United States v. Tyrone Christian

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 19a0111p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

> No. 17-1799

v. │

│

│

TYRONE DEXTER CHRISTIAN, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:15-cr-00172-1—Robert J. Jonker, Chief District Judge.

Reargued En Banc: March 20, 2019

Decided and Filed: May 31, 2019

Before: COLE, Chief Judge; MOORE, CLAY, GILMAN, GIBBONS, ROGERS,

SUTTON,GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH,

LARSEN, NALBANDIAN, READLER, and MURPHY, Circuit Judges.

_________________

COUNSEL

REARGUED EN BANC: Lucille A. Jewel, UNIVERSITY OF TENNESSEE, Knoxville,

Tennessee, for Appellant. Jennifer L. McManus, UNITED STATES ATTORNEY’S OFFICE,

Grand Rapids, Michigan, for Appellee. ON SUPPLEMENTAL BRIEF: Lucille A. Jewel,

William A. Beasley, Benjamin A. Johnson, Benjamin K.P. Merry, UNIVERSITY OF

TENNESSEE, Knoxville, Tennessee, for Appellant. Jennifer L. McManus, Timothy P. Verhey,

UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.

ROGERS, J., delivered the opinion of the court in which GIBBONS, SUTTON,

GRIFFIN, KETHLEDGE, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, and

MURPHY, JJ., joined, and WHITE, J., joined in the judgment. THAPAR, J. (pp. 12–19),

delivered a separate concurring opinion in which NALBANDIAN, MURPHY, and READLER,

JJ., joined. WHITE, J. (pg. 20), delivered a separate opinion concurring in the judgment and in

No. 17-1799 United States v. Christian Page 2

Part I of the dissent. GILMAN, J. (pp. 21–44), delivered a separate dissenting opinion in which

COLE, C.J., MOORE, CLAY, STRANCH, and DONALD, JJ., joined, and WHITE, J., joined in

part.

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OPINION

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ROGERS, Circuit Judge. Based on a five-page-long search-warrant affidavit—which

included evidence from a confidential informant and other sources, a controlled buy, and direct

police-officer surveillance—a magistrate determined that there was probable cause to search

618 Grandville Avenue, Tyrone Christian’s home, for evidence of drug trafficking. That search

uncovered a large amount of heroin, some cocaine and marijuana, and two loaded guns.

Convicted of various drug and firearm crimes, Christian argues on appeal that the search was not

supported by probable cause. Christian questions each factual assertion in the affidavit as

insufficient to show probable cause, while the Government contends that a common-sense

examination of the totality of the circumstances, in light of the deference that a court owes to

warrant-issuing magistrates, is required by cases like Illinois v. Gates, 462 U.S. 213 (1983), and

District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). For the reasons that follow, the

district court properly denied Christian’s suppression motion.

I.

On September 3, 2015, Officer Thomas Bush, a law enforcement officer for the Grand

Rapids Police Department, submitted an affidavit in support of a search warrant for the residence

of suspected drug trafficker Tyrone Christian at 618 Grandville Avenue in Grand Rapids,

Michigan. The affidavit provided the following information in support of Officer Bush’s belief

that there was probable cause to search Christian’s home: (1) Christian had a history of drug

trafficking at 618 Grandville, which included drug-related arrests after two separate raids in 2009

and 2011, along with four prior felony convictions for drug-related offenses between 1996 and

2011; (2) a “credible and reliable” informant had contacted law enforcement in December 2014

to notify them that Christian was dealing drugs; (3) law enforcement successfully conducted a

controlled buy from Christian in January 2015; (4) between May and September 2015, four

No. 17-1799 United States v. Christian Page 3

different subjects told law enforcement that Christian was dealing drugs and that they had

personally purchased drugs from him; (5) law enforcement had established surveillance at 618

Grandville and observed a man named Rueben Thomas “walk away from the area of [the

residence] and leave the area in a vehicle,” after which officers stopped Thomas and discovered

heroin in his car; and (6) Thomas subsequently “admitted that he had recently been at an address

on [Grandville Avenue],” but he “denied being at [Christian’s residence] contrary to

observations of the law enforcement officers.”

A magistrate judge approved the warrant, and police officers conducted a drug raid at

Christian’s home just after midnight on September 4, 2015. During the raid, officers seized

cocaine, marijuana, over 80 grams of heroin, a cutting agent, and two loaded guns. The

Government charged Christian with possession of heroin with intent to distribute, being a felon

in possession of a firearm, and possession of a firearm in furtherance of drug trafficking.

Christian moved to suppress the evidence obtained from the September 3 search warrant.

The district court denied the motion, determining that the affidavit provided sufficient

information to establish probable cause and that in any event the Leon good-faith exception

would apply regardless of the probable cause determination. A jury convicted Christian on all

counts, and the district court sentenced Christian to 210 months in prison.

Christian now appeals the district court’s denial of his motion to suppress, arguing that

the affidavit did not establish probable cause and that the Leon good-faith exception to the

exclusionary rule should not apply. He also challenges the district court’s admission of

testimony about a jail call that occurred between Thomas and Thomas’s girlfriend, Tanisha

Edwards, before Christian was arrested. Edwards testified during trial that she told Thomas that

Christian “got the groceries out” of their house, where the “groceries” referred to a gun and

drugs. The Government introduced the testimony to help explain why law enforcement later

found a gun and drugs buried in the backyard behind the home of Christian’s mother.

No. 17-1799 United States v. Christian Page 4

II.

A.

The search-warrant affidavit at issue here provided an ample basis for probable cause,

and the question is really not even close. The affidavit first outlined Christian’s extensive history

with drugs—four felony drug convictions from 1996, 2002, 2009, and 2011, at least two of

which were for drug trafficking. In 2009 and 2011, search warrants executed at Christian’s

home, 618 Grandville, the same place searched here, uncovered evidence of drug trafficking that

each time resulted in Christian’s arrest.

The affidavit next detailed the reasons why officers believed that Christian had gone back

into business. In December 2014, a “credible and reliable informant” advised Officer Bush, the

affiant, that Christian was again dealing drugs. The informant also provided information about

other traffickers, including “names, nicknames, phone numbers, residences utilized by the drug

traffickers and information regarding specific drug transactions.” Officer Bush independently

corroborated “much of the information provided” by this informant. In January 2015, under the

direction of Officer Bush, the informant executed a controlled purchase of drugs from Christian.

In addition, “[w]ithin the last four months” preceding the search, meaning from May to

September of 2015, several other informants stated that “Tyrone Christian is a large scale drug

dealer” and that “they [had] purchased large quantities of heroin and crack cocaine from

Christian at [his residence] in the last four to five months.”

That brings us to September 3, 2015, the day of the search, when, according to the

affidavit, officers established surveillance “at 618 Grandville Avenue.” The officers observed

Rueben Thomas “walk away from the area of 618 Grandville Avenue and leave the area in a

vehicle.” After stopping him for a traffic violation, officers found “approximately 20 grams of

heroin” in the form of “‘chunk[s]’ that appeared to have been removed from a larger portion of

heroin.” Thomas denied having been at 618 Grandville but admitted having been at another

address on that street. Crucially, the affidavit recounted that Thomas’s denial was “contrary to

observations of the law enforcement officers.”

No. 17-1799 United States v. Christian Page 5

Viewing the “totality of the circumstances,” Florida v. Harris, 568 U.S. 237, 244 (2013),

through the “lens of common sense,” as the Supreme Court has instructed, id. at 248, the

conclusion is inescapable: there was probable cause to believe that a search of 618 Grandville

would uncover evidence of drug trafficking. Most readers of the affidavit would have been

surprised if it did not.

Indeed, one element of the affidavit was independently sufficient for probable cause: the

surveillance of Rueben Thomas. Christian argues that there was no “nexus” between Thomas

and 618 Grandville because the affidavit states merely that officers saw Thomas “walk away

from the area of 618 Grandville Avenue,” rather than entering or leaving that residence. But that

selective, out-of-context reading is contradicted even by other parts of the affidavit, which later

states that “Rueben Thomas . . . denied being at [the residence], contrary to observations of the

law enforcement officers.” (Emphasis added.) While this is not a direct statement that Thomas

was seen entering or leaving 618 Grandville, the law does not require such a direct statement.

Indeed, our precedents require us to eschew such a formal requirement. “Affidavits are not

required to use magic words[.]” United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) (en

banc). Because our job is not to reweigh the assertions in an affidavit but to ask whether the

magistrate had a substantial basis for his conclusion, United States v. Perry, 864 F.3d 412, 415

(6th Cir. 2017), the later phrase in the affidavit cannot be read out of existence. Rather, the

deferential nature of our review means that we should take that later statement—i.e., that

Thomas’s denying that he was at 618 Grandville was “contrary to observations of the law

enforcement officers”—to reconcile any doubt about where the officers saw Thomas walk away

from.

Under that proper view of the affidavit, and paying the appropriate “great deference” to

the magistrate’s probable-cause determination, Gates, 462 U.S. at 236, the surveillance evidence

provided a substantial basis for concluding that probable cause existed. Argument to the

contrary is unavailing. Any possible contradiction between “from the area of” and “contrary to

observations of the officers” is more readily attributable to the “haste of a criminal investigation”

under which officers often draft an affidavit supporting a search warrant. See id. at 235. Such

haste was certainly present here: Officer Bush applied for and received the warrant on the same

No. 17-1799 United States v. Christian Page 6

day of the purportedly infirm surveillance and search. To boot, police officers are mostly non-

lawyers who must draft search-warrant affidavits “on the basis of nontechnical, common-sense

judgments.” Id. at 235–36. With the benefit of hindsight, perhaps the affiant could have been

more precise. But our precedents do not require such an exacting degree of specificity. For

example, in our recent published opinion in United States v. Tagg, 886 F.3d 579 (6th Cir. 2018),

we held that probable cause existed to search the defendant’s home for child pornography despite

the supporting documents’ failure to state that the defendant had actually clicked on or viewed an

online file containing child pornography. Id. at 585–90. In doing so, we explained that probable

cause is not the same thing as proof. See id. at 589–90. Likewise, the affidavit here need not

have definitively stated that Thomas was seen leaving 618 Grandville. Rather, it need only have

“allege[d] facts that create a reasonable probability” that he did. See id at 589. From there, the

remaining inferences needed to connect 618 Grandville to Christian’s drug trafficking are quite

straightforward, given Christian’s history of dealing drugs and the officers’ finding heroin in

Thomas’s car. Under a common-sense reading of the affidavit, then, its description of the 618

Grandville surveillance easily exceeds the “degree of suspicion,” id. at 586, needed to establish

probable cause.

Moreover, the officers who saw Thomas were assigned to “establish[] [surveillance] at

618 Grandville Avenue,” not the entire area around it. Assuming those officers were doing their

jobs, the fact that they saw Thomas at all probably means that he was very near 618 Grandville.

At the very least, that would be far from an arbitrary inference for a magistrate to draw. In

addition, the heroin found in Thomas’s car appeared to “have been removed from a larger

portion of heroin.” These facts further supported the magistrate’s determination that there was

probable cause to believe that evidence of drug dealing would be found at 618 Grandville.

The affidavit hardly relies alone on the Thomas surveillance, however. There is also

Christian’s lengthy history of dealing drugs from 618 Grandville, the controlled purchase from

618 Grandville, and the numerous tips that Christian was recently dealing large quantities of

drugs from 618 Grandville, all of which provide further evidence still that probable cause

existed. When it comes to probable cause, “the whole is often greater than the sum of its parts—

especially when the parts are viewed in isolation.” See Wesby, 138 S. Ct. at 588 (citing United

States v. Arvizu, 534 U.S. 266, 277–78 (2002)). Even if each of these additional items would not

No. 17-1799 United States v. Christian Page 7

suffice to establish probable cause on its own, each factual allegation—whether ultimately

deficient or not—is still a relevant data point in the “totality of the circumstances” constellation,

rather than an independent thing to be lined up and shot down one by one. As in Wesby, where

the Supreme Court firmly repudiated the Court of Appeals’ attempt to isolate and explain away

each piece of evidence, here too “the totality of the circumstances gave the officers plenty of

reasons,” 138 S. Ct. at 589, to believe that there was evidence of drug trafficking in Christian’s

home.

Probable cause therefore existed, and it is not a close call. The opposite conclusion can

be reached only by engaging in the kind of “hypertechnical[,] . . . line-by-line scrutiny,” United

States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004), of the affidavit explicitly forbidden by the

Supreme Court, see Gates, 462 U.S. at 235–36, 245 n.14. In Wesby, the Court explained that

“this kind of divide-and-conquer approach is improper,” because “[a] factor viewed in isolation

is often more ‘readily susceptible to an innocent explanation’ than one viewed as part of a

totality.” 138 S. Ct. at 589 (quoting Arvizu, 534 U.S. at 274). That is the case here too, where

alone some parts of the affidavit might be criticized but taken together they point clearly to one

conclusion: that Christian was dealing drugs from 618 Grandville.

We are accordingly compelled to hold that there was probable cause in this case,

especially given the undemanding character of the probable-cause standard and the deferential

nature of our review. Probable cause “requires only a probability or substantial chance of

criminal activity, not an actual showing of such activity.” Tagg, 886 F.3d at 585 (quoting

Wesby, 138 S. Ct. at 586). Time and again the Supreme Court has emphasized that “[p]robable

cause ‘is not a high bar’” to clear. Wesby, 138 S. Ct. at 586 (quoting Kaley v. United States,

571 U.S. 320, 338 (2014)). Where, as here, a magistrate has issued a search warrant based on

probable cause, we “do[] not write on a blank slate.” Tagg, 886 F.3d at 586. Rather, the

magistrate’s probable-cause determination “should be paid great deference,” Gates, 462 U.S. at

236 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)), and we overturn that decision

only “if the magistrate arbitrarily exercised his or her authority,” United States v. Brown,

732 F.3d 569, 573 (6th Cir. 2013) (citing United States v. Greene, 250 F.3d 471, 478 (6th Cir.

2001)). We are “not permitted to attempt a de novo review of probable cause.” Tagg, 886 F.3d

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at 586 (citing Gates, 462 U.S. at 238–39; United States v. King, 227 F.3d 732, 739 (6th Cir.

2000)).

The conclusion that probable cause existed to search Christian’s home is compelled,

moreover, by our recent published decision in United States v. Hines, 885 F.3d 919 (6th Cir.

2018), in which we emphasized the importance of the totality-of-the-circumstances approach:

“Not all search warrant affidavits include the same ingredients,” we said before recognizing that

“[i]t is the mix that courts review to decide whether evidence generated from the search may be

used or must be suppressed.” Id. at 921–22. The affidavit at issue in Hines, like the one here,

was substantial. Both included, among other things, recent evidence of drug-related activity:

there, a confidential informant’s statement that one day earlier he had seen drugs at the

subsequently searched home; here, the officers’ finding heroin in Thomas’s car after having

observed his leaving 618 Grandville. But the takeaway from Hines most salient here is

methodological, not analogical: Hines requires us to look holistically at what the affidavit does

show, instead of focusing on what the affidavit does not contain, or the flaws of each individual

component of the affidavit. Doing the former establishes probable cause here. Rejecting

probable cause on the affidavit in this case would therefore fly in the face of Hines, a well-

reasoned precedential decision.

B.

Apart from whether the affidavit contained enough to establish probable cause,

Christian’s suppression motion was properly denied because of the good-faith exception of

United States v. Leon, 468 U.S. 897 (1984). Under Leon, the exclusionary rule does not bar from

admission “evidence seized in reasonable, good-faith reliance on a search warrant that is

subsequently held to be defective.” Id. at 905. If somehow the affidavit at issue here could be

deemed insufficient to establish probable cause, then this is a case in the very heartland of the

Leon exception. Contrary to Christian’s argument, the affidavit was not “bare bones.” We

reserve that label for an affidavit that merely “states suspicions, or conclusions, without

providing some underlying factual circumstances regarding veracity, reliability, and basis of

knowledge.” United States v. Washington, 380 F.3d 236, 241 n.4 (6th Cir. 2004) (quoting

United States v. Van Shutters, 163 F.3d 331, 337 (6th Cir. 1998)). To further describe the bare-

No. 17-1799 United States v. Christian Page 9

bones standard is to show why it does not apply here. We have said that, to be considered bare

bones, an affidavit must be “so lacking in indicia of probable cause” as to make an officer’s

“belief in its existence [ ] objectively unreasonable.” United States v. Laughton, 409 F.3d 744,

748 (6th Cir. 2005). In United States v. Williams, 224 F.3d 530 (6th Cir. 2000), we described

how woefully deficient an affidavit must be before it meets this standard:

An example of a “bare bones” affidavit is found in Gates, 462 U.S. at 239, where

the Court, pointing to one from Nathanson v. United States, 290 U.S. 41 (1933),

said, “A sworn statement of an affiant that ‘he has cause to suspect and does

believe that’ liquor illegally brought into the United States is located on certain

premises will not do.” Another illustration was taken from Aguilar v. Texas, 378

U.S. 108 (1964), that “[a]n officer’s statement that ‘affiants have received reliable

information from a credible person and believe’ that heroin is stored in a home, is

likewise inadequate.” Gates, 462 U.S. at 239. Thus, a “bare bones” affidavit is

similar to, if not the same as, a conclusory affidavit. It is “one which states ‘only

the affiant’s belief that probable cause existed.’” United States v. Finch, 998 F.2d

349, 353 (6th Cir. 1993) (quoting United States v. Ciammitti, 720 F.2d 927, 932

(6th Cir. 1983)).

Williams, 224 F.3d at 533.

Although one can split hairs with the affidavit in this case, it is impossible to deny that it

contains factual allegations, not just suspicions or conclusions. Importantly, each factual

allegation, regardless of any infirmities, at least purports to link Christian to drug trafficking at

618 Grandville. An affidavit need only present “some connection, regardless of how remote it

may have been,” United States v. White, 874 F.3d 490, 497 (6th Cir. 2017) (quoting Laughton,

409 F.3d at 749–50), or, in other words, establish a “minimally sufficient nexus between the

illegal activity and the place to be searched,” United States v. Brown, 828 F.3d 375, 385 (6th

Cir. 2016) (quoting United States v. Carpenter, 360 F.3d 591, 596 (6th Cir. 2004) (en banc)), to

avoid the bare-bones designation and thus be one upon which an officer can rely in good faith.

The affidavit here necessarily satisfies this low requirement. To hold otherwise would be to

equate the five-page, extensively sourced affidavit here with the short, conclusory, and self-

serving ones for which the bare-bones designation ought to be reserved.

Our decision in United States v. Hython, 443 F.3d 480 (6th Cir. 2006), is almost

completely inapposite here. We held there that the affidavit—which recounted only a single,

No. 17-1799 United States v. Christian Page 10

undated controlled purchase—did not satisfy the good-faith exception. Id. at 486, 488–89.

Although the affidavit linking 618 Grandville to drug dealing did include information about a

controlled purchase that Christian contends was stale, any similarity between this case and

Hython ends there. This case is like Hython only if, engaging in the methodological error

forbidden by the Supreme Court in Wesby, one completely ignores most of the affidavit by

discounting each item one by one. Indeed, Hython by negative inference supports the existence

of good-faith reliance here by showing just how unsubstantiated an affidavit must be to fail to

qualify under Leon’s good-faith exception.

This is a particularly egregious case to misapply the good-faith exception given the utter

lack of police wrongdoing. The “exclusionary rule is designed to deter police misconduct rather

than to punish the errors of judges and magistrates.” Leon, 468 U.S. at 916. As the Supreme

Court explained in Leon, “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. at 922. This balance supports the

principle that, as we said in Carpenter, the good-faith exception requires “a less demanding

showing than the ‘substantial basis’ threshold required to prove the existence of probable cause

in the first place.” 360 F.3d at 595–96 (quoting United States v. Bynum, 293 F.3d 192, 195 (4th

Cir. 2002) (citation omitted)). Refusing to adhere to those decisions in a case like Christian’s

would unduly exalt the Fourth Amendment interest marginally served by deterring nonculpable

conduct over the public interest in combatting crime—and would amount to effective disregard

of Supreme Court precedent as well as our own.

C.

Finally, it is questionable to conclude that the district court erred by admitting the

challenged telephone-call evidence. In any event, we may affirm if we can say with “fair

assurance” that any such error did not “substantially sway[]” the judgment. Kotteakos v. United

States, 328 U.S. 750, 765 (1946). That is the case here. As explained above, the evidence

obtained in accordance with the search warrant was properly admitted. Because suppression was

correctly denied, the jury properly heard, for example, evidence that officers found 70 grams of

heroin next to two loaded guns in Christian’s basement and cocaine and marijuana in other parts

No. 17-1799 United States v. Christian Page 11

of the house, that the DNA found on one of the guns matched Christian’s, and that Christian’s

cell phone contained text messages about drug trafficking. Considering that evidence, the phone

call added relatively little: it connected Thomas and Christian, which provided a basis for the

jury to conclude that Christian had sold drugs to Thomas, and it linked Christian to a third gun.

But even had that evidence not been admitted, no jury could have acquitted Christian on these

charges. The evidence against him was too damning. Admitting the phone-call statements was

therefore harmless.

III.

The judgment of the district court is affirmed.

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_________________

CONCURRENCE

_________________

THAPAR, Circuit Judge, concurring. I concur in the majority opinion. There was

probable cause to search Tyrone Christian’s house, and, at the very least, the officers executed

that search in good faith. But because of our precedent, we must ignore critical evidence of

which the officers undisputedly knew and isolate the good-faith analysis to the four corners of

the affidavit. See United States v. Laughton, 409 F.3d 744, 751–52 (6th Cir. 2005). I write

separately to explain why Laughton’s limit on the good-faith exception conflicts with Supreme

Court precedent and should be overruled.

I.

Officer Thomas Bush’s affidavit included a number of facts linking Christian and his

house to drug trafficking: (1) Christian had four drug-crime convictions in the past nineteen

years (two of which involved conduct that occurred at his house); (2) a confidential informant

had purchased drugs from Christian at his house nine months earlier; (3) within the past four

months, several “subjects” told the officers that they had purchased “large quantities” of drugs

from Christian at his house; and, finally, (4) on the day of the search, officers stopped Rueben

Thomas after they saw him leave the “area of” Christian’s house and discovered 20 grams of

heroin in Thomas’s car. R. 42-1, Pg. ID 114–15. Critically, Thomas’s heroin showed current

drug dealing at Christian’s house, supplementing the older information in Bush’s affidavit. But

the link between Thomas’s heroin and Christian’s house was blurry because the affidavit was

vague. The affidavit did not say that the officers saw Thomas interact with Christian or that they

saw Thomas inside Christian’s house—only that they saw him “walk away from the area of”

Christian’s house. Id. at 115.

Still, the magistrate believed the affidavit was good enough and granted the officers’

request for a search warrant. After obtaining the warrant, the officers searched Christian’s house

and uncovered extensive evidence of drug dealing: marijuana, cocaine, heroin, drug packaging

materials, and two guns. Based on this evidence, Christian was convicted of possessing a

No. 17-1799 United States v. Christian Page 13

controlled substance with intent to distribute, possessing a firearm in furtherance of drug

trafficking, and being a felon in possession of a firearm.

Christian claims the evidence against him should have been suppressed, arguing that the

officers lacked probable cause to search his house and that the good-faith exception to the

exclusionary rule does not apply. Because of Laughton, the parties’ good-faith arguments are

restricted to the language of the affidavit. And because that language is vague on a critical

point—the link between Thomas’s heroin and Christian’s house—the parties parse through the

affidavit and debate the best interpretation of its language (almost as if they were interpreting a

statute).

But uncontroverted evidence shows that on the day of the search, surveilling officers

twice observed Thomas interacting with Christian at Christian’s house. First, Thomas met with

Christian for “approximately five minutes” in the driveway of his house. R. 152, Pg. ID 1131–

32. Then, later that afternoon, Thomas returned and went inside for about two hours. After he

left, the officers stopped him and discovered the heroin. These facts link Thomas and his heroin

to Christian and his house. But, unfortunately, they were left out of the affidavit. The first

encounter did not make it into the affidavit at all, and the second one did only in the vague terms

described above.

Laughton confines us to the words of that vague affidavit in evaluating whether the good-

faith exception applies. We cannot consider the officers’ actual observations or determine the

reason those observations did not make it into the affidavit.

II.

Laughton is wrong. To see why, we need to start with first principles. The Fourth

Amendment protects “[t]he right of the people to be secure . . . against unreasonable searches

and seizures.” U.S. Const. amend. IV. But it does not spell out how we are to protect that right.

When the Fourth Amendment was ratified, the only way to enforce its protections was through

private tort suits against officers—the exclusionary rule, Section 1983, and Bivens actions did

not yet exist. See Collins v. Virginia, 138 S. Ct. 1663, 1676 (2018) (Thomas, J., concurring)

(“Historically, the only remedies for unconstitutional searches and seizures were ‘tort suits’ and

No. 17-1799 United States v. Christian Page 14

‘self-help.’”); Gardner v. Neil, 4 N.C. 104, 104 (1814) (stating that “the action of trespass is the

only proper form of action” for a Fourth Amendment violation); Akhil R. Amar, The Bill of

Rights as a Constitution, 100 Yale L.J. 1131, 1176–78 (1991); William Baude & James Y. Stern,

The Positive Law Model of the Fourth Amendment, 129 Harv. L. Rev. 1821, 1840 (2016).

That changed in 1914 when the Supreme Court first excluded evidence obtained in

violation of the Fourth Amendment. Weeks v. United States, 232 U.S. 383 (1914). The facts in

Weeks were extreme: officers, lacking any particularized information or a warrant, broke into

the defendant’s home, took incriminating documents, then returned and took even more. See id.

at 386, 393–94. To deter such flagrant misconduct by law enforcement, the Supreme Court

created the exclusionary rule. Id. at 393–94; see also United States v. Leon, 468 U.S. 897, 906,

908, 916–17 (1984). The underlying premise is that police are less likely to engage in

misconduct if they know that any evidence obtained thereby will be inadmissible at trial.

But the Supreme Court has recognized that suppression often comes with its own

“substantial” costs—both to the criminal justice system (letting the guilty (and possibly

dangerous) go free) and to the truth-seeking process. Leon, 468 U.S. at 907–08. So the Supreme

Court has repeatedly reminded us that suppression should always be “our last resort, not our first

impulse.” Herring v. United States, 555 U.S. 135, 140 (2009) (quoting Hudson v. Michigan, 547

U.S. 586, 591 (2006)) (internal quotation mark omitted). In turn, several principles constrain the

application of the exclusionary rule. First, exclusion is not an individual right but a rule aimed at

deterrence. Id. at 141. Second, a Fourth Amendment violation is a necessary—but not a

sufficient—ground for exclusion. Id. Third, and perhaps most importantly, the value of any

future police deterrence must outweigh suppression’s “substantial social costs.” Hudson, 547

U.S. at 596.

Assuming there is a Fourth Amendment violation, how exactly should courts balance the

costs versus the benefits of suppression? Again, the Supreme Court tells us: look at the

misconduct. Exclusion must deter egregious misconduct—misconduct “sufficiently deliberate

that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth

the price paid by the justice system.” Herring, 555 U.S. at 144. In contrast, when officers act in

an objectively reasonable but mistaken manner, exclusion serves no purpose. Leon, 468 U.S. at

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919. That is so even if that mistake violated a suspect’s Fourth Amendment rights. See Hudson,

547 U.S. at 596.

In short, the ultimate focus must be on the nature of police misconduct. That conduct

must exhibit “deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights”

to trigger the exclusionary rule. Davis v. United States, 564 U.S. 229, 238 (2011) (internal

quotation marks omitted); Herring, 555 U.S. at 144 (adding systemic negligence to the list).

III.

Of course, focusing on police misconduct does not excuse courts from looking at the

affidavit. Indeed, the affidavit is where courts must start. Leon, 468 U.S. at 915. But the

ultimate inquiry is whether, considering “all of the circumstances,” the officers acted reasonably

when relying on the blessing of the judge. Herring, 555 U.S. at 145 (quoting Leon, 468 U.S. at

922 n.23). And to make this determination, “we must consider the actions of all the police

officers involved.” Id. at 140 (citing Leon, 468 U.S. at 923 n.24).

This is where Laughton went astray. Laughton’s refusal to look beyond the affidavit is,

in effect, a judgment that factual omissions are always culpable misconduct. To start, Leon

precludes such an all-or-nothing approach to the exclusionary rule. 468 U.S. at 922 n.23, 923

n.24 (explaining that good faith depends on “all of the circumstances”). But more importantly,

the underlying premise is not true—omitted facts usually do not stem from misconduct at all but

from isolated negligence or the time pressures that officers often face during investigations.

Indeed, an officer would have practically no incentive to leave favorable information out of an

affidavit. See Hudson, 547 U.S. at 596 (stating “the value of deterrence depends upon the

strength of the incentive to commit the forbidden act”). Doing so would only increase the

chance that a magistrate may reject the warrant application and “leav[e] the officer empty-

handed.” United States v. Thomas, 908 F.3d 68, 74–75 & n.3 (4th Cir. 2018).

Because there is no nefarious conduct to deter, the best that excluding evidence may do in

this scenario is encourage more careful affidavit drafting. While that is a laudable goal, it is not

worth the substantial costs of exclusion. See Herring, 555 U.S. at 141; Hudson, 547 U.S. at 596.

Those costs are particularly high in an omitted-facts situation: when an officer in fact reasonably

No. 17-1799 United States v. Christian Page 16

relied on the magistrate’s warrant for a search, and that search yielded evidence proving that the

defendant is in fact guilty. Under that scenario, the exclusionary rule cannot “pay its way.”

Davis, 564 U.S. at 238 (quoting Leon, 468 U.S. at 919).

The Supreme Court’s instruction to focus on culpability is enough to show that the good-

faith analysis must consider facts that are not included in the affidavit. But the Supreme Court

has been even more explicit. In Sheppard, an officer under severe time pressure used the wrong

warrant application form for his search (a form for drugs rather than murder). Massachusetts v.

Sheppard, 468 U.S. 981, 986 (1984). The magistrate judge explained that edits were necessary

but only made some of them; as a result, the warrant still authorized only a search for drugs. Id.

at 986–87. Despite the obvious error, the Court held that the good-faith exception applied. In

doing so, it rejected the argument that the officers’ reliance on a facially invalid warrant

undermined good faith. Given the circumstances, “[t]he officers . . . took every step that could

reasonably be expected of them.” Id. at 987–89. Among other things, they thoroughly

investigated the suspect in a short amount of time, sought the advice of a district attorney,

presented the warrant application to a judge, and trusted that he had fixed it. Id. at 984, 988–89.

Those facts were not in the affidavit but still were relevant to the Sheppard court. Thus,

Sheppard “forecloses . . . a categorical rule” that the good-faith exception depends entirely on the

face of the warrant itself. United States v. Franz, 772 F.3d 134, 146 (3d Cir. 2014); accord

United States v. Frazier, 423 F.3d 526, 534–35 (6th Cir. 2005). And Sheppard’s logic extends to

affidavits and any other documents in a warrant application.

Indeed, our sister circuits have applied the good-faith exception when affidavits (often

prepared under time pressure) omitted a few words that were needed to establish probable cause.

See, e.g., United States v. McKenzie-Gude, 671 F.3d 452, 456–57, 460 (4th Cir. 2011); United

States v. Martin, 297 F.3d 1308, 1320 (11th Cir. 2002). Even the Tenth Circuit, which

purportedly follows a “four corners” rule, still considers (1) additional information presented to

the issuing judge, (2) “information relating to the warrant application process,” and

(3) “testimony illuminating how a reasonable officer would interpret factual information

contained in an affidavit.” See United States v. Knox, 883 F.3d 1262, 1272 & n.9 (10th Cir.

2018).

No. 17-1799 United States v. Christian Page 17

In addition, we already allow courts to look outside facially valid documents to see if

there was a Fourth Amendment violation that compels suppression. For example, if a facially

valid warrant was rooted in culpable misconduct, then the good-faith exception does not apply.

See Herring, 555 U.S. at 146 (“If the police have been shown to be reckless in maintaining a

warrant system, or to have knowingly made false entries to lay the groundwork for future false

arrests, exclusion would certainly be justified . . . .”); see also Franks v. Delaware, 438 U.S. 154,

155–56 (1978). Likewise, a facially valid warrant cannot support good faith if the officers

purposely withheld damaging information from it to present an “incomplete and misleading”

picture to the magistrate. United States v. West, 520 F.3d 604, 611–12 (6th Cir. 2008). In other

words, we already consider facts outside the affidavit when evaluating good faith—we just

consider facts that undermine probable cause and ignore facts that support it. Under Laughton,

outside facts are a one-way ratchet in favor of criminals. This disparity upsets the cost-benefit

balance at the heart of the good-faith exception: we should only undermine the truth-finding

function of the criminal justice system when necessary to deter culpable misconduct.

IV.

What would a world without Laughton look like in practice? No court can envision

every situation in which good faith does or does not apply. But a few things are clear.

Whenever an affidavit’s four corners are thorough enough to satisfy Leon, the good-faith

exception applies (barring some sort of culpable misconduct by the police). Indeed, Leon is a

low bar. An affidavit exceeds the Leon bar when it contains “some connection” between “the

illegal activity and the place to be searched,” even if that connection is “remote” and supported

by only a slight “modicum of evidence.” United States v. White, 874 F.3d 490, 496–97 (6th Cir.

2017) (quoting United States v. Carpenter, 360 F.3d 591, 596 (6th Cir. 2004) (en banc) (internal

quotation marks omitted)). Too often courts raise the Leon bar, making it practically

indistinguishable from the probable cause standard itself.1 Doing so effectively eliminates the

1In a perfect world, Laughton would not be as problematic because the good-faith exception would apply

unless the affidavit was skeletal. Yet courts have extended the “bare bones” exception to good faith well beyond

Supreme Court precedent. This case is a perfect example. Leon itself said that an affidavit supports good faith

when it “provide[s] evidence sufficient to create disagreement among thoughtful and competent judges as to the

existence of probable cause.” 468 U.S. at 926. That is what we have here, as the dueling majority and dissent

No. 17-1799 United States v. Christian Page 18

good-faith exception, or at the very least reduces it to a limited, narrow role. But when properly

applied, Leon means that in most cases an affidavit will satisfy the good-faith exception. In the

instances when an affidavit is vague on a critical point, however, courts must go further and ask

whether the officers were objectively culpable in relying on that affidavit. To answer that

question, courts must consider all the circumstances that bear on the officers’ culpability,

including any time pressure that the officers were under, what facts were known to the officers

but omitted from the affidavit, and how defective the affidavit was without that omitted

information.

The dissent claims that this culpability-focused approach would entail a subjective

“expedition into the minds of police officers.” Dissenting Op. Part II (quoting Leon, 468 U.S. at

922 n.23). Yet the Supreme Court already explained that looking at an “officer’s knowledge and

experience . . . does not make the test . . . subjective.” Herring, 555 U.S. at 145–46 (emphasis

added). Courts are not “inquiring into the subjective beliefs of law enforcement officers” when

they consider “actual uncontroverted facts” known to them. McKenzie-Gude, 671 F.3d at 460–

61 (citing Herring, 555 U.S. at 145). Neither the good-faith exception nor Supreme Court

precedent require that we bury our heads in the sand and ignore uncontroverted evidence. We

should follow the Supreme Court’s lead and consider such evidence when determining the

officers’ culpability. See Herring, 555 U.S. at 146–47; Sheppard, 468 U.S. at 987–89. To do

anything less is to ignore the very purpose for the exclusionary rule in the first place.

Indeed, this case proves the point. Surveilling officers twice observed Thomas

interacting with Christian at Christian’s house. That is an uncontroverted fact, not a subjective

belief. And that fact, had it been included in the affidavit, would have at the very least

established good faith under Leon. A tight time constraint, not culpable conduct, is the most

likely reason that this information was left out. See Majority Op. Part II.A. In contrast, if

officers saw Thomas at a different house meeting with someone other than Christian, this would

be a different case. In that light, the vague language in the affidavit (“the area of” Christian’s

house) would objectively appear to be intentional obfuscation rather than negligent oversight.

opinions show. But despite this thoughtful disagreement, the dissent continues further to say that the affidavit

cannot even satisfy good faith.

No. 17-1799 United States v. Christian Page 19

R. 42-1, Pg. ID 115. And under those circumstances, the outside facts would support

suppression. But with the facts we have, suppressing the evidence serves no societal purpose.

In short, courts can only apply the good-faith exception by evaluating officer conduct and

can only evaluate officer conduct by looking beyond the four corners of the affidavit. The time

has come for us to get in line with the Supreme Court’s good-faith doctrine. We should overrule

Laughton.

No. 17-1799 United States v. Christian Page 20

______________________________________

CONCURRING IN THE JUDGMENT

______________________________________

HELENE N. WHITE, Circuit Judge, concurring in the judgment. I join in Part I of Judge

Gilman’s opinion. However, because I conclude that the search-warrant affidavit was sufficient

to justify a reasonably well-trained officer’s good-faith reliance on the magistrate’s finding of

probable cause, United States v. White, 874 F.3d 490, 496 (6th Cir. 2017), I concur in the result

of the majority opinion.

No. 17-1799 United States v. Christian Page 21

_________________

DISSENT

_________________

RONALD LEE GILMAN, Circuit Judge, dissenting. Considering the totality of the

circumstances, I believe that the facts set forth in the affidavit fail to establish a “fair probability”

that drug activity was occurring at Christian’s residence (the Residence) at the time the search

warrant was executed. See United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010). I also do

not think that the exception established in United States v. Leon, 468 U.S. 897 (1984), applies in

the present case because the affidavit does not establish a sufficient nexus between the Residence

and drug activity at the time of the search.

The majority’s conclusion that the issue of probable cause is “really not even close”

strikes me as totally unsupportable. See Maj. Op. 4. Unlike the majority, I acknowledge that

whether there was probable cause and whether the good-faith exception is met are close calls.

But I ultimately conclude that the affidavit falls short because it does not provide any

“particularized facts” connecting the Residence to drug activity at the time that the search

warrant was executed. See United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006). I

therefore respectfully dissent.

I. PROBABLE CAUSE

“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 United States v. Berry, 565 F.3d 332, 338 (6th

Cir. 2009)). This requires “a nexus between the place to be searched and the evidence sought,”

McPhearson, 469 F.3d at 524 (quoting United States v. Carpenter, 360 F.3d 591, 594 (6th

Cir. 2004) (en banc)), at the time the warrant is issued, United States v. Hython, 443 F.3d 480,

485 (6th Cir. 2006). The probable-cause standard is practical and nontechnical. United States v.

Frazier, 423 F.3d 526, 531 (6th Cir. 2005). In other words, a reviewing court should consider

the “totality of the circumstances” rather than “engage in line-by-line scrutiny of the warrant

No. 17-1799 United States v. Christian Page 22

application’s affidavit.” United States v. Williams, 544 F.3d 683, 686 (6th Cir. 2008). But the

court must limit its “review of the sufficiency of the evidence supporting probable cause . . . to

the information presented in the four-corners of the affidavit.” Frazier, 423 F.3d at 531.

The totality-of-the-circumstances approach requires us to examine each piece of evidence

in the affidavit to assess its probative value and then determine whether those pieces of evidence

are as a whole sufficient to establish probable cause. Gardenhire v. Schubert, 205 F.3d 303, 315

(6th Cir. 2000) (explaining that, in the context of an arrest, “[p]robable cause determinations

involve an examination of all facts and circumstances within an officer’s knowledge at the time

of an arrest” (quoting Estate of Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999)));

United States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004) (“[C]ourts may not engage in a

‘divide-and-conquer’ analysis of facts to determine whether probable cause existed. However,

neither may a court arrive at probable cause simply by piling hunch upon hunch. Thus, in

assessing the totality of the circumstances, a reviewing court ‘must examine the facts

individually in their context to determine whether rational inferences can be drawn from them’

that support a probable cause determination.” (emphasis added) (citations omitted)).

A. Observations of Thomas

I will begin by analyzing the probative value of the evidence presented in the four corners

of the affidavit, starting with the officers’ observations of Thomas. Then, as the Supreme Court

instructed in District of Columbia v. Wesby, 138 S. Ct. 577 (2018), I will consider each piece of

the evidence “as a factor in the totality of the circumstances.” See id. at 588 (citations omitted).

According to the affidavit, law-enforcement officers observed Thomas “walk away from

the area” of the Residence and leave in a vehicle on the day that the search warrant was issued.

They followed Thomas and stopped him after an unknown period of time for a driving infraction.

During the stop, the officers found approximately 20 grams of heroin in Thomas’s vehicle.

Crucially, the affidavit does not state that the officers saw Thomas entering or leaving the

Residence, even though their surveillance was targeted specifically at that property. Nor does it

say that Thomas was seen with Christian. In fact, the affidavit does not assert any connection at

all between Christian and Thomas.

No. 17-1799 United States v. Christian Page 23

True enough, the affidavit states that, during the traffic stop, “Rueben Thomas admitted

that he had recently been at an address on Grandville Avenue in the City of Grand Rapids but

denied being at 618 Grandville[,] contrary to observations of the law enforcement officers.” But

I decline to interpret this “contrary to observations” statement as an indication that the officers

saw Thomas actually entering or leaving the Residence itself. Officer Bush was undoubtedly

aware that any evidence of Thomas being at the Residence would be highly relevant to the

probable-cause determination, but chose instead to state simply that Thomas was seen walking in

“the area of 618 Grandville”—a vague description that does not place Thomas at the Residence.

Absent a direct statement that Thomas was seen entering or leaving the Residence, or even at the

Residence in any sense, I find no basis to read such a factual assertion into the affidavit.

The majority, on the other hand, contends that the affidavit’s lack of a direct statement

that Thomas was at the Residence is attributable to the “haste of a criminal investigation,”

Maj. Op. 5 (quoting Illinois v. Gates, 462 U.S. 213, 235 (1983)), and that no “magic words” are

required, Maj. Op. 5 (quoting United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) (en

banc)). But the affidavit’s inclusion of the specific, nontechnical language “from the area”

appears to me more consistent with an honest acknowledgement that the officers did not observe

Thomas at the Residence itself. In fact, the common-sense meaning of the language “from the

area” suggests that Thomas was near but not at the Residence when observed by the officers.

The majority also notes that the affidavit “need only have ‘allege[d] facts that create a

reasonable probability” that “Thomas was seen leaving 618 Grandville.” Maj. Op. 6 (alteration

in original) (quoting United States v. Tagg, 886 F.3d 579, 589 (6th Cir. 2018)). This statement

reflects a subtle but crucial error. The affidavit must contain facts establishing that probable

cause exists to believe that evidence of drug activity will be present in the Residence at the time

of the search. Stated differently, probable cause must be established in relation to whether there

is evidence of drug activity in the Residence, not in relation to whether Thomas was seen leaving

the Residence. See United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010) (“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

No. 17-1799 United States v. Christian Page 24

that contraband or evidence of a crime will be found in a particular place.’” (quoting United

States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009))).

This leaves us to consider the significance of the following: A single individual with no

known connection to Christian was seen walking away from the area of the Residence and then

leaving that area in a car. He was followed by officers for an unknown amount of time to a

subsequent location where a traffic stop was conducted, during which heroin was found in the

vehicle. If this provides any nexus at all between evidence of drug trafficking and the Residence,

that nexus is so speculative and attenuated that it cannot, without more, support a finding of

probable cause. See United States v. Arvizu, 534 U.S. 266, 274 (2002) (noting that a hunch is

insufficient to support a finding of reasonable suspicion for a Terry stop, and that the reasonable-

suspicion standard is easier to satisfy than the probable-cause standard).

To conclude otherwise would allow officers seeking a search warrant to rely on

speculation that drug activity near a residence is related to that residence, significantly lowering

the burden for the government to show probable cause in areas where drugs are prevalent.

Because the government cites no case that would support such a proximity test for establishing

probable cause, I believe that the officers’ observation of Thomas has little value on its own. But

that does not end the inquiry. We must consider, as I do below, whether other evidence in the

record bolsters or corroborates a connection between Thomas’s alleged drug activity and the

Residence, such that the magistrate could have found a fair probability that evidence of drug

trafficking would be found at the Residence at the time of the search.

B. Tips from unidentified informants

The affidavit further states:

Within the last four months, your affiant has been involved in or received

information from several debriefs of subjects who have stated that Tyrone

Christian is a large scale drug dealer. These subjects further stated that they have

purchased large quantities of heroin and crack cocaine from Christian at

618 Grandville Avenue . . . in the last four to five months.

Officer Bush’s assertion that he received information from unidentified “subjects” omits

critical particulars. Among other things, the affidavit does not identify the number of individuals

No. 17-1799 United States v. Christian Page 25

who made the statements, explain what constituted a “debrief,” identify the contexts in which the

debriefs occurred, or even specify the date that the information was received (all of the

information could have been received four months before the search).

More importantly, Officer Bush’s statement gives no indication as to the veracity or

reliability of the information obtained. He did not assert any belief concerning the reliability or

veracity of the subjects’ comments, let alone provide any factual basis by which the magistrate

could assess their reliability or veracity. See United States v. Helton, 314 F.3d 812, 822 (6th Cir.

2003) (explaining that, under Sixth Circuit precedent, an affidavit “must contain a statement

about some of the underlying circumstances indicating the informant was credible or that his

information was reliable” (quoting United States v. Smith, 182 F.3d 473, 477 (6th Cir. 1999))).

The affidavit’s complete failure to address the credibility and reliability of the

information provided by the subjects is even more glaring when juxtaposed with Officer Bush’s

inclusion of a paragraph supporting the credibility and reliability of the confidential informant

who conducted the controlled buy in January 2015. With regard to this latter informant, Officer

Bush stated that “[y]our affiant was able to confirm much of the information provided by the

credible and reliable informant through information maintained by the Grand Rapids Police

Department, other credible and reliable informants, public information sources and other law

enforcement agencies.” This statement indicates that Officer Bush was well aware that hearsay

statements from informants should be accompanied by an explanation of their credibility and

reliability. Accordingly, his failure to do so with respect to information obtained from the

unidentified subjects implies the absence of any such indicia.

An affidavit establishing probable cause based on an informant’s tip must also provide

facts identifying the basis of the informant’s knowledge. United States v. Frazier, 423 F.3d 526,

532 (6th Cir. 2005). “The ‘basis for knowledge’ factor uses the degree of detail in a tip to infer

whether the tipster ‘had a reliable basis for making his statements.’” Helton, 314 F.3d at 822

(quoting Smith, 182 F.3d at 477). Although Officer Bush’s affidavit states that the basis of the

subjects’ knowledge was that they had each purchased drugs from Christian at the Residence, the

affidavit provides almost no details about the purchases beyond identifying the types of drugs

involved. The unidentified subjects did not state exactly when they had purchased drugs from

No. 17-1799 United States v. Christian Page 26

Christian, the amount of the drugs purchased, or whether they entered the Residence and saw any

controlled substances or other evidence of drug trafficking inside. This lack of detail further

reduces the probative value of the information obtained from these sources.

“[I]n the absence of any indicia of the informants’ reliability, courts insist that the

affidavit contain substantial independent police corroboration.” Frazier, 423 F.3d at 532. There

is no evidence in the present case that the police corroborated any of the information obtained

from the unidentified subjects. The affidavit does not indicate that the police engaged in any

ongoing surveillance of the Residence, conducted subsequent controlled purchases, or otherwise

tried to verify that Christian was currently using the Residence to sell drugs. And although the

police established surveillance of the Residence on the very day that the affidavit was executed,

the affidavit contains no observations by the police suggesting that Christian was then using the

Residence as a base of operations.

Because the information from these unidentified subjects lacks any indicia of veracity or

reliability and was not corroborated by subsequent police investigation, it should be accorded

little weight in determining whether there was probable cause to search the Residence. See

United States v. McPhearson, 469 F.3d 518, 524 n.3 (6th Cir. 2006) (“Thus, an allegation of

drug dealing based on information from an untested confidential informant is insufficient to

establish probable cause to search the alleged drug dealer’s home. However, where the

allegation of drug dealing is coupled with independently corroborated information from police

officers, it may be sufficient to establish probable cause.”); Helton, 314 F.3d at 822 (concluding

that little weight should be given to statements from an informant whose reliability has not been

determined); see also United States v. Allen, 211 F.3d 970, 976 (6th Cir. 2000) (en banc) (noting

that an anonymous tip, even one that is “rich in particulars,” will not be enough to establish

probable cause if only innocent details are corroborated by the police, but holding that a

magistrate may find probable cause to search a residence when “a known person, named to the

magistrate, to whose reliability an officer attests with some detail, states that he has seen a

particular crime and particular evidence, in the recent past”).

No. 17-1799 United States v. Christian Page 27

C. The January controlled buy

Christian also contends that the evidence of the January 2015 controlled buy was stale

when the affidavit was executed eight months later, and thus could not have supported a finding

of probable cause to search the Residence. The government disputes this contention, arguing

that because the officers sought records and indicia of continuous drug trafficking, the evidence

was not stale.

“[S]tale information cannot be used in a probable cause determination.” United States

v. Perry, 864 F.3d 412, 414 (6th Cir. 2017) (quoting United States v. Frechette, 583 F.3d 374,

377 (6th Cir. 2009)); see also United States v. Harris, 255 F.3d 288, 299 (6th Cir. 2001)

(“Because probable cause to search is concerned with facts relating to a presently existing

condition, . . . there arises the unique problem of whether the probable cause which once existed

has grown stale.” (quoting United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998))). Whether

evidence is stale is a flexible inquiry that does not “create an arbitrary time limitation within

which discovered facts must be presented to a magistrate.” United States v. Greene, 250 F.3d

471, 480 (6th Cir. 2001) (quoting Spikes, 158 F.3d at 923). In considering the length of time

between the events listed in the affidavit and the application for the warrant, a court should

consider several factors, including:

[1] the character of the crime (chance encounter in the night or regenerating

conspiracy?), [2] the criminal (nomadic or entrenched?), [3] the thing to be seized

(perishable and easily transferable or of enduring utility to its holder?), [and 4] the

place to be searched (mere criminal forum of convenience or secure operational

base?) . . . .

Spikes, 158 F.3d at 923 (quoting Andresen v. State, 331 A.2d 78, 106 (Md. Ct. Spec.

App. 1975)).

1. Second and fourth Spikes factors

There is little question that the second and fourth factors weigh in favor of finding that

the evidence of the January controlled buy was not stale. The affidavit supports the conclusion

that Christian had been occupying the Residence in Grand Rapids since at least 2009 and was

thus “entrenched” in the community. See Frechette, 583 F.3d at 379 (finding that the defendant

No. 17-1799 United States v. Christian Page 28

was entrenched when evidence in the affidavit indicated that he had lived in the residence in

question for 16 months). Moreover, courts have repeatedly held that a defendant’s residence “is

clearly a ‘secure operational base.’” Id. (quoting United States v. Paull, 551 F.3d 516, 522 (6th

Cir. 2009)); see also United States v. Powell, 603 F. App’x 475, 478 (6th Cir. 2015) (concluding

that an individual’s home “is more like a secure operational base than a mere forum of

convenience”).

2. First Spikes factor

The first and third factors, however, weigh in favor of finding that the evidence of the

controlled buy was stale. With regard to the first factor, “[i]f an affidavit recites activity

indicating protracted or continuous conduct, time is of less significance.” United States

v. Henson, 848 F.2d 1374, 1382 (6th Cir. 1988) (quoting United States v. Haimowitz, 706 F.2d

1549, 1554–55 (11th Cir. 1983)). This court has used both the terms “protracted and

continuous” and “ongoing and continuous.” Compare Perry, 864 F.3d at 415, with United States

v. Hython, 443 F.3d 480, 485 (6th Cir. 2006). Both variations appear to encompass two

principles: that the conduct extended over a significant period of time and that it continued up to

(or close to) the time of the search. (For clarity, I will use “protracted” for the first principle and

“continuous” for the latter.) The key question, then, is whether the affidavit contains facts

supporting an inference that Christian was engaged in recurrent or sustained drug-trafficking

activity up to the time of the search.

As this court has pointed out:

The crime at issue in this case—the sale of drugs out of a residence—is not

inherently ongoing. Rather, it exists upon a continuum ranging from an

individual who effectuates the occasional sale from his or her personal holdings of

drugs to known acquaintances, to an organized group operating an established and

notorious drug den. The inclusion of outdated information has been insufficient

to render an entire affidavit stale when the affidavit as a whole establishes that the

criminal activity in question is ongoing and continuous, or closer to the “drug

den” end of the continuum.

Hython, 443 F.3d at 485. But if the affidavit, taken as a whole, suggests that the defendant is

engaged in something closer to the “occasional sale from . . . personal holdings,” id., then

“information goes stale very quickly ‘because drugs are usually sold and consumed in a prompt

No. 17-1799 United States v. Christian Page 29

fashion,’” United States v. Brooks, 594 F.3d 488, 493 (6th Cir. 2010) (quoting Frechette,

583 F.3d at 378).

Here, Officer Bush explains that “a credible and reliable informant” engaged in a

controlled purchase of drugs from Christian at the Residence in January 2015, eight months

before Officer Bush sought the warrant at issue in this case. But the affidavit provides almost no

detail regarding the controlled buy—it does not state whether the officers observed the buy,

identify the type or amount of the controlled substance purchased, indicate how the purchase was

initiated, or reveal if the informant had purchased drugs from Christian previously. Nor does the

affidavit disclose whether the informant saw large quantities of drugs in Christian’s possession

or in the Residence. See United States v. Abernathy, 843 F.3d 243, 255 (6th Cir. 2016) (noting

that a large quantity of drugs found in a trash can outside of a residence would suggest “repeated

and ongoing drug activity in the residence”). Nothing about the January 2015 single controlled

buy of an unknown quantity of an unknown drug by an informant with an unknown relationship

to Christian suggests that Christian was engaged in protracted or continuous drug trafficking.

In sum, the affidavit reflects only a single purchase from a reliable informant eight

months before the search and no other credible evidence of drug activity beyond four prior drug

convictions ranging from 4 to 19 years old (the significance of these drug convictions for the

probable-cause determination will be discussed in further detail below). I therefore conclude that

the affidavit does not establish that Christian was engaged in protracted and continuous drug

trafficking. Cf. United States v. Sinclair, 631 F. App’x 344, 348 (6th Cir. 2015) (evaluating the

Spikes staleness factors and concluding that the crime at issue was “an ongoing drug trafficking

conspiracy” when a confidential informant reported purchasing heroin from the defendant “for

several years,” and the officers observed the defendant engaging in activity consistent with drug

trafficking over the most recent 12 months, with the last observation occurring just 15 days

before the search warrant was executed at the defendant’s residence); United States v. Greene,

250 F.3d 471, 481 (6th Cir. 2001) (finding protracted and continuous drug trafficking where a

reliable confidential informant reported purchasing drugs from the defendant at his residence at

least 12 times, the last purchase occurring 23 months before the search warrant executed,

No. 17-1799 United States v. Christian Page 30

because the informant also stated that a package was sent from the residence to a known drug

dealer less than one month prior to the execution of the warrant).

3. Third Spikes factor

With regard to the third factor—whether the evidence to be seized is of enduring utility to

the holder—the government contends that the warrant sought not just controlled substances, but

also records of drug trafficking and firearms used in drug trafficking. These latter two categories

of evidence, it argues, are likely to endure, even if controlled substances themselves are not. To

support this argument, the government relies on United States v. Burney, 778 F.3d 536 (6th Cir.

2015). But Burney is distinguishable from the present case because there was no dispute that the

17-page affidavit in Burney provided ample evidence that the property had been used as a stash

house for “a large-scale drug trafficking and money laundering operation— . . . a regenerating,

enduring criminal enterprise that bears no resemblance to a ‘chance encounter in the night.’” Id.

at 538, 541–42. Such an extensive operation was likely to involve “scales, weapons, safes,

bagging materials, and the like,” evidence that was “not readily consumable” and thus unlikely to

“be consumed or to disappear.” Id. at 541.

In his affidavit in the present case, Officer Bush acknowledged the distinction between

those who occasionally sell from their own supply—and thus produce little lasting evidence—

and those who sell regularly for profit using extensive networks that likely involve durable

evidence like records and firearms. True enough, Officer Bush stated in the affidavit that he was

seeking records and firearms related to extensive drug-trafficking operations. But this statement

assumes what the affidavit tried and, I believe, ultimately failed to prove by substantial

evidence—that Christian was engaged in organized and extensive drug-trafficking operations

likely to involve not just controlled substances, but also records and firearms.

Because the government has provided credible evidence of only a single sale of an

unknown quantity of a controlled substance in January 2015, rather than “a large-scale drug

trafficking and money laundering operation,” see id., it failed to provide a reason to believe that

records of drug trafficking and firearms would be found at the Residence. Whether such records

are durable is thus irrelevant. And “because drugs are usually sold and consumed in a prompt

No. 17-1799 United States v. Christian Page 31

fashion,” evidence of a single drug sale became stale “very quickly,” well before the search was

executed eight months later. See United States v. Abernathy, 843 F.3d 243, 250 (6th Cir. 2016)

(quoting United States v. Brooks, 594 F.3d 488, 493 (6th Cir. 2010)); see also United States v.

Hython, 443 F.3d 480, 486 (6th Cir. 2006) (noting the limited evidentiary value of an undated

controlled buy absent evidence of any recent drug activity at the residence). The third factor thus

weighs in favor of finding the evidence of the controlled buy to be stale.

4. Conclusion on staleness

I believe that the first and third Spikes factors control the determination of whether

evidence of the controlled buy is stale in this case. Although Christian is entrenched in the

community and his residence would be a secure base of operations, the key question is whether

evidence of drug activity would be found there at the time of the search. With no reliable

evidence of continuous and protracted drug activity, the eight-month-old controlled buy was

stale.

This court’s decision in Brooks offers strong support for my conclusion. Brooks

considered whether an affidavit was sufficient to establish probable cause to search the

defendant’s residence for evidence of drug crimes. Crucially, the affiant-officer arrested the

defendant for aggravated drug trafficking at the defendant’s residence and, in the process,

smelled marijuana and observed marijuana seeds in plain view. The officer also found $1,000 in

cash on the defendant after conducting a pat-down search. Later that day, the affiant-officer

executed the affidavit in support of the search warrant. This court held that the officer’s

observations alone were sufficient to support probable cause. Brooks, 594 F.3d at 495.

But the affidavit in Brooks also contained several other pieces of information that, by

themselves, were held to be insufficient to establish probable cause. These were: (1) four tips

from confidential informants, stating that the defendant was trafficking in cocaine, with the tips

ranging from one to five years old at the time that the affidavit was executed; (2) a 20-month-old

tip from a confidential informant, stating that the defendant was selling cocaine from his

residence; and (3) two controlled buys made by a confidential informant almost eight months

before the affidavit was executed. The court noted:

No. 17-1799 United States v. Christian Page 32

[T]here is no question but that this information is stale for purposes of

establishing probable cause in its own right. All of the information is regarding

drug transactions that took place, at the most recent, approximately six months

prior to the date of the affidavit. Given the mobile and quickly consumable nature

of narcotics, evidence of drug sales or purchases loses its freshness extremely

quickly.

Id. at 493 n.4. Similarly, the single controlled buy conducted in the present case was stale when

the warrant was executed eight months later. Cf. United States v. Yates, 501 F. App’x 505, 511

(6th Cir. 2012) (concluding that evidence of a single drug transaction occurring at a residence

was not stale when the transaction occurred within ten days of the affidavit’s execution); United

States v. Pinson, 321 F.3d 558, 565 (6th Cir. 2003) (concluding that evidence of a single

controlled purchase was not stale when the warrant was issued three days later).

D. Criminal history

The next matter to be considered is Christian’s criminal record. Although “a person’s

criminal record [demonstrating multiple drug offenses] alone does not justify a search of his or

her home[,]” United States v. Payne, 181 F.3d 781, 790–91 (6th Cir. 1999), it is relevant to the

probable-cause inquiry, United States v. Berry, 565 F.3d 332, 339 (6th Cir. 2009). The affidavit

in question here asserts that Christian, at the time that the warrant was issued, had a 19-year-old

conviction for possession of less than 25 grams of cocaine and a 13-year-old conviction for an

unspecified second controlled-substance offense. Christian has an additional six-year-old

conviction for the delivery/manufacture of marijuana and a four-year-old conviction for the

delivery/manufacture of cocaine.

The majority’s contention that these convictions support a conclusion that Christian was

engaged, at some point, in protracted drug activity is problematic. See Maj. Op. 4. Precedent

instructs us to consider “[t]he relative recency of a set of actions and their relative closeness in

time to each other.” United States v. Perry, 864 F.3d 412, 415 (6th Cir. 2017). These

convictions are each several years apart, and even the most recent conviction predates the

January 2015 controlled buy by four years. Nothing about these old convictions and the

controlled buy is inconsistent with a conclusion that Christian was simply “effectuat[ing] the

No. 17-1799 United States v. Christian Page 33

occasional sale from his or her personal holdings of drugs to known acquaintances.” See United

States v. Hython, 443 F.3d 480, 485 (6th Cir. 2006).

But even assuming that these convictions, combined with the fact that two search

warrants were executed at the Residence in 2009 and 2011, support a conclusion that Christian

was engaged in protracted drug sales at the Residence at some point, there is no evidence to

suggest that these sales were continuous at the time the warrant was sought and executed in

September 2015. See United States v. Helton, 314 F.3d 812, 822 (6th Cir. 2003) (noting that

even where “the likely duration of th[e] evidence is relatively long,” the evidence may still be

stale if enough time has passed between the tip and the execution of the warrant); United States

v. Brown, 828 F.3d 375, 384 n.3 (6th Cir. 2016) (concluding that a 12-year-old conviction for

conspiracy to distribute marijuana was insufficient to establish that an individual was a known

drug dealer at the time the warrant was executed).

The key issue is whether a search-warrant affidavit establishes a fair probability that the

evidence sought will be found at the place identified at the time the warrant is executed. Hython,

443 F.3d at 485. Emphasizing the temporal requirement of this test, this court found in Hython

that “[e]ven had the affidavit stated that from time out of mind, [the residence to be searched]

had been a notorious drug den, some recent information would be necessary to eliminate the

possibility that a transfer in ownership or a cessation of illegal activity had not taken place.” Id.

at 486; see also United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006) (concluding that

the magistrate may “draw the inference that evidence of wrongdoing would be found in the

defendants’ homes” when the affidavit reflects “the independently corroborated fact that the

defendants were known drug dealers at the time the police sought to search their homes”).

Neither the majority nor the government has identified any case in which a record of past

drug convictions, without recent credible evidence of drug activity, was sufficient to establish

that a defendant was engaged in protracted and continuous drug dealing. This court has

generally relied on past drug convictions in combination with a defendant’s recent drug activity

in applying the principle that, “[i]n the case of drug dealers, evidence is likely to be found where

the dealers live.” United States v. White, 874 F.3d 490, 501 (6th Cir. 2017) (alteration in

original) (quoting United States v. Jones, 159 F.3d 969, 975 (6th Cir. 1998)); see also United

No. 17-1799 United States v. Christian Page 34

States v. Miggins, 302 F.3d 384, 393 (6th Cir. 2002) (finding probable cause to search the

defendant’s residence where his criminal record indicated that he had been convicted of cocaine

charges and officers observed him signing for a package of cocaine delivered at a second

location immediately before the issuance of the warrant).

Absent additional recent reliable evidence, then, old criminal convictions cannot support

a finding that drug activity is continuous at the time of the search. Our legal system has long

held a strong policy against using propensity evidence to suggest an inference that an individual

who has once committed a crime continues to engage in criminal activity. See Fed. R. Evid.

404(b)(1) (“Evidence of a crime, wrong, or other act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in accordance with the

character.”). Although the Federal Rules of Evidence do not come into play when deciding the

validity of a search warrant, the aim of Rule 404 is similar to the purpose of the staleness rule: to

ensure that decisionmakers—whether jurors or magistrates—do not improperly assume based on

past wrongs that an individual is currently engaging in the specific criminal conduct at issue. See

Old Chief v. United States, 519 U.S. 172, 179–82 (1997) (discussing the prejudicial nature of

propensity evidence). By allowing the government to rely in part on Christian’s stale prior

convictions, the majority is lowering the probable-cause threshold for former convicts and

stripping away their rights guaranteed by the Fourth Amendment.

I therefore conclude that Christian’s prior criminal convictions, even when considered

with the eight-month-old controlled buy, do not establish that he was engaged in protracted and

continuous drug activity. And absent some “independently corroborated fact that the defendant[]

w[as a] known drug dealer[] at the time the police sought to search [his] home,” probable cause

did not exist to search the Residence based on Christian’s criminal record. See McPhearson, 469

F.3d at 524.

E. Totality of the circumstances

As discussed above, the caselaw makes clear that the probable-cause determination must

be based on the “totality of the circumstances.” United States v. Williams, 544 F.3d 683, 686

(6th Cir. 2008). The court should therefore evaluate the weight of the evidence when considered

No. 17-1799 United States v. Christian Page 35

as a whole. At this juncture, I note that the equivalent of only one page of the affidavit is

dedicated to facts specifically related to Christian. The majority repeatedly points out that the

affidavit is five pages long, see Maj. Op. 1, 9, but the affidavit mostly concerns generic

information, including Officer Bush’s qualifications and the general nature of drug

investigations.

Even though the relevant portion of the affidavit is short and the information contained

therein problematic, I recognize that this is not necessarily fatal. For instance, “[w]here recent

information corroborates otherwise stale information, probable cause may be found.” United

States v. Spikes, 158 F.3d 913, 924 (6th Cir. 1998) (alteration in original) (quoting United States

v. Henson, 848 F.2d 1374, 1381–82 (6th Cir. 1988)) (concluding that evidence of drug residue in

a residence’s trash cans and an officer’s recent observations of individuals leaving the residence

to sell drugs nearby “refreshed . . . otherwise stale information” contained in the affidavit). But

no reliable evidence corroborates the stale evidence in the affidavit under review.

In addition, evidence from an informant whose reliability is not known can be

corroborated by independent information from police officers. McPhearson, 469 F.3d at 524

n.3; United States v. Hammond, 351 F.3d 765, 772 (6th Cir. 2003) (noting the “minimal

probative value” of a tip from an informant of unknown reliability, but concluding that “the tip

can take on an increased level of significance for probable cause purposes, if corroborated by the

police through subsequent investigation”). But there is no evidence that the officers here

attempted to corroborate the information provided by the unidentified subjects. And even if the

previous controlled buy could be considered to corroborate subsequent information from

unidentified sources, the single buy did not corroborate allegations that protracted and

continuous drug activity was occurring at the Residence.

In sum, the affidavit shows that (1) two search warrants were executed for drugs at the

Residence years ago, (2) Christian has a history of years-old drug convictions, (3) he engaged in

one sale of drugs at the Residence eight months prior to the execution of the search warrant,

(4) unidentified subjects of unknown reliability reported that Christian was selling drugs at

unspecified times in more recent months, and (5) a man with no known connection to Christian

was found to be in possession of drugs after leaving “the area” of the Residence on the date of

No. 17-1799 United States v. Christian Page 36

the search-warrant affidavit. This evidence, even under the totality-of-the-circumstances

approach, fails to establish a “fair probability” that drug activity was occurring at the Residence

at the time the search warrant was executed. See United States v. Brooks, 594 F.3d 488, 492 (6th

Cir. 2010).

The majority relies on United States v. Hines, 885 F.3d 919 (6th Cir. 2018), in arguing to

the contrary. Maj. Op. 8 (quoting Hines, 885 F.3d at 921–22) (“‘Not all search warrant affidavits

include the same ingredients,’ we said before recognizing that “‘[i]t is the mix that courts review

to decide whether evidence generated from the search may be used or must be suppressed.’”

(alteration in original)). But the facts of Hines actually lend further support to my position that

the warrant here did not establish probable cause to search the Residence.

The affidavit at issue in Hines contained the following evidence in support of a warrant to

search the house in question, owned by Hines’s mother: (1) a reliable confidential informant told

officers five months prior to the warrant’s execution that the defendant was selling large amounts

of heroin from the house; (2) a statement from the same informant that he had seen heroin at the

house the day before the search; (3) several months of surveillance of the house by

law-enforcement officers documented the defendant’s comings and goings; (4) a tip from a

second reliable confidential informant the day before the warrant’s execution stated that he was

meeting the defendant at a nearby club to discuss an incoming heroin shipment; (5) officers’

observations of the defendant driving “in a manner consistent with narcotics traffickers” to the

club at the designated time; (6) statements from the second informant that he had received heroin

from the defendant numerous times and was always instructed to meet him at the house to

receive that heroin; (7) a tip from the second informant that he was instructed to collect heroin

from the defendant at the house on the day that the warrant was executed; (8) three-year-old

wiretaps identifying the defendant as a significant heroin trafficker; (9) the two-year-old seizure

of $33,500 from a third individual outside the house (believed to be payment from Hines for a

kilogram of cocaine); and (10) a subsequent statement from this individual that he had previously

provided the defendant with heroin and cocaine. Hines, 885 F.3d at 922.

All of the evidence detailed above in Hines directly linked the residence to heroin

trafficking at the time of the search through information from reliable informants and specific

No. 17-1799 United States v. Christian Page 37

observations by officers that corroborated the information provided by those informants. And

after comparing this evidence with that used to support affidavits in other cases, the court in

Hines ultimately concluded that the affidavit at least satisfied the Leon good-faith standard, if not

probable cause. Id. at 924–28.

The affidavit at issue here, in contrast, fails to establish anything more than a speculative

connection between drug activity and the Residence at the time of the search. This is the “hunch

upon hunch” approach found unacceptable in United States v. Valenzuela, 365 F.3d 892, 897

(10th Cir. 2004). Unlike the affidavit in Hines, the affidavit here contains no recent evidence of

drug activity at the Residence. The search warrant was therefore not supported by probable

cause. Under these circumstances, the deference that would otherwise be due to the issuing

magistrate is unjustified. See United States v. Leon, 468 U.S. 897, 914 (1984) (“Deference to the

magistrate . . . is not boundless.”); Massachusetts v. Upton, 466 U.S. 727, 733 (1984) (noting

that we apply a “deferential standard of review” to an issuing magistrate’s probable-cause

determination, but that the determination will not be upheld if the evidence, viewed as a whole,

does not provide a “substantial basis” for that determination).

But the majority contends that the Supreme Court’s decision in District of Columbia

v. Wesby, 138 S. Ct. 577 (2018), prevents us from “discounting each item [in the affidavit] one

by one.” Maj. Op. 10. Similarly, according to the majority, “Hines requires us to look

holistically at what the affidavit does show, instead of focusing on what the affidavit does not

contain, or the flaws of each individual component of the affidavit.” Maj. Op. 8. The majority

seems to believe that those cases prevent us from assessing the probative value of each bit of

material information contained in an affidavit. That is not what the caselaw forbids, and nor

should it.

To the contrary, under the totality-of-the-circumstances approach, we assess the probative

value of each piece of evidence in the affidavit and then determine whether those pieces of

evidence are, as a whole, sufficient to establish probable cause—in other words, we review the

“mix” of unique “ingredients” in the affidavit. See Hines, 885 F.3d at 921–22; see also

Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000) (explaining that, in the context of an

arrest, “[p]robable cause determinations involve an examination of all facts and circumstances

No. 17-1799 United States v. Christian Page 38

within an officer’s knowledge at the time of an arrest” (quoting Estate of Dietrich v. Burrows,

167 F.3d 1007, 1012 (6th Cir. 1999))); Valenzuela, 365 F.3d at 897 (“[I]n assessing the totality

of the circumstances, a reviewing court must examine the facts individually in their context to

determine whether rational inferences can be drawn from them that support a probable cause

determination.” (citations and internal quotation marks omitted)).

The D.C. Circuit’s error in Wesby was that it “viewed each fact ‘in isolation, rather than

as a factor in the totality of the circumstances.’” Wesby, 138 S. Ct. at 588 (quoting Maryland v.

Pringle, 540 U.S. 366, 372 n.2 (2003)). Specifically, the Court of Appeals erred by engaging in

a “divide-and-conquer analysis,” id. (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)),

whereby it dismissed facts that were “not sufficient standing alone to create probable cause,” id.

(emphasis in original). I have not done that here. Instead, I have considered each fact “as a

factor in the totality of the circumstances,” but nonetheless conclude that the affidavit was

insufficient to establish probable cause. See id. (quoting Pringle, 540 U.S. at 372 n.2).

The majority’s approach, on the other hand, is problematic because it contains

“inferences drawn upon inferences.” See United States v. Laughton, 409 F.3d 744, 750 (6th

Cir. 2005). It infers that the officers saw Thomas leave the Residence, that the heroin found in

Thomas’s vehicle was connected to the Residence, that tips from unidentified informants are

reliable without any indicia of credibility and without corroboration, and that a stale controlled

buy and old criminal convictions establish that Christian was engaged in continuous and

protracted drug activity at the time of the search. The totality-of-the-circumstances test is not a

license for the majority to list problematic evidence, stacking inference upon inference, and

contend in a conclusory manner that “taken together [the affidavit] point[s] clearly to one

conclusion: that Christian was dealing drugs from 618 Grandville.” Maj. Op. 7. Rather, the

Supreme Court in Wesby instructed lower courts to view each fact “as a factor in the totality of

the circumstances” and to “consider ‘the whole picture.’” See Wesby, 138 S. Ct. at 588 (citations

omitted). This requires us to explain how individual pieces of evidence corroborate one another,

which the majority has failed to do.

No. 17-1799 United States v. Christian Page 39

II. LEON GOOD-FAITH EXCEPTION

This brings me to the Leon good-faith exception. Under the Leon good-faith standard,

suppression should be limited to “circumstances in which the benefits of police deterrence

outweigh the heavy costs of excluding ‘inherently trustworthy tangible evidence’ from the jury’s

consideration.” United States v. White, 874 F.3d 490, 496 (6th Cir. 2017) (quoting United States

v. Leon, 468 U.S. 897, 907 (1984)). The test is “whether a reasonably well trained officer would

have known that the search was illegal despite the magistrate’s decision.” Id. (quoting United

States v. Hodson, 543 F.3d 286, 293 (6th Cir. 2008)).

Four situations have been identified by the Supreme Court in which an officer could not

reasonably believe that a search was valid, despite the issuance of a warrant. See Laughton, 409

F.3d at 748 (citing Leon, 468 U.S. at 914–23). One of those is where the affidavit is “so lacking

in indicia of probable cause as to render official belief in its existence entirely unreasonable.”

Leon, 468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610–11 (1975) (Powell, J.,

concurring in part)). Such an affidavit has been characterized as “bare bones.” Id. at 915, 926.

A “bare bones affidavit is one that merely ‘states suspicions, beliefs, or conclusions, without

providing some underlying factual circumstances regarding veracity, reliability, and basis of

knowledge.’” United States v. McPhearson, 469 F.3d 518, 526 (6th Cir. 2006) (quoting United

States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996)). In contrast, a sufficient affidavit must

contain some “particularized facts that indicate veracity, reliability, and basis of knowledge and

go beyond bare conclusions and suppositions.” Id.

This court held in Laughton “that a determination of good-faith reliance, like a

determination of probable cause, must be bound by the four corners of the affidavit.” Laughton,

409 F.3d at 751. Judge Thapar, concurring in the present case, now recommends that we

overrule Laughton. But I believe that Laughton correctly decided that “the good faith exception

to the exclusionary rule does not permit consideration of information known to a police officer,

but not included in the affidavit, in determining whether an objectively reasonable officer would

have relied on the warrant.” Id. at 752.

No. 17-1799 United States v. Christian Page 40

The test for good-faith reliance is an objective one. Leon, 468 U.S. at 919 n.20. In Leon,

the Supreme Court reasoned that “sending state and federal courts on an expedition into the

minds of police officers would produce a grave and fruitless misallocation of judicial resources.”

Id. at 922 n.23 (quoting Massachusetts v. Painten, 389 U.S. 560, 565 (1968) (White, J.,

dissenting)). This court held in Laughton that the same reasoning applies to the issue of

considering information outside of the affidavit “in determining whether an objectively

reasonable officer would have relied on the warrant.” Laughton, 409 F.3d at 752. Allowing

courts to consider such extrinsic information would “lead to the very kind of subjectivity that the

Supreme Court has repeatedly and explicitly rejected.” Id. Future cases would require courts to

engage in the subjective and time-consuming inquiry of “determin[ing] not only how much

affiants knew, but also when and from whom they learned it.” See id.

Judge Thapar disagrees, citing Herring v. United States, 555 U.S. 135 (2009), for the

proposition that courts already consider “a particular officer’s knowledge and experience, but

that does not make the test any more subjective than the one for probable cause, which looks to

an officer’s knowledge and experience, but not his subjective intent.” Id. at 145–46 (internal

citations omitted). But the Supreme Court in Herring was noting only that we should consider a

police officer’s general background knowledge and experience. In support of this proposition,

the Court cited Ornelas v. United States, 517 U.S. 690 (1996), in which Chief Justice Rehnquist

observed that “a police officer views the facts through the lens of his police experience and

expertise” and that “a police officer may draw inferences based on his own experience in

deciding whether probable cause exists.” Id. at 699–700. Considering an officer’s general

background knowledge and experience is an entirely different inquiry from considering what

relevant facts were known to the officer at the time of the search. The latter requires us to

“inquir[e] into the subjective awareness of arresting officers,” see Herring, 555 U.S. at 145,

whereas the former does not.

Furthermore, “Leon . . . make[s] clear that the relevant question is whether the officer

reasonably believed that the warrant was properly issued, not whether probable cause existed in

fact.” United States v. Carpenter, 360 F.3d 591, 598 (6th Cir. 2004) (en banc) (Gilman, J.,

concurring) (emphasis in original). Information extrinsic to the affidavit and not presented to the

No. 17-1799 United States v. Christian Page 41

magistrate is not relevant to the inquiry of whether the officer reasonably believed that the

warrant was properly issued. Accordingly, I find no basis to conclude that this court’s decision

in Laughton is inconsistent with Supreme Court precedent.

Applying the above principles, I acknowledge that whether the good-faith standard is met

in this case is a close call. But I ultimately conclude that the affidavit falls short because it does

not provide any particularized facts connecting the Residence to drug activity at the time that the

search warrant was executed.

The majority, in concluding otherwise, argues that our decision in United States

v. Hython, 443 F.3d 480 (6th Cir. 2006), “is almost completely inapposite here,” Maj. Op. 9.

I completely disagree. In Hython, the affidavit contained information that the officers had, at

some unidentified point, conducted a controlled buy of crack cocaine at the residence to be

searched. But because “the affidavit include[d] no observation of deliveries to the address, no

monitoring of the frequency or volume of visitors to the house, no second controlled buy, [and]

no further surveillance whatsoever,” “the affidavit [wa]s patently insufficient” to allow a

reasonable officer to believe that the affidavit established probable cause to search the residence.

Hython, 443 F.3d at 486, 488–89.

Similarly, the affidavit in the present case primarily relies on a single stale controlled buy

to link the Residence to drug activity at the time of the search. It does not provide any credible

evidence that drug activity continued at the Residence in the eight-month interim, and the single

instance of contemporary surveillance did not link the Residence to drug activity by anything

more than speculation that Thomas purchased drugs at the Residence. This court’s decision in

Hython is thus very much on point with regard to the Leon good-faith issue.

Moreover, this court has held that the Leon good-faith standard was not satisfied where

“the ‘evidence in the affidavit connecting the crime to the residence [wa]s so vague as to be

conclusory or meaningless.’” McPhearson, 469 F.3d at 527 (quoting United States v. Frazier,

423 F.3d 526, 537 (6th Cir. 2005)) (finding that the Leon standard was not satisfied where the

affidavit reflected that officers had arrested the defendant at his residence on an assault charge

and found him in possession of cocaine, but where there was no evidence connecting the

No. 17-1799 United States v. Christian Page 42

defendant or his residence to drug trafficking); see also United States v. Brown, 828 F.3d 375,

384–86 (6th Cir. 2016) (holding that, in the search of a residence, the Leon good-faith standard

was not satisfied despite the affidavit’s allegations that the defendant was arrested for attempting

to deliver heroin 21 days prior to the search, a drug dog had alerted to the odor of narcotics in the

defendant’s car, the defendant exchanged text messages discussing drug prices, and the

defendant had a 12-year-old conviction for conspiracy to distribute marijuana).

In contrast, this court has held that an affidavit was sufficient to satisfy the Leon

good-faith standard where the affidavit provided a material link between the criminal activity

alleged and the residence in question at the time of the search. See United States v. White, 874

F.3d 490, 494, 498 (6th Cir. 2017) (finding the Leon good-faith standard satisfied where the

affiant stated that officers received a tip that the defendant, who had an extensive criminal

history involving drugs, was selling drugs from his residence, and the officers initiated,

observed, and recorded a controlled buy from the defendant in the driveway of the residence less

than 72 hours before the affidavit was executed); United States v. Higgins, 557 F.3d 381, 391

(6th Cir. 2009) (concluding that the affidavit met the Leon good-faith standard where it stated

that a named informant told officers that he had purchased drugs from the defendant’s residence

earlier that day); Frazier, 423 F.3d at 536 (finding the Leon good-faith standard satisfied when

the affidavit reflected that two recorded controlled buys were conducted by an informant at the

defendant’s previous residence seven months before the search, that drugs were found at the

defendant’s previous residence two months before the search, that a named informant reported

buying two pounds of marijuana from the defendant weekly, and that phone records showed that

the defendant was in constant contact with known drug dealers); Carpenter, 360 F.3d at 593

(finding the Leon standard satisfied where the affidavit supporting a warrant to search the

residence alleged that a police officer conducting an aerial search spotted numerous marijuana

plants directly connected by a road to the residence).

Unlike the affidavit evidence considered in White, Higgins, Frazier, and Carpenter,

Christian’s criminal history and the January 2015 controlled buy do not establish a nexus

between the Residence and drug activity at the time of the search. Such a nexus is required for

the Leon good-faith exception to apply. See Hython, 443 F.3d at 488–89.

No. 17-1799 United States v. Christian Page 43

And although closer in time to the execution of the search, the information received from

the unidentified subjects indicating that Christian was engaged in large-scale drug trafficking

from the Residence was “so vague as to be conclusory or meaningless.” See Frazier, 423 F.3d at

536 (quoting Carpenter, 360 F.3d at 596). Where statements “are heavily discounted due to their

minimal trustworthiness and reliability, they add little to the probable cause determination” and,

accordingly, “a reasonable officer would recognize that without more corroboration,

the . . . affidavit came well short of establishing probable cause.” United States v. Helton,

314 F.3d 812, 825 (6th Cir. 2003).

An investigation by law-enforcement officers can corroborate tips of unknown reliability.

But the observation of Thomas “walk[ing] away from the area” of the Residence before he was

later found with heroin in his vehicle does not provide this additional corroboration. At best, the

observation allows for only speculation that Thomas purchased the drugs from the Residence.

Such speculation cannot reasonably be thought to support a finding of probable cause. See

White, 874 F.3d at 498 (noting that a bare-bones affidavit is one that contains “a mere

affirmation of suspicion and belief without any statement of adequate supporting facts” (quoting

Nathanson v. United States, 290 U.S. 41, 46 (1933))). As a result, I conclude that no reasonable

officer would have believed that the affidavit established probable cause to search the Residence

at the time the affidavit was executed.

I also believe that my conclusion is in line with the policy behind the Leon good-faith

exception to the exclusionary rule. The majority argues that “this is a case in the very heartland

of the Leon exception,” and that “[t]his is a particularly egregious case to misapply the

good-faith exception given the utter lack of police wrongdoing.” Maj. Op. 8, 10. I respectfully

disagree. This court in United States v. McClain, 444 F.3d 556 (6th Cir. 2005), held that the

Leon exception applied because “[t]here was indeed nothing more that [the officer] ‘could have

or should have done under these circumstances to be sure his search would be legal.’” Id. at 566

(quoting United States v. Thomas, 757 F.2d 1359, 1368 (2d Cir. 1985)).

In the present case, however, the officers could have and should have done a lot more.

There is no evidence in the affidavit that they engaged in ongoing or repeated surveillance,

arranged subsequent controlled buys, or otherwise monitored for “hallmarks of drug dealing” at

No. 17-1799 United States v. Christian Page 44

the Residence. See United States v. McPhearson, 469 F.3d 518, 527 (6th Cir. 2006); Hython,

443 F.3d at 486, 488–89. Suppressing the evidence in this case would incentivize police officers

to take such actions to corroborate unreliable information and describe such actions in their

search-warrant applications. Instead, the majority allows the Leon good-faith exception, which

was intended to be applied only in “unique cases,” see McClain, 444 F.3d at 565, to excuse

sloppy police work.

III. TELEPHONE-CALL EVIDENCE

I will now briefly discuss Christian’s challenge to the district court’s decision to admit

the recorded telephone call between Thomas and Thomas’s girlfriend, Tanisha Edwards. The

majority concludes that, if the district erred in admitting this evidence, the error was harmless.

Maj. Op. 10–11. But the majority’s determination relies on its conclusion affirming the district

court’s decision to admit the evidence obtained in accordance with the search warrant. Because

I disagree and conclude that the court erred in admitting the evidence obtained pursuant to the

warrant, I do not consider the court’s error regarding the phone-call evidence harmless.

IV. CONCULSION

In sum, considering the totality of the circumstances, I believe that the information in the

affidavit fails to establish probable cause and that the Leon good-faith exception does not apply.

I would therefore hold that the district court erred in denying Christian’s motion to suppress the

evidence obtained pursuant to the search warrant. Accordingly, I respectfully dissent.