Yeagy v. State

• Decision Date: 01 September 1984
• Docket Number: No. 580,580
• Citation: 491 A.2d 1199,63 Md.App. 1
• Parties: Malcolm Edward YEAGY v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 1

63 Md.App. 1

491 A.2d 1199

Malcolm Edward YEAGY v. STATE of Maryland.

No. 580, Sept. Term, 1984.

Court of Special Appeals of Maryland.

May 9, 1985.

Marvin D. Miller, Alexandria, Va. (Lewis C. Metzner, Hagerstown, on the brief), for appellant

Valerie Johnston Smith, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, M. Kenneth Long, Jr., State's Atty. and Andrew Norman, Asst. State's Atty. for Washington County, Hagerstown, on the brief), for appellee.

Argued before BISHOP, ALPERT and ROSALYN B. BELL, JJ.

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:

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 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.

                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
                

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. [o]missions 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 intentionally 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,

                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
                

"[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 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.

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.").

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 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.

                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."
                

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...