United States v. Mobley
| Decision Date | 08 September 2022 |
| Docket Number | CRIMINAL ACTION ELH-21-00383 |
| Parties | UNITED STATES OF AMERICA v. MARVIN G. MOBLEY, Defendant. |
| Court | U.S. District Court — District of Maryland |
Defendant Marvin G. Mobley, Jr. is charged with possession of ammunition by a prohibited person, in violation of 18 U.S.C § 922(g)(1) (Count One), and possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a), (b)(1) (Count Two). ECF 1. He has moved to suppress evidence recovered during the search of his residence on December 16, 2020. ECF 16 (the “Motion”).[1] The search was conducted pursuant to a warrant issued on December 15, 2020, by then United States Magistrate Judge Thomas DiGirolamo. The search warrant application was supported by the Affidavit of Special Agent Corey Conyers of the Federal Bureau of Investigation (“FBI”). See ECF 28-1 (“Affidavit”).
During the search, law enforcement officers recovered a handgun magazine with eleven rounds of 9 mm ammunition, located in a man's shoe in the master bedroom closet; $14,363.00 in U.S. currency found inside a jacket in the closet; paperwork in the defendant's name, recovered from the master bedroom; more than nineteen pounds of marijuana, found under the basement stairs; and cellular telephones that belonged to the defendant.
Mobley contends that the Affidavit failed to allege facts sufficient to establish probable cause to search his residence. According to defendant, the allegations of his involvement in a drug trafficking scheme are completely conclusory; there is no basis to establish that evidence would be found at his residence; and, in any event, the information was stale by the time the search warrant was obtained and executed. ECF 16 at 7-8. Moreover, Mobley maintains that because the warrant is utterly devoid of probable cause, the search is not saved by the good faith exception to the exclusionary rule announced in United States v. Leon, 468 U.S. 897 (1984).[2] He has also submitted exhibits.
The government opposes the Motion (ECF 28), supported by exhibits. Defendant replied. ECF 32.
The Court held a Motion hearing on May 26, 2022, at which argument was presented. ECF 34. In light of the argument, the Court requested supplemental briefing on the issue of whether, in analyzing the applicability of the good faith exception to the exclusionary rule, the Court may consider information known to the affiant at the time he submitted the search warrant application but omitted from the Affidavit. See ECF 35. The government's supplemental brief is docketed at ECF 40. Mobley's supplemental submission is docketed at ECF 42. And, both sides replied. ECF 45 (Mobley); ECF 46 (Gov't).
Thereafter on July 18, 2022, the Court held another Motion hearing, at which evidence was presented. ECF 53.[3] Excerpts of the transcript of the hearing are docketed at ECF 57 and ECF 59. Additional briefing followed the hearing. ECF 58 (Mobley's Second Supplement); ECF 60 (Gov't's Second Supplement). Mobley replied. ECF 61. Then, further argument was presented at a hearing held on September 2, 2022. ECF 62. Trial is scheduled to begin on September 19, 2022. ECF 44.
For the reasons that follow, I shall deny the Motion.
The application for the search warrant was supported by the Affidavit of FBI Special Agent Corey Conyers. ECF 28-1. Because the defendant is one of many individuals discussed in the Affidavit. Conyers requested a total of 33 warrants, authorizing the search of eleven residences, eleven cellular telephones, and eleven individuals. See ECF 28 at 2; ECF 28-1 at 1-3. Thus, the government characterizes the Affidavit as a consolidated affidavit.
Agent Conyers joined the FBI in September 2018, ECF 28-1, ¶ 6, and was, at the relevant time, assigned to the Baltimore Organized Crime Drug Enforcement Task Force (“OCDEF”) Strike Force. Id. ¶ 8. Agent Conyers's familiarity with drug trafficking does not derive solely from his work as an FBI agent, however. Prior to becoming an FBI agent, Conyers served for four years as a Special Agent with the Drug Enforcement Administration (“DEA”) in New York, where he “conducted large-scale investigations of Drug Trafficking Organizations” (“DTOs”). Id. ¶ 9.
In his Affidavit, Conyers recounted his training and experience with both the FBI and the DEA. Id. ¶¶ 6-11. He has also attended many “training seminars,” focusing on narcotics trafficking and “firearm related crimes.” Id. ¶ 10. And, as an FBI Special Agent and as a DEA Special Agent, he has debriefed drug traffickers. Id. ¶ 11. Based on Conyers's training and experience, he averred that drug traffickers typically use cell phones to conduct illegal drug activity, and often multiple cell phones, and they store drugs, drug proceeds, and contraband in secure locations, including their residences. Id. ¶¶ 12(a-j). In addition, Conyers explained that digital evidence can be maintained and recovered for long periods of time. Id. ¶¶ 107-116.
Conyers made clear in the Affidavit that he did not include “every detail of every aspect of the investigation ....” Id. ¶ 4. Rather, he stated, id.: “I have set forth only those facts that I believe are necessary to establish probable cause.” And, as noted, the Affidavit pertained to multiple locations and many individuals.
According to Conyers, the OCDETF Strike Force began investigating Ernest Lee Bailey and others in April 2020. Id. ¶ 13. Moreover, he averred that Mobley was “believed to be a BAILEY associate.” Id. ¶ 5(n). Of relevance here, the Affidavit recounted Mobley's prior federal criminal history. According to the Affidavit, Mobley was convicted in the District of Maryland in 2000 of conspiracy to distribute cocaine base, for which Mobley was sentenced to 70 months of imprisonment. And, he was again convicted in the District of Maryland in 2010, for conspiracy to distribute cocaine, for which he was sentenced to 120 months' imprisonment. ECF 28-1, ¶ 5.[5]Moreover, Mobley was on supervised release at the time of the search. Id., ¶ 106.
As the defense points out, ECF 16, n.5, 9, the defendant's second federal conviction actually occurred in 2012, not 2010, and it was for the offense of possession with intent to distribute, not conspiracy to distribute. However, the errors are of no legal significance; the “mistakes were minor, immaterial to probable cause, and easily explained.” ECF 28 at 4, n.1.
To clarify, Mobley was charged in 2010 in Case BEL-10-0686, ECF 16. But, the conviction did not occur until 2012. In a Superseding Indictment filed on June 28, 2011 (id., ECF 39), Mobley was charged with conspiracy to distribute five kilograms of cocaine and 28 grams of cocaine base (Count One), and with possession with intent to distribute (Count Two). Mobley pleaded guilty in 2012 to the offense of possession with intent to distribute cocaine and cocaine base. Id., ECF 58. In other words, Mobley was, in fact, charged with conspiracy, but he pleaded guilty to a related offense.
The Affidavit recounts surveillance conducted by law enforcement on April 22, 2020, when investigators observed Bailey engage in a suspected drug transaction with an individual later identified as Earl Charles. ECF 28-1, ¶ 15. Both individuals were seen in the parking lot of a Target store in Pikesville, Maryland. Id. Within minutes of the conclusion of a suspected drug transaction, Baltimore County Police conducted a traffic stop of the vehicle in which Charles was a passenger. Id. ¶ 16. A canine alerted to the odor of narcotics and the vehicle was searched. Id. ¶ 16. Under the front passenger seat, officers located a bag containing marijuana. Id. Drug paraphernalia and a Glock Model 22 .40 caliber semi-automatic pistol, loaded with 13 rounds, were recovered from the rear passenger seat area. Id. A backpack with a digital scale, as well as prescription bottles with Charles's name on them, were found on the rear passenger seat. Id. In a search incident to Charles's arrest, drugs were recovered from him that contained fentanyl, heroin, and tramadol. Id. ¶ 17.
Charles's cell phone was searched pursuant to a warrant, and it revealed communications with Bailey's phone at pertinent times, including right before the suspected drug transaction. Id. ¶ 18. Moreover, Charles subsequently pleaded guilty in the Circuit Court for Baltimore County to drug possession and possession of a loaded handgun. ECF 28-1 at 15, n.1.
Investigators also determined that Bailey and Joseph Grigsby travelled to Philadelphia during the overnight hours of May 26 and May 27, 2020. Id. ¶ 21. Their travels were documented electronically and through physical surveillance. Id. ¶ 20. Bailey travelled in a rental vehicle-a black Ford F-150-while Grigsby used a blue Honda CR-V. Id. ¶ 21(c). Notably, the two “vehicles appeared to be driving in tandem, at or below the speed limit ....” Id. Conyers averred, id. ¶ 21(i): “I know, based on my training and experience, that DTOs sometimes use so-called “trail cars” to “protect” a vehicle carrying narcotics and to alert the DTO if the vehicle carrying narcotics is interdicted by law enforcement.”
Also of significance, the trip to and from Philadelphia was quite short. It began at approximately 8:30 p.m. on May 26, 2020, and by 11:30 p.m. both vehicles were back in Baltimore County, driving southbound on I-95. id. ¶¶ 21(a), (c). By 12:05 a.m. on May 27, 2020, the two vehicles were observed at the parking lot of a Royal Farms store in Owings Mills, Maryland. Id. ¶ 21(d). Surveillance footage captured both vehicles as well as Bailey and Grigsby. And, it appeared to law enforcement that Bailey made a transfer of an item from the F-150 to the CR-V. id. ¶¶ 21(d), (e), (f); id. at 16 n.2.
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