United States v. David Church, Jr.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 16a0120p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

│

v. > No. 15-5362

│

│

DAVID DEWAYNE CHURCH, JR., │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 3:13-cr-00067—Todd J. Campbell, Chief District Judge.

Argued: December 10, 2015

Decided and Filed: May 17, 2016

Before: GRIFFIN and KETHLEDGE, Circuit Judges; CLELAND, District Judge.*

_________________

COUNSEL

ARGUED: Michael C. Holley, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville,

Tennessee, for Appellant. Philip H. Wehby, UNITED STATES ATTORNEY’S OFFICE,

Nashville, Tennessee, for Appellee. ON BRIEF: Michael C. Holley, FEDERAL PUBLIC

DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. Philip H. Wehby, UNITED

STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.

KETHLEDGE, J., delivered the opinion of the court in which CLELAND, D.J., joined,

and GRIFFIN, J., joined in the result. GRIFFIN, J. (pp. 8–18), delivered a separate opinion

concurring in the judgment.

*

The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting

by designation.

1

No. 15-5362 United States v. Church Page 2

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OPINION

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KETHLEDGE, Circuit Judge. Search warrants target places, not people. David Church

opened his home to police and showed them that he had marijuana inside. Police received a

warrant to search the home for drugs. Church was later charged with drug distribution, and

moved to suppress evidence gathered in that search on the theory that police had cause to suspect

Church only of using drugs, not selling them. The district court denied Church’s motion, and

Church pled guilty. We affirm.

I.

In August 2012 Nashville police detectives Jeff Moseley and Daniel Bowling went to

David Church’s home to serve him with a warrant for violating his probation. Church arrived at

his home shortly thereafter, carrying a bag of fast food. After Moseley and Bowling established

Church’s identity, they placed Church under arrest in his driveway. Church asked that he be

allowed into the house to eat his food and call his girlfriend; Moseley and Bowling obliged, and

accompanied Church inside with his consent. The detectives told Church that they smelled burnt

marijuana in the house, and Church admitted that he had recently smoked marijuana. He

proceeded to lead Bowling upstairs to show Bowling a marijuana blunt. Church then called his

girlfriend, who came to the house and told police that, despite her efforts to get him to stop,

Church regularly smoked marijuana at the house.

Moseley left the house to prepare a search-warrant affidavit while Bowling stayed with

Church and Church’s girlfriend. In his affidavit, Moseley recounted the detectives’ visit to the

house and their conversations with Church and his girlfriend. He swore that there was “probable

and reasonable cause to believe that [Church’s house] is/are now in possession of certain

evidence of a crime, to wit: violations of one or more of the following state laws as set forth in

TCA Sections 39-12-204 [RICO], 39-14-903 [Money Laundering], and 39-17-417 [Tennessee

Drug Control Act of 1989],” and he requested a warrant to search Church’s house for “controlled

substances, [and] controlled substances paraphernalia,” among other things. A state magistrate

No. 15-5362 United States v. Church Page 3

issued a search warrant based on Moseley’s affidavit. The police executed the warrant that

afternoon. In an upstairs closet, they found 4.8 grams of marijuana and 8 dilaudid

(hydromorphone) pills, along with a safe. The police asked Church for the code to the safe.

Church refused to provide it, so police used a prying ram to break in. The safe contained 800

dilaudid pills, a Smith & Wesson .40-caliber handgun, and a box of ammunition.

Church thereafter sought to suppress the evidence collected by the government during the

search. The district court denied his motion. Church later pled guilty to possession with intent

to distribute hydromorphone and to being a felon in possession of a firearm. The district court

sentenced Church to 170 months’ imprisonment. He appeals the district court’s denial of his

motion to suppress.

II.

A.

Church argues that the warrant to search his home was defective because it was issued

pursuant to an affidavit that established probable cause for the wrong crime. He contends that “a

search warrant is plainly defective if it, based on a showing of probable cause of crime X,

authorizes a search for proof of crime Y.” Church Br. at 2. Specifically, he argues that the

search warrant issued here authorized a search for evidence of drug possession with intent to

distribute, whereas Moseley’s affidavit showed probable cause to search only for evidence of

simple possession. We review deferentially the magistrate’s decision to issue a search warrant,

and may second-guess that decision only where the magistrate exercised his authority

“arbitrarily.” United States v. Brown, 732 F.3d 569, 573 (6th Cir. 2013).

The Fourth Amendment guarantees that “no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.” U.S. Const. amend. IV. The amendment’s text makes clear

that “[s]earch warrants are not directed at persons; they authorize the search of ‘places’ and the

seizure of ‘things,’ and as a constitutional matter they need not even name the person from

whom the things will be seized.” Zurcher v. Stanford Daily, 436 U.S. 547, 555 (1978). It

follows that the “critical element in a reasonable search is not that the owner of the property is

No. 15-5362 United States v. Church Page 4

suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be

searched for and seized are located on the property to which entry is sought.” Id. at 556.

Thus, to establish probable cause for a search, an affidavit must show a likelihood of two

things: first, that the items sought are “seizable by virtue of being connected with criminal

activity”; and second, “that the items will be found in the place to be searched.” Id. at 556 n.6.

The nexus between “criminal activity” and the item to be seized is “automatic[]” when the object

of the search is “contraband.” Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967);

see also Black’s Law Dictionary 365 (9th ed. 2009) (defining “contraband” as “[g]oods that are

unlawful to import, export, produce, or possess”). Marijuana is contraband because its

possession and production is prohibited under federal law and the criminal laws of most states,

including Tennessee’s. See 21 U.S.C. §§ 841, 844; Tenn. Code Ann. §§ 39-17-417, 39-17-418.

A police request to search for illegal drugs therefore needs to satisfy only the second

showing for a valid warrant: “a fair probability” that the drugs “will be found in a particular

place.” See Illinois v. Gates, 462 U.S. 213, 238 (1983). That standard is met where, for

example, the affiant swears that he has seen marijuana seeds and smelled marijuana smoke inside

the house to be searched. See United States v. Brooks, 594 F.3d 488, 494 (6th Cir. 2010); see

also United States v. Foster, 376 F.3d 577, 588 (6th Cir. 2004).

Moseley’s affidavit established that detectives had entered Church’s house and smelled

marijuana, that Church showed the detectives a marijuana blunt upstairs, and that Church’s

girlfriend thereafter confirmed that Church regularly smoked marijuana in the house. Thus, there

was an outright certainty, not just a “fair probability,” that the house contained illegal drugs. The

police got a warrant to search for illegal drugs in Moseley’s house, and they searched for drugs

in places where drugs might normally be hidden. Hence the search was lawful.

Church contends that the search was unlawful because Moseley specified in the affidavit

that the police were looking for evidence of drug distribution in violation of Tennessee Code

§ 39-17-417, whereas they had probable cause to search only for evidence of simple drug

possession in violation of Tennessee Code § 39-17-418. But drugs are contraband, and the

police have a right to seize them, pursuant to a search warrant, wherever they are likely to be

No. 15-5362 United States v. Church Page 5

present. For purposes of this warrant, therefore, it did not matter whether the police suspected

that Church possessed marijuana, dealt marijuana, or committed some other crime. See Zurcher,

436 U.S. at 555-56. What mattered was that there was a “fair probability” that marijuana was in

the house. United States v. Berry, 565 F.3d 332, 339 (6th Cir. 2009). Moseley’s affidavit left no

doubt of that probability.

There was no such probability in United States v. Hodson, 543 F.3d 286 (6th Cir. 2008),

which is the case that Church relies on here. That case concerned a warrant that authorized the

police to search for child pornography in the home of a suspected child molester. The court held

that evidence of child molestation, by itself, did not give cause to believe that the police would

find the contraband specified in the warrant—namely, child pornography—in the molester’s

home. See Hodson, 543 F.3d at 293. In this case, in contrast, a detective requested a warrant to

search for contraband in a place where the detective had already seen it. The facts here are

analogous not to Hodson, but to a case where the police stumble upon child pornography in a

home, and then ask a magistrate for a warrant to search the home for child pornography. The

difference between this case and Hodson, therefore, is simply that in this case the affidavit

established probable cause.

B.

Church also argues that Moseley’s affidavit failed to establish probable cause because its

contents were “stale.” Church did not make this argument in the district court, so we review

only for plain error. See United States v. Soto, 794 F.3d 635, 650 n.11 (6th Cir. 2015).

To show probable cause that contraband is where an officer’s affidavit says it is, the

affidavit must contain statements of fact “so closely related to the time of the issue of the warrant

as to justify a finding of probable cause at that time.” Sgro v. United States, 287 U.S. 206, 210

(1932). Because contraband is often moved from place to place, information about its

whereabouts can grow stale over time. Whether an affidavit’s information is stale enough to

preclude a showing of probable cause depends on the facts alleged in the affidavit. See United

States v. Spikes, 158 F.3d 913, 923-24 (6th Cir. 1998). Thus, for instance, where an affiant

swears that marijuana “is now” on certain premises, and there is no indication that the

No. 15-5362 United States v. Church Page 6

information is otherwise stale, the affidavit shows probable cause that the marijuana is where the

affidavit says it is. See United States v. Smith, 783 F.2d 648, 652 (6th Cir. 1986). Likewise,

where an affidavit indicates that someone keeps “a ready supply of heroin” in his apartment, the

phrase “ready supply” shows that heroin is likely there now. See United States v. Williams,

351 F.2d 475, 476 (6th Cir. 1965).

Here, Detective Moseley’s affidavit provided every reason for the magistrate to think

there were drugs in the house at the time the warrant was issued. Moseley said that “David

Church uses this address,” that Church told the detectives that “he smokes marijuana in the

house,” and that Church’s girlfriend said that “Church does smoke marijuana in the residence

and . . . she has told him not to do so in the past.” That reference to “the past” would make little

sense unless Detective Moseley was describing events in the present tense. The affidavit

therefore showed that Moseley was acting on fresh information.

Church contends that the affidavit is stale because Moseley did not recite the date on

which he was inside Church’s house. But what counts is the affidavit’s content, not its

“technical perfection.” Brooks, 594 F.3d at 490. And here Moseley’s affidavit made clear that it

was not stale.

C.

Finally, Church argues that the police acted unreasonably, in violation of the Fourth

Amendment, when they used a prying ram to open Church’s safe, thereby destroying it. We

review that argument de novo. See United States v. Winters, 782 F.3d 289, 295 (6th Cir. 2015).

Obviously the police had the right to open the safe. “[A] warrant that authorizes an

officer to search a home for illegal weapons also provides authority to open closets, chests,

drawers, and containers in which the weapon might be found.” United States v. Ross, 456 U.S.

798, 821 (1982). And “officers executing search warrants on occasion must damage property in

order to perform their duty.” Dalia v. United States, 441 U.S. 238, 258 (1979). For example, if

a home’s occupant refuses to admit an officer after he announces his authority and purpose, the

officer may lawfully break open the door. See 18 U.S.C. § 3109; United States v. Ciammitti, 720

F.2d 927, 932-34 (6th Cir. 1983).

No. 15-5362 United States v. Church Page 7

Here, the police did not break open the safe capriciously: they had probable cause to

believe there might be drugs inside; Church refused to provide the safe’s combination; and thus

the police had no choice but to open it by force. The district court was right to hold that the

police acted reasonably when they did so.

The district court’s judgment is affirmed.

No. 15-5362 United States v. Church Page 8

______________________________________

CONCURRING IN THE JUDGMENT

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GRIFFIN, Circuit Judge, concurring in the judgment. This appeal of the denial of

defendant’s motion to suppress raises troubling issues regarding the Nashville Police

Department’s use of overreaching boilerplate affidavits for requesting search warrants. In this

case, the Department secured a warrant to broadly search defendant’s home for evidence of

racketeering, money laundering, and drug trafficking based solely on defendant’s possession of a

small quantity of marijuana. Although I question the validity of the overbroad affidavit in cases

like this, I would affirm the district court’s denial of defendant’s motion to suppress under the

Leon1 good-faith exception because a reasonably well-trained officer would not have known that

the warrant lacked probable cause to search for evidence of drug trafficking.

I.

On August 31, 2012, Detectives Jeff Moseley and Daniel Bowling of the Metropolitan

Nashville Police Department arrested defendant David Church, Jr. for failure to report to his

probation officer. Inside Church’s residence, the detectives smelled burnt marijuana. Church

admitted that he had smoked marijuana that morning and showed Detective Bowling a single,

burnt marijuana blunt. When Church’s girlfriend arrived, she stated that Church smokes

marijuana in the residence against her wishes. Church does not challenge the admission of this

evidence.

After Church refused consent to a search of the residence, Detective Moseley prepared an

affidavit for a search warrant using a pre-printed form. The boilerplate language at the top of the

affidavit states:

[T]here is probable and reasonable cause to believe that [Church’s residence is] in

possession of certain evidence of a crime, to wit: violations of one or more of the

following state laws as set forth in TCA Sections 39-12-204 [RICO], 39-14-903

[Money Laundering], and 39-17-417 [Tennessee Drug Control Act of 1989], and

the evidence to be searched for is as follows: All controlled substances,

1

United States v. Leon, 468 U.S. 867 (1984).

No. 15-5362 United States v. Church Page 9

controlled substances paraphernalia, scales and mixing devices, packaging

materials, any equipment, devices, records, computers and computer storage

discs, to include the seizure of computers to retrieve such records, books or

documents adapted and used for the purpose of producing, packaging, dispensing,

delivering or obtaining controlled substances, or recording transactions involving

controlled substances, any indicia [of] ownership, dominion, or control over the

premises to be searched including rental receipts, mortgage payments, utility bills,

photographs of any persons involved in the criminal conduct, all financial records

pertaining to the disposition of the proceeds of the violation of the criminal laws

specified above, and any goods or personal property, including US currency or

negotiable instruments, constituting proceeds of a violation of the aforesaid laws

or funds used to facilitate the same[,] firearms, including handguns, pistols,

revolvers, shotguns, rifles, machine guns, and other weapons, and any evidence or

items which would be used to conceal the for[e]going or prevent its discovery.

Affidavit, R. 36-6, ID 84 (final three alterations added). In the section titled “Statement of Facts

In Support of Probable Cause,” Detective Moseley inserted the following three paragraphs:

I, your affiant, and [Metropolitan Nashville Police Department] Gang Unit Det.

Bowling went to 3219 Priest Woods Drive in an attempt to serve an outstanding

felony warrant[2] on David Church m/b DOB: 1/15/1985. David Church uses this

address as his own address on his TN driver’s license. Det. Bowling and I

observed David Church drive up to the house and park his car on Priest Woods

Drive in front of the home. Det. Bowling and I were able to take David Church

into custody as he was on the sidewalk approaching the front door of this

residence. David Church gave police a false name and stated that he was not

David Church, but later admitted his real identity.

David Church had Krystal’s food in his hands as he was taken into custody, and

asked if he could please go in his house to eat his food and call his girlfriend

before he went to jail. Det. Bowling and I let David Church into this residence

using a key found on Church’s key ring. David Church was allowed to sit on the

couch in the first room to eat and call his girlfriend, and while doing so, Det.

Bowling and I detected a strong odor of marijuana coming from the residence.

Church admitted that he smokes marijuana in the house and showed Det. Bowling

where his marijuana blunt was in the upstairs bedroom. Church stated that he did

not want police to search the house and stated that the house is in his girlfriend’s

name, but that he does live there. David Church and I called his girlfriend,

Shanna Boyd, who stated that she would come home. I greeted Ms. Boyd outside

and she stated that she did not want police to search her residence. She stated that

Church does smoke marijuana in the residence and stated that she has told him not

to do so in the past.

2

The warrant was for Church’s failure to contact his probation officer. The affidavit does not indicate that

the underlying offense resulting in probation involved drug trafficking.

No. 15-5362 United States v. Church Page 10

Due to the odor of marijuana, along with both subjects’ admissions and the

evidence of drugs in the location, your affiant wishes to search the premises of

3219 Priest Woods Drive Nashville, TN 37214 and each person occupying said

premises and both vehicles that each subject drove to the house in. In your

affiant’s training and experience persons at locations where drugs are sold or used

many times conceal or secrete illicit items on their person to conceal them from

police detection. Your affiant has also learned in training and experience that

many times subjects at locations involved in illicit drug activity are also in

possession of weapons and or have outstanding warrants for their arrest.

Id. at 84−85. Also in the affidavit was a pre-printed section titled, “Experience and Basis of

Knowledge of Affiant,” which details Detective Moseley’s experience with “narcotics

trafficking” and “drug dealers,” including twelve “habits, characteristics, and practices of drug

traffickers and their organizations.” Nothing in that section draws a relationship between simple

possession and drug trafficking. Nor is the section unique to Detective Moseley’s experience

and knowledge given its pre-printed and generic nature.

A state court judge authorized the search warrant about two hours after Church’s arrest.

Seven officers executed the warrant. The search uncovered a single Dilaudid (hydromorphone)

pill in the living room, 4.8 grams (.169 oz.) of marijuana in a closet, and a locked safe. The

officers discovered that a key on Church’s key ring fit the safe door, but the safe also required a

passcode. When asked for the passcode, Church said he did not know it because the safe came

with the house. The officers pried the safe open. Inside, they discovered a loaded .40 caliber

handgun with a box of ammunition of .40 caliber rounds and 800 Dilaudid pills. Church does

not contest that the handgun and pills were his.

A federal grand jury indicted Church for (1) possession of a firearm as a felon,

(2) possession with intent to distribute hydromorphone, and (3) possession of a firearm in

furtherance of drug trafficking. Church moved to suppress the fruits of the search on several

grounds, including that the warrant did not establish probable cause for racketeering, money

laundering, or drug trafficking, and the officers violated the Fourth Amendment by unreasonably

destroying the safe.

No. 15-5362 United States v. Church Page 11

The district court held a suppression hearing and ruled from the bench:

The next issue I want to address is in terms of one aspect of the probable cause.

There clearly wasn’t probable cause to believe there was a RICO violation or

money laundering in this case. And to the extent that the supporting affidavit and

search warrant deal with RICO or money laundering, there is absolutely no

probable cause whatsoever to believe there was a RICO violation or money

laundering involved. And to the extent that the state court keeps issuing

boilerplate search warrants with those issues, they are out of line. They are

wrong, and it really needs to stop. There is not a basis to believe that there is a

RICO violation or money laundering in this case.

Nevertheless, with respect to probable cause for drug trafficking, the district judge stated:

And so the issue is whether [there was] probable cause for the issuance of the

warrant based on the smell with the blunt that was found and the admissions of

having smoked marijuana that day and having smoked marijuana in the house in

the past. I am finding that there is probable cause based on that to issue the search

warrant under a violation of the Tennessee Drug Control Act of 1989, as well as

Tennessee Code 39-17-417. I might add that the Tennessee Drug Control Act

controls all of Part 4, Title 39. For instance, the heading of 39-17-401 is headed

Tennessee Drug Control Act, and the Drug Control Act is not limited to Section

417. But in any event, possession, use and admissions of such and smell of

marijuana is sufficient to support probable cause for a warrant under Section 417.

The heart of the defendant’s argument is [United States v. Hodson, 543 F.3d 286

(6th Cir. 2008) and] that in this instance the argument is that there is only

evidence to support a possession charge, probable cause of that and not for

trafficking. The Hodson case dealt with child molestation versus child

pornography. Here all of the conduct qualifies under the Tennessee Drug Control

Act, so that is distinguishable on that basis.

The court therefore denied Church’s motion to suppress without reaching the government’s

alternative, good-faith exception argument.

Church conditionally pleaded guilty to Count One, possession of a firearm by a felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924, and Count Two, possession with intent to distribute

hydromorphone, in violation of 21 U.S.C. § 841(a)(1). On appeal, Church challenges the district

court’s denial of his motion to suppress.

No. 15-5362 United States v. Church Page 12

II.

Church’s primary argument is that the warrant was invalid because the affidavit did not

establish probable cause to search for evidence of the crime of drug trafficking, as opposed to

simple possession. We review the district court’s findings of fact for clear error and conclusions

of law de novo. United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009). “Whether a search

warrant affidavit establishes probable cause to conduct the search is a legal question that this

Court reviews de novo.” United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010).

A.

The Fourth Amendment protects the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures” and provides that “no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend.

IV. “To establish probable cause adequate to justify issuance of a search warrant, the

governmental entity or agent seeking the warrant must submit to the magistrate an affidavit that

establishes a ‘fair probability that contraband or evidence of a crime will be found in a particular

place.’” Brooks, 594 F.3d at 492 (quoting Berry, 565 F.3d at 338). “Whether the affidavit gives

rise to this fair probability depends on the totality of the circumstances.” Id. (internal quotation

marks omitted). “When a warrant applicant seeks to search a specific location, the affidavit must

establish a ‘nexus between the place to be searched and the evidence to be sought.’” Id. (quoting

United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc)). “The critical element

in a reasonable search is not that the owner of property is suspected of crime but that there is

reasonable cause to believe that the specific things to be searched for and seized are located on

the property to which entry is sought.” Id. (citation omitted). The judicial officer issuing such a

warrant must “be supplied with sufficient information to support an independent judgment that

probable cause exists for the warrant.” Whiteley v. Warden, 401 U.S. 560, 564 (1971). “Mere

affirmance of belief or suspicion is not enough.” Nathanson v. United States, 290 U.S. 41, 47

(1933). Our review of the sufficiency of the evidence supporting probable cause is limited to the

four corners of the affidavit. United States v. Rose, 714 F.3d 362, 366 (6th Cir. 2013).

No. 15-5362 United States v. Church Page 13

The affidavit in this case raises serious concerns about whether probable cause existed to

search Church’s residence for evidence of drug trafficking, as opposed to mere possession.

Overbroad warrants can run afoul of the Fourth Amendment’s guarantees as they can authorize

carte blanche access to search for any evidence of any criminal activity. See United States v.

Hodson, 543 F.3d 286, 291−93 (6th Cir. 2008) (probable cause to search for evidence of one

crime is not probable cause to search for evidence of a different crime). In this case, we learn

that the Nashville Police Department apparently uses, and Tennessee magistrates apparently

accept, boilerplate affidavits authorizing broad searches for evidence of racketeering, money

laundering, and drug trafficking on mere evidence of possession of small quantities of marijuana.

Such use and acceptance―without specific facts linking drug possession to those crimes―is

troubling. Indeed, as the district court rightly observed, such overreaching is “out of line . . . and

it really needs to stop.”

Despite my concerns, I would not reach the question of whether probable cause existed

here because I would resolve this case under the Leon good-faith exception to the exclusionary

rule. When a search violates the Fourth Amendment, the fruits of the search are ordinarily

inadmissible under the exclusionary rule, “a judicially created remedy designed to safeguard

Fourth Amendment rights generally through its deterrent effect.” United States v. Calandra,

414 U.S. 338, 348 (1974); see Mapp v. Ohio, 367 U.S. 643, 654−55 (1961). The “good-faith

exception applies when a warrant issued by a neutral and detached magistrate is discovered, after

the search, to have been nonetheless invalid―and, hence, the search unlawful―yet the officer

conducting the search acted in objectively reasonable reliance on that warrant.” Hodson,

543 F.3d at 293 (internal quotation marks and brackets omitted). In establishing the good-faith

exception, the Supreme Court “based its refusal to suppress evidence in such situations on its

conclusion that ‘the marginal or nonexistent benefits produced by suppressing evidence obtained

in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the

substantial costs of exclusion.’” Id. (quoting United States v. Leon, 468 U.S. 867, 922 (1984)).

However, the Court stated that suppression remains appropriate if:

No. 15-5362 United States v. Church Page 14

(1) the magistrate was “misled by information in the affidavit that the affiant knew was

false or would have known was false except for his reckless disregard of the truth;”

(2) the magistrate “abandoned his judicial role” or neutrality;

(3) the warrant was “so lacking in indicia of probable cause” as to render official belief in

its existence unreasonable; or

(4) the warrant was so “facially deficient” that it could not reasonably be presumed valid.

Leon, 468 U.S. at 923.

In this case, Church argues that the warrant fails under the third exception: it was so

lacking in indicia of probable cause that the officers’ belief in its existence was unreasonable.

“Under this exception, the executing officer must have had ‘no reasonable grounds for believing

that the warrant was properly issued.’” United States v. Helton, 314 F.3d 812, 824 (6th Cir.

2003). “[T]he objective reasonableness determination does not examine the subjective states of

mind of the particular law enforcement officers conducting this particular search, rather it

inquires ‘whether a reasonably well trained officer would have known that the search was illegal

despite the magistrate’s decision.’” Leon, 468 U.S. at 923 n.23.

Church relies on Hodson, in which we held that the good-faith exception was

inapplicable because a “reasonably well trained officer” would have realized that there is a

difference between the crimes of child molestation and possession of child pornography.

543 F.3d at 293. In this case, however, there is a closer relationship between the crimes of

marijuana possession and marijuana trafficking than child molestation and possession of child

pornography. The distinction between possession and trafficking under Tennessee law is simply

the amount of marijuana possessed.3 And a warrant to search for evidence of possession

authorizes a search for contraband such as drugs and drug paraphernalia, which would also be

encompassed in a warrant to search for evidence of drug trafficking. Here, there is undisputed

evidence of drug activity inside Church’s residence, including a recently smoked marijuana blunt

3

In Tennessee, simple possession and drug trafficking are two separate crimes. Tennessee Code

Annotated § 39-17-417 prohibits the knowing manufacture, delivery, or sale of a controlled substances. Tenn. Code

Ann. § 39-17-417(a). It also prohibits the possession of a controlled substance with the “intent to manufacture,

deliver or sell” the controlled substance. Id. § 39-17-417(a)(4). By contrast, § 39-17-418 makes it a crime to

“knowingly possess or casually exchange a controlled substance” unless obtained pursuant to a valid prescription.

Id. § 418(a). The dividing line between the two crimes with respect to possession is one-half ounce or 14.175

grams. Compare Tenn. Code Ann. § 39-17-417(a), (g) (drug trafficking) with Tenn. Code Ann. § 39-17-418

(“simple possession”); see also State v. Englet, No. W1999-283-CCA-R3-CD, 2000 WL 556479, at *1 (Tenn. Crim.

App. May 8, 2000) (distinguishing the two crimes).

No. 15-5362 United States v. Church Page 15

observed by the officers and admission by Church’s girlfriend that Church smokes in the

residence. Moreover, in factually similar cases, we have upheld searches for evidence of drug

trafficking under the good-faith exception. See United States v. Hollin, 459 F. App’x 535,

539−40 (6th Cir. 2012) (observing that presence of “marijuana roaches offered a factual basis to

believe the Apartment contained contraband” and concluding that even if “probable cause was

ultimately lacking, it is unlikely that a reasonably well trained officer would have known that the

search was illegal despite the magistrate’s decision.”) (internal quotation marks omitted); see

also Brooks, 594 F.3d at 495−96 (White, J., concurring) (fruit of the search admissible under

good-faith exception where there were marijuana seeds in plain view and defendant had $1,000

in cash in his pocket). Thus, although this is a close case, I cannot conclude that a reasonably

well-trained officer would have known the search was illegal despite the magistrate’s decision to

issue the search warrant for drug trafficking.

B.

Church next argues that the evidence should be suppressed because the warrant was stale.

Because Church did not raise this argument below, we review for plain error. United States v.

Soto, 794 F.3d 635, 655 (6th Cir. 2015). The burden is on Church “to show (1) error that (2) was

plain, (3) affected [his] substantial rights, and (4) seriously affected the fairness, integrity, or

public reputation of the judicial proceedings.” United States v. Ushery, 785 F.3d 210, 218

(6th Cir. 2015).

“The probable cause inquiry gauges the likelihood that evidence of a crime may presently

be found at a certain location. A warrant must be supported by ‘facts so closely related to the

time of the issue of the warrant as to justify a finding of probable cause at that time.’” United

States v. Hython, 443 F.3d 480, 485 (6th Cir. 2006) (quoting Sgro v. United States, 187 U.S. 206,

210 (1932)). “The expiration of probable cause is determined by the circumstances of each case,

and depends on the inherent nature of the crime.” Id. (citations omitted). “Relevant variables

include the ‘character of the crime (chance encounter in the night or regenerating conspiracy?),

the criminal (nomadic or entrenched?), the thing to be seized (perishable and easily transferable

or of enduring utility to its holder?), [and] the place to be searched (mere criminal forum of

convenience or secure operational base?).” Id. (quoting United States v. Spikes, 158 F.3d 913,

No. 15-5362 United States v. Church Page 16

923 (6th Cir. 1998)). Whether an affidavit is so stale that it fails to show probable cause to

support a search warrant is determined by the circumstances of each case, not by rigid rules. See

Spikes, 158 F.3d at 923−24.

In United States v. Hython, our court held that a warrant based on an undated controlled

buy of cocaine was invalid on staleness grounds. 443 F.3d at 485−87. Neither the warrant nor

the supporting affidavit specified the date of a controlled buy, and neither document supported

that the residence was a secure operational base of an ongoing drug enterprise. Id. at 487. We

also held the good-faith exception was inapplicable because an affidavit with an undated

controlled buy and “no indication of ongoing investigation, subsequent or previous controlled

buys, or further surveillance of the address . . . [was] patently insufficient. No well-trained

officer could have reasonably relied on a warrant issued on the basis of [such an] affidavit.” Id.

at 488−89.

Church argues that the warrant is defective because Detective Moseley failed to date the

events in the affidavit. But a specific date is not always required. Rather, the information in an

affidavit must “clearly rebut[] any inference of staleness of information or lack of specificity of

the affidavit.” United States v. Williams, 480 F.2d 1204, 1205 (6th Cir. 1973) (per curiam); see

Hython, 443 F.3d at 486−87 (citing Williams). For instance, where an affidavit says that

marijuana “is now” on certain premises, and there is no indication that the information is

otherwise stale, the affidavit shows probable cause that the marijuana is where the affidavit says

it is. See United States v. Smith, 783 F.2d 648, 652 (6th Cir. 1986). Likewise, where an affidavit

indicates that someone keeps “a ready supply” of controlled substances in his apartment, the

phrase “ready supply” sufficiently communicates that there is a continuing presence of the

controlled substance in the apartment. See United States v. Williams, 351 F.2d 475, 476−78 (6th

Cir. 1965).

In this case, Detective Moseley’s affidavit provided some reason for the magistrate to

understand that there were drugs in the house at the time the warrant was issued. For instance,

the affidavit recited that “David Church uses this address,” “he does live there,” and that Church

told police that “he smokes marijuana in the house.” It also said that Church’s girlfriend told

police that “Church does smoke marijuana in the residence and . . . she has told him not to do so

No. 15-5362 United States v. Church Page 17

in the past.” The reference to “the past” would make little sense unless Detective Moseley was

describing events in the present tense. A magistrate reading the affidavit would thus understand

that Detective Moseley was acting on fresh information. Detective Moseley’s affidavit is not a

model one. But Church’s argument that Detective Moseley “simply forgot to put specific dates

in his affidavit,” United States v. Thomas, 973 F.2d 1152, 1157 (5th Cir. 1992), is not fatal to the

warrant’s validity, at least under plain error review.

C.

Church’s final claim of error is that the execution of the search was unreasonable.

Specifically, he maintains that the executing officers violated the Fourth Amendment by

destroying the safe containing the Dilaudid pills and handgun because the officers could have

contacted the safe manufacturer, rather than prying the safe open. If the warrant is valid, Church

does not dispute that the officers were authorized to search in the safe, but merely that

destruction of the safe was unreasonable. The district court found, under all the facts and

circumstances, that it was “reasonable to search the safe and necessary to break into it to search

it.” We review de novo. United States v. Bates, 84 F.3d 790, 794 (6th Cir. 1996).

We apply a “reasonableness” standard to determine whether destruction of property was

“reasonably necessary to effectively execute a search warrant.” Hill v. McIntyre, 884 F.2d 271,

278 (6th Cir. 1989) (citation omitted); see also United States v. Ramirez, 523 U.S. 65, 71 (1998)

(“The general touchstone of reasonableness, which governs Fourth Amendment analysis,

governs the method of execution of the warrant. Excessive or unnecessary destruction of

property in the course of a search may violate the Fourth Amendment, even though the entry

itself is lawful and the fruits of the search are not subject to suppression.”) (internal citation

omitted). Nevertheless, “officers executing search warrants on occasion must damage property

in order to perform their duty.” Dalia v. United States, 441 U.S. 238, 258 (1979); see also

United States v. Whisnant, 391 F. App’x 426, 430 (6th Cir. 2010) (collecting cases).

The government argues the safe, and things likely to be stored in a safe, were within the

scope of the search warrant. “A lawful search of fixed premises generally extends to the entire

area in which the object of the search may be found and is not limited by the possibility that

No. 15-5362 United States v. Church Page 18

separate acts of entry or opening may be required to complete the search.” United States v. Ross,

456 U.S. 798, 820 (1982). “[A]lthough a warrant to search for a stolen vehicle would not justify

opening a small wall safe in a bedroom closet, judicial authorization to search a home for

contraband drugs, money associated with drug trafficking, and drug paraphernalia would clearly

justify the opening of doors, closets, drawers, safes, and other places where the listed items could

be hidden.” United States v. Lengen, 245 F. App’x 426, 434 (6th Cir. 2007). The government is

thus correct that guns and drugs, which are small enough to fit inside the safe and were in fact

found in the safe, were within the scope of the warrant. That the officers could have contacted

the manufacturer to open the safe without destroying it does not render opening of the safe

objectively unreasonable. Church cites no factually similar cases holding that, where alternatives

are available, the forcible opening of a container renders the search unconstitutional. The district

court did not err.

III.

For these reasons, I concur in the judgment affirming the district court’s denial of

Church’s motion to suppress.