The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Nos. 01-5368/5370/5446
ELECTRONIC CITATION: 2004 FED App. 0072P (6th Cir.) Carpenter, et al.
File Name: 04a0072p.06
_________________
UNITED STATES COURT OF APPEALS COUNSEL
FOR THE SIXTH CIRCUIT ARGUED: Nikki C. Pierce, FEDERAL DEFENDER
_________________ SERVICES OF EASTERN TENNESSEE, Greeneville,
Tennessee, for Appellants. Michael E. Winck, ASSISTANT
UNITED STATES OF AMERICA , X UNITED STATES ATTORNEY, Knoxville, Tennessee, for
Plaintiff-Appellee/ - Appellee. ON BRIEF: Nikki C. Pierce, FEDERAL
Cross-Appellant, - DEFENDER SERVICES OF EASTERN TENNESSEE,
- Nos. 01-5368/ Greeneville, Tennessee, for Appellants. Michael E. Winck,
- 5370/5446 ASSISTANT UNITED STATES ATTORNEY, Knoxville,
v. > Tennessee, for Appellee. Lonnie D. Carpenter, Rogersville,
,
- Tennessee, pro se.
LONNIE D. CARPENTER - _________________
(01-5368) and SHEILA J. -
CARPENTER (01-5370), - OPINION
Defendants-Appellants/ - _________________
Cross-Appellees. -
- SILER, J., delivered the opinion of the court, in which
N BOGGS, C. J., BATCHELDER, GIBBONS, ROGERS,
Appeal from the United States District Court SUTTON, and COOK, JJ., joined. GILMAN, J. (pp. 12-17),
for the Eastern District of Tennessee at Greeneville. delivered a separate concurring opinion. MOORE, J. (pp. 18-
No. 99-00045—Thomas G. Hull, District Judge. 23), delivered a separate dissenting opinion, in which
MARTIN, DAUGHTREY, COLE, and CLAY, JJ., joined,
Argued and Submitted: June 11, 2003 with MARTIN, J. (p. 24), also delivering a separate
dissenting opinion.
Decided and Filed: March 9, 2004
SILER, Circuit Judge. Defendants Lonnie D. and Sheila J.
Before: BOGGS, Chief Judge; MARTIN, SILER, Carpenter were convicted of manufacturing marijuana. One
BATCHELDER, DAUGHTREY, MOORE, COLE, of the issues that they raised on appeal was a claim that the
CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and district court erred in failing to suppress the evidence of their
COOK, Circuit Judges. illegal activity. The government cross-appealed the district
court’s ruling that limited the amount of the Carpenters’ land
subject to forfeiture. A divided panel of this court affirmed
in part, vacated in part, and remanded the case for further
1
Nos. 01-5368/5370/5446 United States v. 3 4 United States v. Nos. 01-5368/5370/5446
Carpenter, et al. Carpenter, et al.
proceedings. United States v. Carpenter, 317 F.3d 618 (6th issued the requested search warrant. The affidavit, which the
Cir. 2003). warrant incorporated, described the location of the Carpenter
residence and then set forth the following reasons (in exactly
Rehearing en banc was subsequently granted in order to the syntax shown) why Lawson believed that evidence of
consider a question regarding the application of United States criminal conduct would be found in the residence:
v. Leon, 468 U.S. 897, 922 (1984), that is, whether a search
conducted pursuant to an invalid warrant may be saved under On June 23, 1999 at approx 12:30 pm, Helicopter Pilot
the “good-faith exception” on the basis that the officers had Lt Bob Crumley was conducting an aerial search of
other information that was not presented to the issuing Hawkins Co when he was flying over the above
magistrate, but that would have established probable cause. described property he saw numerous Marijuana Plants
We need not reach that question because we conclude that the growing. Near the residence.
police officers’ reliance on the deficient warrant was Upon information I received from Lt Crumley, there is a
reasonable because the information that was presented to the road connecting the above described residence to the
issuing judge was sufficient to support a good-faith belief in Marijuana Plants. Having personal knowledge that Lt.
the warrant’s validity. We therefore REINSTATE the Crumley is certified in the identification of Marijuana I
judgment of the panel in this case, and adopt the panel feel there is probable cause to search the said residence
opinion except for its discussion of the Leon good-faith and property and seize any illegal contraband found.
exception, and REMAND the case to the district court for
further proceedings. Armed with this warrant, police officers searched the
Carpenters’ residence. They seized marijuana, marijuana
I. BACKGROUND seeds, and other items associated with marijuana
manufacturing.
A. Factual background
B. Procedural background
In June 1999, Police Lieutenant Robert Crumley was
conducting helicopter surveillance over Hawkins County, In July 1999, the Carpenters were indicted for
Tennessee. He spotted patches of marijuana growing in fields manufacturing marijuana and with employing a minor to
approximately 900 feet away from a residence belonging to assist them, in violation of 21 U.S.C. §§ 841 and 861,
the Carpenters. In addition, he observed beaten paths leading respectively. The indictment also sought the forfeiture of the
from the back door of the residence to the marijuana patches Carpenters’ real property, a 100-acre farm, on the basis that
and saw two men, who turned out to be Lonnie Carpenter and it had been “used, or intended to be used, in any manner or
his son, walking from the patches toward the residence. part, to commit, or to facilitate the commission of” marijuana
Crumley relayed this information to a team of police officers manufacturing. 21 U.S.C. § 853(a)(2).
on the ground.
The district court subsequently denied the Carpenters’
Captain Ronnie Lawson, a member of the ground team, motions to suppress the evidence seized during the search of
sought a warrant to search the residence. A state judge, their residence. The Carpenters were eventually acquitted on
satisfied that Lawson’s affidavit established probable cause, the charge that they employed a minor to manufacture
Nos. 01-5368/5370/5446 United States v. 5 6 United States v. Nos. 01-5368/5370/5446
Carpenter, et al. Carpenter, et al.
marijuana, but were found guilty of manufacturing marijuana. To justify a search, the circumstances must indicate why
The jury also concluded that the Carpenters’ property had evidence of illegal activity will be found “in a particular
been used to commit the crime, thereby triggering a forfeiture place.” There must, in other words, be a “nexus between the
of the property. place to be searched and the evidence sought.” United States
v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998).
II. ANALYSIS Lawson’s affidavit did not provide a substantial basis for the
issuing judge’s conclusion that probable cause existed to
A. The motions to suppress search the Carpenters’ residence, because it failed to set forth
sufficient facts that incriminating evidence would be found
1. Standard of review there, rather than in some other place.
In reviewing the denial of a motion to suppress, we defer to The facts that marijuana was growing “near” the residence
the district court’s factual findings unless they are clearly and that a road ran nearby fall short of establishing the
erroneous. Legal conclusions, however, are reviewed de required nexus between the Carpenters’ residence and
novo. United States v. Bartholomew, 310 F.3d 912, 919 (6th evidence of marijuana manufacturing. If Lawson’s affidavit
Cir. 2002), cert. denied, 537 U.S. 1177 (2003). had stated that beaten paths led from the marijuana patches to
the door of the residence, and that two men had been spotted
2. Whether the affidavit provided a substantial basis for walking from the marijuana patches to the residence, the
the determination of probable cause affidavit would likely have been sufficient to establish
The Fourth Amendment provides that “no Warrants shall probable cause. See United States v. Robins, 978 F.2d 881,
issue, but upon probable cause, supported by Oath or 892 (5th Cir. 1992) (holding that where a police detective has
affirmation.” U.S. Const. amend. IV. In determining whether ascertained that a particular person, Robins, was a marijuana
an affidavit establishes probable cause, dealer, “[t]here was undoubtedly an adequate nexus, between
Robins’ residence and Detective Soule’s allegations to the
[t]he task of the issuing magistrate is simply to make a Magistrate Judge about Robins’ marijuana operation, to
practical, common-sense decision whether, given all the support the search warrant for the marijuana and related
circumstances set forth in the affidavit before him, . . . records [that] Detective Soule’s experience and common
there is a fair probability that contraband or evidence of sense told him would likely be at Robins’ residence”); United
a crime will be found in a particular place. And the duty States v. Malin, 908 F.2d 163, 166 (7th Cir. 1990) (holding
of a reviewing court is simply to ensure that the that a police officer’s “observation of marijuana growing in
magistrate had a substantial basis for concluding that Malin’s [fenced] yard reasonably yielded the conclusion that
probable cause existed. marijuana or other evidence of marijuana possession would
be found in Malin’s house”).
Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (internal
quotation marks and alterations omitted). These additional facts, however, were not included in the
affidavit. The facts in the affidavit that did connect the
marijuana patches and the residence were too vague,
generalized, and insubstantial to establish probable cause.
Nos. 01-5368/5370/5446 United States v. 7 8 United States v. Nos. 01-5368/5370/5446
Carpenter, et al. Carpenter, et al.
We therefore conclude that the state judge lacked a substantial would be devoid of substance. In fact, Leon states that
basis to determine that probable cause existed to search the . . . a finding of objective good faith [is inappropriate]
Carpenters’ residence. The government, indeed, concedes when an officer’s affidavit is “so lacking in indicia of
this point. Because the search of the Carpenters’ residence probable cause as to render official belief in its existence
violated the Fourth Amendment, we are left with the question entirely unreasonable.” This is a less demanding
of whether the evidence seized should be suppressed. showing than the “substantial basis” threshold required
to prove the existence of probable cause in the first place.
3. The good-faith exception to the exclusionary rule
United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002)
“When evidence is obtained in violation of the Fourth (citation omitted).
Amendment, the judicially developed exclusionary rule
usually precludes its use in a criminal proceeding against the The affidavit in the case before us failed to provide a
victim of the illegal search and seizure.” Illinois v. Krull, 480 substantial basis for probable cause because it did not provide
U.S. 340, 347 (1987). Courts should not, however, suppress the required nexus between the residence and the illegal
“evidence obtained in objectively reasonable reliance on a activity. However, the affidavit was not completely devoid of
subsequently invalidated search warrant.” United States v. any nexus between the residence and the marijuana that the
Leon, 468 U.S. 897, 922 (1984). But this good-faith police observed. Rather, it noted both that the marijuana was
exception to the exclusionary rule does not apply in growing “near” the residence and that “there is a road
circumstances where “the officer will have no reasonable connecting” the residence and the marijuana plants.
grounds for believing that the warrant was properly issued.”
Id. at 923. Thus, an officer would not “manifest objective We previously found Leon applicable in cases where we
good faith in relying on a warrant based on an affidavit so determined that the affidavit contained a minimally sufficient
lacking in indicia of probable cause as to render official belief nexus between the illegal activity and the place to be searched
in its existence entirely unreasonable.” Id. (quotation to support an officer’s good-faith belief in the warrant’s
omitted). validity, even if the information provided was not enough to
establish probable cause. See United States v. Van Shutters,
a. Whether the officers had a reasonable basis to 163 F.3d 331, 336 (6th Cir. 1998) (upholding a search where
believe that the information actually submitted the affidavit underlying the warrant described the residence,
supported the issuance of the search warrant the items sought, and the defendant’s counterfeiting scheme,
but connected the place to the illegal activity only by stating
Pursuant to Leon, we must now decide whether the officers that the residence “was available” to the defendant); United
in the instant case had a reasonable basis to believe that the States v. Shultz, 14 F.3d 1093, 1098 (6th Cir. 1994)
information that was submitted supported the issuance of the (upholding a search of safe deposit boxes at a bank where the
search warrant. In considering this question, we agree with affidavit underlying the warrant connected the boxes and the
the following analysis by the Fourth Circuit: defendant’s trafficking in illegal drugs only by stating that the
officer’s training and experience led him to believe that
If a lack of a substantial basis also prevented application evidence would be located there).
of the Leon objective good faith exception, the exception
Nos. 01-5368/5370/5446 United States v. 9 10 United States v. Nos. 01-5368/5370/5446
Carpenter, et al. Carpenter, et al.
A useful contrast is provided by United States v. Hove, 848 Franks.” United States v. Atkin, 107 F.3d 1213, 1216-17 (6th
F.2d 137 (9th Cir. 1988). In Hove, the police officer had Cir. 1997) (discussing Franks’s holding that a defendant is
obtained a warrant to search a particular residence after entitled to an evidentiary hearing on the veracity of the
submitting to the issuing magistrate an affidavit that failed to affidavit if (1) he or she can make a preliminary showing that
provide any nexus between the residence and illegal activity. portions of the affidavit are deliberately or recklessly false,
Id. at 139-40 (“[T]he final warrant application, while it set and (2) after setting aside the false information, the remaining
forth facts suggesting that Kimberly Hove had sent parts of the affidavit would not support a finding of probable
threatening letters, never linked Kimberly Hove or any cause). But to be constitutionally problematic, the material
suspected criminal activity in any way with the 2727 DeAnza must have been deliberately or recklessly omitted and must
residence.”). The Ninth Circuit held that no reasonable have undermined the showing of probable cause. See id. (“If
officer could have believed that the warrant was valid, given the defendant does succeed in making a preliminary showing
the failure of the affidavit to articulate any nexus between the that the government affiant engaged in ‘deliberate falsehood’
illegal activity and the place to be searched. or ‘reckless disregard for the truth’ in omitting information
from the affidavit, the court must then consider the affidavit
In the present case, however, the affidavit was not totally including the omitted portions and determine whether
lacking in facts connecting the residence to the marijuana probable cause still exists.”). The Carpenters have made no
patches. These facts, as we explained above, were too vague showing that Lawson omitted facts from his affidavit
to provide a substantial basis for the determination of deliberately or recklessly. Moreover, the omitted facts would
probable cause. But these facts (unlike Hove) were not so have bolstered the affidavit’s showing of probable cause, not
vague as to be conclusory or meaningless. See United States undermined it.
v. Williams, 3 F.3d 69, 74 (3d Cir. 1993) (“This is not a case
in which the affidavit contained mere conclusory assertions The fact that a police officer had such additional knowledge
or a single piece of evidence which the law of the certainly raises the inference that the officer should have
stationhouse shop would recognize as clearly insufficient.”). recognized that a stronger showing of probable cause could
We therefore conclude that reasonable officers could have have been made to the issuing magistrate. But such
believed that the affidavit as submitted, even without the recognition says nothing about the reasonableness of the
additional relevant information known to the officers, was belief that the information that was presented was sufficient.
sufficient to support the issuance of the warrant.
To the extent that the Carpenters are continuing to argue
At oral argument, the Carpenters contended that Lawson’s that the factual assertions that were in the affidavit were both
omission from his affidavit of the additional information false and recklessly included (a traditional Franks challenge),
known to the police (concerning the beaten paths and the two the district court found after a hearing that the affidavit was
men walking from the marijuana patches to the residence) reasonably accurate and that no evidence supported the
militated against the conclusion that they executed the proposition that any inaccuracy was deliberately or recklessly
warrant in good-faith reliance on its reasonableness. We included. These findings were not clearly erroneous.
disagree. Extrapolating from Franks v. Delaware, 438 U.S.
154 (1978), this court has recognized that “material omissions
[from an affidavit] are not immune from inquiry under
Nos. 01-5368/5370/5446 United States v. 11 12 United States v. Nos. 01-5368/5370/5446
Carpenter, et al. Carpenter, et al.
b. Whether the fact that the officers had other ___________________
information that was not presented to the issuing
magistrate, but that would have established probable CONCURRENCE
cause, is relevant to the good-faith analysis ___________________
Since we have concluded that the police officers’ reliance RONALD LEE GILMAN, Circuit Judge, concurring. I
on the deficient warrant was reasonable based on the concur in the conclusion reached by the majority opinion and
information that actually was submitted to the issuing judge, in most of its reasoning. But I respectfully disagree with its
we leave for another day the question of whether the search decision to defer to another day the issue of whether a court
could have been saved under the “good-faith exception” on should consider the additional information known to the
the basis that the officers had other information that was not officers but not communicated to the magistrate in deciding
presented to the issuing magistrate, but that would have if the Leon good-faith exception has been satisfied. The
established probable cause. See, e.g., United States v. government persuaded the district court that the consideration
Marion, 238 F.3d 965, 969 (8th Cir. 2001). of such additional information was appropriate. In addition,
the issue has been fully briefed and argued on appeal and is
B. Other issues discussed in the dissenting opinion. Deciding the issue is
therefore appropriate in order to provide guidance to the
Rule 35 of the Rules of the Sixth Circuit provides that district courts within our circuit and to future panels of this
“[t]he effect of the granting of a rehearing en banc shall be to court. See Webster v. Reproductive Health Servs., 492 U.S.
vacate the previous opinion and judgment of this Court.” All 490, 532-35 (1989) (Scalia, J., concurring in part and
of the issues raised by the Carpenters on appeal are thus concurring in the judgment) (discussing numerous cases
before us. In our opinion, however, the reasoning of the prior where the Supreme Court has departed from the general
panel was correct on all issues other than its analysis of the principle of deciding cases on the narrowest possible
motions to suppress. We therefore reinstate and reaffirm the constitutional grounds).
judgment in United States v. Carpenter, 317 F.3d 618 (6th
Cir. 2003), and adopt its opinion except for its discussion of As part of its argument, the government contends that the
the Leon good-faith exception. See Donahey v. Bogle, 129 good-faith exception to the exclusionary rule should apply in
F.3d 838, 844 (6th Cir. 1997) (en banc) (reinstating the prior this case because the police officers knew additional facts that
panel opinion on all issues not otherwise discussed by the en were not included in Captain Lawson’s affidavit, but that,
banc court), vacated on other grounds, 524 U.S. 924 (1998). when added to the information contained in the affidavit,
would have established probable cause. Specifically, the
III. CONCLUSION police (1) knew that beaten paths led from the back door of
the residence to the marijuana patches, and (2) had seen two
For all of the reasons set forth above, we REINSTATE the men walking from the patches to the residence. I am of the
judgment of the panel in this case, albeit with different opinion that any consideration of this additional information
reasoning, and REMAND the case to the district court for would be contrary to controlling Supreme Court precedent.
further proceedings.
Nos. 01-5368/5370/5446 United States v. 13 14 United States v. Nos. 01-5368/5370/5446
Carpenter, et al. Carpenter, et al.
The Fourth Amendment prohibits police officers, absent cause. . . . [W]hat the officer knew but did not tell the
certain exceptions not applicable here, from conducting magistrate is irrelevant.”).
searches of a residence without a properly issued warrant.
Agnello v. United States, 269 U.S. 20, 33 (1925) (“Belief, The government argues that Leon itself described situations
however well founded, that an article sought is concealed in in which a reviewing court would need to look to facts
a dwelling house furnishes no justification for a search of that beyond the affidavit in order to ascertain whether the officers
place without a warrant.”). An officer’s correct belief in the could have reasonably relied on a deficient warrant. I do not
existence of probable cause does not obviate the warrant quarrel with this argument. But nothing in Leon suggests the
requirement. Id. (“And such searches are held unlawful illogical position that information supporting probable cause
notwithstanding facts unquestionably showing probable that is known to the officers but not to the issuing magistrate
cause.”). could make the officers’ reliance on the deficient warrant
reasonable. Instead, Leon describes several specific situations
According to the Supreme Court in Leon, evidence where the relevant extra-affidavit facts are ones other than
obtained through a search pursuant to a deficient warrant must pertinent, truthful information known to the officers but not
be suppressed, unless the police officer acted “in objectively communicated to the magistrate. 468 U.S. at 923.
reasonable reliance on a subsequently invalidated search Suppression is appropriate, for example, “in cases where the
warrant.” 468 U.S. at 922. Information tending to show the issuing magistrate wholly abandoned his judicial role,”
existence of probable cause that was not disclosed to the because the Fourth Amendment requires a magistrate to be
issuing magistrate cannot logically have any bearing on the neutral and detached and to make his or her own
reasonableness of the presenting officer’s belief that the determination of probable cause. Id. “[N]o reasonably well
warrant was properly issued, as opposed to the officer’s trained officer should rely on the warrant” where the officer
reasonable belief that probable cause existed for the search. knows that it was not validly issued. Id. Similarly, the Leon
The straightforward reason for this conclusion is that no Court instructed:
magistrate can base his or her determination of the existence
of probable cause upon information never received. [O]ur good-faith inquiry is confined to the objectively
ascertainable question whether a reasonably well trained
Leon and Agnello make clear that the relevant question is officer would have known that the search was illegal
whether the officer reasonably believed that the warrant was despite the magistrate’s authorization. In making this
properly issued, not whether probable cause existed in fact. determination, all of the circumstances—including
See United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988) whether the warrant application had previously been
(“The Leon test for good faith reliance is clearly an objective rejected by a different magistrate—may be considered.
one and it is based solely on facts presented to the magistrate.
An obviously deficient affidavit cannot be cured by an Id. at 922 n.23.
officer’s later testimony on his subjective intentions or
knowledge.”) (citation omitted); United States v. Bynum, 293 This passage from Leon points out the need to consider the
F.3d 192, 212 (4th Cir. 2002) (Michael, J., dissenting) (“Leon circumstances where extra-affidavit information might be
requires that the officer be able to entertain a reasonable belief relevant to an officer’s good-faith reliance on the warrant’s
that the magistrate had a substantial basis for finding probable validity. For example, if an officer takes an affidavit to nine
Nos. 01-5368/5370/5446 United States v. 15 16 United States v. Nos. 01-5368/5370/5446
Carpenter, et al. Carpenter, et al.
magistrates, all of whom decide that it does not establish known to [the police officer] at the time he applied for the
probable cause, and the officer subsequently relies on a later- search warrant, we find that [the police officer] reasonably
invalidated warrant issued by a tenth magistrate presented believed that probable cause existed to execute a search
with the same affidavit, the fact that nine magistrates had warrant.” Id. at 1320. I find this portion of the opinion in
decided against issuing a warrant raises an inference that the Martin perplexing, because the relevant question under Leon
officer’s reliance on the warrant was not objectively is whether the officer reasonably believed that the warrant
reasonable. A contrasting situation is found in the case before was valid, not whether probable cause existed. Perhaps this
us, where the officer knew of facts that would have part of Martin can be chalked up to dicta. But even if this
established probable cause, but omitted those facts from his characterization is incorrect, this court is of course not bound
affidavit and then relied on the warrant issued by a judge who by the holdings of our sister circuits. Nixon v. Kent County,
did not know those additional facts. Knowing additional facts 76 F.3d 1381, 1388 (6th Cir. 1996) (en banc).
that would establish probable cause, but that were not
presented to the issuing magistrate, does not establish that the The government also recites the comment in Martin that
officer reasonably believed that the warrant was properly “[t]he exclusionary rule is meant to guard against police
issued. In the first situation, extra-affidavit facts are relevant officers who purposely leave critical facts out of search
to the pertinent question of whether the officer reasonably warrant affidavits because these facts would not support a
believed that the warrant was valid. But the extra-affidavit finding of probable cause.” 297 F.3d at 1320. I agree with
facts in the second situation have no bearing on the question. this statement, but find it underinclusive. The Supreme Court
stated in Leon that “the exclusionary rule . . . operates as a
The government also cites the Eleventh Circuit’s decision judicially created remedy designed to safeguard Fourth
in United States v. Martin, 297 F.3d 1308 (11th Cir.), cert. Amendment rights generally through its deterrent effect.” 468
denied, 123 S. Ct. 667 (2002), in support of its proposed rule. U.S. at 906 (internal quotation marks omitted) (emphasis
In Martin, the Eleventh Circuit concluded that although the added). Although an officer’s intentional omission of
affidavit did not establish probable cause, it “contained unsupportive facts from a search warrant application may
sufficient indicia of probable cause to enable a reasonable well violate the Fourth Amendment, it is by no means the
officer to execute the warrant thinking it valid.” Id. at 1315. only way to violate the Amendment. See, e.g., id. at 922-24
Because no other exception to Leon applied (e.g., the (listing multiple examples of Fourth Amendment violations).
magistrate had not abandoned his judicial role), this The Martin court’s statement of the exclusionary rule’s
conclusion should have ended the Eleventh Circuit’s inquiry. purpose is therefore underinclusive and does not justify the
government’s position.
The Martin court then proceeded, however, to redundantly
“make an inquiry as to whether [the police officer] reasonably One other conceivable source of authority for the
relied upon the search warrant.” Id. at 1318. In answering consideration of the undisclosed information, which this court
this question, the Eleventh Circuit decided that it was relied upon in the unpublished decision of United States v.
permitted to consider additional facts supporting probable Leaster, No. 00-6501, 2002 WL 1147343, at *8 (6th Cir.
cause that the police officer had known but had not disclosed May 28, 2002), is Anderson v. Creighton, 483 U.S. 635, 641
to the issuing magistrate. The court concluded: “Under the (1987). Although the Supreme Court did indeed state in
totality of the circumstances, taking into account the facts Anderson that “whether it was objectively legally reasonable
Nos. 01-5368/5370/5446 United States v. 17 18 United States v. Nos. 01-5368/5370/5446
Carpenter, et al. Carpenter, et al.
to conclude that a given search was supported by probable ____________
cause or exigent circumstances will often require examination
of the information possessed by the searching officials,” id. at DISSENT
641, this statement was made in the context of deciding ____________
whether qualified immunity protected an officer conducting
a warrantless search that was undertaken because of exigent KAREN NELSON MOORE, Circuit Judge, dissenting. I
circumstances. Given that no warrant is required for a search respectfully dissent because the officers’ reliance upon the
undertaken with both probable cause and exigent warrant was not reasonable given the exiguous information
circumstances, I believe that Anderson provides no support presented to the issuing judge, and thus the Leon good-faith
for the rule proposed by the government. Leaster failed to exception does not apply to this case. See United States v.
make this key distinction and is thus unpersuasive. Leon, 468 U.S. 897 (1984).
The Eighth Circuit also relied on Anderson to justify its Consequently, I believe that we must reach the issue, buried
adoption of the rule proposed by the government. See United in the sand by the majority, of whether an officer can
States v. Martin, 833 F.2d 752, 756 (8th Cir. 1987). It did so reasonably rely on a warrant when the officer possesses
without acknowledging the significance of the “exigent information that could establish probable cause but does not
circumstances” exception to the warrant requirement, an communicate that information to the magistrate. I
exception not present in the case before us. Subsequent wholeheartedly agree with Judge Gilman’s opinion on the
Eighth Circuit cases have simply followed Martin without proper role (or lack thereof) of withheld information in the
any further analysis. See, e.g., United States v. Johnson, 78 calculus of Leon, and I do not elaborate on its reasoning at
F.3d 1258, 1263 (8th Cir. 1996); United States v. Simpkins, great length. Judge Gilman is certainly correct that Captain
914 F.2d 1054, 1057 (8th Cir. 1990). I therefore find the Lawson’s affidavit was insufficient to permit the issuing
Eighth Circuit cases equally unpersuasive. magistrate to determine that probable cause existed. Judge
Gilman also properly concludes that information known to the
No compelling authority, in sum, stands for the proposition officers, but not relayed to the issuing magistrate, cannot
that a search conducted pursuant to an invalid warrant can be preserve the fruits of an invalid warrant under the Leon good-
saved under Leon’s good-faith exception on the basis that the faith exception. The original panel should be reversed on this
officers had other information that was not presented to the point, and I endorse Judge Gilman’s rejection of the decisions
issuing magistrate, but that would have established probable of the Eighth and Eleventh Circuits. See United States v.
cause. This proposition is contrary to Leon and, in my Johnson, 78 F.3d 1258 (8th Cir. 1996); United States v.
opinion, the court should so declare in the case before us. Martin, 297 F.3d 1308 (11th Cir.), cert. denied, 123 S. Ct.
667 (2002). Knowledge withheld, either by accident or
through purposeful omission or misrepresentation, cannot
resuscitate otherwise suppressible evidence, because an
officer who neglects to inform fully the issuing magistrate
and who then executes the defective warrant does not
manifest an “objectively reasonable” good-faith belief that the
warrant was valid. Leon, 468 U.S. at 922. Far from
Nos. 01-5368/5370/5446 United States v. 19 20 United States v. Nos. 01-5368/5370/5446
Carpenter, et al. Carpenter, et al.
demonstrating reasonable belief, the omitted information reasonable officer could have believed that the warrant was
serves chiefly to highlight an officer’s understanding of the valid.
warrant’s deficiency because that officer is in a unique
position to understand that the issuing magistrate lacked all The threshold issue is how to determine whether an officer
the necessary data. Permitting information not presented to has an objectively reasonable good-faith belief in the
the issuing magistrate to serve as the lynchpin for invoking defective warrant’s validity. The Leon Court wrote that “our
Leon perverts the meaning of the warrant requirement because good-faith inquiry is confined to the objectively ascertainable
it allows law enforcement officials to bypass the judiciary; question whether a reasonably well trained officer would have
evidence produced by inadequate search warrants, which are known that the search was illegal despite the magistrate’s
starved of information and seemingly doomed by insufficient authorization.” 468 U.S. at 922 n.23. “The objective
probable cause, should not receive a reprieve solely because standard . . . requires officers to have a reasonable knowledge
of information obscured from the issuing magistrate’s of what the law prohibits.” Id. at 919 n.20. Some minimal
consideration. connection between the property or person to be searched and
the alleged wrongdoing is a necessary, but not sufficient,
I part ways with Judge Gilman, as well as the majority, precondition for the satisfaction of this objective standard.
because of their conclusion that the officers here had an The mere existence of some nexus will not preserve evidence
objectively reasonable good-faith belief in the warrant’s from the exclusionary rule when a reasonable officer, well
legitimacy based upon the scant information actually given to trained in the practice of searches and presumed to understand
the issuing magistrate. I would rule that these officers were the basic principles of the law in this area, submits an
“relying on a warrant based on an affidavit so lacking in affidavit describing a connection that so plainly fails to
indicia of probable cause as to render official belief in its establish probable cause that the reasonable officer should not
existence entirely unreasonable.” Id. at 923 (quotation have applied for the warrant initially.
omitted). The majority holds that even though the affidavit
did not provide enough of a nexus between the Carpenters’ The presence of marijuana “near” the Carpenter residence
residence and the illegal activity to sustain probable cause, and the sighting of a road “connecting” the marijuana and the
“the affidavit contained a minimally sufficient nexus between residence implied some relationship between the two, but this
the illegal activity and the place to be searched to support an link was so minimal and so plainly failed to show probable
officer’s good-faith belief in the warrant’s validity . . . .” cause to search that the officers could not have believed that
Maj. Op. at 8. In the majority’s view, the affidavit attesting the warrant authorizing the search was valid. Several courts
to (1) the presence of marijuana “[n]ear” the residence and have held that Leon does not apply when an affidavit offers an
(2) “a road connecting” the residence to the area where the extremely limited factual basis for probable cause or an
plants were growing did not suffice to give the officers extremely minimal nexus, because such an affidavit is “so
probable cause to search, but supported the officers’ lacking in indicia of probable cause as to render official belief
objectively reasonable belief that the warrant was valid. Id. in its existence entirely unreasonable.” Id. at 923 (quotation
Because I believe that the two facts presented in the affidavit omitted). For example, the Eighth Circuit ruled that no
at best draw a tenuous and shadowy connection between the reasonable officer could have believed that probable cause
Carpenter residence and the marijuana plants that is not existed when the only evidence connecting the defendant’s
sufficient to meet the Leon standards, I cannot agree that a home to the cultivation of drugs was the presence of
Nos. 01-5368/5370/5446 United States v. 21 22 United States v. Nos. 01-5368/5370/5446
Carpenter, et al. Carpenter, et al.
marijuana on a farm close to the defendant, which was owned detailed facts and eschews vague descriptions of the location
by his relatives. United States v. Herron, 215 F.3d 812, 815 or person to be searched, it is much more likely that a law
(8th Cir. 2000). The court held that Leon did not apply, enforcement official could form an objectively reasonable
because there was neither evidence of marijuana growing at belief that a warrant was valid. See United States v. Watkins,
the defendant’s residence nor proof of any participation by the 179 F.3d 489, 493, 499 (6th Cir. 1999) (applying Leon when
defendant in the cultivation of the marijuana discovered at the a six-page affidavit detailed several instances of the
other farm. Id. at 814. The “officers involved should have defendant’s drug-related activity both at and away from a
been fully aware of the deficiencies of their affidavits” different residence that the police did not search, even though
because the affidavits, which make only a few passing the affidavit did not mention a second house that was the
references to the defendant, “simply do not say very much object of the search); United States v. Williams, 3 F.3d 69, 70-
about [the defendant] or his residence.” Id. & n.2; see also 71, 74 (3d Cir. 1993) (applying Leon because affidavit of
United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988) housekeeper detailed specifics of illegal drug activity in motel
(rejecting argument that Leon applied when affidavit did not room, such as “coded” knocks, overheard conversations, and
link the searched residence to the defendant or explain why observations of paraphernalia made while cleaning); cf.
incriminating evidence may have been found there). United States v. Helton, 314 F.3d 812, 816, 824 (6th Cir.
2003) (rejecting application of Leon exception even though a
The cases upon which the majority relies are twenty-seven-page affidavit supported the warrant, because
distinguishable from the facts here, because in each, the the affidavit relied too heavily on an anonymous tipster’s
underlying affidavit contained considerably more detail or recollections).
precision than Lawson’s affidavit, and therefore made it
possible for officers executing the warrant to form a Additionally, the proximity of illegal marijuana cultivation
reasonable belief that probable cause existed. In United to the property that is searched is a significant factor in
States v. Van Shutters, 163 F.3d 331 (6th Cir. 1998), we assessing the objective reasonableness of an officer’s belief
upheld a search under Leon because the affidavit stated that that probable cause existed. In United States v. Malin, 908
the affiant had personal knowledge of the defendant’s illegal F.2d 163 (7th Cir. 1990), the Seventh Circuit found that
activities, and because the affidavit described the location of probable cause existed to search a residence, but questioned
the residence to be searched “with such particularity that a in the alternative whether Leon would apply. The court
common sense inference is that the affiant visited the answered affirmatively because the officer’s affidavit
premises himself and presumably . . . observed [the described his observation of marijuana growing directly next
defendant] in the premises.” Id. at 337. In contrast to the to a house in a fenced-in yard, even though the officer did not
majority’s reading of Van Shutters, I do not believe that we observe any individual near the marijuana. Id. at 165-67. See
applied the Leon exception based only upon an extremely also United States v. Huggins, 299 F.3d 1039, 1041, 1045
minimal connection to the illegal activity, namely the (9th Cir. 2002) (concluding that an objectively reasonable
defendant’s access to the residence; we explained in Van officer could rely on an affidavit when it presented
Shutters that the affidavit presented a detailed connection information that the defendant’s home consumed electricity
such that “only a police officer with extraordinary legal in a manner consistent with marijuana cultivation).
training would have detected any deficiencies in [the]
document.” Id. Generally, when an affidavit provides
Nos. 01-5368/5370/5446 United States v. 23 24 United States v. Nos. 01-5368/5370/5446
Carpenter, et al. Carpenter, et al.
The facts here are much closer to Herron than they are to ______________
Van Shutters or Malin. Lawson’s affidavit provided only the
barest modicum of information to the issuing magistrate. Its DISSENT
brevity and vacuousness sharply distinguishes it from the ______________
detailed affidavit presented in Van Shutters. It did not
connect the Carpenter residence to the marijuana observed; BOYCE F. MARTIN, JR., Circuit Judge, dissenting. I join
that the marijuana was seen “near” to the residence does not Judge Moore’s very persuasive dissent and add only the
necessarily imply a connection between the two, particularly following. Given the sophisticated technologies that the
when Lawson knew that the plants were in fact approximately police now have at their disposal, as well as the wide
900 feet from the Carpenter residence. Unlike Malin, when discretion that they currently enjoy, it is especially important
the marijuana grew in a fenced-in yard directly adjacent to the that we are careful not to expand their powers beyond what is
house, the marijuana “near” the Carpenters’ trailer was far authorized by the Constitution. In this case, the Constitution
enough away that no officer could draw a firm connection has been set aside in the name of expediency. Regrettably,
between the two, or between the marijuana and any other we have descended further down that slippery slope of post-
residence in the neighborhood for that matter. If the hoc rationalization, where everything that the police do
marijuana had been growing next to the trailer or in the patch becomes acceptable when viewed in retrospect.
of corn behind the trailer, the officers’ belief in the warrant’s
validity might have been more reasonable. Furthermore, the For the reasons set forth by Judge Moore and for these
road “connecting” the residence to the marijuana plants was reasons, I respectfully dissent.
in reality a dirt path leading from the Carpenters’ trailer to a
separate tractor path that may have served as the connection
between the city road and a homestead behind the Carpenters’
trailer that had burned down several years before. The good-
faith exception cannot apply here because Lawson’s affidavit
was based on two extremely inconclusive connections
between the marijuana and the house, and therefore Lawson
could not have reasonably believed that probable cause
existed.
Because there was no probable cause to justify the search
and because I do not believe that a law enforcement officer
could form the objectively reasonable belief that the warrant
was valid when so little linked the Carpenter residence to the
marijuana plants growing “near” the residence, I would
reverse the district court and exclude the evidence gathered
from the illegal search.