United States v. Armond Dowdell , 546 F. App'x 128 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4426
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARMOND DOWDELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:11-cr-00114-CCB-27)
Argued: September 20, 2013 Decided: November 7, 2013
Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and Gina M.
GROH, United States District Judge for the Northern District of
West Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Groh wrote the opinion,
in which Chief Judge Traxler and Judge Diaz joined.
ARGUED: Gerald Chester Ruter, Baltimore, Maryland, for
Appellant. Benjamin M. Block, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
GROH, District Judge:
Armond Dowdell appeals the district court’s denial of his
motions to suppress statements and physical evidence. For the
following reasons, we affirm.
I.
Since 2006, the Baltimore Police Department (“BPD”) and the
Drug Enforcement Administration (“DEA”) have investigated Dana
Bowman and his associates involved in the distribution of heroin
and marijuana in the Baltimore metropolitan area. Their
extensive investigation included informants; controlled
purchases of illegal drugs; search warrants; surveillance;
FedEx, UPS, and United States Postal Service shipping data; bank
records; and authorized wiretaps on seventeen phone lines.
On March 9, 2011, as a result of the investigation, BPD and
DEA officials applied for a search warrant for more than thirty
locations. Two BPD detectives and two DEA special agents
authored the supporting affidavit for the search warrant
application. The detectives and special agents were experienced
in investigations of controlled drug substances and familiar
with the language, terminology, and street slang used by persons
who purchase and distribute illegal drugs.
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In the supporting affidavit, the DEA and BPD detailed their
investigation of Dana Bowman and his associates for the illegal
sales of heroin and marijuana throughout east Baltimore over a
five-year period and included transcript excerpts of intercepted
calls between Bowman and Dowdell. The detectives, through the
overall investigation, concluded that Dowdell’s residence at
2601 East Oliver Street was a stash house for narcotics.
The supporting affidavit recounted the following events
specific to Dowdell and his residence at 2601 East Oliver
Street. On October 14, 2010, detectives intercepted a call
between Dowdell and Bowman. During the call, Dowdell and Bowman
spoke in slang and code words. For example, when Dowdell asked
Bowman “[w]here the rickys at be,” the detectives deduced he was
asking where the illegal drugs were located. S.J.A. 78. During
the same call, Bowman and Dowdell discussed the packaging of a
small amount of the drugs located inside the stash house. On
October 16, 2010, detectives intercepted a call wherein Bowman
asked Dowdell if he had any “more of them dogs” because Treon
Brockington wanted to purchase some, referring to a supply of
drugs. S.J.A. 80.
On October 19, 2010, detectives intercepted a call between
Brockington and Bowman. In that call, Brockington sought to
purchase drugs from Bowman. Later that day, Brockington called
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Bowman to let him know she had arrived at 2601 East Oliver
Street. Upon receiving the call, Bowman emerged from his
vehicle, walked to Brockington’s vehicle, leaned in her vehicle,
and appeared to engage in conversation. After the detectives
observed this interaction, they conducted a traffic stop of
Brockington’s vehicle. During the stop, a trained K-9 alerted
the detectives to the presence of drugs in Brockington’s
vehicle, and a detective told Brockington that she would not be
arrested if she revealed the drugs. Brockington then
surrendered 4.05 grams of marijuana from her front waist-band.
After the traffic stop, Brockington informed Bowman by
phone that the police pulled her over and she turned over the
drugs. This triggered a flurry of calls from Bowman to the rest
of his conspirators, including a call to Dowdell. Bowman told
Dowdell that Brockington was just pulled over by the police and
she “gave up the shit.” S.J.A. 82. Later that day, Bowman
called Dowdell and advised him to get the “stuff” out of there.
Id. Thereafter, the officers observed a female exit the
driver’s side of a Chevy Tahoe—known to be operated by Dowdell—
parked in front of the stash house, place something in the rear
passenger side, and pull away. At approximately the same time,
Dowdell contacted Bowman to say he was moving “the stuff.”
S.J.A. 81-82.
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The drug-related activities continued throughout 2010 and
early 2011. On November 7, 2010, detectives intercepted a call
between Bowman and Dowdell wherein Bowman asked Dowdell about
the amount of drugs left in the stash house. On February 24,
2011, Bowman’s vehicle was parked in the 1500 block of North
Luzerne Street, which is around the corner from the suspected
stash house.
Based on this information, a state magistrate found
probable cause and issued a search warrant for Dowdell’s 2601
East Oliver Street residence and more than thirty other
locations in the Baltimore area. On March 10, 2011, members of
the BPD, DEA, and other law enforcement agencies executed the
search warrants. When officers entered 2601 East Oliver Street,
Dowdell retreated from the upstairs hallway into the master
bedroom and slammed the door. A woman and three children, as
well as a barking dog, were in the upstairs hallway at the top
of the steps. The woman secured the dog, then she and the
children went downstairs. Next, officers ordered Dowdell to
come out of the bedroom and placed him in handcuffs. Then, the
officers conducted a protective sweep of the upstairs.
After the protective sweep, the officers brought Dowdell
downstairs and verbally advised him of his Miranda rights.
Dowdell acknowledged that he understood these rights. Dowdell
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admitted to the officers that he had nine hundred dollars and
personal use marijuana stored in his bedroom. During the
search, the officers also recovered a loaded gun. When police
questioned Dowdell about the gun, Dowdell stated, “[W]ell, you
see where I live. You see the neighborhood I live in. It’s for
my protection.” J.A. 112. Law enforcement officers also
recovered “a football-size bag of marijuana, which contained
smaller bags packaged for street-level distribution.” J.A. 112-
13.
During the execution of the search warrant, Dowdell
remained seated with the woman and children on the couch in the
living room area. Detective Benson described the atmosphere of
the search as “low key.” J.A. 114. He also testified that
Dowdell was quiet, cooperative, and friendly throughout the
search. Id.
Dowdell filed motions to suppress his statements and
physical evidence seized by officers during the execution of the
search warrant, which the district court denied. Thereafter,
Dowdell entered a conditional guilty plea to a felon-in-
possession charge and to conspiracy to distribute and possess
with intent to distribute a controlled substance. Dowdell was
sentenced to 120 months’ imprisonment. This appeal followed.
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II.
Dowdell argues that the district court erred in denying his
motion to suppress evidence seized in the search of his
residence. He claims that the supporting affidavit contained
conclusory statements and the facts did not establish probable
cause. He also contends that the information in the supporting
affidavit was stale.
When reviewing a district court’s ruling on a motion to
suppress, we review the district court’s factual findings for
clear error and the district court’s legal conclusions de novo.
United States v. Farrior, 535 F.3d 210, 217 (4th Cir. 2008).
A.
A warrant is constitutionally sound when issued by a
neutral magistrate and supported by probable cause. See U.S.
Const. amend. IV; Illinois v. McArthur, 531 U.S. 326, 330 (2001).
The magistrate’s probable cause determination is a “practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit before him . . . there is a fair
probability that contraband or evidence of a crime will be found
in a particular place.” Illinois v. Gates, 462 U.S. 213, 238
(1983); see also United States v. Blauvelt, 638 F.3d 281, 288
(4th Cir. 2011) (finding ample evidence in the supporting
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affidavit “afford[ing] the magistrate a substantial basis upon
which to conclude that probable cause existed”). Probable cause
is evaluated through a “totality-of-the-circumstances” analysis
rooted in common sense. Gates, 462 U.S. at 230.
When reviewing a determination of probable cause, we “must
accord ‘great deference’ to the magistrate’s assessment of the
facts presented to him.” United States v. Montieth, 662 F.3d
660, 664 (4th Cir. 2011) (quoting United States v. Blackwood,
913 F.2d 139, 142 (4th Cir. 1990)). “[P]robable cause involves
probabilities-judgment calls that are tethered to context and
rooted in common sense.” United States v. White, 549 F.3d 946,
947 (4th Cir. 2008). Thus, our inquiry is whether there was a
“substantial basis for determining the existence of probable
cause.” Gates, 462 U.S. at 239.
In this case, two BPD detectives and two DEA special agents
authored the supporting affidavit. The four officers were
trained and had years of experience in investigations of
controlled drug substances. Also, they were familiar with the
language, terminology, and street slang used by persons who
purchase and distribute illegal drugs.
In reviewing the supporting affidavit, the magistrate was
presented with a detailed recounting of law enforcement’s
investigation of Bowman and his associates, including transcript
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excerpts of intercepted calls between Bowman and Dowdell. The
affidavit provided the transcript excerpts of calls in late 2010
between Bowman and Dowdell. During those calls, Bowman and
Dowdell discussed the amount of drugs in the stash house as well
as packaging and distributing the drugs. The affidavit also
informed the magistrate that the detectives had witnessed a
purported drug transaction between Brockington and Bowman and
then later seized drugs from Brockington. Therefore, the
magistrate had a substantial basis for concluding that probable
cause existed under the totality of the circumstances in this
case.
Dowdell relies on Greenstreet v. County of San Bernardino
to argue that the supporting affidavit and resulting search
warrant lacked probable cause. 41 F.3d 1306 (9th Cir. 1994).
In Greenstreet, a San Bernardino County Sheriff’s Deputy sought
a warrant to search Greenstreet’s residence at 385 Granada
Street, Rialto, California, as well as three other locations in
the San Bernardino area. Id. at 1307. The affidavit stated
that Greenstreet was observed at 385 Granada Street and listed
his criminal history. Id. at 1308. The affiant “believe[d
Greenstreet wa]s associated and involved in narcotic activity
alon[g] with the other subjects listed in the search warrant”
and that the location was “possibly” a place being used to
manufacture methamphetamine. Id. at 1309-10. Upon review of
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the search warrant and supporting affidavit, the court of
appeals found that the supporting affidavit did not establish a
sufficient nexus between Greenstreet’s criminal history and his
current residence. Id. at 1310. Therefore, the court held that
the supporting affidavit did not provide a substantial basis for
the magistrate’s conclusion that the affidavit stated probable
cause to search Greenstreet’s residence. Id. at 1309-10.
In viewing the totality of the circumstances in this case,
we find that the supporting affidavit made the necessary showing
of probable cause for issuance of the search warrant.
Specifically, we find the supporting affidavit provided a
sufficient nexus linking Dowdell’s residence as a stash house
for controlled substances, which were then distributed by
Dowdell and Bowman. The affidavit provided transcripts from
several intercepted calls linking Dowdell, Bowman, and illegal
drugs to the 2601 East Oliver Street residence. Additionally,
law enforcement officials observed a purported drug transaction
between Bowman and Brockington immediately outside the stash
house and found drugs on Brockington after stopping her.
Accordingly, in light of the totality of the circumstances,
there was sufficient probable cause to issue the search warrant
for 2601 East Oliver Street.
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B.
Dowdell argues separately that the information contained in
the supporting affidavit was too old to furnish present probable
cause. We disagree.
We have stated that “there is no question that time is a
crucial element of probable cause. A valid search warrant may
issue only upon allegations of ‘facts so closely related to the
time of the issue of the warrant as to justify a finding of
probable cause at that time.’” United States v. McCall, 740 F.2d
1331, 1335-36 (4th Cir. 1984) (quoting Sgro v. United States,
287 U.S. 206, 210 (1932)). However, the court makes the
determination based on the “circumstances of each case.” Id. at
1336 (citation omitted).
In assessing the staleness of the information, “[t]he
vitality of probable cause cannot be quantified by simply
counting the number of days between the occurrence of the facts
supplied and the issuance of the affidavit.” Id. (quoting
United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972));
see also United States v. Farmer, 370 F.3d 435, 439 (4th Cir.
2004) (explaining that staleness is not measured “by simply
counting the number of days between the occurrence of the facts
supplied and the issuance of the affidavit”). Rather, we
consider whether the objects to be seized would still be present
due to the ongoing nature of the activity or whether the items
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sought to be seized are not ordinarily destroyed or moved about
from one place to another. See McCall, 740 F.2d at 1336
(stating “the very nature of the evidence sought may suggest
that probable cause is not diminished solely by the passage of
time”); United States v. Minis, 666 F.2d 134, 140 (5th Cir.
1982) (holding that the ongoing nature of a marijuana-
cultivating operation warranted the magistrate’s inference that
marijuana plants discussed in July would still be present in
October); United States v. Freeman, 685 F.2d 942, 951-52 (5th
Cir. 1982) (holding that bank records and identification papers
are not ordinarily destroyed or moved about, thus avoiding
potential staleness problems).
In this case, Dowdell participated in a long-standing,
extensive, and ongoing criminal conspiracy to distribute heroin
and marijuana throughout the Baltimore area. The supporting
affidavit indicated that the drug-related activities were still
occurring in 2010 and early 2011. Courts routinely reject
staleness arguments in the face of ongoing and continuous
criminal activities. See Farmer, 370 F.3d at 439 (denying
staleness argument because it was unlikely that Farmer’s large-
scale counterfeiting operation would have been suddenly
abandoned); United States v. Leasure, 319 F.3d 1092, 1099 (9th
Cir. 2003) (“When an affidavit ‘establish[es] the existence of a
widespread, firmly entrenched, and ongoing narcotics operation .
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. . . staleness arguments lose much of their force.’”)
(alterations in original) (citation omitted). Therefore, the
length of the criminal conspiracy in this matter and the ongoing
nature of the criminal activities weigh heavily against
Dowdell’s staleness argument.
Additionally, law enforcement officials sought to seize
from the stash house items associated with the distribution of
drugs, such as papers, records, and receipts. Due to the
character of this evidence, the magistrate judge made a valid
inference that these items evidencing the distribution of drugs
would likely be stored in Dowdell’s residence and remain there
because business records are not ordinarily destroyed or moved
about. Accordingly, Dowdell’s staleness argument is inapposite
on this ground as well. *
*
Dowdell also argues that his statements should be
suppressed because they are fruit of the poisonous tree.
However, the Fourth Amendment’s exclusionary rule applies to
statements and evidence obtained as a product of illegal
searches and seizure. See United States v. Gray, 491 F.3d 138,
154 (4th Cir. 2007) (explaining “[t]he threshold question is
whether testimonial evidence is the product of an illegal
search”) (citing New York v. Harris, 495 U.S. 14, 19 (1990)).
Because we have already determined the search was executed
pursuant to a valid search warrant, we do not address this
argument.
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III.
For the foregoing reasons, we affirm the district court’s
denial of Dowdell’s motions to suppress.
AFFIRMED
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