United States v. Washington

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 United States v. Washington, et al. No. 03-3959

ELECTRONIC CITATION: 2004 FED App. 0276P (6th Cir.)

File Name: 04a0276p.06 _________________

COUNSEL

UNITED STATES COURT OF APPEALS

ARGUED: Kevin W. Kelley, UNITED STATES

FOR THE SIXTH CIRCUIT ATTORNEY, Columbus, Ohio, for Appellant. Lewis E.

_________________ Williams, Jr., Columbus, Ohio, for Appellees. ON BRIEF:

Kevin W. Kelley, UNITED STATES ATTORNEY,

UNITED STATES OF AMERICA , X Columbus, Ohio, for Appellant. Lewis E. Williams, Jr.,

Plaintiff-Appellant, - Columbus, Ohio, John Boyd Binning, Heather R. Zilka,

- Columbus, Ohio, for Appellees.

- No. 03-3959

v. - BOGGS, C. J., delivered the opinion of the court, in which

> QUIST, D. J., joined. MOORE, J. (pp. 13-26), delivered a

, separate dissenting opinion.

DENNIS WASHINGTON ; and -

EBONY BROWN , - _________________

Defendants-Appellees. -

- OPINION

N _________________

Appeal from the United States District Court

for the Southern District of Ohio at Columbus. BOGGS, Chief Judge. The United States appeals the

No. 03-00009—Algenon L. Marbley, District Judge. district court’s granting of the defendants’ motion to suppress

evidence. The defendants, Dennis Washington and Ebony

Argued: June 9, 2004 Brown, had been indicted on several counts after police

officers executed a search warrant at 3112 Crossgate Road1

Decided and Filed: August 23, 2004 and found narcotics and firearms. Although the officers had

obtained a warrant, the defendants filed a motion to suppress

Before: BOGGS, Chief Judge; MOORE, Circuit Judge; arguing that the officer’s affidavit, which was the sole basis

and QUIST, District Judge.* of the warrant, was insufficient to establish probable cause.

The district court agreed and granted the motion to suppress.

The United States now appeals, arguing that probable cause

did exist or, alternatively, that the good-faith exception of

United States v. Leon, 468 U.S. 897 (1984) should have been

1

In the appellees’ brief, counsel stated that this residence belonged

*

to W ashington even though the Cadillac registered to that address was

The Honorable Gordon J. Quist, United States District Judge for the registered to Ebon y Bro wn, who was not a re sident there, accord ing to

W estern District of Michigan, sitting by designation. counsel. Appellees’ Brief at 11-13.

1

No. 03-3959 United States v. Washington, et al. 3 4 United States v. Washington, et al. No. 03-3959

applied. Because we find that the good-faith exception him to go to a local Burger King. Detective Johnson and the

should have been applied, we now reverse. unwitting then drove to Burger King to wait for the supplier.

The blue Cadillac (which was being followed) pulled into the

I Burger King parking lot and the unwitting got out to meet

with the driver. Johnson immediately recognized that this

The case began when the Columbus (Ohio) Police was both the same man and the same Cadillac involved in the

Department’s Narcotics Bureau planned an undercover “buy” first “buy” on October 1. After leaving the Cadillac, the

of crack cocaine from an “unwitting,” a person who does not unwitting came back and again produced crack cocaine.

know that he is dealing with the police. Detective Michael Johnson was unable to identify the driver of the blue Cadillac

Johnson, working undercover, arranged a buy from an at that time, though he subsequently observed the blue

unwitting on October 1, 2002. Johnson met with the Cadillac parked at 3112 Crossgate Road on both October 8

unwitting, who telephoned his narcotics supplier. Johnson and October 9. As it turned out, the man driving the blue

and the unwitting then drove to a designated meeting place. Cadillac was defendant Washington.

Shortly thereafter, a black male driving a blue Cadillac parked

next to Johnson’s car.2 The unwitting got out and entered the Based on these facts, Johnson sought a warrant to search

Cadillac. When the unwitting returned to Johnson’s car, he the residence at 3112 Crossgate Road. The basis for the

produced a bag of crack cocaine. Johnson recorded the warrant was a four-page affidavit, in which Johnson relayed

license plate of the Cadillac and later determined that it was in narrative form the facts stated above. He added that, based

registered to a woman named Ebony Brown at 3112 on his experience, individuals involved with drug trafficking

Crossgate Road, Columbus, Ohio. The police subsequently commonly keep records, documents, and money close by. In

began conducting surveillance on that residence. addition, Johnson noted that the Crossgate house had been

robbed two months earlier, which was also (in his opinion)

On October 5 (four days later), Johnson arranged for “indicative of suspects searching for narcotics and large sums

another buy with the same unwitting. The unwitting again of cash.” A state magistrate judge approved the warrant,

called his supplier, and thereafter reported that the supplier which was specifically limited to documents and records

said that he would be delayed because he was waiting on a relating to drug trafficking, but did not authorize a search for

ride to pick up his Cadillac in the repair shop. Shortly after drugs themselves.

this call, the police officers at 3112 Crossgate Road observed

a Chevrolet Blazer pick up a black male (later identified as The police conducted the search on October 11 (the warrant

Washington) who emerged from that residence. The officers was issued on the 9th), and saw drugs in plain view after they

trailed the Blazer, which eventually dropped the man off at entered the house. Based on these observations, the police

“Columbus Car Audio,” where he picked up a blue Cadillac obtained a second warrant to search for drugs and drug

and drove it away. While the unidentified man was driving, paraphernalia. Although it is not relevant for the issues in this

the unwitting received a call from the supplier, who instructed case, the police found substantial amounts of crack cocaine,

a firearm, and large amounts of money at the Crossgate

residence.

2

This man was later identified as defendant W ashington, although the The grand jury returned a four-count indictment against the

police were unable to identify him before the execution of the warrant at defendants, charging them with violations of various drug and

3112 Crossgate Road.

No. 03-3959 United States v. Washington, et al. 5 6 United States v. Washington, et al. No. 03-3959

firearm-related offenses. Prior to trial, the defendants moved A

to suppress all evidence obtained in the search. They made

four specific arguments as to why the evidence should be “When reviewing decisions on motions to suppress, this

suppressed: (1) the warrant was invalid because the affidavit court will uphold the factual findings of the district court

lacked evidence to establish probable cause, and the good- unless clearly erroneous, while legal conclusions are reviewed

faith exception did not apply; (2) the police executing the de novo.” United States v. Weaver, 99 F.3d 1372, 1376 (6th

search failed to knock and announce; (3) information in Cir. 1996). Because there was no hearing and no factual

affidavit was too stale; and (4) the evidence from the second findings, the district court made only legal conclusions.

search was the “fruit of the poisonous tree.” “Where, as in this case, the district court is itself a reviewing

court, we owe its conclusions no particular deference. In

The district court found that the affidavit was not sufficient reviewing a state magistrate's determination of probable

to establish probable cause. Specifically, the court found that cause, this court pays great deference to a magistrate's

the evidence did not establish a sufficient nexus between the findings, which should not be set aside unless arbitrarily

criminal activity and the residence itself. The court relied exercised.” United States v. Leake, 998 F.2d 1359, 1362-63

heavily on the fact that the police had not identified the (6th Cir. 1993) (internal citations and quotations omitted).

suspect (who turned out to be Washington) and had not

established where he lived prior to executing the search. In determining if an affidavit establishes probable cause:

Finding that the initial search was invalid, the court did not

reach the other arguments, though it also suppressed the [T]he task of the issuing magistrate is simply to make a

evidence of the second search as “tainted fruit.” The United practical, common-sense decision whether, given all the

States appealed.3 circumstances set forth in the affidavit before him, . . .

there is a fair probability that contraband or evidence of

II a crime will be found in a particular place. And the duty

of a reviewing court is simply to ensure that the

The government contends that the district court erred by magistrate had a substantial basis for concluding that

finding that the affidavit failed to establish probable cause. probable cause existed.

Alternatively, even if probable cause did not exist, the

government argues that the good-faith exception recognized United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004)

in United States v. Leon, 468 U.S. 897 (1984) should have (en banc) (quoting Illinois v. Gates, 462 U.S. 213, 238-39

been applied. We consider each argument in turn. (1983) (emphasis added)). “To justify a search, the

circumstances must indicate why evidence of illegal activity

will be found in a particular place. There must, in other

3 words, be a nexus between the place to be searched and the

In the district court, the government had raised the issue of whether evidence sought.” Ibid. (internal citations and quotations

the defendants had standing for Fourth Amendm ent purposes. The omitted). Thus, the critical question here is whether the facts

government failed to raise this issue on appeal, and has therefore waived

it. See United States v. Higgins, 299 F.3d 1039, 1050 (9th Cir. 2002) alleged in the affidavit established a sufficient nexus between

(“Standing to challenge a search or seizure is a matter of substantive the criminal activity observed and the Crossgate residence.

Fourth Amendment law rather than of Article III jurisdiction, meaning

that the government can waive the standing defense by not asserting it.”)

(citing Illinois v. Rakas, 439 U.S. 128 , 139-40 (197 8)).

No. 03-3959 United States v. Washington, et al. 7 8 United States v. Washington, et al. No. 03-3959

Under the facts of this case, the existence of probable cause Carpenter, a case decided well after the proceedings below,

is an extremely close call. However, given our conclusion we recently outlined the appropriate showing that must be

that the good-faith exception clearly applies, we will assume made to establish that the officers could have reasonably

without deciding that probable cause did not exist. believed that the affidavit was sufficient to establish probable

cause. Under Carpenter, this showing is less demanding than

B the showing necessary to establish probable cause:

As explained above, the police officers in this case If a lack of a substantial basis also prevented application

obtained, and relied upon, a warrant issued by a state of the Leon objective good faith exception, the exception

magistrate judge. Therefore, the goverment argues that would be devoid of substance. In fact, Leon states that

Leon’s good-faith exception should have been applied. . . . a finding of objective good faith [is inappropriate]

when an officer's affidavit is “so lacking in indicia of

This court has explained that “[c]ourts should not . . . probable cause as to render official belief in its existence

suppress evidence obtained in objectively reasonable reliance entirely unreasonable.” This is a less demanding showing

on a subsequently invalidated search warrant.” Carpenter, than the “substantial basis” threshold required to prove

360 F.3d at 595 (quoting United States v. Leon, 468 U.S. 897, the existence of probable cause in the first place.

922 (1984)). Pursuant to Leon, this good-faith exception will

not apply in four specific situations: (1) where the affidavit Carpenter, 360 F.3d at 595 (quoting United States v. Bynum,

contains information the affiant knows or should have known 293 F.3d 192, 195 (4th Cir. 2002)). Carpenter makes it clear

to be false; (2) where the issuing magistrate wholly that the “so lacking in indicia” test is less demanding than the

abandoned his or her judicial role; (3) where the affidavit was “substantial basis” test. Thus, it is entirely possible that an

so lacking in indicia of probable cause as to render official affidavit could be insufficient for probable cause but

belief in its existence entirely unreasonable [or] where the sufficient for “good-faith” reliance.

warrant application was supported by [nothing] more than a

“bare bones” affidavit4; (4) where the warrant is so facially The standard stated in Carpenter is consistent with the

deficient that the executing officers cannot reasonably purpose and rationale of the exclusionary rule. The Supreme

presume it to be valid. United States v. Van Shutters, 163 Court has explained that the exclusionary rule is “a judicially

F.3d 331, 337 (6th Cir. 1998). The defendants argued that the created remedy designed to safeguard Fourth Amendment

second and third situations existed here. The district court rights generally through its deterrent effect, rather than a

concluded that the third applied and thus rejected the personal constitutional right of the party aggrieved.” Leon,

government’s good-faith-exception argument. 468 U.S. at 906. Excluding evidence deters constitutional

violations by providing incentives for the police to seek

This court reviews the decision of whether to apply the warrants before executing a search. Thus, when the officers

good-faith exception de novo. Leake, 998 F.2d at 1366. In do in fact obtain a warrant, the purpose of the exclusionary

rule has largely been served. While it is true that the police

still have a duty to assess the affidavit upon which the warrant

4

A “bare bo nes” affidavit “states suspicions, or conclusions, without was based, we will, under Carpenter, exclude evidence in

providing some underlying factua l circum stances regarding veracity, these situations only when the affidavit is “so lacking in

reliability, and basis of knowledge.” United States v. Va n Shutters, 163

F.3d 331 , 337 (6th Cir. 1998) (quoting Weaver, 99 F.3d at 1378).

No. 03-3959 United States v. Washington, et al. 9 10 United States v. Washington, et al. No. 03-3959

indicia of probable cause as to render official belief in its officer also traced the phone number used by the informant to

existence entirely unreasonable.” Carpenter, 360 F.3d at 595. purchase drugs back to a woman in whose car Schultz had

once received a traffic ticket. The police officer also

There have been several recent cases, all of which involved discovered that Schultz had a safe deposit box at the bank.

questions about the nexus between criminal activity and Based largely on the evidence above, the officer sought a

places, where this court has found that probable cause did not warrant to search the safe deposit box. 14 F.3d at 1096.

exist, but that the good-faith exception should apply. United

States v. Carpenter, 360 F.3d 591 (6th Cir. 2004) (en banc); In assessing probable cause, this court explained: “In his

United States v. Van Shutters, 163 F.3d 331 (6th Cir. 1998); affidavit . . . , the only connection [the officer] made was that,

United States v. Schultz, 14 F.3d 1093 (6th Cir. 1994); United ‘Based on his training and experience, [he] believed . . . that

States v. Savoca, 761 F.2d 292 (6th Cir. 1985). it is not uncommon for the records, etc. of such [drug]

distribution to be maintained in bank safe deposit boxes.’” Id.

For example, in Carpenter, this court explained, “[w]e at 1097. The court found the affidavit to be insufficient:

[have] previously found Leon applicable in cases where we “[The officer] did not have anything more than a guess that

determined that the affidavit contained a minimally sufficient contraband or evidence of a crime would be found in the

nexus between the illegal activity and the place to be searched boxes, and therefore the first warrant should not have been

to support an officer's good-faith belief in the warrant's issued.” Id. at 1097-98.

validity, even if the information provided [did not] establish

probable cause.” 360 F.3d at 596. In Carpenter, police The court went on, however, to find that the good-faith

helicopter surveillance had observed a marijuana patch near exception applied:

a residence and a beaten path extending from the house to the

plants. This court found that the evidence submitted by the [We] cannot say that this warrant was “so lacking [in

police failed to provide a sufficient nexus to establish indicia of probable cause].” As previously discussed, [the

probable cause, but still found that Leon applied because “the police officer] certainly had probable cause to believe that

affidavit was not totally lacking in facts connecting the Schultz had committed a crime. Moreover, although we

residence to the marijuana patches.” Ibid. We added, have held that his “training and experience” were not

“[t]hese facts . . . were too vague to provide a substantial basis sufficient to establish a nexus of probable cause between

for the determination of probable cause. But these facts . . . that crime and the safe deposit boxes, the connection was

were not so vague as to be conclusory or meaningless.” Ibid. not so remote as to trip on the “so lacking” hurdle.

A case more factually similar to the one before us can be Id. at 1098.

found in United States v. Schultz, 14 F.3d 1093 (6th Cir.

1994). In Schultz, a police officer arrested an individual for In this case, even assuming probable cause was not

drug possession, and that individual then informed the officer established, it is clear that the affidavit included enough facts

that a man named Schultz was his source for drugs. The with respect to the nexus between the criminal activity and

officer investigated further and found that some of the the Crossgate residence to overcome the “so lacking” hurdle.

informant’s information was correct. For example, they First, Officer Johnson observed two drug deals involving the

traced some phone records (calls to Jamaica) back to an same man who was driving a car registered to a person at

apartment where Schultz had been parking his car. The 3112 Crossgate Road. Thus, just like the officer in Schultz,

No. 03-3959 United States v. Washington, et al. 11 12 United States v. Washington, et al. No. 03-3959

Johnson certainly had probable cause to believe that smelled marijuana at a residence. 998 F.2d at 1360-61. The

Washington had committed a crime. Second, Washington officer spent only two hours on two nights observing the

(the then-unidentified dealer) emerged from 3112 Crossgate house, but failed to observe any evidence of wrongdoing. Id.

immediately prior to conducting the second drug deal on at 1367. In fact, the only corroboration of the informant’s tip

October 5. Third, Washington had told the unwitting that he was that the house matched the informant’s general

had to wait for a ride so that he could pick up his Cadillac, description and that it had a basement. Id. at 1361. On the

which was registered to the Crossgate residence. Fourth, the basis of this information, the officer submitted an affidavit

same Cadillac used in both drug deals (and which and obtained a warrant. The court refused to apply Leon. Id.

Washington claimed was his car) was observed at the at 1367 (“The limited information provided by the

Crossgate residence on the mornings of October 8 and 9. anonymous caller, coupled with the brief limited surveillance

Finally, the affidavit included a reference to an armed robbery by the affiant officer that turned up nothing unusual, was

at the Crossgate residence two months earlier, which Johnson insufficient. [The officer] knew, or should have known, that

stated (based on four and one-half years in the Narcotics reliance on the search warrant was ill-advised.”). In both

Bureau) was indicative of suspects searching for narcotics or Weaver and Leake, the efforts of the police were far less

cash. These facts might very well be enough to establish extensive than the efforts of Officer Johnson and the

probable cause, although we decline to make that holding. At Columbus police, and could hardly be deemed “good-faith”

the very least, though, the facts listed above clearly satisfy the reliance.

“so lacking” standard necessary for Leon’s good-faith

exception to be applied. There was a visible nexus III

connecting Washington to the house, Washington to the

Cadillac, and the Cadillac to the house. Because we find the good-faith exception should have been

applied, we now REVERSE the district court’s granting of the

Both the district court and the defendants relied on two defendants’ motion to suppress. Because the district court did

cases in which this court declined to apply the good-faith not pass on the defendants’ other bases for the motion to

exception where the officers had obtained a warrant with an suppress, we decline to consider those arguments at this time.

affidavit. United States v. Weaver, 99 F.3d 1372 (6th Cir.

1996) and United States v. Leake, 998 F.2d 1359 (6th Cir.

1993). Both of these cases can be easily distinguished. For

example, in Weaver, the police officer had merely filled in

blanks on a boilerplate affidavit. The officer had also relied

on a single informant without any corroboration of the

informant’s allegations. The court found that the search

warrant could not have been relied on in good faith under

these circumstances. Weaver, 99 F.3d at 1375, 1381 (“We

believe a reasonably prudent officer would have sought

greater corroboration to show probable cause and therefore do

not apply the Leon good-faith exception on the facts of this

case.”). Similarly, in Leake, a police officer relied on an

anonymous informant, who informed the officer that he

No. 03-3959 United States v. Washington, et al. 13 14 United States v. Washington, et al. No. 03-3959

______________ leaving the 3112 Crossgate residence on only one occasion,

and Johnson saw the Cadillac parked in front of the residence

DISSENT on two consecutive mornings, although he did not see the

______________ supplier on those mornings. The affidavit attested to

Johnson’s belief that “it is very common for narcotics

KAREN NELSON MOORE, Circuit Judge, dissenting. traffickers to conceal their identity by means of having other

The majority upholds a search when the underlying affidavit persons register vehicles that they commonly drive and

neither connects a searched residence to any illegal activity essentially own.” J.A. at 40. The affidavit also discussed

nor states that a suspect observed engaging in such illicit how a 2002 police report showed that Brown had been robbed

activity away from the residence actually lives at the searched at gunpoint by three individuals who stole a diamond ring and

residence. Because such a warrant is so lacking in probable cash, which led Johnson to the conclusion, based on

cause that no reasonable officer could rely on it in executing Johnson’s “experience and expertise[,] . . . that the robbery

the search, I respectfully dissent. . . . is indicative of suspects searching for narcotics and large

sums of cash.” J.A. at 40. Finally, the affidavit attested to

I would affirm the judgment of the district court. There are Johnson’s belief that in his experience, drug traffickers are

two issues raised by this appeal: whether the warrant was likely to keep records and documents of their illicit activities

supported by probable cause, and if not, whether the officers at their residences. J.A. at 41.

reasonably relied on the warrant in executing the search.

Believing that both inquiries should be answered in the The affidavit is notable for what it lacks. It fails to identify

negative, I would suppress the evidence uncovered as a the name of the supplier or to provide a detailed description

consequence of the illegal search of 3112 Crossgate. of him. It in no way suggests that any drug trafficking

activity was seen transpiring in or near the residence. The

I. THE AFFIDAVIT affidavit does not state or provide any information implying

that the supplier lived or resided at 3112 Crossgate, aside

In analyzing the legality of the first warranted search and from Johnson’s statement that the supplier was seen leaving

the reasonableness of the officer’s reliance on the first that location on one lone occasion. Additionally, the affidavit

warrant, it is helpful to recount the affidavit that Johnson does not indicate that Johnson performed any research to

presented to the issuing judge. Detective Johnson’s affidavit determine whether the supplier, or Brown, lived at or owned

spoke of an unidentified individual, whom the unwitting 3112 Crossgate.

called his “supplier” and who responded when the unwitting

requested to purchase cocaine. Johnson did not actually see II. PROBABLE CAUSE

the drug exchange, but on two separate occasions Johnson

“observed verbal and physical interaction between the Based upon the fundamental principles of the law of

unwitting and the male,” Joint Appendix (“J.A.”) at 39 warranted searches, I cannot conclude that probable cause

(Johnson Aff. I), who was identified by the unwitting as the supported the issuance of the search warrant. The Fourth

supplier, that was consistent with a drug sale. Also on two Amendment states that “no Warrants shall issue, but upon

separate occasions, Johnson observed the supplier driving a probable cause, supported by Oath or affirmation.” U.S.

Cadillac that was registered to Ebony Brown at 3112 Const. amend. IV. The question is whether “given all the

Crossgate. Detectives assisting Johnson watched the supplier circumstances set forth in the affidavit . . . there is a fair

No. 03-3959 United States v. Washington, et al. 15 16 United States v. Washington, et al. No. 03-3959

probability that contraband or evidence of a crime will be determinant of a search warrant is whether evidence is likely

found in a particular place.” Illinois v. Gates, 462 U.S. 213, to be found on the premises to be searched. See Zurcher v.

238 (1984). In evaluating the issuing magistrate’s probable Stanford Daily, 436 U.S. 547, 556 (1978) (“The critical

cause determination, we apply a flexible “totality of the element in a reasonable search is not that the owner of the

circumstances” approach, which permits us to evaluate the property is suspected of crime but that there is reasonable

particular facts of each case. Id. Despite our consideration of cause to believe that the specific ‘things’ to be searched for

a broad range of circumstances that factor into a magistrate’s and seized are located on the property to which entry is

probable cause determination, there are “limits beyond which sought.”).

a magistrate may not venture in issuing a warrant.” Id. at 239.

“Sufficient information must be presented to the magistrate to In prior cases, a paucity of details linking a defendant to the

allow that official to determine probable cause; his action named residence and to drug activity at that residence has led

cannot be a mere ratification of the bare conclusions of us to conclude that probable cause did not support the issued

others.” Id. Because Johnson’s affidavit did not establish warrants. In United States v. Helton, 314 F.3d 812 (6th Cir.

that Washington owned the 3112 Crossgate residence, which 2003), we held that probable cause did not exist when there

diminished the likelihood that evidence of drug trafficking was no observation of drug activity at a residence and little to

would be found there, I believe the magistrate erred in its no additional proof connecting the residence to drug

probable cause determination. trafficking. The affidavit in Helton attested to three phone

calls a month between the searched residence and known drug

Any review of this search must begin with the clear reality dealers, a description of the residence, and an assertion that

that Johnson’s affidavit did not mention any illicit activity at one of the drug dealers stored money with someone other than

the searched residence nor did it present any credible the defendant somewhere other than the residence. Id. at 820-

information (from a confidential informant or an unwitting) 21. After considering other circumstances of “minimal

that drug trafficking occurred there. Unlike other cases in persuasive value,” we held that there was little to no

which drug activity was reported near or at a residence, either probability that the searched residence contained drugs or

by surveilling police or an informant, there was no such drug proceeds. Id. at 823; see also United States v. Savoca,

information provided here. Cf. United States v. Martin, 920 761 F.2d 292, 295 (6th Cir. 1985) (holding that probable

F.2d 393, 399 (6th Cir. 1990) (upholding search when cause did not support search of a motel room where two

narcotics sale occurred near the residence and a confidential known bank robbers were observed together, even taking into

informant provided information about drug activity occurring account the inference that bank robbers tend to conceal

inside the residence); United States v. Pelham, 801 F.2d 875, evidence in places like hotel rooms, because there was

878 (6th Cir. 1986) (“When a witness has seen evidence in a nothing linking the motel room to the particular crime, which

specific location in the immediate past, and is willing to be had occurred over 2,000 miles away).1 Similar to the facts in

named in the affidavit, the ‘totality of the circumstances’

presents a ‘substantial basis’ for conducting a search for that

evidence.”). Johnson’s affidavit stated that he observed the 1

In other cases, which contrary to this factual scenario involved

supplier meet with the unwitting twice in locations away from direct observation of illicit activity at a na med residence, incomp lete

the residence, but Johnson never observed drug trafficking details about the activity also led us to suppress evidence. See United

behavior at 3112 Crossgate. The supplier’s actions may have States v. Weaver, 99 F.3d 1372 , 1379 (6th Cir. 1998) (holding that even

though a confidential informant provided a tip that drug activity was

provided probable cause for an arrest warrant, but the proper occurring at a residence, the affidavit did not attest to any “substantive

No. 03-3959 United States v. Washington, et al. 17 18 United States v. Washington, et al. No. 03-3959

Helton, there was no direct connection between the supposed that “‘many drug traffickers utilize their homes to conduct

illegal drug activity observed by Johnson and 3112 Crossgate; their illegal narcotics trafficking activities’”). Nonetheless, in

the gulf between the two is bridged by Johnson’s statement these types of cases we should be mindful that Gates’s

that it is common for drug traffickers to keep business records “totality of the circumstances” test requires us to eschew firm

and journals at their residences. rules and that evidence may not always be likely to be found

where a dealer resides. See United States v. Allen, 211 F.3d

The affidavit’s reliance upon a belief that drug-related 970, 975 (6th Cir. 2000) (en banc) (“As the Court observed in

materials may be found in the homes of those who sell drugs Gates, tests and prongs have an unfortunate tendency to

elsewhere in lieu of articulable observations of drug develop a life of their own, and tend to draw more attention

trafficking behavior at a residence does not per se condemn to their individual characteristics than to the totality of the

the magistrate’s probable cause determination. In the past, we circumstances.”).

have held that an observation of drug trafficking away from

a dealer’s residence can provide probable cause to search the We are presented with an altogether different set of

alleged dealer’s residence. United States v. Miggins, 302 F.3d circumstances when the affidavit in question fails to

384, 393-94 (6th Cir. 2002). We have permitted searches of demonstrate that the suspect actually owns or lives at the

a trafficker’s residence when the trafficker is observed dealing residence. The link between the suspect and the residence is

drugs elsewhere, despite the attenuated connection between the key support for the inference that a residential search is

the trafficking and the residence, because an officer’s likely to turn up evidence of illicit drug activity. When that

experience that drug dealers often store evidence of their link is missing, it is an impermissible logical leap to assume

activities at their residences enhances the probability that that evidence will be found at a location where the suspect

trafficking-related evidence will be discovered. Id.; see also does not reside. While it makes some logical sense that drug

United States v. Jones, 159 F.3d 969, 974-75 (6th Cir. 1998) dealers may maintain records and documents at their homes,

(“[T]he fact that the incidents referred to in the affidavits took it is less reasonable that traffickers would keep records and

place on the premises [(in the driveway of the residence or in documents in places where they temporarily reside (visiting

the defendant’s car)] rather than inside the house does not a friend’s house or a motel) or where they are temporarily

invalidate the search of the house.”); United States v. guests (spending several hours at the home of an

Caicedo, 85 F.3d 1184, 1193 (6th Cir. 1996) (finding acquaintance). It is notable that there is no comparable

probable cause when affidavit attested to officer’s experience inference in Johnson’s affidavit that drug dealers tend to keep

documents and records of their trafficking at any house where

police happen to see them, nor would such a presupposition

be plausible or supportable absent some direct observation or

independent investigative actions to corrob orate [the] informa nt’s claims, knowledge of documents kept at a particular location.

such as surve illance o f the . . . residence for undue traffic or a second

controlled purchase m ade with officers viewing”); United States v. Leake,

998 F.2d 135 9, 13 65 (6th Cir. 199 3) (sup pressing evidence when

Reviewing the warrant in a “practical, common-sense”

anonymous tipster reported personal observation of drug trafficking-type manner, it is clear that there was a dramatic reduction in the

activities at a residence, but the investigating detective did not notice probability that evidence of drug trafficking would have been

anything out of the ordinary at the residence during his two-night found at 3112 Crossgate when the affidavit failed to draw the

surveillance, and the detective’s tracing of vehicles located at the critical link between the supplier’s activities outside the

residence did not increase the probability that drugs would be found at the

residence).

residence and the residence itself. See United States v. Van

No. 03-3959 United States v. Washington, et al. 19 20 United States v. Washington, et al. No. 03-3959

Shutters, 163 F.3d 331, 337 n.4 (6th Cir. 1998) (noting that individual who was presumed to live at 3112 Crossgate. Not

verification that defendant actually lived at the searched every affidavit and warrant must identify the suspect or name

residence “should have been included in the affidavit”). the suspect as the owner of the searched property, but when

Johnson’s affidavit stated that his supporting detectives the only evidence making it probable that illicit materials will

observed the unnamed supplier leaving the 3112 Crossgate be found at a particular residence is the assumption that drug

address on one single occasion, but the affidavit contains no dealers tend to keep drugs, money, guns, and records at their

other information about the supplier’s connection to the homes, it seems clear that there should be evidence that the

residence. Nor did the affidavit claim that Brown resided at trafficker actually owns or resides at the property to be

3112 Crossgate. At the time he produced the affidavit, searched. Cf. United States v. Pinson, 321 F.3d 558, 564-65

Johnson did not know, and consequently did not and could (6th Cir. 2003) (holding that an affidavit does not need to

not inform the court, whether the supplier lived at the name a dealer or the owner of searched property, but only

residence, was an occasional houseguest, or just visited 3112 when a confidential informant actually purchased drugs and

Crossgate on the morning he was observed leaving the house. witnessed drug trafficking at the searched residence).

Unlike the affidavits in other cases in which officers have Johnson’s other ruminations in the affidavit about the

clearly established that a defendant owned the residence to be supplier’s connection to the residence and Brown’s

searched, Johnson’s affidavit did not reflect any research into connections to the supplier’s alleged drug trafficking

mortgage or phone records, or any other potential proof that constitute little more than speculation and fail to sustain the

Washington lived or resided at 3112 Crossgate. See Miggins, legality of the search. Johnson’s observations of the Cadillac

302 F.3d at 388 (affidavit drew link between defendants and outside 3112 Crossgate on two separate mornings did not at

searched residence, even though no drug trafficking activity all establish that the supplier resided at that address. Nor does

occurred at the residence); United States v. Watkins, 179 F.3d Johnson’s suggestion that the supplier registered the Cadillac

489, 493 (6th Cir. 1999) (affidavit clearly established that in Brown’s name to conceal his identity successfully show

residence was owned by defendant); Caicedo, 85 F.3d at 1193 that the supplier lived at 3112 Crossgate. Furthermore,

(affidavit noted that defendant had lied about his address and Johnson’s statement that the theft of a diamond ring and cash

the affidavit claimed that defendant’s concealment of his true from Brown “is indicative of suspects searching for narcotics

address could indicate that additional evidence would be and large sums of cash,” J.A. at 40, is little more than

found at his actual residence); United States v. Schultz, 14 guesswork because the robbery may have occurred for myriad

F.3d 1093, 1097 (6th Cir. 1994) (upholding search when there reasons. This speculation is also irrelevant; the robbery

were clear links between defendant and searched apartment; incident does nothing to establish that the supplier lived or

the affidavit attested to the fact that the defendant resided in resided at 3112 Crossgate.

the apartment, and automobiles registered to the defendant

were parked at the searched apartment complex); United Considering the “totality of the circumstances” — the

States v. Davidson, 936 F.2d 856, 857-58, 859-60 (6th Cir. dearth of observed drug trafficking activity at 3112 Crossgate,

1991) (affidavit attesting to a widespread and thoroughly the failure of the affidavit to prove that the supplier resided at

documented pattern of drug trafficking activity clearly 3112 Crossgate, the failure of the affidavit to identify the

identified that the suspect lived at the searched residence). supplier, and the lack of any additional evidence

Furthermore, unlike many of our other decisions in this area, demonstrating a probability that drug evidence would be

Johnson’s affidavit failed even to identify the name of the found at the residence — Johnson’s affidavit failed to

No. 03-3959 United States v. Washington, et al. 21 22 United States v. Washington, et al. No. 03-3959

establish a fair probability that documents relating to drug reasonable officer knows that evidence of three calls a month

trafficking would be discovered at the 3112 Crossgate to known drug dealers from a house, a description of that

residence. Therefore, the warrant was not supported by house, and an allegation that a drug dealer stores drug

probable cause, and the search cannot be justified on that proceeds with his brother and his brother's girlfriend (neither

basis. of whom live at or are known to visit that house), falls well

short of establishing probable cause that the house contains

III. THE LEON GOOD-FAITH EXCEPTION evidence of a crime.”); United States v. Weaver, 99 F.3d

1372, 1381 (6th Cir. 1998) (holding that “a reasonably

The majority errs by concluding that the good-faith prudent officer would have sought greater corroboration to

exception established in United States v. Leon, 468 U.S. 897 show probable cause” when the affidavit did not indicate a

(1984), insulates the search from reproach. Leon articulated fair probability that a suspect was growing marijuana at a

the principle that the exclusionary rule does not operate “to particular residence); United States v. Leake, 998 F.2d 1359,

bar admission of evidence seized in reasonable, good-faith 1367 (6th Cir. 1993) (rejecting application of Leon because “a

reliance on a search warrant that is subsequently held to be two-night, two-hour surveillance simply produced no

defective.” Van Shutters, 163 F.3d at 337 (quotations significant corroboration of the information’s claim of

omitted). However, Leon will not apply when “it is clear that marijuana trafficking”).

. . . the officer will have no reasonable grounds for believing

that the warrant was properly issued.” Leon, 468 U.S. at 922- The government unpersuasively suggests that several of our

23. The relevant exception to the Leon rule provides that “an cases mandate an outcome in its favor because those cases

officer [would not] manifest objective good faith in relying on apply the good-faith exception “despite the lack of any nexus

a warrant based on an affidavit so lacking in indicia of between the criminal activity and the place to be searched.”

probable cause as to render official belief in its existence Gov’t Br. at 34 (citing Van Shutters, 163 F.3d at 337-38;

entirely unreasonable.” Id. at 923 (emphasis added). Thus, Schultz, 14 F.3d at 1098; Savoca, 761 F.2d at 298). The

the inquiry is whether Johnson’s affidavit was so deficient in government’s misreading of these cases explains its

establishing probable cause to search 3112 Crossgate that “a overstatement; in the cited cases, an identified suspect and a

reasonably well trained officer would have known that the strong and demonstrable connection between the suspect and

search was illegal despite the magistrate’s authorization.” Id. the place to be searched served as the nexus between the

n.23. criminal activity and the search location. For example, in Van

Shutters, the affiant had personal knowledge of the suspect’s

The application of Leon to this precise factual situation — criminal enterprises, the affidavit implied that the affiant had

where no criminal activity is observed at the searched observed the suspect in the searched residence or otherwise

residence and the affidavit fails: 1) to identify the suspect; determined that the suspect frequented the residence, and a

and 2) to demonstrate that the suspect lives at the place to be search of a different residence owned by the suspect turned up

searched — is a novel question for this circuit. In different incriminating evidence. Van Shutters, 163 F.3d at 334, 337.

factual circumstances, we have held that an officer’s reliance We ruled that Leon preserved the fruits of the search. In

on a warrant was objectively unreasonable when the warrant Schultz, an officer sought a warrant to search a safe-deposit

failed to make a sufficient connection between a suspect, the box based upon the intuition that documents and records of

suspect’s illegal actions, the objects to be seized, and the drug distribution are often kept in such boxes. Schultz, 14

place to be searched. See Helton, 314 F.3d at 825 (“A F.3d at 1097. We held that despite the lack of a nexus

No. 03-3959 United States v. Washington, et al. 23 24 United States v. Washington, et al. No. 03-3959

between the crime and the safe-deposit boxes, the connection even though the proximity of the marijuana was too remote to

was not so remote as to make Leon inapplicable. Id. at 1098. give probable cause to search. By contrast, Johnson did not

In Schultz, however, there was a proven nexus between the observe drug activity anywhere near 3112 Crossgate; the

suspect and the safe-deposit box, a connection missing here. purported trafficking occurred several miles from the home.

See also Savoca, 761 F.2d at 298 (holding that affidavit was As a result, Johnson, unlike the officer in Carpenter, could

not “so lacking in indicia of probable cause” when two known not rely on the propinquity of the drugs to the residence as an

bank robbers were observed staying at the motel room that indicator that drugs were likely to be discovered at the home.

was searched). By contrast, Johnson’s affidavit does not Instead, Johnson had to rely on the extremely tenuous link

show in any meaningful fashion that the supplier was between the supplier and the residence and the presumption

connected to 3112 Crossgate in a way that would increase the that a trafficker will keep drug-related materials at their

probability that documentary evidence would be discovered residence. Relatedly, the warrant in Carpenter strongly

there. implied that the defendants owned the residence, but it did not

need to because the observation of the marijuana plants

The majority’s belief that the result here is dictated by “near” the residence provided the requisite nexus that made

United States v. Carpenter, 360 F.3d 591 (6th Cir. 2004) (en belief in the warrant’s validity reasonable. Dissimilarly,

banc) is no less misplaced. In Carpenter, a majority of the en Johnson’s warrant made no mention of the supplier’s

banc court upheld a search under Leon when an affidavit connection to 3112 Crossgate, but such a connection was

stated merely that marijuana was observed near a residence absolutely necessary given that the supplier, as opposed to

belonging to the defendants and that a road connected the some observation of physical proximity, served as the

residence to the marijuana. Id. at 593. The Carpenter primary link to the residence.

majority discussed the applicability of Leon in cases when

“the affidavit contained a minimally sufficient nexus between Any reasonable officer would have known that probable

the illegal activity and the place to be searched to support an cause did not support the warrant because the affidavit’s

officer’s good-faith belief in the warrant’s validity.” Id. at discussion of only a sparse and speculative connection

596. The court concluded that the officers acted reasonably between the supplier and 3112 Crossgate highlighted its clear

in searching the Carpenters’ residence for evidence of deficiencies. As justification for the document search,

marijuana cultivation. Id. Johnson relied on his intuition and experience that those

involved in trafficking often keep records of their illegal

I continue to believe that Carpenter was wrongly decided, activities where they live. Yet, the affidavit did not identify

id. at 601-04 (Moore, J., dissenting), but it is the law in this the supplier or attempt to show that the supplier resided at the

circuit. Nonetheless, its holding does not guide this outcome 3112 Crossgate, both of which constitute fatal omissions.

because of the differences between the two cases. The Any reasonable officer would have known that it is illegal to

“minimally sufficient” nexus of physical proximity between search a residence when it is not clear that the suspect lives or

the drugs and the residence that was the focal point in resides there or conducts illegal drug activity there, because

Carpenter is not evident in this case. The majority in there is not a high probability that the desired evidence will

Carpenter felt that an observation of marijuana growing be uncovered at that location. A reasonable officer would

“near” the residence (about 900 feet away), as opposed to have realized that, without more surveillance or research, he

“in,” “abutting,” or “within the curtilage of” the residence, or she could not determine whether the supplier owned the

justified the officers’ reasonable reliance upon the warrant residence at 3112 Crossgate, was an occasional houseguest,

No. 03-3959 United States v. Washington, et al. 25 26 United States v. Washington, et al. No. 03-3959

or simply stayed at 3112 Crossgate the one time he was trafficking activity, a suspect, and a place to be searched, we

observed leaving the house. Under such circumstances, a have previously permitted searches even though all three

reasonable officer would recognize the diminished probability points cannot be connected, but the majority unfortunately

of finding documentary evidence at 3112 Crossgate. and unnecessarily debilitates the Fourth Amendment by

validating a search in which neither the trafficking activity

Two additional facts reinforce the unreasonableness of nor the suspect are tied to the location to be searched.

Johnson’s reliance upon the warrant. First, Johnson’s

affidavit stated that he had agreed to make a controlled buy of

a kilogram of cocaine, which he suspected would be provided

by the supplier. Johnson submitted the first affidavit and

obtained the first warrant before the buy occurred, and the

abandonment of the controlled buy suggests that the officers

acted with unnecessary haste when more investigation could

have been conducted. Second, it is impossible to ignore the

ease with which Johnson could have uncovered the supplier’s

connection to 3112 Crossgate. A simple public records

inquiry, further research into the name on the utilities

accounts registered at the address, or additional surveillance

would have provided clear evidence of whether the supplier

actually lived at 3112 Crossgate. The relative prolixity of the

affadavit (4 pages, single-spaced) does not remedy its failure

to provide easily acquired and vital information linking the

supplier to the residence. See, e.g., Helton, 314 F.3d at 816,

824 (showing that length of affidavit is not dispositive by

rejecting application of Leon even though affidavit was

twenty-seven pages long). It was unreasonable for Johnson

to rely on an affidavit lacking this critical information.

IV. CONCLUSION

In sum, I dissent because the majority’s holding further

erodes the fundamental protections against unreasonable

governmental intrusions promised by the warrant provisions

of the Fourth Amendment. By declaring that the officers

relied reasonably on the warrant when the underlying

affidavit drew no connection between the illegal activity and

the place to be searched or between the suspect and the place

to be searched, the majority vitiates the prophylaxis of the

search warrant requirement. In the triangulation between