Petition for Writ of Certiorari — Tyrone Dexter Christian, Petitioner v. United States

Supreme Court briefAug 29, 2019

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No. _____

IN THE

Supreme Court of the United States

_________

Tyrone Dexter Christian,

Petitioner,

United States of America,

Respondent.

_________

On Petition for a Writ of Certiorari

To the Sixth Circuit Court of Appeals

_________

Petition for a Writ of Certiorari

Lucille A. Jewel*

Wade V. Davies

UNIVERSITY OF TENNESSEE

COLLEGE OF LAW

APPELLATE LITIGATION CLINIC

1505 W. Cumberland Ave.

Knoxville, TN 37996

Counsel for Appellant

*Counsel of Record

QUESTIONS PRESENTED

In Illinois v. Gates, 462 U.S. 213 (1983), this Court sanctioned a “totality of

the circumstances” approach for evaluating the factors relevant for determining

probable cause. Several federal courts of appeals have concluded that this Court’s

totality of the circumstances test requires analysis of each individual probable cause

factor followed by an evaluation of the factors as a whole. In United States v. Leon,

468 U.S. 897 (1984), this Court held that while the exclusionary rule should not

apply to bar evidence when an officer relies in good-faith on a search warrant, it

should apply to bar evidence when the warrant is objectively devoid of facts

supporting probable cause.

The questions presented for review are:

Whether the lower court erred in finding probable cause to search

petitioner’s home when the court viewed the search warrant affidavit

as a whole and failed to individually analyze the weight of each factor.

II.

Whether the lower court erred when the court found that the goodfaith exception to the exclusionary rule should apply to permit the

introduction of evidence seized from petitioner’s home, even though the

search warrant affidavit was overly vague and conclusory and failed to

provide a minimal connection between the alleged criminal activity

and petitioner’s home.

LIST OF PARTIES

The petitioner is Tyrone Dexter Christian, the defendant and defendantappellant in the court below. The respondent is the United States of America, the

plaintiff and plaintiff-appellee in the court below.

RELATED CASES

United States v. Christian, 1:15-cr-00172, U.S. District Court for the Western

District of Michigan. Judgment entered July 11, 2017.

United States v. Christian, No. 17-1799, U.S. Court of Appeals for the Sixth

Circuit. Judgment entered May 31, 2019.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................................... ii

LIST OF PARTIES ........................................................................................................... iii

RELATED CASES ........................................................................................................... iii

APPENDIX ..................................................................................................................... vi

TABLE OF AUTHORITIES ................................................................................................ vii

INTRODUCTION ............................................................................................................. 1

OPINIONS BELOW ......................................................................................................... 2

JURISDICTION ............................................................................................................... 2

STATUTORY PROVISIONS INVOLVED .............................................................................. 2

STATEMENT OF FACTS AND PROCEEDINGS BELOW........................................................ 3

The Investigation of Non-Resident Rueben Thomas ....................................... 3

The Warrant to Search Christian’s Home ....................................................... 4

Christian’s Motion to Suppress

the Search of his Home..................................................................................... 5

Proceedings Below ............................................................................................ 6

REASONS FOR GRANTING THE PETITION/ARGUMENT .................................................... 8

This Court should review this case because, in holding

that there was probable cause to search Christian’s home,

the court below markedly departed from settled Fourth

Amendment principles. ......................................................................... 8

This Court should grant review because the lower

court analyzed the search warrant as a whole without

assessing the weight of each factor first, an approach

that conflicts with this Court’s decision in Illinois v.

Gates as well as other federal courts of appeals.. ........................... 11

II.

This Court should grant review because the decision

below, which found probable cause to search a home

based on vague, conclusory, and old information,

directly conflicts with this Court’s Fourth Amendment

precedents. ....................................................................................... 16

This Court should grant review because the lower court’s

decision––allowing the admission of seized evidence when

the warrant affidavit could not have been reasonably

relied upon to establish probable cause––critically

conflicts with this Court’s past decisions. ............................................ 19

The lower court’s undue expansion of the exclusionary

rule’s good-faith exception conflicts with the purpose of

the exception, as set forth by this Court in United States

v. Leon............................................................................................... 19

The lower court’s decision conflicts with core premises of

the exclusionary rule––to provide consequences for

Constitutional violations and to encourage law

enforcement to incorporate the rights of the accused into

their investigatory procedures. ....................................................... 22

CONCLUSION.............................................................................................................. 26

APPENDIX

A. United States v. Christian, 925 F.3d 305 (6th Cir. 2019)

(decision upon rehearing en banc) ........................................................ App. 1

B. United States v. Christian, 904 F.3d 421 (6th Cir. 2018)

(order vacating panel decision) ............................................................. App. 45

C. United States v. Christian, 893 F.3d 846

(6th Cir. 2018) (panel decision) ............................................................ App. 47

D. Excerpts from Motion to Suppress Hearing,

United District Court for the Western District of Michigan,

April 25, 2016 (Robert J. Jonker, J.),

PAGEID 133, 226-230, ECF No. 45...................................................... App. 87

E. Search Warrant and Affidavit,

PAGEID 112-117, ECF No. 42-1 .......................................................... App. 93

TABLE OF AUTHORITIES

Constitutional Provisions

U.S. Const. amend. IV. .............................................................................................. 2, 9

Supreme Court Cases

Aguilar v. Texas, 378 U.S. 108 (1964) ......................................................................... 11

Brinegar v. United States, 338 U.S. 160 (1949) .......................................................... 16

Camara v. Mun. Court of San Francisco, 387 U.S. 523 (1967) .................................. 10

District of Columbia v. Wesby, 138 S. Ct. 577 (2018) ............................................. 7, 13

Florida v. Harris, 568 U.S. 237 (2013)........................................................................ 10

Herring v. United States, 555 U.S. 135 (2009). .......................................................... 23

Illinois v. Gates, 462 U.S. 213 (1983). ................................................................. passim

Mapp v. Ohio, 367 U.S. 643 (1961) ............................................................................. 22

Massachusetts v. Upton, 466 U.S. 727 (1984). ............................................................ 10

Md. Penitentiary Warden v. Hayden, 387 U.S. 294 (1967) ........................................ 16

Miller v. United States, 357 U.S. 301 (1958) ................................................................ 9

Navarette v. California, 572 U.S. 393 (2014) .............................................................. 10

Payton v. New York, 445 U.S. 573 (1980) ............................................................... 9, 24

Sgro v. United States, 287 U.S. 206 (1932) ............................................................. 9, 17

Silverman v. United States, 365 U.S. 505 (1961) ................................................... 9, 25

Spinelli v. United States, 393 U.S. 410 (1969)............................................................ 11

Stone v. Powell, 428 U.S. 465 (1976) ........................................................................... 22

Terry v. Ohio, 392 U.S. 1 (1968) ............................................................................ 10, 18

United States v. Arvizu, 534 U.S. 266 (2002)........................................................ 14, 18

United States v. Martinez-Fuerte, 428 U.S. 543 (1976) .............................................. 24

vii

United States v. Peltier, 422 U.S. 531 (1975) .............................................................. 22

Weeks v. United States, 232 U.S. 393 (1914). ............................................................. 22

Sixth Circuit Cases

United States v. Christian, 893 F.3d 846 (6th Cir. 2018),

vacated by United States v. Christian, 925 F.3d 305 (6th Cir.

2019) (reh’g en banc) ................................................................................................ 5, 14

United States v. Christian, 904 F.3d 421 (6th Cir. 2018). ............................................ 6

United States v. Christian, 925 F.3d 305 (6th Cir. 2019)

(reh’g en banc) ...................................................................................................... passim

United States v. Hines, 885 F.3d 919 (6th Cir. 2018) ................................................. 15

United States v. McClain, 444 F.3d 556 (6th Cir. 2006) ............................................ 23

United States v. Tucker, No. 17-3503, 2018 WL 3752492 (6th Cir. 2018) ................. 20

Other Circuit Courts

United States v. Dion, 859 F.3d 114 (1st Cir. 2017) ................................................... 13

United States v. Myers, 308 F.3d 251 (3d Cir. 2002) .................................................. 13

United States v. Rodriguez-Escalera, 884 F.3d 661 (7th Cir. 2018) .......................... 13

United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985) ............................................. 23

United States v. Valenzuela, 365 F.3d 892 (10th Cir. 2004) ...................................... 13

United States v. Zimmerman, 277 F.3d 426 (3d Cir. 2002) ....................................... 20

Wesby v. District of Columbia, 765 F.3d 13 (D.C. Cir. 2014), rev’d

by District of Columbia v. Wesby, 138 S. Ct. 577 (2018). ........................................... 14

viii

Other Authorities

Fed. R. Evid. 404(b). .................................................................................................... 24

Potter Stewart, The Road to Mapp v. Ohio and Beyond: The

Origins, Development and Future of the Exclusionary Rule in

Search-and-Seizure Cases, 83 Colum. L. Rev. 1365 (1983). ....................................... 17

Radley Balko, Overkill, The Rise of Paramilitary Police Raids in

America, Cato Institute White Paper (2006),

https://object.cato.org/sites/cato.org/files/pubs/pdf/balko_whitepa

per_2006.pdf ................................................................................................................. 25

Ronald J. Bacigal, The Fourth Amendment in Flux: The Rise and

Fall of Probable Cause, 1979 U. Ill. L. Forum 763 ..................................................... 10

INTRODUCTION

Law enforcement obtained a warrant to search petitioner Christian’s home

after finding drugs in the car of a non-resident who was earlier seen near the home.

The warrant affidavit (the Affidavit) listed information about the drugs found in the

non-resident’s car along with other old and uncorroborated information about

Christian. This Court should grant certiorari because in finding that there was

probable cause to search Christian’s home, a divided Sixth Circuit departed from

well-settled Fourth Amendment principles set forth by this Court. The court’s

method of analyzing whether the warrant was supported by probable cause––

looking at the document from a bird’s-eye view without assessing each piece of

information first––conflicts with the probable cause decisions of this Court and with

other federal courts of appeals, which mandate that a rational, fact-based process be

used to determine the existence of a nexus between the place to be searched and the

criminal activity alleged.

The Sixth Circuit’s flawed probable cause analysis also produced deep errors

in the court’s application of the exclusionary rule. The exclusionary rule should

apply under the circumstances of this case and others like it. The majority decision

creates a dangerous precedent likely to green-light unreasonable home searches

based on flimsy information, particularly in neighborhoods where crime is

prevalent. This Court should grant review to correct the lower court’s substantial

errors, which raise serious Fourth Amendment issues.

OPINIONS BELOW

The Sixth Circuit’s panel opinion was issued on June 26, 2018 and was

published at 893 F.3d 846. App. at 1. The Sixth Circuit’s September 17, 2018 order

to vacate the panel decision and rehear the case en banc was published at 904 F.3d

421. App. At 45. The Sixth Circuit’s May 31, 2019 decision upon rehearing en banc

was published at 925 F.3d 305. App. at 47.

JURISDICTION

The Sixth Circuit’s decision upon rehearing en banc was entered and filed on

May 31, 2019. App. at 47. This Court has jurisdiction under 28 U.S.C. §1254.

STATUTORY PROVISIONS INVOLVED

The Fourth Amendment to the United States Constitution reads:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched and the persons or things to be seized.

U.S. Const. amend. IV.

STATEMENT OF FACTS AND PROCEEDINGS BELOW

The Investigation of Non-Resident Rueben Thomas

The Grand Rapids police became interested in searching Christian’s home

after observing non-resident Rueben Thomas near Christian’s home on the

afternoon of September 3, 2014. Trial Tr. Vol. I at PageID 1126–27, 1131–32, ECF

No. 152. That day, the police tracked Thomas’s vehicle from approximately 1:33

p.m. until approximately 5:30 p.m., observing him as he drove from Grandville

Avenue to a grocery store, two drug stores, and back. Id. at 1131–36. At 5:30 p.m.,

officers observed Thomas drive away from Grandville Avenue and enter Interstate

96, heading west. Id. at 1136. To further the investigation, the surveilling police

officers requested other nearby officers to try and stop Thomas’s car for a traffic

infraction. Id. A police officer operating out of Hudsonville, Michigan, pulled

Thomas over for a cracked windshield. Id. at 1144–45. During that stop, the police

searched Thomas’s vehicle and found heroin behind Thomas’s passenger seat. Id. at

1148–49; Search Warrant Aff., App. at 96. Hudsonville, where Thomas was

arrested, is approximately twelve miles away from Grandville Avenue in Grand

Rapids.1

1 Christian respectfully requests that, pursuant to Fed. R. Evid. 201, this Court

take judicial notice that the center of Hudsonville, Michigan is a 12.1 mile (or, per

Google Maps estimate, a 17-minute) drive from Christian’s home. See Driving

Directions from 618 Grandville Avenue SW, Grand Rapids, Michigan to

Hudsonville, Michigan, http://maps.google.com (follow “Directions” hyperlink; then

search starting point field for 618 Grandville Avenue SW and search destination

field for Hudsonville, Michigan).

The Warrant to Search Christian’s Home

After arresting Thomas, Grand Rapids police focused their investigation on

the inside of Christian’s home, located at 618 Grandville Avenue, the street where

Thomas was observed. Warrant Aff., App. at 93-98. On the evening of September 3,

2014, Officer Thomas Bush submitted an affidavit in support of a search warrant

seeking to uncover controlled substances, records, and firearms inside the home. Id.

The Affidavit was four-and-a-half pages long, but only one page contained

information specific to Christian. Id. at 95-96.

The Affidavit recounted that on September 3:

Surveillance was established at 618 Grandville Avenue.

Surveillance observed a suspect, later determined to be

Rueben Thomas walk away from the area of 618 Grandville

Avenue and leave the area in a vehicle. Surveillance was

continued on the vehicle being driven by Rueben Tomas as

a traffic stop was conducted for a civil infraction. During

the traffic stop of Rueben Thomas, approximately 20 grams

of heroin was seized from the vehicle and Rueben Thomas

was the only occupant of the vehicle. In a post Miranda

statement, 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 Avenue

contrary to observations of the law enforcement officers.

App. at 96. The Affidavit then included some remote information on Christian,

which from the most to the least remote included the following:

•

Past incidents (drug convictions and home searches) from Christian’s

criminal history, occurring over a nineteen-year period, the most recent

being an arrest four years earlier. Id. at 95–96.

•

Nine-month old, non-specific “information on several drug traffickers,

including Tyrone Christian, . . . including names, nicknames, phone

numbers, and residences” from an informant’s tip, stated to be “credible

and reliable,” but containing no factual detail for that credibility

determination. Id. at 96.

•

An eight-month-old controlled drug purchase that failed to indicate the

quantity, quality, or price of the drugs purchased. Id.

•

Four- and five-month-old information from unknown subjects stating that

“Tyrone Christian is a large-scale drug dealer” and that these “subjects”

had “purchased large quantities of heroin and crack cocaine [from

Christian’s home] in the last four to five months.” Id.

Early on September 4, police executed the search warrant on Christian’s

home. Tr. Vol. I at PageID 1171–72, ECF No. 152. The search uncovered contraband

drugs and firearms. Based on the fruits of the search, on September 8, the police

arrested Christian and a federal grand jury indicted him on September 9, 2015.

Christian’s Motion to Suppress the Search of his Home

Before Christian’s trial in the United States District Court for the Western

District of Michigan, his counsel filed a motion to suppress the evidence found in his

home on the basis that there was no probable cause for the search. See United

States v. Christian, 893 F.3d 846, 851 (6th Cir. 2018). District Court Judge Robert

Jonker denied Christian’s motion. Id. At the conclusion of his trial, Christian was

convicted on all counts. Id. On July 10, 2017, Christian was sentenced to 210

months in prison and six years of supervised release. See Judgment at PageID 1799,

1800, ECF No. 168.

Proceedings Below

On direct appeal, Christian challenged the district court’s denial of his

motion to suppress evidence as well as its improper admission of hearsay

testimony.2 On June 26, 2018, a panel majority of the Sixth Circuit granted

Christian’s appeal, holding that probable cause to search his home did not exist

because the supporting Affidavit failed to establish a nexus between Christian’s

home and drug activity. United States v. Christian, 893 F.3d 846, 854–65 (6th Cir.

2018) (hereinafter “Christian I”), vacated by United States v. Christian, 925 F.3d

305 (6th Cir. 2019) (reh’g en banc) (hereinafter “Christian II). The majority also

held that the Affidavit’s glaring deficiencies rendered it a “bare-bones” affidavit to

which the Leon good-faith exception to the exclusionary rule did not apply. Id. at

867–68. Judge Rogers dissented, opining that there was probable cause; that the

Leon good-faith exception applied; and that the hearsay evidence was harmless. Id.

at 871–77.

On September 17, 2018, a majority of the Sixth Circuit’s judges in regular

service voted to rehear this case en banc. 904 F.3d 421 (6th Cir. 2018). Both sides

filed supplemental briefs; oral arguments were held on March 20, 2019. On May 31,

2 Respondent

did not make the hearsay issue part of its en banc petition for a

rehearing but did request that the court make a harmfulness ruling on the issue. The

court below did, in fact, find that the hearsay error was not harmful. If this Court

orders the Sixth Circuit to review its en banc decision, then Christian respectfully

requests that the harmfulness issue be revisited as well.

2019, in an opinion authored by Judge Rogers, ten Sixth Circuit judges held that

there was probable cause to search Christian’s home and that, in addition, the goodfaith exception to the exclusionary rule should apply.3 In the opinion, the majority

decided that the language in the Affidavit concerning Rueben Thomas and 618

Grandville Avenue was sufficient to establish a connection to Christian’s home.

Christian II, 925 F.3d at 313. The majority held that each of the Affidavit’s other

informational points, while perhaps not “suffic[ient] to establish probable cause on

its own,” still established probable cause because “the whole is often greater than

the sum of its parts.” Id. at 311.

Judge Gilman, joined by five other Sixth Circuit judges, authored a

dissenting opinion. The dissent would have found that there was not probable cause

because the Affidavit failed to “provide any ‘particularized facts’ connecting

[Christian’s home] to drug activity at the time the search warrant was executed.”

Id. at 319, 333 (Gilman, J., dissenting). Acknowledging this Court’s decision in

District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018), the dissent analyzed

probable cause by first looking at each point of information in the Affidavit and then

considering each piece of evidence together. Christian II, 925 F.3d at 320, 330–31.

Using this analytic method, the dissent determined that the affidavit failed to

3 Judge White declined to find that there was probable cause to search Christian’s home but

concurred in the overall decision to affirm the district court on the basis that the good-faith

exception to the exclusionary rule applied. Christian II, 925 F.3d at 319 (White, J., concurring).

Judge Thapar, joined by Judges Nalbandian, Murphy, and Readler, filed a concurring opinion

opining that courts should be able to look beyond the four corners of a warrant affidavit and inquire

into the observations and knowledge of the investigating officers to determine whether the Leon

good-faith exception should apply. Id. at 314-319 (Thapar, J., concurring).

“establish anything more than a speculative connection between drug activity and

the Residence at the time of the search.” Id. at 330. The dissent also determined

that the Leon good-faith exception to the exclusionary rule should not apply because

the Affidavit’s deficiencies were so glaring that that no reasonable police officer

could rely on the Affidavit to conduct the search of petitioner’s home. Christian II,

925 F.3d at 332–33 (Gilman, J., dissenting). The dissent noted that applying the

exclusionary rule would incentivize police officers to not only be more careful in

drafting warrant affidavits, but to also perform additional investigatory police-work

rather than relying on stale, vague, and unreliable information to obtain entry into

a home. Id. at 335. The dissent concluded its discussion of the Leon good-faith

exception by pointing out that “[i]n the present case . . . the officers could have and

should have done a lot more.” Id.

REASONS FOR GRANTING THE PETITION/ARGUMENT

This Court should review this case because, in concluding

that there was probable cause to search Christian’s home,

the court below markedly departed from settled Fourth

Amendment principles.

The lower court’s decision will increase the number of constitutionally

troubling home searches that law enforcement executes. By placing too great of an

emphasis on the quantity of information relevant for determining probable cause,

the lower court’s decision instructs law enforcement officers that there is little need

to engage with the quality of the information included in a search warrant affidavit.

The decision authorizes law enforcement to disregard the constitutional rights of

the accused by failing to ensure that there is a connection between a home and

alleged criminal activity before that home can be entered. Because of this palpable

ex ante impact, this Court should review this case.

The Fourth Amendment states that “no warrants shall issue, but upon

probable cause, supported by oath or affirmation.” U.S. Const. amend. IV. The

‘“chief evil’ deterred by the Fourth Amendment is the physical invasion of the

home.” Payton v. New York, 445 U.S. 573, 585 (1980). “At the very core [of the

Fourth Amendment] stands the right of a man to retreat into his own home and

there be free from unreasonable governmental intrusion.” Silverman v. United

States, 365 U.S. 505, 511 (1961). That the home should be protected from arbitrary

government intrusion dates back to the English common law, where any person’s

home was considered a “castle” that the King could not enter. Miller v. United

States, 357 U.S. 301, 307 (1958) (quoting William Pitt, Earl of Chatham, in a 1763

speech).

A magistrate initially determines probable cause based on the “totality of the

circumstances.” Illinois v. Gates, 462 U.S. 213, 230–31 (1983). When determining

whether the totality of the circumstances in an affidavit establishes probable cause,

reviewing courts look to whether the magistrate had a “substantial basis for

determining the existence of probable cause.” Gates, 462 U.S. at 239. The

substantial basis standard requires facts connected both in time and place to the

alleged criminal activity. See Sgro v. United States, 287 U.S. 206, 211 (1932). A

magistrate’s determination of probable cause “should be paid great deference,”

Gates, 462 U.S. at 236, but that deferential review “is not boundless.” United States

v. Leon, 468 U.S. 897, 914 (1984). When the evidence, viewed as a whole, does not

support a substantial basis for probable cause, the magistrate’s determination will

not be upheld. Massachusetts v. Upton, 466 U.S. 727, 733 (1984).

The crux of the Fourth Amendment is that a government search must be

reasonable. See Camara v. Mun. Court of San Francisco, 387 U.S. 523, 539 (1967)

(“Reasonableness is . . . the ultimate standard” for evaluating a Fourth Amendment

claim); Terry v. Ohio, 392 U.S. 1, 21 (1968) (Fourth Amendment analysis requires

inquiry into the “reasonableness of a particular search or seizure in light of the

particular circumstances”). Reasonableness is synonymous with both

“constitutionality and a process of rational analysis.” See Ronald J. Bacigal, The

Fourth Amendment in Flux: The Rise and Fall of Probable Cause, 1979 U. Ill. L.

Forum 763, 763. Fourth Amendment analysis looks for the existence of “specific and

articulable facts,” “rational inferences,” and applies an “objective standard” that

asks “would the facts available to the officer . . . warrant a reasonable caution in the

belief that the action taken was appropriate?” Terry, 392 U.S. at 21–22 (emphasis

added, internal citations and quotation marks omitted). While probable cause

analysis should be “fluid,” Florida v. Harris, 568 U.S. 237, 244 (2013), as well as

“commonsense” and “non-technical,” Gates, 462 U.S. at 235–36, this does not change

the requirement that a rational process should be applied to determine if there are

facts to support a determination that criminal activity is occurring in the home at

the time of the search. See Terry, 392 U.S. at 21–22; see also Navarette v. California,

572 U.S. 393 (2014) (In the context of reasonable suspicion, one step below probable

cause, there must be a “particularized and objective basis” that criminal activity is

occurring).

The court below departed from these established probable cause principles in

two ways. First, the lower court’s method of analyzing whether the warrant was

based on probable cause—looking at the document from a bird’s-eye view without

assessing each piece of information first—fails to support a fully rational process for

determining whether there was a substantial basis for the search. Second, the

majority’s holding departed from this Court’s mandated requirement that there be a

nexus––based on factual, reliable, and current information––between the place to

be searched and the alleged criminal activity. In the future, the lower court’s

decision will authorize invasive home searches based on intuition and instinct

rather than rational and factual analysis, which is the proper constitutional

process. This Court should grant review to correct this troublesome course.

This Court should grant review because the lower

court analyzed the search warrant as a whole without

assessing the weight of each factor first, an approach

that conflicts with this Court’s decision in Illinois v.

Gates as well as other federal courts of appeals.

Viewing an affidavit as a whole without individually assessing each factor

conflicts with this Court’s decision in Illinois v. Gates. Prior to Illinois v. Gates,

some courts relied on Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United

States, 393 U.S. 410 (1969), to hold that basis of knowledge and reliability/veracity

were “analytically severable” elements, meaning that the absence of one element

would prevent a piece of information from being considered in the probable cause

calculus. See Gates, 462 U.S. at 225–27, 230 n.5. After Gates, it is no longer required

that each piece of information in an affidavit contain both a (1) basis of knowledge

and (2) indicia of reliability/veracity. Id. The totality of the circumstances test

adopted in Gates allows information that is weak or absent in one area to still be

considered in the calculus if it is strong in another area. The Gates test also allows a

piece of information, containing sufficient indicia of reliability/veracity or basis of

knowledge, to bolster information lacking these indicia. In order to perform this

analysis, Gates requires an inquiry into the weight of each piece of information. The

lower court’s analysis, which did not assess each factor relevant for the

determination of probable cause, conflicts with the essence of this Court’s decision

in Gates.

The decision below is also problematic because it allows independently weak

pieces of information, each carrying little basis of knowledge or reliability/veracity,

to accomplish a bolstering effect by being considered in toto. Gates, however, was

intended to allow a stronger piece of information to bolster weaker information. In

Gates, law enforcement bolstered an anonymous, unverified tip that defendants

were engaging in drug trafficking with boots-on-the-ground surveillance, which

corroborated the information in the anonymous tip. Gates, 462 U.S. at 225–27.

Gates does not support the proposition that a combination of very weak pieces of

information can add up to more than their weight.

The en banc decision also conflicts with the decisions of other federal courts of

appeal, which agree that the totality of the circumstances test should include two

steps––examining each factor individually and then together as a whole. See United

States v. Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004) (“[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.”) (internal citations omitted); United

States v. Rodriguez-Escalera, 884 F.3d 661, 668 (7th Cir. 2018) (citing District of

Columbia v. Wesby, 138 S. Ct. 577, 588 (2018)) (“[T]he totality of the circumstances

test does not bar courts from discussing factors separately.”); see also United States

v. Dion, 859 F.3d 114, 125 (1st Cir. 2017) (In analyzing individual police

observations giving rise to probable cause, the court analyzed each point of

information individually while being “mindful of the totality of the circumstances.”);

United States v. Myers, 308 F.3d 251, 260 (3d Cir. 2002) (holding that a totality of

the circumstances approach requires a court to analyze the facts concerning

probable cause individually in their “proper context.”). In applying the totality of

the circumstances test, courts may not “arrive at probable cause simply by piling

hunch upon hunch.” Valenzuela, 365 F.3d at 897 (emphasis added).

The court below incorrectly relied on District of Columbia v. Wesby to support

its position that taking a summary view of an affidavit, without inquiring into the

weight and credibility of the affidavit’s individual ingredients, is the proper method

for evaluating probable cause. Christian II, 925 F.3d at 311. In Wesby, this Court

reversed a D.C. Circuit panel and found that District of Columbia police had

probable cause to arrest individuals for unlawful entry. Wesby, 138 S. Ct. at 586.

This Court criticized the panel decision for viewing each fact “in isolation rather

than as a factor in the totality of the circumstances” and for dismissing “any

circumstances . . . susceptible of innocent explanation.” Id. at 588. This Court

reiterated that the totality of the circumstances test “precludes . . . [a] divide and

conquer analysis.” Wesby, 138 S. Ct. at 588 (citing United States v. Arvizu, 534 U.S.

266, 274 (2002)).

However, the Wesby Circuit Court panel employed an approach that was

drastically different from that employed by the panel majority and en banc dissent

here. A reading of the Wesby Circuit Court decision reveals that the D.C. Circuit

Court panel did not consider all of the facts and circumstances encountered by the

police at the time of the arrests. See Wesby v. District of Columbia, 765 F.3d 13, 19–

24 (D.C. Cir. 2014), rev’d by District of Columbia v. Wesby, 138 S. Ct. 577 (2018). In

fact, the Wesby Circuit Court panel dismissed entire facts from the mix, without

ever returning to them again. See id. at 20, 23. Similar to this Court’s decision in

Wesby, in Arvizu, this Court overruled the Ninth Circuit because it individually

considered, then rejected altogether, several factors relevant for reasonable

suspicion without considering the factors together as a whole. See United States v.

Arvizu, 232 F.3d 1241, 1251 (9th Cir. 2000), rev’d and remanded, 534 U.S. 266

(2002). In contrast, in this case, the panel majority and the en banc dissent

considered each and every piece of information in the Affidavit, assessing each

factor individually, then viewing some of the factors in tandem, and then analyzing

them together as a whole. See Christian I, 893 F.3d at 863–65; Christian II, 925

F.3d at 320–31 (Gilman, J., dissenting).

In this case, the panel majority and the en banc dissent employed the correct

approach. The en banc majority correctly noted that “not all search warrant

affidavits include the same ingredients,” and that is the “mix” that is important,

Christian II, 925 F.3d at 312 (quoting United States v. Hines, 885 F.3d 919 (6th Cir.

2018)). But in order to consider the mix of ingredients, one must first determine

what those ingredients are. The en banc majority erred by simplistically

categorizing the rest of the information in the Affidavit as “relevant data points”

without looking into the substance of each point. Id. at 311. It was error to conclude

that probable cause existed from a distant vantage point, without evaluating

whether the mix ingredients contained a factual basis, whether the ingredients

could be considered reliable, and whether the ingredients were connected in time to

the search.

In this case, police officers saw a third-party suspect, later found in

possession of drugs, near Christian’s home. This vague information gave rise to a

hunch that drugs would be found in Christian’s home. Law enforcement did not

seek to corroborate the hunch with additional police surveillance, however. Instead,

they clawed back into Christian’s history to cobble together bits and pieces of lowvalue information to establish probable cause. The Gates totality of the

circumstances test does not authorize this kind of bootstrapping approach for

establishing probable cause.

Prematurely jumping ahead to a large-scale view of probable cause carries

the risk that searches will be authorized based on a series of hunches and

suspicions that each carry no weight, jeopardizing the entrenched principle that a

search must be reasonable and must be founded on the facts. This court’s totality of

the circumstances test requires reviewing courts to first look at each factor in

context and then consider them in a holistic fashion to determine if probable cause

is present. The en banc majority, by skipping an important step in the analytic

process, has decided the case in a way that conflicts with this Court’s precedent as

well as the precedents of other federal courts of appeals. These conflicts present an

important Fourth Amendment issue that should be resolved by this Court.

This Court should grant review because the decision

below, which found probable cause to search a home

based on vague, conclusory, and old information,

directly conflicts with this Court’s Fourth Amendment

precedents.

In conflict with decisions of this Court, the lower court concluded that there

was probable cause even though there was not an adequate connection, or nexus,

between Christian’s home and the alleged criminal activity. Review is warranted

because, by giving such short shrift to the nexus requirement, the lower court’s

holding drastically hollows out the Fourth Amendment’s substance. Before law

enforcement can enter a citizen’s home, there must be a nexus between the place to

be searched and the alleged criminal activity. And, that nexus must be based on

factual, reliable, and timely information. See Md. Penitentiary Warden v. Hayden,

387 U.S. 294, 307 (1967) (linking “nexus” to the probability that evidence will be

found in a particular place); Brinegar v. United States, 338 U.S. 160, 175–76 (1949)

(“Probable cause has come to mean more than bare suspicion. . . [It] exists where

the facts and circumstances . . . [come from] reasonably trustworthy information . . .

and warrant a man of reasonable caution in the belief that an offense has been or is

being committed.”); see also Illinois v. Gates, 462 U.S. at 230 (holding that “veracity,

reliability, and basis of knowledge” still remain “highly relevant” under the totality

of the circumstances test for probable cause); Sgro v. United States, 287 U.S. at 210

(1932) (“The proof must be of facts so closely related to the time of the issue of the

warrant as to justify a finding of probable cause at that time.”). Without a nexus

requirement, home searches would be transformed into the type of open-ended

searches favored by the British authorities in the pre-revolutionary era, the exact

type of searches the Fourth Amendment was designed to prohibit. See Potter

Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future

of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1369–

1371 (1983).

By concluding that probable cause existed to search Christian’s home,

primarily because a third party was earlier seen near the home and was later found

in possession of drugs (but with no stated connection to Christian), the lower court

eviscerated the Fourth Amendment’s nexus requirement. The Affidavit lacked any

information that the magistrate could rely on to find probable cause. There was no

thread to connect Christian’s home to the drugs found in Thomas’s car, and no

connection between Thomas and Christian. Even if Thomas had been on Christian’s

property, there was nothing in the Affidavit to connect those drugs to the inside of

Christian’s home—which was twelve miles away from where Thomas was detained.

The other information presented to the magistrate in the affidavit was either

unreliable or fatally points too far back into the past. Here, there were

informational points in the Affidavit, but each point represented an impermissible

hunch or suspicion––rather than facts. As the dissenting opinion pointed out, even

when combined together, these hunches failed to add up to probable cause.

Christian II, 925 F.3d at 329–332 (Gilman, J., dissenting).

The lower court’s nexus error was enabled because, by not evaluating each

piece of information in the Affidavit individually before undertaking a holistic

analysis, the lower court stepped over the substantive factors that this Court (and

federal courts of appeals) have enshrined into probable cause analysis. If the

standard is to broadly view all factors for a general sense of probability without any

individual analysis, then it is entirely possible that mere hunches can result in

probable cause if they are plentiful enough. Even though probable cause is not a

high bar, there must be more than a mere suspicion or hunch to justify a search,

particularly a search of a home. See Arvizu, 534 U.S. at 274. Because a hunch is

insufficient to establish reasonable suspicion for a Terry stop, then a fortiori, a

hunch (or series of hunches) is not sufficient to establish probable cause. Terry v.

Ohio, 392 U.S. 1, 27 (1968).

The lower court’s decision will negatively impact future Fourth Amendment

jurisprudence because it encourages a finding of probable cause based on instinct

and intuition rather than logical reasoning standards. Although probable cause is a

lenient standard, it must still be grounded in a rational analysis of the facts. The

lower court’s decision will authorize future home searches based on tenuous

connections often present in high-crime neighborhoods (e.g., homes that have

criminal histories and crimes committed by individuals seen in the neighborhood).

Accordingly, the majority decision creates a troubling precedent likely to make

residents of high-crime neighborhoods targets for unreasonable home searches. This

Court should grant review to correct the lower court’s error.

II. This Court should grant review because the lower court’s

decision––allowing the admission of seized evidence when the

warrant affidavit could not have been reasonably relied upon to

establish probable cause––critically conflicts with this Court’s

past decisions.

The lower court’s undue expansion of the exclusionary

rule’s good-faith exception conflicts with this Court’s

decision in United States v. Leon.

The unnecessarily large lens that the lower court used to evaluate the

Affidavit produced a cascade effect, infecting the analysis of whether the

exclusionary rule should apply in this case. Not evaluating each factor to assess its

factual basis, reliability, and timeliness produced the faulty conclusion that there

was some connection between ongoing criminal activity and Christian’s home. This

conclusion is not rational, however, when the lens is first focused on each piece of

information in the Affidavit before widening it to view the whole. Further, it is not

unreasonable to ask police officers to look (however briefly) at each piece of

information in an affidavit to check for probable cause.

The purpose of the Leon exception to the exclusionary rule is to prevent

suppression of evidence when suppression would not deter police misconduct.

United States v. Leon, 468 U.S. at 920–21. If an officer is acting in objective good-

faith, executing a search on the belief that a warrant is valid, then the

exclusionary rule’s deterrent purpose would not be achieved. Id. at 921.

Accordingly, the good-faith exception only applies to save the fruits of unlawful

searches when the officer’s reliance on a defective warrant is “objectively

reasonable.” Id. at 926. A warrant may be objectively unreasonable if it is based

on false statements, a magistrate’s impartial rubber stamp, a facially deficient

warrant or, as is the case here, when an affidavit “is so lacking in indicia of

probable cause that a belief in its existence is objectively unreasonable.” Id. at

923. An objectively unreasonable affidavit has become known as a “bare-bones”

affidavit. Id.

“[G]ood faith is not a magic lamp for police officers to rub whenever they

find themselves in trouble.” United States v. Zimmerman, 277 F.3d 426, 438 (3d

Cir. 2002) (quoting United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996)).

Although the determination of the good-faith exception’s applicability involves “a

less demanding inquiry” than an inquiry into the existence of probable cause, it

nonetheless “requires examination of the affidavit for particularized facts that

indicate veracity, reliability, and basis of knowledge and go beyond bare

conclusions and suppositions.” United States v. McPhearson, 469 F.3d 518, 526

(6th Cir. 2006). The standard for the good-faith exception is permissive, but there

must be “some modicum” that connects criminal activity to the place to be

searched. United States v. Tucker, No. 17-3503, 2018 WL 3752492, at *5 (6th Cir.

2018). And, “not every iota of evidence qualifies as a modicum.” Id.

Here, the lower court greatly expanded Leon beyond its original intent and

made it disproportionately difficult to apply the exclusionary rule’s protections in a

case, like this one, where simple math makes it clear that probable cause does not

exist. See Leon, 468 U.S. at 923. The lower court’s decision will authorize future

investigators to cobble together unreliable, old, and disconnected information,

obtain a warrant to perform an invasive home search, and have the search upheld

as long as the affidavit contains informational text. The decision discourages

inquiry into the substance of an affidavit and encourages fact-finders to rely too

heavily on the quantity of text, notwithstanding the shoddiness of the information’s

quality.

Leon made it clear that the exclusionary rule should still apply toward

affidavits that are objectively unreasonable. 468 U.S. at 923. Even under Leon’s

permissive standard for evaluating probable cause in the context of officer goodfaith, the Affidavit’s dearth of factual, reliable, and timely information vitiates the

reasonable reliance necessary to show good faith. The logic of the decision below,

which would admit evidence as long as the search warrant affidavit

contained a sufficient quantity of information (regardless of quality), makes it

virtually impossible to exclude evidence obtained in an objectively

unreasonable fashion. Because the lower court’s holding directly conflicts

with Leon, it should be reviewed.

The lower court’s decision conflicts with core

premises of the exclusionary rule––to provide

consequences for constitutional violations and to

encourage law enforcement to incorporate the rights

of the accused into their investigatory procedures.

The lower court’s expansion of Leon negates the core principles that animate

the exclusionary rule––that there should be serious consequences for constitutional

violations and police officers should be incentivized to incorporate a concern for the

rights of the accused into their investigatory procedures. Since 1914, federal courts

have suppressed evidence if law enforcement obtained that evidence illegally. See

Weeks v. United States, 232 U.S. 393, 398 (1914). The exclusionary rule operates on

the theory that if the government is able to use unconstitutionally obtained

evidence against the accused at trial, then the Fourth Amendment “is of no value.”

Mapp v. Ohio, 367 U.S. 643, 648 (1961) (quoting Weeks, 232 U.S. at 393). By

demonstrating that “society attaches serious consequences to violation of

constitutional rights,” the exclusionary rule incentivizes police officers to

“incorporate Fourth Amendment ideals into their value system.” Stone v. Powell,

428 U.S. 465, 492 (1976). Courts applying the exclusionary rule “hope to instill . . . a

greater degree of care toward the rights of an accused” in officers conducting future

investigations. United States v. Leon, 468 U.S. at 919 (quoting United States v.

Peltier, 422 U.S. 531, 539 (1975)). A concern arose, however, as to the “substantial

social costs exacted by the exclusionary rule” when its application allows “some

guilty defendants [to] go free.” Id. at 907. Accordingly, in Leon, this Court

authorized an exception to the exclusionary rule where the cost of suppression

(hampering the prosecution of guilty defendants) outweighs the benefit (deterring of

police misconduct). Id. at 913.

However, the good-faith exception, as the name implies, is an exception,

meant to be applied in instances where “[p]enalizing the officer for the magistrate’s

error, rather than his own, cannot logically contribute to the deterrence of Fourth

Amendment violations.” Leon, 468 U.S. at 921. The exception was not intended to

be a refuge for officers every time they are confronted with a Fourth Amendment

violation; rather, the exception is appropriately reserved only for those violations

where there is “nothing more that [the officer] ‘could have or should have done

under the[ ] circumstances to be sure his search would be legal.’” United States v.

McClain, 444 F.3d 556, 566 (6th Cir. 2006) (quoting United States v. Thomas, 757

F.2d 1359, 1368 (2d Cir. 1985)). The exception is not available for police misconduct

that can be categorized as systemically or grossly negligent or evincing a reckless

disregard for Fourth Amendment principles. See Leon, 468 U.S. at 919; Herring v.

United States, 555 U.S. 135, 144–45, 147 (2009). In evaluating the good-faith

exception, “all of the circumstances . . . can be considered.” Leon, 468 U.S. at 923

n.23.

In cases like this one, the exclusionary rule’s deterrence benefit outweighs its

cost. As the dissenting opinion noted, applying the exclusionary rule would

incentivize officers to use credible and current information in their application to

search homes and disincentivize overreliance on the shadowy market for

intelligence operated by criminal informants. See Christian II, 925 F.3d at 332–33

(Gilman, J., dissenting). Instead of cobbling together bits and pieces of disconnected

and outdated information to create a semblance of probable cause, law enforcement

would be encouraged to perform additional police work to connect a home to the

criminal activity before gaining permission to search inside. Id. Officers would be

reminded of their duty to reasonably corroborate their hunches and suspicions and

ensure recency in the allegations used to support a search. In the context of this

case, which involves old information about the resident of a home, applying the

exclusionary rule would further accord with the settled legal premise in the law that

evidence of a person’s years-old wrongdoing is not indicative of present wrongdoing.

Cf, e.g., Fed. R. Evid. 404(b). Here, the exclusionary rule’s deterrent effect would

reduce “the perception of unlawful or intrusive police conduct,” which would

engender better relations between communities and the police. Gates, 462 U.S. at

236–37. Finally, applying the exclusionary rule would prevent homeowners from

being targeted for home searches based merely on the criminal conduct of third

parties earlier seen near the home.

Suppression would also be consistent with the fundamental purpose of the

Fourth Amendment, which is to prevent arbitrary and undue invasions of the home.

See, e.g., Payton v. New York, 445 U.S. 573, 585 (1980) (“[P]hysical entry of the

home is the chief evil against which the wording of the Fourth Amendment is

directed.”) (internal citations omitted); United States v. Martinez-Fuerte, 428 U.S.

543, 561 (1976) (the “sanctity of private dwellings” is the interest “ordinarily

afforded the most stringent Fourth Amendment protection”); Silverman v. United

States, 368 U.S. 505, 511 (1961) (“At the very core [of the Fourth Amendment]

stands the right of a man to retreat into his own home and be free from

unreasonable government intrusion.”). Disincentivizing the police from searching

homes without obtaining recent, reliable, and factual information will also limit the

number of unreasonable searches that occur, reducing the amount of harm

occurring from invasive tactical team searches. See Radley Balko, Overkill, The Rise

of Paramilitary Police Raids in America, Cato Institute White Paper 3–4 (2006),

https://object.cato.org/sites/cato.org/files/pubs/pdf/balko_whitepaper_2006.pdf

(Demonstrating the tragic results of the proliferation of militarized police raids on

homes, most often based on information from unreliable confidential informants

(“snitches”)).

In Leon, this Court held that the exclusionary rule should not apply per se

but should be applied when it will have a deterrent effect on individual police

officers. 468 U.S. at 897 (1984). Leon’s sharpening of the exclusionary rule should

not be read to discount the extraordinary constitutional gravity of an invasion of a

person’s home. Applying the exclusionary rule here would accomplish a significant

deterrent effect in the circumstances of this case and others like it. This Court

should grant review to resolve the imbalance created by the lower court’s decision

and re-orient future cases toward the exclusionary rule’s purpose of protecting

citizens from Fourth Amendment violations arising out of systemically

unconstitutional investigatory procedures.

CONCLUSION

For these reasons, this Court should grant the Petition for a Writ of

Certiorari and the Sixth Circuit’s decision should be reversed. Respectfully

submitted,

/s/ Lucille A. Jewel*

Wade V. Davies

UNIVERSITY OF TENNESSEE

COLLEGE OF LAW

APPELLATE LITIGATION CLINIC

1505 W. Cumberland Ave.

Knoxville, TN 37996

Counsel for Appellant

*Counsel of Record

APPENDIX

APPENDIX A

Case: 17-1799

Document: 70-2 Filed: 05/31/2019

Pet.App.1

Page: 1

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,

┐

│

TYRONE DEXTER CHRISTIAN,

Defendant-Appellant.

│

┘

No. 17-1799

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

(3 of 47)

Case: 17-1799

No. 17-1799

Document: 70-2 Filed: 05/31/2019

Pet.App.2

United States v. Christian

Page: 2

(4 of 47)

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.

_________________

OPINION

_________________

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.

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

Case: 17-1799

No. 17-1799

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Pet.App.3

Page: 3

United States v. Christian

(5 of 47)

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.

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United States v. Christian

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Page 4

II.

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.”

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United States v. Christian

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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

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United States v. Christian

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

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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 wellreasoned precedential decision.

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-

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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 selfserving 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,

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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.

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

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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.

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

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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 goodfaith 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

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‘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 emptyhanded.” 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

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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 goodfaith 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).

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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

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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.

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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.

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______________________________________

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.

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_________________

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

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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.

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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

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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 reasonablesuspicion 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

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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

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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”).

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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

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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

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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,

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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

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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:

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[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

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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

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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

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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

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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

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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

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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.

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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.

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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

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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

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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.

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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

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