 , 796 A.2d 90 , 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 ⁵²⁵ 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 , 796 A.2d 90 , 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 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 counterproductive 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 ⁵²⁶ 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 , 805 A.2d 1186 . Coley pointed out, 145 Md.App. at 521 , 805 A.2d 1186 , 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 ⁵²⁷ 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 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 ⁵²⁸ 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 , 985 A.2d 627 (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.

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. ⁵²⁹ 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 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 ⁵³⁰ 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. 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