# United States v. Higgins

> Court of Appeals for the Sixth Circuit · February 26, 2009 · 557 F.3d 381

URL: https://www.frixlaw.com/law-library/cases/9628777

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Oliver HIGGINS, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** February 26, 2009
- **Citations:** 557 F.3d 381; 2009 U.S. App. LEXIS 3759; 2009 WL 465537
- **Precedential status:** Published
- **Opinion:** Concurring in part by Clay
- **Judges:** Moore, Clay, and Kethledge, Circuit Judges
- **Cited by:** 84 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by DePierre v. United States, 131 S. Ct. 2225 (2011).
- Negative treatments: 1
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9628777

## How later opinions describe it (automated extraction)

- explaining that, even though an admission against penal interest is a “‘significant, and sometimes conclusive, reason for crediting the statements of an informant,’ ” admission of a crime, even combined with the fact that the informant was known to the affiant and the magistra…
- finding no probable cause for the issuance of a search warrant where, inter alia, “the affidavit [did not] contain any assertion that the informant had been inside the [suspect’s] apartment or that the informant had seen drugs or other evidence in or around [the suspect’s] apa…
- 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, even though there were questions about the informant's reliability
- finding that, although the informant was known to the affiant and the issuing magistrate and admitted participating in a crime, the informant’s statements were not reliable because the affiant did not attest to the informant’s reliability
- finding no probable cause to search suspect’s home because affidavit only stated that informant had purchased contraband from suspect and did not assert informant had ever been in suspect’s home

## Opinion text

CLAY, Circuit Judge,
concurring in part and dissenting in part.
I concur in Part II.A.2.a of the lead opinion holding that the affidavit submitted by Officer William Carneal did not establish probable cause to search Higgins’ apartment. However, I disagree that the good faith exception articulated in United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 (1984), prevents suppression of the evidence, and I dissent from Part II.A.2.b of the lead opinion which finds that official rebanee on the warrant was not objectively unreasonable.
Thus, contrary to the lead opinion’s conclusion that a “majority holds that the Leon good-faith exception applies,” Op. at 391, the lead opinion is alone in finding that Leon prevents exclusion of the evidence. While Judge Kethledge joins Part II.A.2.b of the lead opinion, he resolves Higgins’ challenge to the denial of the motion to suppress by concluding that the search warrant was supported by probable cause. Accordingly, since Judge Keth-ledge determines that the magistrate properly found probable cause, it would seem that he is not entitled to reach the issue of whether the Leon exception applies — except perhaps as a matter of dicta. In other words, it is my view that only one vote, that of Judge Moore, actually supports the applicability of the Leon exception. Nevertheless, even in the absence of a majority in support of Part II.A.2.b, I understand that the disposition of the case results in a two-judge majority affirming the denial of Higgins’ motion to suppress. Consequently, for the reasons that follow, I dissent from the majority’s holding.
When police seize evidence during the course of an unconstitutional search, as in this case, a trial court generally must exclude the evidence. United States v. Frazier, 423 F.3d 526, 533 (6th Cir.2005). However, “[t]he exclusionary rule does 'not bar the government’s introduction of evidence obtained by police officers acting in objectively reasonable reliance on a search warrant that is subsequently invalidated.’ ” United States v. McPhearson, 469 F.3d 518, 525 (6th Cir.2006) (quoting United States v. Laughton, 409 F.3d 744, 748 (6th Cir.2005)). In determining whether police acted in good faith, the “inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405 .
Although the Supreme Court in Leon concluded that suppression of evidence is not always an appropriate remedy for unconstitutional searches, the Supreme Court also established four circumstances under which an officer’s reliance on the issued warrant cannot be reasonable and where suppression thus remains appropriate:
(1) where the issuing magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth; (2) where the issuing magistrate wholly abandoned his judicial role and faded to act in a neutral and detached fashion, serving merely as a rubber stamp for *400 the police; (3) where the affidavit was nothing more than a “bare bones” affidavit that did not provide the magistrate with a substantial basis for determining the existence of probable cause, or where the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where the officer’s reliance on the warrant was not in good faith or objectively reasonable, such as where the warrant is facially deficient.
United States v. Hython, 443 F.3d 480, 484 (6th Cir.2006). While there is no evidence that Officer Carneal included false information in the affidavit or that the magistrate failed “to act in a neutral and detached fashion,” id., the officer’s reliance on the warrant to support the search of Higgins’ apartment was not “objectively reasonable.” Therefore, Officer Carneal cannot “assert reasonable reliance, nor [a] eourt[ ] find good faith.” United States v. Hodson, 543 F.3d 286, 292 (6th Cir.2008).
As the lead opinion recognizes, the affidavit submitted by Officer Carneal did not set forth a “substantial basis” for the magistrate to find probable cause that evidence of drug-trafficking would be found in Higgins’ apartment. Nonetheless, the lead opinion upholds the admission of the evidence on the basis of the Leon exception, finding that “the warrant contained a sufficient link between Higgins’s home and drug activity such that a reasonably well trained officer would not have known that the search was illegal.” Op. at 391. I disagree.
For the same reasons that the warrant was not supported by probable cause, “a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization,” Leon, 468 U.S. at 922 n. 23, 104 S.Ct. 3405 , inasmuch as a reasonably well trained officer could not have believed that the affidavit provided a basis for establishing probable cause. A tip from a just-arrested “informant,” whose reliability and veracity are unknown to the officer and the magistrate, that Higgins had sold drugs at a particular address would not lead a reasonable officer to conclude that probable cause existed to search Higgins’ apartment. See McPhearson, 469 F.3d at 526 ; cf. United States v. Helton, 314 F.3d 812, 821-22 (6th Cir.2003) (concluding that an unreliable informant’s tips “do not merit much weight in the probable cause determination”). Further, the affidavit contained no corroboration of the criminal details of Higgins’ alleged activities, and contained no indication that a search would uncover drugs inside of Higgins’ apartment. The affidavit did not state that the affiant observed drugs or drug transactions inside Higgins’ apartment, nor did the affidavit attest to the informant’s reliability. A reasonably well trained officer would understand that further corroboration — such as independent surveillance or further questioning of the informant to determine whether he had seen drugs inside of Higgins’ apartment— was needed before probable cause could be established to search the apartment. See United States v. Leake, 998 F.2d 1359, 1367 (6th Cir.1993) (concluding that an officer “could not properly have placed objective good faith reliance on the warrant” because a reasonably well trained police officer would have known that additional corroboration of an informant’s tip was needed to establish probable cause).
For these reasons, I dissent from the lead opinion’s conclusion that Leon’s, good faith exception applies. Because I would reverse the district court’s denial of Higgins’ motion to suppress and remand the case to the district court for further proceedings, I would not reach the sentencing issues that Higgins raises on appeal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9628777. Public record. Not legal advice.