Yeagy v. State

ROSALYN B. BELL, Judge. Malcolm Edward Yeagy was tried and convicted by a jury in the Circuit Court for Washington County on charges of distributing cocaine and possessing cocaine hashish, marijuana and drug paraphernalia. He was acquitted of charges of maintaining a common nuisance. The indictments were based on two incidents: (1) the sale of cocaine Yeagy made on April 20, 1983, and (2) the possession of items seized in the execution of a search warrant on May 17, 1983.

Yeagy was sentenced to a total of eight years imprisonment. In this appeal, Yeagy claims: ⁶ 1. The search and seizure was illegal because the search warrant was based on stale probable cause; 2. The prosecution withheld exculpatory evidence in violation of the Due Process Clause; and 3.

The trial court erred in allowing a police officer to give his opinion, because he did not qualify as an expert. We will include the relevant facts in our discussion of each issue. THE SEARCH WARRANT In April 1983, Gregory Bartles graduated from the police academy and joined the Hagerstown Police Department. He was assigned to the Narcotics Division and was instructed to attempt to purchase cocaine from Yeagy.

Officer Bartles went to some nightclubs in the area, hoping to meet Yeagy. After several unsuccessful trips, however, Bartles approached Yeagy at home on April 20, 1983. Bartles introduced himself to Yeagy as a former acquaintance. Yeagy did not seem to recognize Bartles, but invited him inside.

The officer told Yeagy that he wanted to buy some cocaine “to impress some girls.” What took place next remains uncertain: Bartles claims Yeagy agreed to make the sale without hesitation; Yeagy contends he initially refused to sell any cocaine, and only after Bartles persisted did he consent to share the one gram he had for personal use. Yeagy sold one-half of the gram to Bartles for $40, which he claimed was half of what he paid for the full gram. During the following sixteen days, Bartles contacted Yeagy on several occasions trying to purchase cocaine. Each time, Yeagy stated he had none and told Bartles to talk to him at a later date.

On April 30, 1983, when Bartles approached him, Yeagy indicated that he had cleared his house of all drugs. Later, on May 5, 1983, he told Bartles he was not selling any drugs. On May 6, 1983, the officers involved in the investigation submitted an application for a warrant to search Yeagy’s ⁷ home. The affidavit contained a brief description of the sale that occurred on April 20, 1983, between Yeagy and Bartles.

It did not indicate, however, that subsequent attempts to purchase cocaine from Yeagy had been unsuccessful, that Yeagy said he had cleared his house of drugs, and that at least one police surveillance showed no illegal activity. The court found probable cause to issue the warrant based on the affidavit. After further surveillance, the police conducted the search on May 17, 1983, and seized various items of drug paraphernalia and controlled dangerous substances located throughout the home. Prior to trial, Yeagy filed motions to suppress tangible evidence as well as oral and written statements.

At the hearing, on November 7, 1983, Yeagy explained that his request to suppress the tangible evidence was based on the stale probable cause for the search warrant and the material omissions in the supporting affidavit which rendered it false under Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978). These motions were denied. Appellant argues on appeal that the search and seizure were illegal because 1. [ojmissions from the warrant affidavit constituted material misrepresentations; 2. [t]he warrant affidavit contained stale information; and 3. [t]he eleven-day delay between the issuance and execution of the warrant rendered the probable cause stale. For reasons which we will explain, we affirm the judgments.

Material Misrepresentation The United States Supreme Court held in Franks v. Delaware, 438 U.S. 154 , 98 S.Ct. 2674 , 57 L.Ed.2d 667 (1978): “[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentional ⁸ ly, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Id. at 155-56 , 98 S.Ct. at 2676 . Many courts have applied this rationale to omissions as well as misstatements. See, e.g., United States v. Melvin, 596 F.2d 492, 498-500 (1st Cir.), cert. denied, 444 U.S. 837 , 100 S.Ct. 73 , 62 L.Ed.2d 48 (1979); United States v. Vazquez, 605 F.2d 1269, 1282 (2d Cir.), cert. denied, 444 U.S. 981 , 100 S.Ct. 484 , 62 L.Ed.2d 408 (1979); United States v. Martin, 615 F.2d 318, 328 (5th Cir.1980); United States v. House, 604 F.2d 1135 , 1141 n. 9 (8th Cir.1979), cert. denied, 445 U.S. 931 , 100 S.Ct. 1320 , 63 L.Ed.2d 764 (1980); United States v. Flores, 679 F.2d 173 , 176 n. 1 (9th Cir. 1982), cert. denied, 459 U.S. 1148 , 103 S.Ct. 791 , 74 L.Ed.2d 996 (1983). In effect, “[a] magistrate cannot adequately determine the existence of probable cause with the requisite judicial neutrality and independence if the police provide him or her with a false, misleading, or partial statement of the relevant facts ... but we will not invalidate a search warrant unless the omissions were material.” United States v. Flores, supra.

To challenge an omission under Franks, supra, the accused must make a preliminary showing that it was made intentionally or with reckless disregard for accuracy; a negligent or innocent mistake does not suffice. United States v. Martin, 615 F.2d at 329 ; United States v. House, 604 F.2d at 1139 . This must be established by a preponderance of the evidence. Once this burden is met, the court conducts a further evidentiary hearing and considers whether probable cause would exist if the omitted information were included.

United States v. Martin, 615 F.2d at 328 ; United States v. House, 604 F.2d at 1139 . If probable cause would no longer exist, the warrant issued pursuant to the affidavit becomes invalid. United States v. House, ⁹ supra; United States v. Flores, 679 F.2d at 176 , quoting United States v. Maher, 645 F.2d 780, 782 (9th Cir.1981) (“[e]ven a deliberate falsehood must be material in order to justify invalidating a warrant.”). In the case sub judice, appellant sought to suppress the evidence seized in the search on May 17, 1983, because the affidavit violated Franks v. Delaware, supra.

Specifically, it omitted events allegedly taking place after April 20, such as: (1) his repeated refusals to sell drugs to Bartles; (2) the lack of a pattern of sale or use, i.e., traffic in and out of his house; (3) appellant’s assertion that he had cleaned his house of drugs; and (4) the lack of any mention of his possession of drugs in a quantity other than for personal use. Also, the affidavit did not mention any incriminating evidence, or lack thereof, from the alleged one-year investigation prior to the search and appellant’s arrest. Appellant argued that the absence of this information from the affidavit constituted a material misrepresentation by the State in that its inclusion would have shown that probable cause had become stale. This prevented the court from making a disinterested evaluation.

After hearing testimony concerning these allegations, the court addressed both the preliminary issue of whether a Franks hearing was appropriate and, if so, whether probable cause continued to exist. The court explained: “I don’t think that it needs to be addressed. I didn’t hear any testimony today that would indicate to the Court that any of the affiants in the application for search and seizure warrant intentionally misled the issuing Judge by making any false statements within the application and that is what Frank [sic] does deal with intentionally misleading the Court by making false statements known to be false with the intent again to mislead the Court in the issuance of the Warrant. I don’t find any of that in this case and so I see no reason to go further as far as omissions are concerned.

I also don’t think the issuing Judge was intentionally misled by any omissions. You know the statements that were conversations that were ¹⁰ testified to here are more damaging to the Defendant than they are to the State and I think you acknowledged that when you say that part of your argument was to suppress those statements. I don’t see where probable cause that existed on April 20th would have been any way eliminated, alleviated or lessened by presentation to Judge Moylan of what happened in conversations on April 24th and April 25th and April 30th.” From the fact that the trial court heard evidence concerning the omitted information, we can infer that appellant met his initial burden of proof. Thus, we will review whether the court erred in finding that probable cause continued to exist even if the omitted information had been included in the affidavit.

Martin, supra; House, supra; Md.Rule 1086. Appellant contends that the items were material, because they tended to render probable cause stale. See Kennedy v. Crouch, 191 Md. 580, 585 , 62 A.2d 582 (1948) (to be material, evidence “must tend either to establish or disprove” the issues). Our review of the record, however, indicates that the evidence supports the trial court’s decision.

Even though appellant sold no cocaine to Bartles on April 24 and 25, 1983, claiming he had none to sell, on each occasion he told Bartles he would have some soon and to contact him later. This implied that he was continuously replenishing his supply and distributing it. See Peterson v. State, 281 Md. 309 , 379 A.2d 164 (1977). Furthermore, on April 30, 1983, appellant said he had cleared his house of drugs, not related paraphernalia.

In light of this evidence, the court could and did find that probable cause existed both with and without the omitted facts; hence, the omissions were not material. We agree. Stale Probable Cause Upon application for a search warrant, the court determines from the information in the affidavit whether it ¹¹ appears probable that “contraband or evidence of a crime will be found in a particular place.” Brown v. State, 57 Md.App. 186, 189 , 469 A.2d 865 (1984), quoting Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317, 2332 , 76 L.Ed.2d 527 (1983). Probable cause to support the issuance of a warrant involves “less than certainty of proof, but more than suspicion or possibility.” Peterson v. State, 281 Md. 309, 313 , 379 A.2d 164 (1977), cert. denied, 435 U.S. 945 , 98 S.Ct. 1528 , 55 L.Ed.2d 542 (1978), quoting State v. Edwards, 266 Md. 515, 519 , 295 A.2d 465 (1972).

Even though probable cause may exist initially, it becomes stale when the facts and information in the affidavit are “so remote from the date of the affidavit as to render it improbable that the alleged violation of law authorizing the search was extant at the time the application for the search warrant was made.” Peterson, 281 Md. at 314 , 379 A.2d 164 , quoting Garza v. State, 120 Tex.Cr.R. 147, 149 , 48 S.W.2d 625 (1932). Remoteness does not depend solely upon the lapse of a particular amount of time, such as ten days, or two months; it requires a determination of the “likelihood that the evidence sought is still in place” in light of “the character of the crime ... of the criminal ... of the thing to be seized ... of the place to be searched____” Andresen v. State, 24 Md.App. 128, 172 , 331 A.2d 78 , cert. denied, 274 Md. 725 (1975), aff'd., 427 U.S. 463 , 96 S.Ct. 2737 , 49 L.Ed.2d 627 (1976); Davidson v. State, 54 Md.App. 323, 331-32 , 458 A.2d 875 (1983). Based on this standard, the Court of Appeals in Peterson v. State, supra, affirmed the validity of a warrant issued about one month after the last-mentioned sale of narcotics by the defendant. 1 In that case, the affidavit specified purchases by informants and observations by policemen of “four known users of narcotics entering] Appellant’s apart ¹² ment and remaining] for short periods of time;” this occurred over the course of about three months. Id. 281 Md. at 320-21 , 379 A.2d 164 .

The Court noted the regenerating nature of traffic in drugs and that the information in the warrant indicated “a persistent pattern of criminal involvement relating to narcotic drugs.” Id. at 321 , 379 A.2d 164 . It, therefore, held that probable cause had not become stale. Id. at 322 , 379 A.2d 164 . Similarly, in Johnson v. State, 14 Md.App. 721 , 288 A.2d 622 , cert. denied, 266 Md. 738 , cert. denied, 409 U.S. 1039 , 93 S.Ct. 517 , 34 L.Ed.2d 487 (1972), this Court upheld the validity of a warrant issued twenty-six days after the facts and circumstances that formed probable cause.

Despite the time lapse, the observation involved an informant who accompanied Johnson when he was “making his rounds to determine who was to be re-supplied with narcotics.” Id. at 730, 288 A.2d 622 . Johnson returned home with “five to eight bundles of glassine bags containing the suspected heroin.” Id. According to this Court, “[t]he activity ... suggested] a continuing business in the distribution of narcotics.” Id. In the case sub judice, the affidavit stated in pertinent part: “On 15 April 1983, your co-affiants (Bakner and Sheppard) were contacted at the Hagerstown Police Department by your co-affiant Gregory L. Bartles # 66.

At this time, your co-affiant Bartles, inquired as to whether the co-affiants (Bakner and Sheppard) had knowledge of a person by the name of “Sonny” Yeagy selling cocaine. “Your co-affiants (Bakner and Sheppard), work Narcotics Enforcement at the Hagerstown Police Department. During the course of investigations over the past year, your co-affiants have received information in regards to “Sonny” (Malcolm Edward Yeagy), being involved in the distribution of cocaine. Information has also been brought to your co-affiants (Bakner and Sheppard) as to Yeagy being a known user of cocaine. ¹³ “Your co-affiant Bartles, was advised of this information, and affiant Bartles stated he had personal knowledge of Yeagy dealing cocaine over a year ago. Affiant Bartles had been at Plum’s on the Dual Hwy, and had witnessed Yeagy dispense cocaine to two females.

Yeagy also offerred [sic] to give affiant Bartles cocaine at this same time. Affiant Bartles conferred with co-affiants Bakner and Sheppard and it was agreed, Affiant Bartles would attempt to make a buy of cocaine from Malcolm Edward Yeagy. “On 17 April 1983, affiant Bartles entered the Venice Inn Lounge. At 2210 hrs. on this date affiant Bartles engaged in a conversation at this location with a person known to him as Joe Sullivan. Your co-affiant Bartles, had prior knowledge that Joe Sullivan was a user of cocaine.

During the course of the conversation between affiant Bartles and Joe Sullivan; affiant Bartles asked him if he knew where affiant Bartles could buy some toot (toot is street jargon for the drug cocaine). Joe Sullivan’s reply was — I don’t deal but I like to party. Sullivan then recommended the [sic] affiant Bartles to get in touch with “Sonny”. He further stated affiant Bartles should either call Sonny or go to his house in Mapleville.

Joe also stated — “Sonny always has some stuff (cocaine).” Your co-affiant Bartles knows “Sonny” to be Malcolm Edward Yeagy. “On 19 April 1983, your co-affiants (Bakner and Sheppard) contacted co-affiant Deputy Richard Good of the Washington County Sheriff’s Department. At this meeting co-affiant Good was made aware of the investigation involving Malcolm Edward Yeagy. The reason for this meeting was due to the fact the investigation was leading into the county area. This is Affiant Good’s jurisdiction.

All information was exchanged between your affiants in reference to the investigation. “Your affiants (Bakner and Sheppard) conducted a check through the department of motor vehicle administration computer, for vehicles listed to Malcolm Edward ¹⁴ Yeagy. This revealed a 1976 Dodge Van Md. Tag H58389 registered to Malcolm Edward Yeagy and showed an address of Rt. 2 Box 62 Boonsboro, Md. 21713. This vehicle has been observed by your co-affiants (Bakner and Sheppard) being driven by Sonny Yeagy, and it is Yellow in color. Your affiants (Bakner and Sheppard) also made contact with a postal employee at the Boonsboro Md. Post Office by public service.

This contact revealed Malcolm and Cheryl Yeagy were both receiving mail at Rt. 2 Box 62 Boonsboro, Md. address. Rt. 2 Box 62 Boonsboro, Md. is actually located on Rt. 66 Maple-ville, Md. “On 20 April 1983, at 1812 hrs., your co-affiant Bartles proceeded to Malcolm Edward Yeagy’s residence in Mapleville, Md. This address is listed as Rt. 2 Box 62 Boonsboro, Md. Affiant Bartles, had prior knowledge of a vehicle (yellow van) belonging to Yeagy. This vehicle (yellow van) was located in the driveway of a residence in Mapleville, Md. Affiant Bartles, knocked on the front door, and was greeted by Malcolm Edward Yeagy, also known as Sonny. He was asked inside the residence by Sonny and a short conversation took place between affiant Bartles and Sonny Yeagy.

During this conversation it was agreed that Sonny Yeagy, would sell affiant Bar-ties a lh gram packet of cocaine for $40.00. Affiant Bartles