State v. Amerman

MOYLAN, Judge. The Theme The controlling principle dictating this reversal of a suppression order is that when a judge, either at a pretrial suppression hearing or at trial, sits in review of another judge’s earlier determination that probable cause existed to issue a search and seizure warrant (or an arrest warrant), the reviewing judge sits in an appellate-like capacity with all of the attendant appellate constraints. Although he may ordinarily be accustomed to assessing probable cause as a matter of fact, he is in this less characteristic role called upon to assess it as a matter of law. The issue is no longer the familiar one of whether probable cause exists; that has already been determined by someone else.

The distinct issue, at the reviewing level, is whether that earlier decision now being reviewed was or was not legally in error. Probable cause does not suddenly spring to life at some fixed point along the probability continuum. It may arise at any number of points within a band of not insignificant width. Within that range of legitimate possibilities, the determination is as much an art form as a mathematical exercise and relies necessarily upon the eye of the beholder.

One judge may give a circumstance great weight; another may give it slight weight; each is entitled to weigh for himself and neither will be legally wrong in so doing. Within proper limits, one judge may choose to draw a reasonable inference; another may as readily decline the inference; each will be correct and each is entitled, therefore, to the endorsement of a reviewing colleague. A permitted inference, after all, is not a compelled inference. 1 ⁴⁶⁴ Under the circumstances, it is perfectly logical and not at all unexpected that a suppression hearing judge might say, “I myself would not find probable cause from these circumstances; but that is immaterial. I cannot say that the warrant-issuing judge who did find probable cause from them lacked a substantial basis to do so; and that is material.” There is a Voltairean echo, “I may disagree with what you decide but I will defend with my ruling your right to decide it.” 2 In referring to a closely analogous constraint on appellate review, we analyzed in Danz v. Schafer, 47 Md.App. at 59, 422 A.2d 1 , the critical distinction between 1) de novo fact finding and 2) reviewing the fact finding of the trial judge.

Because the evidence in that case had been undisputed, we were urged to subject it to our own de novo fact finding. ⁴⁶⁵ We declined to do so, except hypothetically, and pointed out how very different the result can be when employing the more restrained standard of review: “This Court has considered such an interesting, albeit unusual, possibility. We have put our heads together as fact finders and agreed that if we were looking de novo at the undisputed but ambiguous factual predicate here, we would give greater significance than did Judge DeWaters to the events that occurred after September 30,1974. On the basis largely of that hindsight, we would infer that the original intent of Mrs. Winters had been to make a loan. Let it be unmistakably clear, however, that this does not remotely suggest that we think Judge DeWaters was wrong, let alone clearly wrong.

It is no more the case that he is wrong and we are right than that we are wrong and he is right. The very nature of the fact-finding process is such that there is a range for divergent but equally legitimate conclusions, none of which [is] wrong. We cannot say, as a matter of law, that our finding of an intention to make a loan is compelled by clear and decisive evidence that permits no other conclusion. We simply aver that in a close case that could reasonably tilt either way, our personal and idiosyncratic tilt is in one direction.

We would defend vigorously, however, the legitimate prerogative of others reasonably to tilt in a different direction.” (Footnote omitted). The Case On January 16, 1990, Judge Eugene M. Lerner, in the Circuit Court for Anne Arundel County, issued a search warrant 1) for 290 Cape St. John Road, 2) for a specifically described 1981 Mercedes owned by Quentin Maddox and 3) for a specifically described 1987 Nissan truck also owned by Quentin Maddox. The warrant was executed on January 18. The police recovered 19 bags of marijuana weighing 12 pounds, slightly in excess of $8,000 from three separate locations, other smaller quantities of marijuana and hashish, a triple-beam balance scale, tally sheets, notebooks and ⁴⁶⁶ receipts, a large number of pipes and other smoking devices for controlled dangerous substances, and two separate telephone answering machines with tapes.

They arrested and indicted Quentin Maddox and Jennifer Amerman, both of whom were present in the house at the time of the search. After they had been indicted, both Maddox and Amerman, the appellees in these two appeals now consolidated for consideration, moved pretrial to suppress the evidence. The suppression, hearing judge in the Circuit Court for Anne Arundel County granted their motions. The State has taken an immediate appeal from these pretrial suppression orders under the provisions of Md.Cts. & Jud.Proc.Code Ann. § 12-302(c)(3) (1989).

The suppression hearing took place in two stages. Initially, the hearing judge read the warrant application that had been submitted to Judge Lerner. After entertaining argument by counsel, he ruled that the application did not establish probable cause for the issuance of the warrant. In the second stage of the hearing, the State sought to ward off suppression on the ground that the officers, by obtaining the warrant, thereby qualified for the “good faith” exception.

United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), rehearing denied, 468 U.S. 1250 , 105 S.Ct. 52 , 82 L.Ed.2d 942 (1984), and Massachusetts v. Sheppard, 468 U.S. 981 , 104 S.Ct. 3424 , 82 L.Ed.2d 737 (1984). On that issue, testimony was taken from Detective John Brown, who had been the affiant and applicant for the warrant. 3 The hearing judge also ruled against the State on the issue of good faith. ⁴⁶⁷ Because of our belief that there was no flaw in the warrant in the first instance, the State’s alternative contention dealing with good faith is moot. The Standard of Review The hearing judge’s ruling on the warrant covered a page and a half of transcript, and we will examine its reasoning item by item. It did not articulate the standard of review being employed and therein probably lies its fatal flaw.

Although implicit rather than explicit, it is apparent that the suppression hearing judge undertook a de novo assessment of the probable cause. Instead of examining whether Judge Lerner had operated within the bounds of his legitimate discretion in issuing the warrant, the hearing judge was looking at the warrant application itself as if of first impression. It is important at the outset, therefore, to state the appropriate standard of review when either a trial court or an appellate court scrutinizes some other judge’s decision to issue a warrant. Whatever lingering doubt may have existed prior to 1983 about the standard of review to be applied to a magistrate’s determination to issue a warrant, that doubt was resolved ⁴⁶⁸ by Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983), rehearing denied, 463 U.S. 1237 , 104 S.Ct. 33 , 77 L.Ed.2d 1453 (1983).

Consistently and repeatedly, the object of the review was stated to be the magistrate’s decision. In appealing the magistrate’s decision, reviewing courts at all levels were admonished to remember that: “Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a ‘practical, nontechnical conception.’ Brinegar v. United States, 338 U.S. 160, 176 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949). ‘In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” 462 U.S. at 231 , 103 S.Ct. at 2328 . The practical and nontechnical nature of probable cause was reconfirmed, at 462 U.S. at 231-232 , 103 S.Ct. at 2328 -2329: “Our observation in United States v. Cortez, 449 U.S. 411, 418 , 101 S.Ct. 690 [695], 66 L.Ed.2d 621 (1981), regarding ‘particularized suspicion,’ is also applicable to the probable-cause standard: ‘The process does not deal with hard certainties, but with probabilities.

Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.’ ” The Supreme Court concluded its examination of the nature of probable cause, at 462 U.S. at 232 , 103 S.Ct. at 2329 : “[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts— not readily, or even usefully, reduced to a neat set of legal rules.” ⁴⁶⁹ The Illinois v. Gates command was then clear that reviewing courts shall not presume to assess probable cause de novo but shall instead extend “great deference” to the prior determination of the magistrate on that issue: “[W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’ ” 462 U.S. at 236 , 103 S.Ct. at 2331 . The Court spelled out respectively 1) “the task of the issuing magistrate” and 2) “the duty of a reviewing court”: “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.” 462 U.S. at 238-239 , 103 S.Ct. at 2332 . The Supreme Court went on to explain that one of the strong reasons for extending “great deference” to the magistrate’s decision to issue a warrant is to encourage the police to submit to the warrant process: “ ‘A grudging or negative attitude by reviewing courts toward warrants,’ [U.S. v.] Ventresca, 380 U.S. [102] at 108 [ 85 S.Ct. 741, 745 , 13 L.Ed.2d 684 (1965) ], is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; ‘courts should not invalidate warrants] by interpreting affidavits] in a hypertechnical, rather than a commonsense, manner.’ Id., at 109 [ 85 S.Ct. at 746 ]. If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some ⁴⁷⁰ other exception to the Warrant Clause that might develop at the time of the search.” (Citation omitted). 462 U.S. at 236 , 103 S.Ct. at 2331 . By way of supporting this same preference for the warrant, United States v. Ventresca, 380 U.S. 102 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965), had admonished reviewing courts to “call the close plays” in favor of the magistrate’s decision to issue the warrant: “Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” 380 U.S. at 109 , 85 S.Ct. at 746 .

The acid test, according to Illinois v. Gates, is not whether the reviewing court would find probable cause but whether the magistrate had a substantial basis for doing so: “Reflecting this preference for the warrant process, the traditional standard for review of an issuing magistrate’s probable-cause determination has been that so long as the magistrate had a ‘substantial basis for ... concluding]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” (Emphasis supplied). 462 U.S. at 236 , 103 S.Ct. at 2331 . One year later in Massachusetts v. Upton, 466 U.S. 727 , 104 S.Ct. 2085 , 80 L.Ed,2d 721 (1984), the Supreme Court upbraided 4 the Supreme Judicial Court of Massachusetts for having been too demanding in its scrutiny of the magistrate’s decision. It reiterated what Illinois v. Gates had said about the appropriate standard of review, making it very clear that finding a substantial basis for what the magistrate did is something less than finding the existence ⁴⁷¹ of probable cause, observing at 466 U.S. at 728 , 104 S.Ct. at 2085: “We also emphasized that the task of a reviewing court is not to conduct a de novo determination of probable-cause, but only to determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant.” (Emphasis supplied). The Upton Court restressed the significant conceptual difference between the two standards, at 466 U.S. at 732-733 , 104 S.Ct. at 2088: “The Supreme Judicial Court also erred in failing to grant any deference to the decision of the Magistrate to issue a warrant.

Instead of merely deciding whether the evidence viewed as a whole provided a ‘substantial basis’ for the Magistrate’s finding of probable cause, the court conducted a de novo probable-cause determination. We rejected just such after-the-fact, de novo scrutiny in Gates.” In Potts v. State, 300 Md. 567 , 479 A.2d 1335 (1984), the Court of Appeals, speaking through Chief Judge Murphy, explicitly adopted the Supreme Court’s holdings as to the appropriate standard of review. “After-the-fact judicial scrutiny of the affidavit should not take the form of de novo review.” 300 Md. at 572 , 479 A.2d 1335 . It concluded, at 300 Md. at 575 , 479 A.2d 1335 . “Under the totality of the circumstances analysis explicated by Gates and Upton , and giving the magistrate’s determination the great deference mandated by those cases, we hold that there was a substantial basis upon which the magistrate could have found that a search of Potts’ residence would uncover illegal narcotics; hence, the issuance of the warrant did not violate the Fourth Amendment.” In Birchead v. State, 317 Md. 691, 701 , 566 A.2d 488 (1989), the Court of Appeals, again speaking through Chief Judge Murphy, emphatically reconfirmed this deferential ⁴⁷² standard for reviewing a magistrate’s probable cause determination: “Our review of the judge’s decision to issue the search warrants is limited to whether there was a substantial basis for concluding that the evidence sought would be discovered in the place described in the application for the warrant____ Moreover, we generally pay great deference to a magistrate’s determination of probable cause.” (Citation omitted). See also Malcolm v. State, 314 Md. 221, 229 , 550 A.2d 670 (1988) (“[T]he defendant must overcome the presumption of regularity attending a search warrant.”); Thompson v. State, 62 Md.App. 190, 206-207 , 488 A.2d 995 (1985).

The “substantial basis” standard is less demanding than even the familiar “clearly erroneous” standard by which appellate courts review judicial fact finding in a trial setting. Although in that setting an appellate court may not, of course, determine credibility or weigh evidence for itself, it does nonetheless insist that there be some credible evidence which, if believed, could establish each and every distinct element of an offense. Williams v. State, 5 Md. App. 450 , 247 A.2d 731 (1968); Metz v. State, 9 Md.App. 15 , 262 A.2d 331 (1970). In a jury trial, the judge, as a legal referee, must subject the evidence to this test of legal sufficiency — this requirement of a prima facie case — before passing the question to the jury.

In the bench trial, the judge must, in effect, subject the evidence to the same test before passing the question from the left hemisphere of his brain (where he functions as a legal referee) to the right hemisphere of his brain (where he functions as a lay fact finder with subconscious feelings and nonverbal senses intermingling with logic in his final verdict). If that final verdict is not supported by such a prima facie or legally sufficient case, it is, by definition, clearly erroneous. Williams v. State, supra; Metz v. State, supra. The fact-finding judge is, in short, held, to the standard of a legal technician. ⁴⁷³ It is not so with the warrant-issuing magistrate. “The judge’s task is ‘simply to make a practical, common-sense decision’ whether probable cause exists.” Birchead v. State, supra, 317 Md. at 701 , 566 A.2d 488 , quoting Illinois v. Gates, 462 U.S. at 238 , 103 S.Ct. at 2332 . “ ‘[T]he quanta ... of proof’ appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant.” Illinois v. Gates, 462 U.S. at 235 , 103 S.Ct. at 2330 .

The magistrates themselves are admonished to remember that the supporting affidavits “are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.” United States v. Ventresca, 380 U.S. at 108 , 85 S.Ct. at 746 . Illinois v. Gates reminded us, 462 U.S. at 235-236 , 103 S.Ct. at 2330 , that the warrant-issuing magistrates themselves need not be legally trained, that search warrants “long have been issued by persons who are neither lawyers nor judges” and that “warrants are — quite properly ... — issued on the basis of nontechnical, commonsense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings.” 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 — Illi nois 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 expressly stated, 462 U.S. at 235 , 103 S.Ct. at 2330 , that a legally sufficient or prima facie showing is not required: “[I]t is clear that ‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’ ” (Emphasis supplied).

Using then this deferential standard of review, we turn to the search warrant application at hand. ⁴⁷⁴ The Staleness of Probable Cause Although there was a wealth of additional material in the warrant application, the heart of the probable cause showing was the informant’s allegation that he had been purchasing a half-pound of marijuana at a time from Quentin Maddox on a regular, semi-weekly basis. The appellees strenuously argue that the information furnished to Detective Brown by the informant as to these semi-weekly purchases was fatally stale because it contained “no information as to the time frame of the alleged drug deals.” Indeed, the critical flaw that the suppression hearing judge found in the warrant application was the failure of the confidential informant to pinpoint with greater precision the dates on which he made purchases of narcotics from Quentin Maddox: “I just have serious problems with, first of all, the fact that there is no delineation of time in which this confidential source of information allegedly dealt directly with Mr. Maddox. ... [T]he meetings would usually take place on shopping center parking lots or at convenience stores. The source stated, ‘Maddox would arrive either in an ’81 Mercedes or ’87 Nissan truck.’ When? I mean, this is where you need to know what time period you’re talking about.

And the sale of half pounds, it mentions that. Then it goes back into all the stuff with James Todd Hibler that obviously those purchases were back before November 2nd when Mr. Hibler was arrested. But when? How much longer — farther before November 2nd?” The appellees’ argument relies on Connelly v. State, 82 Md.App. 358, 364-365 , 571 A.2d 881, 884 (1990), cert. granted, 320 Md. 505 , 578 A.2d 778 (1990).

Connelly , on its facts, is not at all apposite to the factual predicate for the warrant in this case. In Connelly , an informant gave information “[s]ometime in February of 1988” implicating Connelly “in an illegal gambling operation.” 82 Md.App. at ⁴⁷⁵ 360, 571 A.2d 881 . The warrant was not applied for until November 17, 1988, nine months later. The only police activity triggered by the informant’s tip was surveillance “conducted over the next ‘several’ months.” Id.

(Emphasis supplied). As we pointed out, at 82 Md.App. at 363-364 , 571 A.2d 881 : “The surveillance could have occurred during the ‘several months’ of February, March and April, in which case six months would have elapsed between the last surveillance date and the time of the application for the search warrant. There was no discussion in the affidavit regarding whether the individuals under surveillance were involved in a continuing enterprise.” In agreeing with the suppression hearing judge’s ruling that the probable cause was stale, Judge Rosalyn Bell noted, at 82 Md.App. at 365 , 571 A.2d 881 : “There is no indication in the affidavit what police investigative activity, if any, occurred between the original surveillance operation, which supposedly began in February, and the application made nine months later in November of 1988.” In our case, there is no such time lapse. The informant was fully debriefed by Detective Brown on December 15, 1989.

The search warrant was issued on January 16, 1990, one month later. During the intervening month, the police conducted extensive additional investigation, which served the dual purpose of 1) adding directly to the accumulation of probable cause and also 2) independently verifying the credibility of the confidential informant. The additional investigative activity between December 15 and January 16 consisted of: 1. Verifying that James Todd Hibler, Quentin Maddox’s original supplier, had, indeed, been arrested and that Maddox, therefore, had to resort to an alternative source of supply; 2.

Ascertaining from the Department of Motor Vehicles that a 1981 Mercedes Benz, with Maryland tags WEA 217, was registered to Maddox; ⁴⁷⁶ 3. Ascertaining, also from DMV, that a 1987 Nissan truck, with Maryland tags 040 955, was registered to Maddox; 4. Ascertaining that on October 30, 1988, Maddox had been arrested in the aforementioned 1981 Mercedes in possession of both marijuana and a concealed deadly weapon and that he was subsequently convicted on both charges; 5. Ascertaining from the telephone company that the “contact” telephone number furnished to the drug-purchasing informant by Maddox (224-4777) was listed to 290 Cape St. John Road; 6.

Calling that number, asking for “Quentin,” and hearing a male voice respond that he was “Quentin,” indicating that Quentin Maddox was at Cape St. John Road, notwithstanding the fact that Maddox’s legal residence was 1162 Bayview Vista; 7. Conducting a surveillance at 290 Cape St. John Road and discovering both Maddox’s 1981 Mercedes and his 1987 Nissan truck parked in the driveway, again indicating Maddox’s presence at Cape St. John Road, notwithstanding that his legal residence was elsewhere; 8. Ascertaining with respect to 290 Cape St. John Road that the telephone charges were billed to James Douglas, that the gas and electric charges were billed to Tracey Stover, and that the house itself was in yet a third name; 9. Learning that the valuable house, worth “easily in excess of $100,000,” was apparently leased to Maddox and to Tracey Stover, notwithstanding the fact that Maddox, upon his earlier arrest in October 1988, described himself as unemployed, with the Cape St. John Road property, moreover, apparently serving as a second residence; and 10.

Searching abandoned trash at 290 Cape St. John Road and finding a piece of paper with the phone number 757-4057, tracing that number to a Christopher Paul Woodruff, and discovering that Woodruff had been arrested twice in March 1988 for the possession of PCP. ⁴⁷⁷ The primary source for the probable cause directed at Maddox’s two vehicles and at the house out of which Maddox apparently operated was, of course, the informant who had regularly purchased marijuana from him. The police were appropriately busy during the month between December 15 and January 16 verifying the credibility of that informant in ten separate and significant regards. A fringe benefit of the verifications, moreover, was that some of them also served as at least modest indicators that the criminal arrangement described by the informant on December 15 had not been dismantled during the days and weeks that followed. The appellees also argue staleness with respect to the informant’s information, looking backward from December 15.

They condemn the fact that “the confidential source gave the officer no information as to the time frame of the alleged drug deals with the confidential source.” Looking, as all parties must, at the totality of the warrant application, reasonable inferences (is to that time frame abound. Although the informant did not furnish Detective Brown with a logbook of precisely dated entries, the reasonable inference was clear that the informant had been engaged in a regular and ongoing pattern of purchasing large amounts of marijuana from Maddox which followed a repetitive semi-weekly schedule: “The source of information stated that it would purchase a half pound of Marijuana twice a week from Quentin Maddox. The half pound would usually cost $450.00. The source stated that it would telephone Maddox, request the amount, and meet a short time later.

The meetings would usually take place on shopping center parking lots, or at convenience stores. The source stated that Maddox would arrive either in a 1981 Mercedes or a 1987 Nissan truck. The source further stated that Maddox does not like to sell less than half pounds at a time, because he loses money on his investment. The source stated that Maddox was always good for several pounds.” ⁴⁷⁸ The informant recounted to Detective Brown his knowledge that Maddox’s original source of supply had been one James Todd Hibler.

The warrant application then pointed out that a series of drug raids on November 2, November 4, and November 7 took James Todd Hibler out of circulation. The further information relayed to Detective Brown by the informant self-evidently related to a time following Hibler’s arrest in early November: “The source stated that when James Todd Hibler was arrested, Quentin Maddox was able to find another source of marijuana that could supply the same amount, if not more, than James Todd Hibler.” The informant’s knowledge of Maddox’s new source of supply obviously was acquired at a time after the early November drug raids closed off the old source of supply. The reasonable inference is that this continuing contact between the informant and Maddox was an incident of their continuing trafficking in marijuana. Even giving the appellees the benefit of the earliest termination date between Hibler’s arrest and December 15, assuming that the trafficking ever terminated at all before that latter date, the last such sale could not have been more than four or five weeks prior to December 15.

Such a time frame makes this case more akin to Peterson v. State, 281 Md. 309 , 379 A.2d 164 (1977), cert. denied, 435 U.S. 945 , 98 S.Ct. 1528 , 55 L.Ed.2d 542 (1978), in which information one month old was approved as nonstale, than to Connelly v. State, supra, wherein information six months old was condemned as stale. In Connelly, 82 Md.App. at 365 , 571 A.2d 881 , we contrasted the two time periods: “This Court has upheld a warrant issued on probable cause that was approximately one month old, reasoning that ‘the criminal activity was regenerating, the criminal entrenched, and the thing to be seized, while easily transferable, was just as easily replaced. Thus, the probable cause was not stale.’ Peterson, 281 Md. at 321 , 379 A.2d 164 , quoting Peterson v. State, No. 590, Sept. Term, 1976, ⁴⁷⁹ decided 25 Jan. 77, unreported. Evaluations similar to those made in Peterson can be made here.

But a lapse of one month cannot be equated or even seriously compared to a lapse of, at least facially, six months. The lapse of six months or more between the observation of the facts supporting the warrant and the application for the warrant when considered in the circumstances of this case renders the probable cause stale.” In terms of the tendency of an established pattern of activity to continue unchanged, the earlier conviction of Maddox takes on added probative value. Maddox was still selling drugs in November 1989 from the same 1981 Mercedes in which he possessed drugs a year earlier. He was still dealing with the same drug, marijuana, in November 1989 that he was convicted of possessing a year earlier.

On October 30, 1988, he was unemployed. In November 1989, he was enjoying a residential and vehicular affluence not normally afforded the ranks of the unemployed. There arises from this an almost Newtonian law of presumptive continuity: A body of criminality in motion will continue in motion in the same direction unless acted upon by a force. See State v. Edwards, 266 Md. 515 , 295 A.2d 465 (1972) (reversing a decision of this Court which had held that probable cause was stale); United States v. Harris, 403 U.S. 573, 579 , 91 S.Ct. 2075 , 29 L.Ed.2d 723 (1971) (“Moreover, these recent purchases were part of a history of purchases over a two-year period.”).

That the investigation is of an ongoing criminal activity rather than of a random criminal episode is a significant factor in the probable cause/staleness equation. It was of this we spoke in Andresen v. State, 24 Md.App. 128, 172 , 331 A.2d 78 (1975), aff'd, Andresen v. Maryland, 427 U.S. 463 , 96 S.Ct. 2737 , 49 L.Ed.2d 627 (1976): “The ultimate criterion in determining the degree of evaporation of probable cause, however, is not case law 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 ⁴⁸⁰ 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.” In affirming the decision of this Court on this issue, the Supreme Court observed, 427 U.S. at 478 n. 9, 96 S.Ct. at 2747 : “It is also 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.

This contention is belied by the particular facts of the case.” Probably the leading academic authority on the Fourth Amendment is W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (1978). At 1 Search and Seizure § 3.7, at 683-684, Professor LaFave quotes with approval our passage quoted above from Andresen v. State and goes on to comment: ⁴⁸¹ See also J. Hall, Search and Seizure 153-154 (1982); United States v. Johnson, 461 F.2d 285 (10th Cir.1972); and People v. Dolgin, 415 Ill. 434 , 114 N.E.2d 389 (1953). See also Mapp v. Warden, 531 F.2d 1167 (2d Cir.1976), cert. denied, 429 U.S. 982 , 97 S.Ct. 498 , 50 L.Ed.2d 592 (1976) (probable cause for warrant issued February 13, 1970, where information obtained November 6, 1969, indicated defendant was using premises on a continuing basis as a storehouse for drugs packaged elsewhere). ⁴⁸⁰ “Of the factors identified in Andresen, the one which is most frequently relied upon in the appellate decisions is the character of the criminal activity under investigation. ‘Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.’ ” (Footnote omitted). ⁴⁸¹ Applying the Andresen rationale to the case at hand, it is clear that Maddox’s regular pattern of selling large quantities of drugs was a “regenerating conspiracy” and not a “chance encounter in the night.” The ongoing, commercial nature of the enterprise was attested to by the informant’s observation that “Maddox does not like to sell less than half pounds at a time, because he loses money on his investment.” These are the characteristics of a criminal who is “entrenched” and not “nomadic.” Documentary records of a criminal enterprise of this magnitude would be more of “enduring utility to its holder” than something “perishable and easily transferable.” The elaborate steps taken to have the property at 290 Cape St. John Road listed in one name, the utilities in a second, and the telephone in a third suggest a “secure operational base” rather than a “mere criminal forum of convenience.” The type of crime being investigated was clearly not some random occurrence but a sustained and enduring enterprise.

In Peterson v. State, supra, the Court of Appeals was dealing, as in this case, with a conviction for the