explaining that a party has a "duty to point to the parts of the record that support his position and also to present arguments in sufficient detail to show how they support his position”
How later courts described this case
- explaining that a party has a "duty to point to the parts of the record that support his position and also to present arguments in sufficient detail to show how they support his position”
- stating that there has been no acceptance of responsibility where defendant tried to excuse conduct by insisting drug operations were not his idea and stating he was not a drug dealer
- applying Leon when defendant in the cultivation of the marijuana discovered at the a six-page affidavit detailed several instances of the other farm. Id. at 814. The “officers involved should have defendant’s drug-related activity both at and away from a been fully aware of the deficiencies of their affidavits” different residence that the police did not search, even though because the affidavits, which make only a few passing the affidavit did not mention a second house that was the references to the defendant, “simply do not say very much object of the search
- remarking that “[t]his Court has held repeatedly that objections to the Sentencing Guidelines’ disparate punishments for crimes involving crack cocaine and cocaine powder are mer-itless and the disparity is insufficient grounds for downward departure from guideline sentences.”
Written by the judges who cited it.
The opinion
BOGGS, Circuit Judge,
concurring.
I fully concur in Judge Dowd’s analysis of the Leon good-faith exception, and I write only to clarify my additional analysis of one or two points. First, recent cases in this circuit and elsewhere clearly hold that a warrant for the search of a specified residence or premises authorizes the search of auxiliary and outbuildings within the curtilage. This has included garages and other structures as far as 100 yards from the main residence, without any additional requirement of either probable cause as to the specific building, or specific identification of the building. See, e.g., United States v. Bennett, 170 F.3d 632, 639 (6th Cir.1999); Arnett v. State, 532 So.2d 1003, 1006, 1008-09 (Miss.1988); McGlothlin v. State, 705 S.W.2d 851, 857 (Tex.Ct.App.1986), reversed on other grounds, 749 S.W.2d 856 (Tex.Crim.App.1988); see also United States v. Dunn, 480 U.S. 294, 313-14 , 107 S.Ct. 1134 , 94 L.Ed.2d 326 (1987) (Brennan, J., dissenting) (collecting cases).
In this case, the structure in which the cocaine was actually found (charitably called a house in the magistrate judge’s *506 report, adopted by the court), was only 50-GO feet from the main structure on a common driveway. Transcript of Preliminary Hearing of Sept. 4, 1996, p. 21. The parties agreed that it had not been occupied for some months, J.A. at 173, and was dilapidated and almost uninhabitable, J.A. at 170. It was not divided by any fence, residential dividing line or other device that would take it out of the normal designation of curtilage.
Second, I see nothing wrong with use of “boiler plate” language with respect to certain portions of the affidavit. The dissent in this case exemplifies a trend in some writings (see, e.g., United States v. Allen, 168 F.3d 293, 302-03 (6th Cir.1999), petition for rehearing en bane filed, Apr. 15, 1999) to disparage any search warrant or affidavit that contains particular “form” language. However, the crucial fact should not be the language used, but the particularity of the underlying information as expressed in the affidavit and warrant. Here, the attesting officer indicated that he had received information from a specific reliable informant with respect to a particular residence. As indicated above, the weight of authority is clear that when searching for small portable items such as drugs and records, there is no need to provide separate probable cause or identification of auxiliary strüctures in the vicinity of the named residence. That is all that happened here. I sincerely doubt that this case would have been as controversial, had it been a search of a toolshed 40 feet from the residence or a dilapidated garage 100 feet from the residence. Here, the fact that it was a dilapidated structure that had been. previously been used a residence should not cause a different result.
DISSENTING IN PART