Petition for Writ of Certiorari — Fharis Denane Smith, Petitioner v. United States
Supreme Court briefFeb 9, 2023
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No. _________
In the
United States Supreme Court
________________
Fharis Denane Smith
Petitioner
v.
United States of America,
Respondent
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Sixth Circuit
________________
Appendix
________________
Gary W. Crim
Counsel of Record
943 Manhattan Avenue
Dayton, Ohio 45406-5141
(937) 276-5770
garywcrim@gmail.com
Counsel for Petitioner
Table of Contents
Appendix A: Court of Appeals Opinion (September 9,
2022)........................................................................................................ 1a
Appendix B: Court of Appeals denying Petition for
Rehearing and Rehearing En Banc (November 18,
2022)...................................................................................................... 37a
Appendix C: District Court Order Denying Motion to
Suppress (October 26, 2020) ................................................................ 39a
Appendix D: District Court Transcript of Motion to
Suppress Hearing and Final Pretrial Conference
(October 26, 2020) ................................................................................ 41a
Appendix E: Search Warrant, (April 18, 2020) .............................................. 82a
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NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0367n.06
Case No. 21-1457
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FHARIS DENANE SMITH,
Defendant-Appellant.
____________________________________/
FILED
Sep 09, 2022
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
MICHIGAN
OPINION
Before: GUY, MOORE, and CLAY, Circuit Judges.
GUY, J., announced the judgment and delivered the opinion of the court as to the issue
discussed in Part III, in which MOORE and CLAY, JJ., joined. CLAY, J. (pp. 21–32), delivered
a separate opinion concurring in Part III of the lead opinion, and delivered the opinion of the court,
in which MOORE, J., joined, as to the issues discussed in Parts A and B, of his opinion. MOORE,
J. (pp. 33–36), delivered a separate opinion concurring in part and in the judgment of the lead
opinion.
RALPH B. GUY, JR., Circuit Judge. This case presents two questions. First, may the
police, armed with a warrant, search the digital contents of a cell phone for evidence about a fatal
shooting when the warrant affidavit recounts (among other facts) that a “known” informant and
“multiple” anonymous sources reported the names of two gunmen who “fired guns at the
deceased” and the cell phone that is searched belongs to one of the alleged shooters? Second, we
must decide whether evidence about a defendant’s welfare benefits application is improper
evidence of prior “bad acts” under Federal Rule of Evidence 404(b). In the end, we affirm the
district court’s judgment.
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No. 21-1457, United States v. Smith
I.
A.
On April 18, 2020, police officers with the City of Kalamazoo were tasked with locating
and arresting defendant Fharis Smith on an outstanding warrant. (R. 91, PgID 603, 601, 624-25,
627). At around 4:00 p.m., officers observed Smith drive a white vehicle to a gas station. (Id.,
PgID 603, 667-68). A green sport-utility vehicle arrived and parked near Smith. (Id., PgID 669).
Smith walked to the passenger side of the green vehicle, opened the door, leaned into the vehicle
for “[j]ust a few seconds,” and then leaned back out of the vehicle and talked for a moment with
the driver. (Id., PgID 670). Although the undercover officer watching Smith from inside the store
did not see drugs or money exchange hands, the officer suspected a drug transaction had occurred
based upon her training and experience. (Id., PgID 667, 671, 684). When other officers arrived
to arrest Smith, they saw Smith alone in the white vehicle sitting in the driver’s seat. (Id., PgID
604). The officers suspected he was concealing or retrieving a firearm when they saw him reach
down near his feet. (Id., 604-05).
The officers arrested Smith and found $2,340 in Smith’s pants pocket and a loaded, semiautomatic pistol between Smith’s feet. (Id., PgID 605, 610). In the vehicle, officers also found
four rounds of ammunition, 2.61 grams of methamphetamine, a digital scale with white residue,
and two cell phones. (Id., PgID 629-30, 697; PgID 632-34, 636). During the arrest, one of the
cell phones rang and Smith asked to answer it, but the officers did not permit him to do so. (Id.,
PgID 615-16, 639).
That evening, a detective with Kalamazoo police sought a warrant to search Smith’s two
cell phones. (R. 44-2, PgID 146-47). In the supporting affidavit, the detective stated that he was
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investigating a shooting that occurred on April 11, 2020, at a specific address in Kalamazoo where
three victims were shot, one of whom was killed. (Id., PgID 146).
The detective’s affidavit further provided the following information: (1) “a source who is
known but who has requested anonymity at this time” told Kalamazoo police “that both Dauntrell
Walker and Fharis Smith were present at the scene of the shooting and that they both fired guns at
the deceased”; (2) “multiple sources advised” Kalamazoo police that Walker and Smith “had been
present at, and involved in, this shooting”; (3) “[i]nvestigators also received information that a
person who had been shooting at [the deceased] may also have sustained a gun-shot wound during
the incident”; (4) Walker and Smith “are known by [the detective] to be involved in weapon
possession and violent acts within the City of Kalamazoo on a historical and an ongoing basis”;
(5) when “Walker and Smith were arrested by Kalamazoo [police]” on April 18, 2020, “both were
in possession of loaded firearms” and “Smith was also in possession of two mobile communication
devices”; and (6) on Walker’s lower back, there was “a fresh wound” that was “consistent with a
gunshot wound.” (Id., PgID 147 (emphasis added)). The affidavit noted: “These facts corroborate
the information given by the source who has requested anonymity.” Id.
Having been an officer for fifteen years, the detective explained in the affidavit that he
“knows through training and experience that people involved in criminal activity regularly employ
their mobile electronic devices in the planning, the commission, or the concealment of crime and
that they will document criminal activity through photographs, text messages, and other electronic
data contained within and accessed by such devices.” (Id., PgID 146-47). The detective also stated
that he has “employed facts obtained from such devices in the successful prosecution of violent
criminals.” Id.
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Accordingly, the detective’s affidavit stated that he believed a search of Smith’s cell
phones would yield evidence “about who was at the scene and how events unfolded” and could
also “show whether Smith possessed a firearm or communicated with anyone about his
involvement” in the shooting. (Id., PgID 147). A state court judge found probable cause for the
search and issued a search warrant. (Id., PgID 145).
On one of Smith’s phones, officers found text messages involving drug dealing activity.
(R. 92, PgID 732-36, 832-40). In one message exchange on the day of Smith’s arrest, Smith and
another individual arranged to meet that day at a gas station. The other individual stated, “[I] will
be there in about 10 to 15 minutes . . . driving a green truck and . . . need $100 worth.” The
individual also sent messages with travel updates.
Smith moved to suppress the text messages on the basis that the search warrant was issued
without probable cause. After oral argument, Smith’s motion was denied because, as the district
court explained, “the warrant was lawfully issued” by the state court judge and, even if it was not,
the officers could rely on the warrant in good faith under United States v. Leon, 468 U.S. 897
(1984). At Smith’s trial for drug and firearm convictions, the messages were admitted into
evidence.
B.
At trial, Smith sought to preclude testimony from a welfare benefits specialist with the
Michigan Department of Health and Human Services. The government proffered that it planned
to call the specialist to introduce into evidence a welfare benefits application Smith submitted
roughly three months before he was arrested—claiming that “he was unemployed, had no assets,
[and had] no money in the bank.” (R. 91, PgID 505, 691). The government also explained that
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the specialist would testify that Smith never reported a change in his circumstances, even though
he was under a continuing obligation to do so under the terms of the application. Id.
Before the specialist testified, Smith “objected on equal protection grounds” and also
argued that the testimony is “irrelevant.” (Id., PgID 505, 689-91). The government responded
that the testimony supports the inference that the $2,340 found in Smith’s pocket when he was
arrested was not from lawful employment. (Id., PgID 505-06, 691-92). The district court agreed
and overruled Smith’s objection, reasoning that the specialist’s testimony “is relevant to the issue
of the source of the money.” (Id., PgID 506-507, 692). Consistent with the government’s proffer,
the specialist testified at trial and Smith’s welfare application was admitted into evidence without
further objection from Smith.
The jury found Smith guilty of the three crimes charged in the indictment: (1) felon in
possession of a firearm, 18 U.S.C. §§ 922(g)(1) and 924(a)(2); (2) possession with intent to
distribute methamphetamine, 21 U.S.C. § 841(a)(1), (b)(1)(C); and (3) possession of a firearm in
furtherance of drug trafficking, 18 U.S.C. § 924(c)(1)(A)(i). The district court sentenced Smith to
a total of 138 months in prison and three years of supervised release.
This appeal followed.
II.
Cell Phone Search. Before the government may search a cell phone, “a warrant is generally
required . . ., even when a cell phone is seized incident to arrest.” Riley v. California, 573 U.S.
373, 401 (2014). “In the absence of a warrant, [the] search is reasonable only if it falls within a
specific exception to the warrant requirement.” Id. at 382; see also id. at 391, 401-02 (identifying
“exigent circumstances” as an exception that could apply). Here, the government does not contest
that a search warrant was required.
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A valid warrant under the Fourth Amendment “require[s] only three things”: (1) it must be
issued by a “neutral, disinterested” magistrate or judge; (2) “those seeking the warrant must
demonstrate to the magistrate [or judge] their probable cause to believe that ‘the evidence sought
will aid in a particular apprehension or conviction’ for a particular offense”; and (3) the warrant
“must particularly describe the ‘things to be seized,’ as well as the place to be searched.” Dalia
v. United States, 441 U.S. 238, 255 (1979) (cleaned up). It is only the probable-cause requirement
that Smith contends is not satisfied here.
There is probable cause for a search when “the totality of the circumstances” presented in
a warrant affidavit would lead a “person of reasonable caution” to believe there is a “fair
probability” that “contraband or evidence of a crime” will be found in a particular place. Florida
v. Harris, 568 U.S. 237, 243-44 (2013) (cleaned up); see also Illinois v. Gates, 462 U.S. 213, 238
(1983). In other words, there must be a probable cause “nexus between the place to be searched
and the evidence sought.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc)
(citation omitted); see also Wyoming v. Houghton, 526 U.S. 295, 302 (1999); Warden v. Hayden,
387 U.S. 294, 307 (1967).
The probable cause inquiry requires a “flexible, all-things-considered approach”—“turning
on the assessment of probabilities in particular factual contexts—not readily, or even usefully,
reduced to a neat set of legal rules.” Harris, 568 U.S. at 243 (citation omitted). It is a “practical,
nontechnical” question based on “common-sense conclusions about human behavior.” Gates, 462
U.S. at 230-31 (citations omitted). “Probable cause ‘is not a high bar.’” District of Columbia
v. Wesby, 138 S. Ct. 577, 586 (2018) (quoting Kaley v. United States, 571 U.S. 320, 338 (2014)).
When we review the denial of a motion to suppress evidence, we “must consider the
evidence in the light most favorable to the government.” United States v. Erwin, 155 F.3d 818,
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822 (6th Cir. 1998) (en banc); accord United States v. Winters, 782 F.3d 289, 295 (6th Cir. 2015).
Our duty as “a reviewing court is simply to ensure that the [issuing judge] had a ‘substantial basis
for concluding’ that probable cause existed.” Gates, 462 U.S. at 238-39 (cleaned up). The
Supreme Court has “emphasized that courts should pay ‘great deference’ to [the issuing] judge’s
determination of probable cause,” in contrast to probable cause determinations in “the warrantless
searches and seizures . . . considered in Ornelas v. United States, 517 U.S. 690 (1996).” McLane
Co. v. EEOC, 137 S. Ct. 1159, 1169 (2017) (quoting Gates, 462 U.S. at 236).
Because the state judge found probable cause to issue a search warrant, we “do not write
on a blank slate” and we are “not permitted to attempt a de novo review of probable cause.” United
States v. Christian, 925 F.3d 305, 311-12 (6th Cir. 2019) (en banc) (cleaned up) (quoting United
States v. Tagg, 886 F.3d 579, 586 (6th Cir. 2018)). Instead, we may “overturn [the issuing judge’s]
decision only ‘if the [judge] arbitrarily exercised his or her authority.’” Id. (quoting United States
v. Brown, 732 F.3d 569, 573 (6th Cir. 2013)).
A.
In arguing that the warrant affidavit did not show probable cause to search his cell phones
for evidence related to the April 11 shooting, Smith’s contention is twofold: The affidavit does not
contain sufficient information corroborating the statements from the known informant and the
multiple anonymous informants, and the affidavit does not provide a nexus between his cell phones
and the shooting. (Appellant Br. 24-26).
Corroboration. As for the corroboration required, “an informant’s ‘veracity,’ ‘reliability,’
and ‘basis of knowledge’ are all highly relevant in determining the value of his report,” but the
Supreme Court has instructed that these considerations are not “entirely separate and independent
requirements to be rigidly exacted in every case.” Gates, 462 U.S. at 230. Rather, “a deficiency
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in one may be compensated for, in determining the overall reliability of a tip, by a strong showing
as to the other, or by some other indicia of reliability.” Id. at 233; see also United States v. Hines,
885 F.3d 919, 925 (6th Cir. 2018); United States v. Miller, 314 F.3d 265, 268 (6th Cir. 2002).
Probable cause indeed can be founded on informants’ tips of “many shapes and sizes from many
different types of persons.” Gates, 462 U.S. at 232.
Here, the affidavit recounted information from a “known” (albeit unnamed) informant, as
well as other anonymous informants. “[T]here is no requirement that an informant be named either
in the affidavit or the search warrant.” United States v. Jackson, 470 F.3d 299, 308 (6th Cir. 2006).
“A person known to the affiant officer, even though not named in the affidavit, is not ‘an
anonymous informant’ in the sense referred to in cases where the identity of the informant is known
to no one.” United States v. May, 399 F.3d 817, 825 (6th Cir. 2005). Thus, in this case, “the
statements of [the one] informant, whose identity was known to the police and who would be
subject to prosecution for making a false report, are thus entitled to far greater weight than those
of an anonymous source.” United States v. Dyer, 580 F.3d 386, 391 (6th Cir. 2009) (quoting May,
580 F.3d at 824-25).
This court’s en banc decision in Allen also made clear that “police need not always
independently corroborate a [confidential informant]’s information.” United States v. Smith, 510
F.3d 641, 652-53 (6th Cir. 2007) (citing United States v. Allen, 211 F.3d 970, 972, 974 (6th Cir.
2000) (en banc)); see, e.g., Brown, 732 F.3d at 574; United States v. McCraven, 401 F.3d 693, 698
(6th Cir. 2005). “So long as an issuing judge is ‘informed of some of the underlying circumstances
from which the officer concluded that the informant, whose identity need not be disclosed, was
credible, or his information reliable,’ an affidavit is sufficient to support a finding of probable
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cause.” May, 399 F.3d at 824 (quoting Aguilar v. Texas, 378 U.S. 108, 114 (1964)); see also
Gates, 462 U.S. at 244-45.
“The additional evidence substantiating an informant’s reliability . . . may be any set of
facts that support the accuracy of the information supplied by the informant,” including an officer’s
first-hand observations or investigation, other confidential informants providing the same
information, or the informant’s reliability in prior investigations. May, 399 F.3d at 824 (discussing
Jones v. United States, 362 U.S. 257, 271-72 (1960)). And while “not dispositive, a defendant’s
criminal history is also relevant to the probable cause inquiry” and serves as “other indica of
reliability for the informant’s tip.” Dyer, 580 F.3d at 393 (citations omitted); see also Christian,
925 F.3d at 311; Hines, 885 F.3d at 926.
In this case, the government argues that three forms of information in the warrant affidavit
corroborate the known informant’s statement (also in the affidavit) that Smith and Walker “were
present at the scene of the shooting and that they both fired guns at the deceased.” (R. 44-2, PgID
147). First, “multiple sources” reported the same information to Kalamazoo police officers, id.,
indicating that the tip is likely accurate. Jones, 362 U.S. at 269, 271; Christian, 925 F.3d at 311;
United States v. Crawford, 943 F.3d 297, 307 (6th Cir. 2019); United States v. Artez, 389 F.3d
1106, 1114 (10th Cir. 2004) (“A tip from a second informant can also help corroborate information
from a confidential informant.”).
Second, investigators received information that one of the alleged shooters may have
sustained a gunshot wound. Later police learned that information was likely credible because,
when police arrested Walker seven days after the shooting occurred, police personally observed a
“fresh” gunshot wound on Walker’s lower back. (R. 44-2, PgID 147). This was also independent
police corroboration. And when “an informant is right about some things, he is more probably
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right about other facts, including the claim regarding [the suspects’] illegal activity.” Gates, 462
U.S. at 244 (citation omitted); accord Hines, 885 F.3d at 925.
Third, both Smith and Walker possessed loaded guns when they were arrested, and the
detective personally knew both suspects “to be involved in weapon possession and violent acts
within the City of Kalamazoo on a historical and an ongoing basis.” (R. 44-2, PgID 147). These
facts “made the charge against [Smith and Walker] much less subject to scepticism than would be
such a charge against one without such a history.” Jones, 362 U.S. at 271; see also Christian, 925
F.3d at 311; May, 399 F.3d at 824.
Put all the circumstances together and it would no doubt seem that “‘corroboration through
[these] other sources of information reduced the chances of a reckless or prevaricating tale,’ thus
providing ‘a substantial basis for crediting the hearsay’” of the informants’ information. Gates,
462 U.S. at 244-45 (cleaned up) (quoting Jones, 362 U.S. at 269, 271).
Smith’s argument to the contrary is thin. He merely criticizes the fact that the affidavit
does not name the confidential informant or state that the individual personally witnessed the
shooting. (Appellant Br. 25). But “we have not required informants personally to observe
contraband or criminal activity before a court may find probable cause based on an informant’s
statement,” Crawford, 943 F.3d at 308, and, as stated, police are not required to name the
informant.
More importantly, however, the “totality-of-the-circumstances test ‘precludes [Smith’s]
sort of divide-and-conquer analysis.’” Wesby, 138 S. Ct. at 588 (quoting United States v. Arvizu,
534 U.S. 266, 274 (2002)). The fact is “the whole is often greater than the sum of its parts—
especially when the parts are viewed in isolation.” Id.
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Our en banc decisions echo that admonition: An affidavit must be judged “holistically [on]
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.” Christian, 925 F.3d at 312; see also Allen,
211 F.3d at 975 (instructing that the “affidavit is judged on the adequacy of what it does contain,
not on what it lacks, or on what a critic might say should have been added”). We do not engage
in “‘hypertechnical, . . . line-by-line scrutiny,’ of the affidavit” because that practice has been
“explicitly forbidden by the Supreme Court.” Christian, 925 F.3d at 311 (cleaned up) (citing
Gates, 462 U.S. at 235-36, 245 & n.14). And an affidavit is “not required to use magic words, nor
does what is obvious in context need to be spelled out.” Allen, 211 F.3d at 975; accord Christian,
925 F.3d at 310.
Nexus. It is now long-settled that officers may “draw on their own experience and
specialized training to make inferences from and deductions about the cumulative
information available to them that ‘might well elude an untrained person.’” Arvizu, 534 U.S. at
273 (citation omitted). “The issuing judge or magistrate ‘may give considerable weight to the
conclusion of experienced law enforcement officers regarding where evidence of a crime is likely
to be found and is entitled to draw reasonable inferences about where evidence is likely to be kept.’”
United States v. Rodriguez-Suazo, 346 F.3d 637, 644 (6th Cir. 2003) (emphasis added) (quoting
United States v. Caicedo, 85 F.3d 1184, 1192 (6th Cir. 1996)). In turn, we “must give ‘due weight’
to factual inferences drawn by resident judges and local law enforcement officers.” Arvizu, 534
U.S. at 273-74 (citation omitted)).
In the context of a warrant issued to search a residence, this court has held that the issuing
judge “may infer a nexus between a suspect and his residence, depending upon ‘the type of crime
being investigated, the nature of things to be seized, the extent of an opportunity to conceal the
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evidence elsewhere and the normal inferences that may be drawn as to likely hiding
places.’” United States v. Williams, 544 F.3d 683, 687 (6th Cir. 2008) (quoting United States
v. Savoca, 761 F.2d 292, 298 (6th Cir. 1985)).
Sometimes it is only the training and experience of an officer or common sense that has
supplied the necessary nexus. For instance, we have recognized that “in the case of drug dealers,
evidence is likely to be found where the dealers live.” United States v. Sumlin, 956 F.3d 879, 886
(6th Cir. 2020) (quoting United States v. Jones, 159 F.3d 969, 975 (6th Cir. 1998)). Thus, a judge
“may infer that drug traffickers use their homes to store drugs and otherwise further their drug
trafficking,” Williams, 544 F.3d at 687 (collecting cases), and that is true even “with no
facts indicating that the defendant was dealing drugs from his residence,” Sumlin, 956 F.3d at 88687 (quoting United States v. McCoy, 905 F.3d 409, 418 (6th Cir. 2018)) (collecting cases); see also
United States v. Gunter, 551 F.3d 472, 481 (6th Cir. 2009).
And we have accepted that “individuals who own guns keep them at their homes.” Peffer
v. Stephens, 880 F.3d 256, 271 (6th Cir. 2018) (quoting United States v. Smith, 182 F.3d 473, 480
(6th Cir. 1999)). Thus, “a suspect’s use of a gun in the commission of a crime is sufficient to find
a nexus between the gun that was used and the suspect’s residence.” Id. (collecting cases); see
also Williams, 544 F.3d at 688 (collecting cases).
We have also declared that “child pornography crimes are ‘generally carried out in the
secrecy of the home.’” United States v. Kinison, 710 F.3d 678, 684 (6th Cir. 2013) (quoting United
States v. Paull, 551 F.3d 516, 522 (6th Cir. 2009)) (collecting cases); see, e.g., Peffer, 880 F.3d at
271 (collecting cases). Thus, a nexus may be inferred between child pornography crimes and a
suspect’s home, “even though the affidavit [does] not contain direct evidence the child
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pornography was accessed at home.” Id. (citing United States v. Terry, 522 F.3d 645, 647 (6th
Cir. 2008)).
Do these principles support a nexus between the shooting and Smith’s cell phones? On the
one hand, Smith suggests that we should jettison any inferred nexus because he maintains that a
nexus exists only if an affidavit affirmatively states that a suspect used a cell phone “at the
shooting.” (Appellant Br. 25-26). The premise of his argument is that “a cell phone search would
typically expose to the government far more than the most exhaustive search of a house.” Riley,
573 U.S. at 398; (Appellant Br. 18, 20-21).
This court has assessed a cell phone warrant in only a few cases (none of which are
mentioned by the parties). Bass had no difficulty concluding that a nexus existed between the
criminal activity and the defendant’s cell phone because the affidavit stated that the defendant “and
his co-conspirators frequently used cell phones to communicate” in perpetrating identity theft, and
it noted that the defendant was using the cell phone in question “when officers seized it incident
to his arrest.” United States v. Bass, 785 F.3d at 1043, 1046, 1049 (6th Cir. 2015). Sims explained
that probable cause exists when “the phone itself is being used in connection with an offense or
commonly used by someone committing the offense,” and that standard was easily satisfied given
that the affidavit stated that in one month the defendant had used his phone to make “over 200
calls . . . to and from others known to be involved in the cocaine organization.” United States
v. Sims, 508 F. App’x 452, 460 (6th Cir. 2012). And Merriweather was decided on Leon goodfaith grounds. United States v. Merriweather, 728 F. App’x 498, 505 (6th Cir. 2018). There, the
affidavit stated that: “a criminal informant (CI) had twice completed a controlled purchase of
oxymorphone from [the defendant]”; “both controlled purchases were organized through cell
phone communication (between the CI and [defendant]’s co-defendant, Lloyd Montgomery)”—
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not cell phone communication with the defendant; the cell phone at issue was found in the
defendant’s car, along with “what appeared to be four oxymorphone pills and cocaine rocks”; and
“the affiant stated that in his training and experience, drug dealers use cell phones to coordinate
with conspirators, customers, and suppliers.” Id. (emphasis added). Acknowledging that these
facts did “not directly implicate [defendant]’s cell phone,” Merriweather nevertheless concluded
that “an officer could reasonably infer” that defendant’s phone was used in criminal activity
because “it seem[ed] obvious there is a good chance [defendant] at times used his cell phone to
carry out the goals of this distribution conspiracy.” Id. While these cases suggest what is sufficient
to establish a nexus to a cell phone, they in no way set the floor for what is required.
On the other hand, the government contends that a nexus to a cell phone may be inferred
when the crime involves the “concerted activity” of at least two suspects, and a 15-year officer
states in the warrant affidavit that he “knows through training and experience that people involved
in criminal activity regularly employ their mobile electronic devices in the planning, the
commission, or the concealment of crime.” (R. 44-2, PgID 147); (Appellee Br. 15-16).
As a practical matter, the Supreme Court has observed that cell phones are “a pervasive
and insistent part of daily life” and that “[c]ell phones have become important tools in facilitating
coordination and communication among members of criminal enterprises, and can provide
valuable incriminating information about dangerous criminals.” Riley, 573 U.S. at 385, 401. Riley
was careful to emphasize that its “holding, of course, is not that the information on a cell phone is
immune from search; it is instead that a warrant is generally required before such a search, even
when a cell phone is seized incident to arrest.” Id. at 401.
The police sought and obtained a warrant in this case. Given that Smith and Walker “both
fired guns at the deceased,” it seems a judge could reasonably infer that there is a fair probability
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that Smith and Walker used their cell phones to communicate, at some time, about some aspect of
the shooting because that is how people in our modern society generally communicate when they
do anything together. (R. 44-2, PgID 147). After all, probable cause “does not deal with hard
certainties”; it “deal[s] with probabilities” based on “common-sense conclusions about human
behavior.” Gates, 462 U.S. at 231 (citations omitted); see also Messerschmidt v. Millender, 565
U.S. 535, 552 n.7 (2012); Rodriguez-Suazo, 346 F.3d at 644.
But we elect to not decide whether the state judge arbitrarily found probable cause to issue
the warrant. See, e.g., Leon, 468 U.S. at 925; United States v. Baker, 976 F.3d 636, 648 (6th Cir.
2020). With the above probable cause principles as a backdrop, we conclude this case qualifies
for the good-faith exception under Leon.
B.
Good-faith Exception. The district court was correct to deny Smith’s suppression motion
because the officers searched Smith’s phones “in objectively reasonable reliance” on the search
warrant. Leon, 468 U.S. at 922. But Smith failed to challenge this conclusion in his initial brief
on appeal. “Time, time, and time again, we have reminded litigants that we will treat an ‘argument’
as ‘forfeited when it was not raised in the opening brief.’” Island Creek Coal Co. v. Wilkerson,
910 F.3d 254, 256 (6th Cir. 2018) (cleaned up); see also United States v. Johnson, 440 F.3d 832,
845-46 (6th Cir. 2006). Even so, Smith’s belated arguments in his reply brief are unavailing.
Under the “judicially created” “exclusionary rule,” “improperly obtained evidence” is
inadmissible at trial. Herring v. United States, 555 U.S. 135, 139 (2009); see also Davis v. United
States, 564 U.S. 229, 238 (2011). “[T]he exclusionary rule is designed to deter police misconduct
rather than to punish the errors of judges.” Davis, 564 U.S. at 246 (quoting Leon, 468 U.S. at 916).
But the exclusionary rule is “applicable only . . . where its deterrence benefits outweigh its
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substantial social costs.” Hudson v. Michigan, 547 U.S. 586, 591 (2006) (cleaned up); accord
Utah v. Strieff, 579 U.S. 232, 237 (2016). Hence, “exclusion ‘has always been [the] last resort,
not [the] first impulse.’” Herring, 555 U.S. at 140 (quoting Hudson, 547 U.S. at 591).
As relevant here, the Supreme Court has also created the so-called “good-faith exception”
to the exclusionary rule. Leon, 468 U.S. at 923-24; accord Davis, 564 U.S. at 240, 248. Under
the exception, “the exclusionary rule does not apply when the police conduct a search in
‘objectively reasonable reliance’ on a warrant later held invalid,” or when the police “conduct
involves only simple, ‘isolated’ negligence.” Davis, 564 U.S. at 238-39 (citations omitted). A
court’s “‘good-faith inquiry is confined to the objectively ascertainable question whether a
reasonably well trained officer would have known that the search was illegal’ in light of ‘all of the
circumstances.’” Herring, 555 U.S. at 145 (quoting Leon, 468 U.S. at 922 n.23). “These
circumstances frequently include 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 (cleaned up).
Smith argues the good-faith exception does not apply due to the same affidavit deficiencies
that he contends invalidate the warrant. (Reply Br. 10). But even if a “Fourth Amendment
violation occurred,” the “exclusion of evidence does not automatically follow.” Davis, 564 U.S.
at 244; see also Herring, 555 U.S at 137. Far more is required to extinguish the good-faith
exception. Christian, 925 F.3d at 313; Carpenter, 360 F.3d at 595-96. Leon identified four
egregious situations in which the good-faith exception would not apply. 468 U.S. at 923; Hines,
885 F.3d at 926-27. But only one situation is remotely relevant here: The warrant must be “based
on an affidavit so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable.” Messerschmidt, 565 U.S. at 547 (quoting Leon, 468 U.S. at 923). This
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describes a “bare bones,” “conclusory affidavit,” which “states only the affiant’s belief that
probable cause existed.” Christian, 925 F.3d at 313 (citation omitted).
The bar for establishing that standard “is a high one, and it should be.” Messerschmidt,
565 U.S. at 547. For the cost of exclusion to “pay its way,” Davis, 564 U.S. at 238 (citation
omitted), the police conduct must involve “‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard
for Fourth Amendment rights,” or there must be evidence of “‘recurring or systemic negligence’
on the part of law enforcement.” Id. at 238, 240 (quoting Herring, 555 U.S. at 144).
No police conduct here even begins to approximate those labels, not least because there is
no binding precedent dictating that this search warrant violated the Fourth Amendment. See id. at
240, 249. Nor can it be said that the police submitted a “conclusory,” “bare bones” affidavit devoid
of any factual allegations for probable cause or “some connection, regardless of how remote,”
between the illegal activity and the place searched. Christian, 925 F.3d at 312-13 (citations
omitted). The necessary connection may even be based on “reasonable inferences” that would
otherwise be insufficient for “probable cause in the first place.” United States v. White, 874 F.3d
490, 500 (6th Cir. 2017). Even though the affidavit “does not directly implicate [Smith]’s cell
phone[s]” in the April 11 shooting, the connection may reasonably be inferred based on the affiant
officer’s “training and experience,” “consistent with common sense.” Merriweather, 728 F. App’x
at 505. Faced with the facts that Smith and Walker “both fired guns at the deceased” (suggesting
it was a coordinated attack), Smith possessed a loaded gun and two cell phones when he was
arrested, and the affiant officer attested that in his “training and experience” individuals involved
in criminal activity regularly use their cell phones to plan or conceal crime, an officer could
reasonably infer that Smith’s cell phones contained communications with Walker regarding the
April 11 shooting. (R. 44-2, PgID 147). In an “ordinary case” like this, “‘an officer cannot be
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expected to question the [issuing judge]’s probable-cause determination’ because ‘it is the
[judge]’s responsibility to determine whether the officer’s allegations establish probable
cause.’” Messerschmidt, 565 U.S. at 547 (quoting Leon, 468 U.S. at 921); see also Strieff, 579
U.S. at 240.
Because the warrant affidavit is not “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable,” the search here comes within the good-faith
exception and is not properly subject to the exclusionary rule. Messerschmidt, 565 U.S. at 547
(quoting Leon, 468 U.S. at 923).
III.
Evidentiary Ruling. Smith is also not entitled to relief for the ruling at trial allowing
evidence about his Michigan welfare benefits application. Smith stakes his claim on Federal Rule
of Evidence 404(b).
Smith’s claim is subject to plain-error review because he did not properly preserve it before
the district court.
See Fed. R. Evid. 103(a), (e); Fed. R. Crim. P. 51(b); United States
v. Montgomery, 998 F.3d 693, 698 (6th Cir. 2021). Recall that Smith objected to the evidence of
his welfare application as “irrelevant” and also improper on “equal protection grounds.”
He never asserted “the specific ground” that he now cites. See Fed. R. Evid. 103(a)(1)(B).
Nor can we say that Smith’s argument “was apparent from the context,” id., because he also failed
to argue that the “probative value of the evidence is substantially outweighed by its potential
prejudicial effect,” and the government never argued the evidence was admissible under Rule
404(b). See United States v. Haywood, 280 F.3d 715, 720, 725 (6th Cir. 2002) (quoting United
States v. Johnson, 27 F.3d 1186, 1191 (6th Cir. 1994)). Thus, Smith’s reliance on Haywood is
misplaced. With too many missing pieces, Smith’s “objection is not sufficiently specific” to alert
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the district court that it was called upon to apply the Rule 404(b) framework, and so we review
Smith’s Rule 404(b) argument for plain error. United States v. Blood, 435 F.3d 612, 625 (6th Cir.
2006); see also Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 749 (6th Cir. 2005); United States
v. Cox, 957 F.2d 264, 267 (6th Cir. 1992).
Rule 404(b) states: “Evidence of any other crime, wrong, or 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.” Fed. R. Evid. 404(b)(1). Evidence is admissible under the rule if: (1) “there
is sufficient evidence that the other act in question actually occurred”; (2) “the evidence of the
other act is probative of a material issue other than character”; and (3) “the probative value of the
evidence is substantially outweighed by its potential prejudicial effect.” United States v. Jackson,
918 F.3d 467, 483 (6th Cir. 2019) (quoting United States v. Jenkins, 345 F.3d 928, 937 (6th Cir.
2003)).
Smith contends that Rule 404(b) precludes the government’s evidence that: three months
before Smith’s arrest he applied for welfare benefits; Smith’s application stated that he was
homeless, had no income, and had less than $100 in his bank account; and he did not later report,
as required, any changes to his employment or financial status. (R. 91, PgID 505, 691; R. 92, PgID
712, 715, 719). But that argument is hollow.
All the elements for admissibility are met here. First, Smith does not contend there was
insufficient evidence that he applied for welfare benefits and never updated his application. It is
also not clear what Smith views as the “bad act” in this scenario. Old Chief v. United States, 519
U.S. 172, 180-82 (1997). Second, the evidence was probative in bolstering the inference that the
$2,340 found in Smith’s pocket when he was arrested was drug distribution proceeds and not from
lawful employment.
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As to the third element, it is telling that Smith has again made no attempt to argue that the
potential prejudicial effect substantially outweighs the probative value of the evidence. Jackson,
918 F.3d at 483; Fed. R. Evid. 403. Any argument would be futile in this case, especially given
that “we must look at the evidence in a light most favorable to its proponent, maximizing its
probative value and minimizing its prejudicial effect.” United States v. Chambers, 441 F.3d 438,
456 (6th Cir. 2006) (citation omitted). And “the prejudice to be weighed is the unfair prejudice
caused by admission of the evidence. Evidence that is prejudicial only in the sense that it paints
the defendant in a bad light is not unfairly prejudicial pursuant to Rule 403.” Id. (citation omitted);
see also United States v. LaVictor, 848 F.3d 428, 447-48 (6th Cir. 2017); United States v. Sims,
708 F.3d 832, 836 (6th Cir. 2013).
Smith has not shown that the district court erred, much less committed plain error. See
Greer v. United States, 141 S. Ct. 2090, 2096-97 (2021).
*
*
The judgment is AFFIRMED.
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CLAY, Circuit Judge, concurring in part and dissenting in part. I concur in the
holding of the lead opinion that the district court did not err in admitting evidence of the welfare
application under Rule 404(b) of the Federal Rules of Evidence. But because I agree with Judge
Moore that the affidavit in support of the search warrant for Defendant’s cell phone failed to make
the requisite showing of probable cause to support the search, the majority’s view is that the search
was illegal. And because I believe that the good faith exception does not save the unlawful search,
I dissent from the remainder of the lead opinion.
BACKGROUND
Factual Background
On April 20, 2020, a criminal complaint was filed against Defendant Smith, alleging a
violation of the felon in possession of a firearm statute pursuant to 18 U.S.C. § 922(g)(1). The
affiant, Theodore Westra, a special agent with the Bureau of Alcohol, Tobacco, Firearms, and
Explosives, reviewed the facts said to support a probable cause determination. According to
Westra’s testimony provided at a preliminary hearing, Smith came to the attention of the
Kalamazoo Department of Public Safety (“KDPS”) during an investigation into an April 11, 2020
shooting, in which three victims were shot, one of whom was killed. For reasons not clear on the
record, Smith became a person of interest in the shooting investigation, and a criminal history
search revealed an outstanding warrant for his arrest for a misdemeanor offense of malicious
destruction of property. KDPS “put out a be-on-the-lookout to all patrol officers” to locate and
arrest Smith on this unrelated misdemeanor warrant as a part of their investigation into the April
11 shooting. (Tr. of Prelim. Hr’g, R. 36, PageID ## 70–71).
On April 17, 2020, officers followed Smith from Kalamazoo to a Battle Creek rental car
center, where Smith rented a white GMC Yukon XL. On April 18, in Kalamazoo, KDPS agents
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continued surveillance of Smith and saw him drive a white Yukon XL into a gas station parking
lot. After Smith’s arrival, a green SUV parked near the Yukon. Officers observed Smith get out
of his vehicle, walk to, and open the passenger side door of the green SUV, and lean in toward
where the driver was seated before leaning back out of the vehicle and shutting the door.
“[O]fficers concluded that this contact was consistent with a drug transaction.” (Gov’t Trial Br.,
R. 43, PageID # 117).
At this point, KDPS Sergeant Justin Wolbrink and Officer Brett Bylsma drove into the gas
station and positioned their patrol vehicles in front of the Yukon; another KDPS officer parked
behind Smith’s car. Officer Bylsma observed Smith “bend forward and reach his right arm down
toward the floorboard area of the car, near his feet.” (Compl., R. 1, PageID # 3). Sergeant
Wolbrink ordered Smith to put his hands up, Smith complied, and Officer Bylsma took Smith into
custody. As he did so, Officer Bylsma saw “the grip of a black pistol between [Smith’s] feet.”
(Id.). The weapon, a semi-automatic pistol, was loaded with eleven rounds of ammunition, with
one round in the chamber. A records check indicated that the firearm was reported stolen to KDPS
on January 6, 2020.
During a search incident to arrest, officers found two cell phones; $2,340 in Smith’s pants
pocket; 2.61 grams of suspected crystal methamphetamine in the pocket of the driver’s side door;
a functioning digital scale with white residue, which later tested positive for methamphetamine;
and four additional rounds of ammunition found hidden inside a cigarette box in the SUV’s
console. (Tr. of Prelim. Hr’g, R. 36m PageID # 75 (“This, in my training and experience, would
lead me to believe that Mr. Smith is a distributor[.]”)).
Later that day, on April 18, 2020, a warrant was issued authorizing a search of Smith’s cell
phones, though officers were able to search only one of the phones. The affidavit in support of the
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warrant seeking information relating to the April 11, 2020 shooting, read as follows: “Any content
or data which may establish elements of the crimes of homicide, assault with a dangerous weapon,
or weapon possession.” (Aff., R. 44-2, PageID # 146). The affidavit continues:
Following the initial investigation, Kalamazoo police obtained information from a
source who is known but who has requested anonymity at this time. This source advised
that both Dauntrell Walker and [Defendant] Fharis Smith were present at the scene of
the shooting and that they both fired guns at the deceased, Londrell Cook.
During the initial stages of the investigation, multiple sources advised Kalamazoo
Police officers that Dauntrell Walker and Fharis Smith had been present at, and
involved in, this shooting.
Investigators also received information that a person who had been shooting at Cook
may also have sustained a gun-shot wound during the incident.
Dauntrell Walker and Fharis Smith are known by your affiant to be involved in weapon
possession and violent acts within the City of Kalamazoo on a historical and an ongoing
basis.
On 18 April 2020, Walker and Smith were arrested by Kalamazoo Public Safety
officers. At the time of their arrests, both were in possession of loaded firearms. Smith
was also in possession of two mobile [phones]. . . . Following his arrest, a fresh wound
was located on Walker’s lower back. Walker claimed that the wound was a stab wound
[but the affiant believed it was] consistent with a gunshot wound[.]
These facts corroborate the information given by the source who has requested
anonymity. . . . By searching the contents of Fharis Smith’s mobile devices, affiant
believes . . . there could be information on the phone . . . that would show whether
Smith possessed a firearm or communicated with anyone about his involvement in this
matter.
(Id. at PageID # 147 (emphases added)).
Procedural History
On May 19, 2020, a grand jury indicted Smith as a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), § 924(a)(2); possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); and possession of a firearm in
furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Defendant filed a
motion to suppress the data obtained from his cell phone, which the district court denied. It held
that the warrant was lawfully issued and backed by probable cause. The court held that even if the
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affidavit was deficient, the officers could have nevertheless relied on the warrant in good faith.
The case proceeded to a jury trial, and the jury returned a verdict of guilty.1 Smith’s timely appeal
followed.
DISCUSSION
Standard of Review
“Federal constitutional law applies to a state search warrant that is challenged in federal
court.” United States v. Helton, 35 F.4th 511, 517 (6th Cir. 2022) (citing another source). When
reviewing a district court’s denial of a motion to suppress, this Court “consider[s] the evidence in
the light most favorable to the government.” United States v. Erwin, 155 F.3d 818, 822 (6th Cir.
1998) (en banc). This Court examines the district court’s legal conclusions de novo but defers to
the district court’s factual findings unless they are clearly erroneous. United States v. Carpenter,
360 F.3d 591, 594 (6th Cir. 2004).
Analysis
The Fourth Amendment prescribes that “no Warrants shall issue, but upon probable
cause[.]” U.S. Const. amend. IV. To show that probable cause supports a search warrant, the
officer “must submit an affidavit that ‘indicate[s] a fair probability that evidence of a crime will
be located on the premises [or, in this case, cell phone] of the proposed search.’” United States
v. Hines, 885 F.3d 919, 923 (6th Cir. 2018) (quoting another source).
1
During the trial, the government called an eligibility specialist from the Michigan Department of
Health and Human Services to testify about Smith’s source of income. The testimony indicated
that in January 2020, Smith applied for and was approved for $194 monthly welfare assistance,
but his eligibility was contingent on an obligation to report all changes to his financial situation
within ten days. The government sought to introduce this evidence to imply that the money
officers had seized from Smith at the time of his arrest ($2,340) was ill-gotten, such as the proceeds
from an illegal drug sale, since Smith never reported receipt of this sum to the welfare agency.
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Defendant makes two arguments on appeal. First, he asks this Court to reverse the district
court’s denial of the motion to suppress because the affidavit lacked probable cause and failed to
set forth corroborative efforts to assure the reliability of the unnamed informants’ tips. Second,
Smith argues that the district court erred in permitting the prosecution to have a witness testify
concerning Defendant’s application for welfare benefits, in violation of Federal Rule of Evidence
404(b). Although the lead opinion correctly finds no error in the district court’s admission of the
testimony on Smith’s welfare application, the evidence obtained from Smith’s cell phone should
have been suppressed because the warrant affidavit failed to establish the existence of probable
cause and is not saved by the good-faith exception.
A. The Finding of Probable Cause
First of all, a proper analysis of the affidavit does not lead to a finding of probable cause.
When, as in this case, a search warrant affidavit relies on information provided by unnamed or
anonymous individuals, this Court considers the “totality of the circumstances” test, set forth
by the Supreme Court in Illinois v. Gates, 462 U.S. 213, 234 (1983), to determine whether
“the magistrate had a substantial basis for concluding probable cause existed,” United States
v. Howard, 632 F. App’x 795, 799 (6th Cir. 2015). When confronted with hearsay information,
[t]he task of the issuing magistrate is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit before him,
including the “veracity” and “basis of knowledge” of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime will be
found in a particular place.
Gates, 462 U.S. at 238. Accordingly, “when a warrant is issued based on information provided by
an informant, our review under the totality of the circumstances must consider the informant’s
‘veracity, reliability, and basis of knowledge’ to determine ‘whether an affidavit is sufficient to
support a finding of probable cause.” United States v. Neal, 577 F. App’x 434, 440 (6th Cir. 2014)
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(citing another source). These indicia of the informant’s credibility provide a general framework
for assessing whether an informant’s tip creates probable cause, United States v. Helton, 314 F.3d
812, 818–20 (6th Cir. 2003), but they should not be viewed “as entirely separate and independent
requirements to be rigidly exacted in every case.” Gates, 462 U.S. at 230, 233 (internal quotation
marks omitted).
“[R]egardless [of] how an informant fares in this framework, ‘corroboration through other
sources of information’ can provide ‘a substantial basis for crediting’ an informant’s tip.” Howard,
632 F. App’x at 799 (quoting Gates, 462 U.S. at 233–34); cf. United States v. Williams, 544 F.3d
683, 690 (6th Cir. 2008) (“[N]amed informants, unlike confidential informants, require little
corroboration.”).
In this case, the relevant language from the affidavit is as follows: “Kalamazoo police
obtained information from a source who is known,” and “multiple sources advised Kalamazoo
Police Officers that . . . Smith had been present at, and involved in [the April 11, 2020] shooting.”
(Aff., R. 44-2, PageID # 147). A review of the totality of the circumstances establishes that the
affidavit fails to establish the veracity, reliability, and basis of knowledge of the unnamed and
anonymous tips. Helton, 35 F.4th at 519.
To start, the affidavit in the instant case fails to show the veracity of the anonymous
tipster’s statements. United States v. Smith, 182 F.3d 473, 477 (6th Cir. 1999) (quoting Gates, 462
U.S. at 229) (“‘Veracity’ involves the credibility of the informant[.]”). It fails to say “how[] the
source was known to law enforcement or that the source’s identity was provided to the judge.”
Helton, 35 F.4th at 519. Moreover, nothing in the affidavit suggested the informant’s past
reliability or that the informant had personal knowledge that criminal activity by Smith was afoot.
See Smith, 182 F.3d at 477 (explaining “reliability” involves assessing the dependability “of the
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informant’s report”). Our precedent fails to support an affiant’s unsupported assertion that an
informant was reliable, particularly where, as in this case, the informant’s identity was not
disclosed to the judge reviewing the warrant application:
[W]here the affidavit does not aver facts showing the relationship between the affiant
and the informant, or detail the affiant’s knowledge regarding the informant providing
prior reliable tips that relate to the same type of crimes as the current tip concerns, this
Court has generally found that other indicia of reliability must be present to substantiate
the informant’s statements.
Neal, 577 F. App’x at 441 (citing another source). Even though the affidavit states the informant
was “known,” it makes no effort to establish that the informant has provided reliable information
to the police in the past, which cuts against a finding of reliability. Cf. United States v. May, 399
F.3d 817, 823–24 (6th Cir. 2005) (finding informant to be “known” where source “ha[d] furnished
information . . . for a period of six months and has worked with [the officer] in the investigation
of th[e] matter”).
Furthermore, the affidavit fails to set forth the informant’s basis of knowledge, i.e., “the
particular means by which an informant obtained his information.” Smith, 182 F.3d at
477 (citing Gates, 462 U.S. at 228). Instead, the affidavit baldly asserts, “Dauntrell Walker and
Fharis Smith had been present at, and involved in, this shooting.” (Aff., R. 44-2, PageID # 147).
This statement does nothing to establish the basis of knowledge of the informants, such as
indicating that the source witnessed Smith shoot the gunshot victims. Cf. United States v. Dyer,
580 F.3d 386, 392 (6th Cir. 2009) (“Because the informant witnessed the illegal activity on the
premises searched and was known to the officer writing the affidavit, there were sufficient indicia
of reliability without substantial independent police corroboration.”); see also United States v.
Parker, 4 F. App’x 282, 286 (6th Cir. 2001) (Clay, J., dissenting) (“The affidavit . . . failed to
indicate . . . that the informant had observed any evidence of illegal sales on the premises, or had
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reason to believe that the illegal activity was continuing[.]”). The affidavit does not establish how
the unknown informants came by the information in this case; the contention that “multiple
sources” are alleged to have incriminated Smith in the shooting does not bolster the tips’
believability given the anonymous nature of the sources and the absence of other indicia of
reliability. Cf. United States v. Woosley, 361 F.3d 924, 927–28 (6th Cir. 2004) (finding affidavit
sufficient where officer previously received information from other informants regarding drug
activities at defendant’s business location and other officers had previously received similar tips).
On balance, it appears that the affidavit lacked sufficient detail to establish probable cause
even under the totality of the circumstances. But the absence of reliability, veracity, and basis of
knowledge does not end the inquiry; an affidavit that fails to establish these three elements might
nevertheless “support a finding of probable cause, under the totality of the circumstances, if it
includes sufficient corroborating information.” Id. at 927; Howard, 632 F. App’x at 804 (citing
another source) (“What an informant and her tip lack in intrinsic indicia of credibility, however,
police must make up for in corroboration.”). The affidavit in the present case fails to establish
corroboration of the information provided by the unnamed informants. The primary piece of
purportedly corroborating evidence related not to Smith but to the other subject of the search
warrant, Dauntrell Walker. The affidavit stated that the presence of “a fresh wound . . . located on
Walker’s lower back . . . . corroborate[s] the information given by the source who has requested
anonymity.” (Aff., R. 44-2, PageID # 147). Contrary to the lead opinion, it is not entirely clear
how the presence of a wound on Walker’s back connects Smith to the homicide.
It also strains believability to assert, as the lead opinion does, that the presence of a firearm
in Smith’s vehicle corroborates the assertions by the unnamed and anonymous sources. If that
assertion were to be believed, anyone found with a firearm might be thought to have shot the
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victims on April 11, 2020. The affidavit also states that Smith and Walker are “known . . . to be
involved in weapon possession and violent acts [in Kalamazoo] on a historical and an ongoing
basis.” (Aff., R. 44-2, PageID # 147). One might ask, “Known by whom?” These general
allusions to “involvement” in “weapon possession and violent acts” do not implicate Smith in the
April 11 homicide. All said, this affidavit contains inadequate information that law enforcement
undertook the necessary steps for independent corroboration, which dooms it under a probable
cause assessment since other indicia of reliability are absent. See Woosley, 361 F.3d at 927 (“[A]n
affidavit that supplies little information concerning an informant’s reliability may support a finding
of probable cause, under the totality of the circumstances, if it includes sufficient corroborating
information.”). For these reasons, there was not a substantial basis for concluding that probable
cause existed because the circumstances indicate a lack of reliability, veracity, and basis of
knowledge of the unnamed and anonymous tips, and the facts fall short of establishing any
sufficient police corroboration.
B. Nexus
Second, to be valid, a search warrant application must show more than just that “the owner
of the property is suspected of [a] crime;” it must also instead establish that “there is reasonable
cause to believe that the specific ‘things’ to be searched for and seized are located on the property
to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978).
In this case, the thrust of the affiant’s attempt to establish such a nexus was “that people
involved in criminal activity regularly employ their mobile electronic devices in the planning, the
commission, or the concealment of crime.” (Aff., R. 44-2, PageID # 147). Without more, the
information cannot establish a nexus between the thing to be searched (Smith’s cell phone) and
the evidence sought (involvement in a homicide). This finding is particularly apt since the only
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evidence in the affidavit linking the homicide to Smith’s cell phone was based on anonymous
complaints
and
an unnamed source
lacking
indicia
of
dependability,
without
any
adequate corroboration. See United States v. Gunter, 266 F. App’x 415, 419 (6th Cir. 2008)
(quoting another source) (“When[] . . . the only evidence of a connection between illegal activity
and the residence is unreliable, such as uncorroborated statements by a confidential informant,
then a warrant may not issue allowing the search of the residence.”).
Indeed, this Court has “never held . . . that a suspect’s status as a drug dealer, standing
alone, gives rise to a fair probability that drugs will be found in his home.” United States v. Brown,
828 F.3d 375, 383 (6th Cir. 2016) (quoting another source). It stands to reason that a suspect’s
apparent status as a drug dealer also would not give rise to a fair probability that he was involved
in a homicide. United States v. Griffith, 867 F.3d 1265, 1274 (D.C. Cir. 2017) (“Because a cell
phone, unlike drugs or other contraband, is not inherently illegal, there must be reason to believe
that a phone may contain evidence of the crime.”).
This case is unlike United States v. Bass, 785 F. 3d 1043, 1049 (6th Cir. 2015), where a
nexus existed between the cell phone and allegations of identity theft because “the affidavit stated
that Bass and his co-conspirators frequently used cell phones to communicate.” Conversely, in
this case, the affiant purportedly relied on nothing more than conjecture that whoever shot the
victims on April 11 might have had a cellphone at the shooting, communicated via cellphone at
the time, or took pictures on a phone that would place them on the scene. Cf. United States v. Sims,
508 F. App’x 452, 460 (6th Cir. 2012) (finding warrant backed by probable cause where affidavit
set forth “many facts . . . that the phone was used in the drug conspiracy and that [defendant] was
using it”). Accordingly, the affidavit fails to connect the item to be searched to the crime alleged,
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so it cannot justify a search, and without a nexus, there is no probable cause. United States
v. Laughton, 409 F.3d 744, 748 (6th Cir. 2005).
C. The Good Faith Exception
Third, and finally, the good faith exception articulated in United States v. Leon, 468 U.S.
897 (1984) does not save the fruits of this otherwise illegal search. United States v. Ronnie Bugger,
529 F. App’x 482, 846 (6th Cir. 2013) (“The affidavit, which did not provide the ‘substantial basis’
necessary for a finding of probable cause, also fails to provide even a ‘minimally sufficient nexus’
that would justify application of the good-faith exception.”); see also United States v. Reed, 993
F.3d 441, 455 (Clay, J., dissenting) (“[The good faith exception is not intended to have the
untoward consequence of disincentivizing courts from enforcing the probable cause
requirement[.]”). While there is no evidence that the affiant included false information or that
the magistrate failed “to act in a neutral and detached fashion,” official reliance on the warrant
to support the search of Smith’s cell phone was not “objectively reasonable.” United States
v. Hython, 443 F.3d 480, 484 (6th Cir. 2006); see also United States v. McPhearson, 469 F.3d 518,
526 (6th Cir. 2006) (finding affidavit “so bare bones as to preclude application of the good-faith
exception”). Otherwise put, “no reasonable officer would afford much weight to the anonymous
[and unnamed] statements” since those statements “were sparse in relevant detail; and, most
importantly, they were not corroborated in any meaningful manner.” Helton, 3214 F. 3d at 824;
United States v. Leake, 998 F.2d 1359, 1367 (6th Cir. 1993) (“We . . . conclude that Officer Murphy
could not properly have placed objective good faith reliance on the warrant in light of his
knowledge that corroboration was needed”). The lack of a nexus between the criminal activity
alleged (a homicide) and Defendant’s cell phone rendered reliance on the warrant objectively
unreasonable and the good faith exception inapplicable. Brown, 828 F.3d at 385–36 (“Although
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the good-faith standard is less demanding than the standard for probable cause, the affidavit still
must draw some plausible connection to the [place to be searched].”). For these reasons, the good
faith exception would not apply to save the fruits of an illegal search. I would find the district
court erred in failing to suppress the evidence from the cell phone.
CONCLUSION
In sum, I concur in the lead opinion’s holding that the district court did not err in admitting
the testimony concerning the welfare application, consistent with Rule 404(b) of the Federal Rules
of Evidence. However, I would reverse the district court’s denial of Defendant’s motion to
suppress the evidence obtained according to the warrant.
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KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. Although
the lead opinion purportedly “elect[s] to not decide” whether probable cause supported the warrant
at issue in this case, many pages of the opinion are devoted to an argument that nonetheless
endorses the issuing state-court judge’s probable-cause finding. Lead Op. at 15. I agree with
Judge Clay that the sources mentioned in the affidavit are insufficiently corroborated and that no
factual allegations contained in the affidavit connect the crime at issue here to the contents of
Smith’s cell phone. I therefore do not join the dicta in the lead opinion insinuating that probable
cause supported the warrant issued in this case, but instead I join parts A and B of Judge Clay’s
opinion, making that the majority on those issues.
I conclude, however, that the good-faith exception to the Fourth Amendment’s
exclusionary rule announced in United States v. Leon, 468 U.S. 897, 922 (1984), applies under this
court’s precedent. To address the preservation issue first, I agree with the lead opinion that Smith
forfeited the good-faith exception issue on appeal. Even though the district court explicitly found
that the good-faith exception applied as an alternative to its finding of probable cause, R. 90
(Suppression Hr’g Tr. at 30–31) (Page ID #492–93), Smith failed to address this finding until his
reply brief. We generally consider such a failure to constitute forfeiture, see United States v.
Galaviz, 645 F.3d 347, 362 (6th Cir. 2011), yet it is unclear whether the government raised
adequately a forfeiture argument in this case. See United States v. Turner, 602 F.3d 778, 783 (6th
Cir. 2010). The government did note Smith’s failure to address the good-faith argument in his
opening brief, but it did not argue that the failure constituted forfeiture or offer any cases in
support. We have likewise considered as forfeiture the failure sufficiently to develop arguments.
See United States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006).
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In any case, the government prevails on the merits. Under the good-faith exception,
evidence that the police obtains in violation of the Fourth Amendment is not excluded when an
officer’s reliance on a warrant is objectively reasonable. Leon, 468 U.S. at 922. Leon listed four
instances in which a warrant could still be excluded notwithstanding the good-faith exception. Id.
at 923. At issue here is one of those circumstances, that “the warrant was ‘so lacking in indicia of
probable cause’ as to render official belief in its existence unreasonable.” United States v. Helton,
35 F.4th 511, 521 (6th Cir. 2022) (quoting United States v. McClain, 444 F.3d 556, 564–65 (6th
Cir. 2005)). A so-called “bare-bones” affidavit does not provide any indicia of probable cause and
gives rise to such an unreasonable belief. Id. In short, presented with a bare-bones affidavit, an
“officer recklessly relie[s] on the judge’s decision that probable cause existed for the warrant.”
United States v. Reed, 993 F.3d 441, 450 (6th Cir. 2021).
This court has interpreted the good-faith standard (a standard that is just as much “judicially
created,” Lead Op. at 15, as the exclusionary rule) to be a high bar to clear. See United States
v. Christian, 925 F.3d 305, 312–13 (6th Cir. 2019) (en banc). If “some modicum of evidence,
however slight,” connects the criminal activity and the item searched, we do not consider the
affidavit to be bare-bones. United States v. White, 874 F.3d 490, 497 (6th Cir. 2017) (quoting
United States v. Laughton, 409 F.3d 744, 749 (6th Cir. 2005)). Relevant to this case, “[a] barebones affidavit should not be confused with one that lacks probable cause.” Id. Rather, some
“daylight” separates the requirements for a warrant supported by probable cause—one that
contains a “substantial basis” for a judge’s conclusion—and a warrant that avoids the “bare-bones”
moniker—one that is not “so vague as to be conclusory or meaningless.” Id. at 497, 500
(quotations omitted).
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The search warrant in this case falls within that daylight. Although the facts contained in
the search warrant are not corroborated enough to establish probable cause, the tips “provide some
support” that Smith was involved in the shooting. Helton, 35 F.4th at 522. When combined with
the “minor inference” that Walker’s gunshot wound made it more likely that Walker (and
consequently, Smith) was present at the scene, some “modicum of evidence” supported the
warrant. White, 874 F.3d at 497. Given that a more-than-bare-bones affidavit is one that “contains
factual allegations, not just suspicions or conclusions,” one cannot say that the affidavit was barebones with respect to the allegations that Smith was involved in the shooting. Christian, 925 F.3d
at 313.
Whether the affidavit provided “some support” for a nexus between Smith’s cell phone and
evidence of the crime presents a closer question. Helton, 35 F.4th at 522. Ultimately, however, I
recognize that the affidavit specified some remote connection between the contents of Smith’s cell
phone and the shooting. Christian, 925 F.3d at 313. The affidavit supporting the warrant described
a shooting involving two suspects and contained the testimony of an officer who believed that
relevant information would be found on one of the suspects’ cell phones based on “training and
experience.” R. 44-2 (Aff. for Search Warrant) (Page ID #147). An officer relying on the warrant
could reasonably believe that a judge relied on those allegations to find a connection between the
cell phone and the shooting. In light of the allegations connecting Smith to the shooting, moreover,
such reliance could not be considered reckless. See Reed, 993 F.3d at 450.
To be sure, an issuing magistrate would have to make some large inferential leaps to
conclude that probable cause existed to support this warrant. For example, the state-court judge
who issued the warrant would have had to infer that Smith and Walker planned or communicated
about the shooting merely because they were both allegedly present at the scene of the crime. But
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“[t]his circuit’s holdings indicate that a nexus between the place to be searched and the item to be
seized may sometimes be inferred.” United States v. Higgins, 557 F.3d 381, 391 (6th Cir. 2009).
This court continues to grapple, moreover, with the permissible scope of those nexus-supporting
inferences. Even when faced with no evidence connecting a crime to a suspect’s residence, for
instance, this court has been “pulled” in “both directions” when inferring a link between the suspect
and the suspect’s home. Reed, 993 F.3d at 447. One cannot expect a reasonable officer to
recognize a lack of probable cause to support an evidentiary nexus if some members of this court
are unable to do so. See id. at 452.
The breadth of a rule allowing the government to search an arrestee’s cell phone as long as
two people are allegedly involved in a crime concerns me as much as it concerns Judge Clay. In
this case, however, I cannot conclude that the affidavit was “so lacking in indicia of probable cause
that no reasonable officer would rely on the warrant.” Helton, 35 F.4th at 522 (quoting White, 874
F.3d at 496). I therefore concur in the lead opinion’s judgment that the good-faith exception
applies.1
1
I likewise concur in Part III of the lead opinion.
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Appendix B
No. 21-1457
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff-Appellee,
v.
FHARIS DENANE SMITH,
Defendant-Appellant.
ORDER
BEFORE: GUY, MOORE, and CLAY, Circuit Judges.
The court received a petition for rehearing en banc. The original panel has reviewed the
petition for rehearing and concludes that the issues raised in the petition were fully considered
upon the original submission and decision of the case. The petition then was circulated to the
full court. No judge has requested a vote on the suggestion for rehearing en banc.
Therefore, the petition is denied.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
37a
38a
Case 1:20-cr-00071-PLM ECF No. 57, PageID.223 Filed 10/26/20 Page 1 of 1
Appendix C
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Case No. 1:20-cr-71
v.
HONORABLE PAUL L. MALONEY
FHARIS DENANE SMITH,
Defendant.
____________________________/
ORDER DENYING MOTION TO SUPPRESS
In accordance with the Bench Opinion issued by the Court on today's date:
IT IS HEREBY ORDERED that the defendant's motion for suppression of phone
extraction (ECF No. 44) is DENIED for the reasons stated on the record.
Dated: October 26, 2020
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
39a
40a
Case 1:20-cr-00071-PLM ECF No. 90, PageID.463 Filed 08/16/21 Page 1 of 41
Appendix D 1
1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
2
3
_____________________________________
4
UNITED STATES OF AMERICA,
5
Plaintiff,
6
7
v.
CASE NO:
Fharis Denane Smith,
8
9
1:20-CR-71
Defendant.
_____________________________________/
10
11
12
*
*
*
*
MOTION TO SUPPRESS HEARING and FINAL PRETRIAL CONFERENCE
13
*
*
*
*
14
15
16
17
18
19
20
21
22
23
24
25
BEFORE:
THE HONORABLE PAUL L. MALONEY
United States District Judge
Kalamazoo, Michigan
October 26, 2020
APPEARANCES:
APPEARING ON BEHALF OF THE PLAINTIFF:
ERIN K. LANE
TIMOTHY P. VERHEY
Assistant United States Attorney
P.O. Box 208
Grand Rapids, Michigan 49501-0208
APPEARING ON BEHALF OF THE DEFENDANT:
TAKURA NICHOLAS NYAFUKUDZA
Charter & Nyamfukudza, PLC
2295 Sower Blvd.
Okemos, Michigan 48864
41a
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Appendix D 2
1
Kalamazoo, Michigan
2
October 26, 2020
3
at approximately 2:33 p.m.
4
02:33:57
02:34:18
PROCEEDINGS
5
THE COURT:
6
States of America vs. Fharis Smith.
7
the Court for two items; first, a motion to suppress filed
8
by the defendant, which is ECF Document 44.
9
take oral argument on that matter momentarily followed by a
10
final pretrial conference for this case.
11
02:35:08
02:35:22
This matter is before
The Court will
This case is presently set for trial on November
12
3rd, 2020.
13
date.
14
02:34:34
This is File Number 20-71; The United
It is in the number one position for that trial
The record should reflect that Assistant United
15
States Attorneys Tim VerHey and Erin Lane are here
16
representing the government.
17
represents the defendant.
Attorney Takura Nyamfukudza
The defendant is present person.
18
Counsel, your motion.
19
MR. NYAMFUKUDZA:
20
it please the Court.
21
THE COURT:
22
MR. NYAMFUKUDZA:
Good afternoon, your Honor.
You may proceed.
May
Good afternoon.
Your Honor, Mr. Smith
23
respectfully moves this Court to suppress the data obtained
24
from his cell phone because the government's seizure of the
25
records relied on a warrant that was not supported by
42a
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Appendix D 3
02:35:42
02:35:58
1
probable cause.
2
search warrant that serve as the basis for this motion was
3
submitted in an unrelated matter in which Mr. Smith actually
4
never got charged.
5
"The fact that technology now allows a person to carry the
6
privacy of life in his hand does not make the information
7
any less worthy of the protection for which the founders
8
fought."
9
U.S. 373.
10
02:36:49
02:37:12
That was the Fourth Amendment applies.
That is a quote from Riley vs. California, 573
"Additionally, the fact that an arrestee has
11
diminished privacy interests does not mean that the Fourth
12
Amendment falls out of the picture entirely."
13
the same case, and it's at Page 392.
14
02:36:21
It deserves emphasis that the affidavit and
That's from
I went into greater detail in the motion -- in the
15
written motion, however, the affiant, because he did not
16
name the motion, his failure to explain why it is that the
17
judge should have found that individual reliable, I think,
18
is one of the many reasons that those failures are fatal to
19
the warrant, your Honor.
20
cited in the brief, 423 F.3d 526 at Page 532, "In the
21
absence of any indicia of the informant's reliability,
22
'insist' that the affidavit contain substantial police
23
corroboration."
24
dealings with this individual.
25
cases that I analogized, there were no controlled buys,
United States vs Frazier, which I
We don't know if the affiant had prior
43a
There certainly, unlike the
Case 1:20-cr-00071-PLM ECF No. 90, PageID.466 Filed 08/16/21 Page 4 of 41
Appendix D 4
02:37:34
1
there were no observations that the affiant made on his own
2
or anybody else from the team and, in fact, the one thing
3
that the affiant did identify or say -- it wasn't clear
4
actually from the affidavit whether it was an observation he
5
made himself, was the fact that the other gentleman, not Mr.
6
Smith, had sustained a gunshot wound.
7
points the finger away from Mr. Smith.
8
02:37:52
02:38:11
02:38:35
As the Sixth Circuit explained, your Honor, an
9
affidavit is sufficient to where a known person named to the
10
magistrate to whose reliability an officer attests with some
11
detail, states that he has seen a particular crime and
12
particular evidence in the recent past such that a neutral
13
and detached magistrate may believe that evidence of a crime
14
would be found.
15
have no basis to determine whether he or she is reliable
16
cannot be the basis for finding of probable cause.
17
there is no tangible proof that the affiant spoke about, and
18
as Allen makes clear, your Honor, Detective Gates needed to
19
explain what he did to corroborate the claims from his
20
informant.
21
02:38:58
And again, that
This nameless, faceless individual who we
THE COURT:
Again,
Well, there is some information in the
22
affidavit, isn't there, concerning an affirmation of some of
23
the information that law enforcement received, specifically
24
the fact that one of the alleged shooters had been wounded,
25
and that from the observations of police officers of, not
44a
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Appendix D 5
02:39:25
02:39:40
02:40:00
1
Mr. Smith, but the other individual, they felt that the
2
wound that was apparent to them was a gunshot wound as
3
opposed to a stab wound, as I think it was Mr. Walker
4
asserted.
5
corroboration for the information received by law
6
enforcement, is there not?
7
MR. NYAMFUKUDZA:
8
not Mr. Smith, your Honor.
9
THE COURT:
Well, of course they are inextricably
10
linked, aren't they?
The information is that Mr. Smith and
11
Mr. Walker were at the scene and participated in the
12
shooting.
13
are named, Mr. Walker or one of the individuals sustained a
14
gunshot wound, Mr. Walker's got a gunshot wound, that seems
15
to be information that is corroborated in some fashion,
16
correct?
17
02:40:24
What do you --
So there is some
As it relates to Mr. Walker, but
And it is our position --
So to the extent that your client and Mr. Walker
That's my first question.
My second question is:
The affiant on a search
18
warrant is allowed to convey the collective information of
19
law enforcement.
20
of all of the information in there as long as he attributes
21
it to other officers of a particular department.
22
about that.
23
02:40:41
Correct?
He doesn't need to have personal knowledge
MR. NYAMFUKUDZA:
Yes, your Honor.
Am I right
He or she can
24
certainly convey information that was passed along by other
25
law enforcement personnel.
45a
But here we have no idea,
Case 1:20-cr-00071-PLM ECF No. 90, PageID.468 Filed 08/16/21 Page 6 of 41
Appendix D 6
02:41:00
02:41:23
02:41:41
02:42:02
02:42:23
1
certainly not by looking at the four corners of the
2
document, how it is that Detective Gates determined that
3
this person was reliable.
4
about my training and experience is exactly the sort of
5
statement that the Supreme Court took exception to when it
6
said, again in Riley, "It would be a particularly
7
inexperienced or unimaginative law enforcement officer who
8
could not come up with several reasons to supposed evidence
9
of just about any crime could be found in its cell phone."
10
Those broad sweeping statements, again, because the two of
11
them were together, it makes little sense that they would be
12
texting or calling one another when they were observed
13
together.
14
connection of why they believe that they would find anything
15
that is useful based on searching Mr. Smith's phone, and
16
they also, while this far from dispositive, because the ends
17
don't justify the means, we don't do a backward look, they
18
didn't find anything useful.
19
was the basis for the charge, and there was no other
20
evidence that led to charges against Mr. Smith.
21
this was just a fishing expedition.
22
inculpatory postings on social media reported by an
23
informant.
24
he or she had said, for example, Fharis Smith posted on
25
Instagram or Snap Chat and then deleted it, then that gets
And the broad sweeping statement
So it makes even less sense.
It's a more tenuous
Nothing found on that phone
So I think
There was no claim of
Whoever this nameless, faceless individual, if
46a
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Appendix D 7
1
them into the cell phone.
2
the person has been arrested doesn't mean that the other
3
Fourth Amendment concerns just disappear completely.
4
02:42:41
I perceive that there are certain things that really aren't
6
contested, but I want to make sure I'm right.
8
9
02:43:46
out for your client, correct, on the day he was arrested.
MR. NYAMFUKUDZA:
The misdemeanor malicious
destruction of property, yes.
11
THE COURT:
Okay.
So the arrest itself, there is
12
no quarrel with that, because it was pursuant to the
13
warrant, am I right about that?
MR. NYAMFUKUDZA:
I will say simply that he did
15
have a warrant, although depending on whose report you read,
16
the reason for the arrest varies, and certainly doesn't
17
match throughout when you watch the body cam footage.
18
yes, he did have a valid warrant.
19
02:43:30
First, there is no contest that there was a warrant
10
14
02:43:15
Let me ask you a couple of questions.
5
7
02:42:59
THE COURT:
And I noted that the fact that
THE COURT:
But,
It would seem to me that regardless of
20
whether there was probable cause for some other crime, there
21
was indeed a warrant out for which the officers could
22
execute against your client and arrest him.
23
MR. NYAMFUKUDZA:
Yes.
24
THE COURT:
I gather also that there is no
25
Okay.
concern about the seizure of the phones from your client?
47a
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Appendix D 8
1
02:44:19
02:44:36
2
weapon, your client's got a prior felony apparently, and
3
they also locate drugs in the car.
4
There doesn't appear, based on the papers, to be any contest
5
regarding the lawful seizure of the phones themselves by law
6
enforcement?
7
get a search warrant to get inside the phones.
8
talking about lawful possession of the phones pursuant to
9
the arrest of your client.
10
contest about that either.
11
MR. NYAMFUKUDZA:
12
02:44:44
02:44:58
02:45:17
I mean once they get into the car, they see a
So my question is:
Recognizing, of course, that they have got to
I'm just
There doesn't appear to be any
I won't quibble with that either,
your Honor.
13
THE COURT:
14
Thank you, counsel.
15
MR. NYAMFUKUDZA:
16
Also there is a broad statement in there, and this
17
is from the affidavit, I quote, "Dontrel Walker and Fharis
18
Smith are known by your affiant to be involved in weapon
19
possession and violent acts within the City of Kalamazoo, on
20
a historical and continuing basis."
21
supposed acts of violence are, when they occurred, against
22
whom.
23
left with more questions than answers are exactly the reason
24
why we say at least on the four corners of the document we
25
are left with more questions than answers.
All right.
That's fine.
Thank you.
I interrupted you, go ahead.
Thank you.
It doesn't say what the
Again, these broad sweeping statements where we are
48a
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Appendix D 9
1
02:45:31
02:45:57
02:46:13
02:46:33
02:46:54
THE COURT:
Would you address, because the back-up
2
argument of the government is Leon good faith exception, do
3
you want to go ahead and address that?
4
MR. NYAMFUKUDZA:
5
THE COURT:
6
MR. NYAMFUKUDZA:
I anticipated that.
I'm sure you did.
I know that the supporting -- for
7
good faith, four things, the Court must examine four things:
8
First, the supporting affidavit contained knowing or
9
reckless falsity.
10
abandoned his judicial role.
11
affidavit is so lacking in probable cause as to render
12
official belief in its existence entirely unreasonable.
13
Four, the officer's reliance on the warrant was neither in
14
good faith nor objectively reasonable.
15
Second, the issuing judge wholly
The third is that the
On the first one, the supporting affidavit
16
containing knowing or reckless falsity.
17
woeful ignorance, where this officer did the absolute bare
18
minimum and just adopted a throw something at the wall and
19
hope it sticks.
20
knowing and reckless falsity, I think it was intentionally
21
vague, and I don't know that it was intended to mislead the
22
Court, but there is enough in there that shows that this
23
officer was not completely forthcoming.
24
that it rises though to the level of knowing or reckless
25
falsity.
I think we have
So while that may differ slightly from a
49a
So I don't know
Case 1:20-cr-00071-PLM ECF No. 90, PageID.472 Filed 08/16/21 Page 10 of 41
Appendix D10
02:47:14
02:47:32
02:47:53
02:48:14
02:48:35
1
Not having been privy to the exchange that the
2
judge had with the officer, I don't know that we have a
3
whole lot for the second point.
4
that the judge must have asked questions that were answered
5
but not contained within the four corners of the document.
6
On -- I think number three though, the affidavit is so
7
lacking in probable cause to render official belief in its
8
existence entirely unreasonable, that is the crux of our
9
motion.
10
I think, speaks to that, your Honor.
11
officer's reliance on the warrant was neither in good faith
12
nor objectively reasonable, again, I think it goes back to
13
the third point, the one that I just addressed where
14
something will work, we can't get him on this, we'll --
15
And as it relates to the use of the affidavit from that
16
other case where, again, Mr. Smith was not charged with
17
anything, I know that the timing of it is far from
18
dispositive, because I've tried other case, and actually I
19
know discovery is ongoing and in the middle of trial we have
20
actually received other discovery.
21
phone was in the government's possession for six months and
22
we are just now receiving these text messages certainly
23
piques my interest, but I don't know that that is something
24
that the Court will hang its hat on in determining whether
25
this was sufficient probable cause.
However, I have to imagine
And all of the law that I provided in the 14 pages,
50a
And where the
So the fact that this
Case 1:20-cr-00071-PLM ECF No. 90, PageID.473 Filed 08/16/21 Page 11 of 41
Appendix D11
1
02:48:50
02:49:07
02:49:23
02:49:40
02:49:59
THE COURT:
Your motion goes to suppression of
2
certain text messages that were contained on the phone, am I
3
correct about that?
4
MR. NYAMFUKUDZA:
5
THE COURT:
6
talking about, if we know?
7
hold you to a specific number.
That is correct, your Honor.
And how many text messages are we
Approximately?
8
MR. NYAMFUKUDZA:
9
MS. LANE:
Less than 30.
10
THE COURT:
All right.
11
MR. NYAMFUKUDZA:
Perhaps 30.
I'm not going to
I didn't count.
Thank you.
And last note, your Honor, I
12
think in looking at the text messages, they are incomplete
13
sentences, so we could end up with a trial within a trial
14
trying to explain away what something means and what
15
something doesn't mean.
16
phone search would typically expose far more than the most
17
exhaustive search of a house.
18
muddy things up, and it's my understanding that at least
19
until last Wednesday or whenever it is that I received the
20
disk, the government was satisfied that they had enough or
21
what I think they would style as overwhelming evidence to
22
support what it is -- the charges that we are going to trial
23
on, that they didn't necessarily need them.
24
respectfully request, for the reasons I just stated, and the
25
others in the motion, that your Honor suppress the evidence.
And again, in Riley indeed a cell
51a
Here I think it would just
So I would
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Appendix D12
02:50:08
02:50:29
02:50:51
02:51:11
02:51:33
1
Thank you.
2
THE COURT:
3
Mr. VerHey, go ahead, sir.
4
MR. VERHEY:
5
One thing I would like to do is just give you an
Thank you, counsel.
Thank you, your Honor.
6
idea factually about the why this matter is for this
7
upcoming trial.
8
talking about a search warrant that was obtained from Judge
9
Blatchford in Kalamazoo County to search one of the two
10
phones that was taken off of Mr. Smith after he was arrested
11
at the Marathon station.
12
result of looking at those phones, were a few texts that are
13
going to be helpful in this case, because what I expect the
14
testimony will be at this trial, among other things, is that
15
the police were watching Mr. Smith at a Marathon station in
16
his white Yukon on the date specified in the Indictment, and
17
they saw him deal with somebody in a green vehicle, which
18
the police thought looked a lot like a hand-to-hand drug
19
transaction.
20
these texts that were found that are at issue here, because
21
at that same time or on the same day, there is texts to Mr.
22
Smith from some unknown person saying -- I'm going to
23
paraphrase here --
24
station or I will be.
25
hundred dollars.
As we've pointed out in our papers, we are
And what the police found as
That becomes significant in connection with
Where you at?
I'm at the Marathon
I need something.
Can you bring it?
52a
I need about a
I'll be in a green
Case 1:20-cr-00071-PLM ECF No. 90, PageID.475 Filed 08/16/21 Page 13 of 41
Appendix D13
02:51:48
02:52:09
02:52:26
02:52:46
02:53:10
1
vehicle.
2
transaction, which we feel is directly relevant to Counts
3
Two and Three which relate to drug trafficking on the day
4
specified in the Indictment.
5
And so we feel that that shows that it was a drug
So the search warrant here, you know, I will
6
concede that there haven't been any homicide charges issued
7
yet.
8
of this year, and here we are in October, by no means am I
9
here to tell the Court that there isn't an ongoing
10
investigation.
11
cell phones, it's not going to come up in this case, just
12
the ones that I've specified for you will come up in this
13
case.
We are talking about a shooting that happened in April
There might be a lot of evidence from the
14
But the real issue here is, did Judge Blatchford
15
have -- did she act within the great deference that we are
16
to give her as the issuing magistrate on a search warrant or
17
did she somehow act arbitrarily and lose sight of her duties
18
as a judge assigned to determine if there's probable cause.
19
Because you're right, we are dealing with a search warrant
20
that was issued.
We do get the presumption that it's a
21
valid warrant.
It's up to the defendant to convince you
22
otherwise, and so I say that she acted well within her great
23
deference, because we've got here Officer Gates, who is the
24
affiant, saying, you know, without a doubt, I don't think
25
anybody is going to dispute, there was a shooting, three
53a
Case 1:20-cr-00071-PLM ECF No. 90, PageID.476 Filed 08/16/21 Page 14 of 41
Appendix D14
02:53:35
1
people were shot, one person died.
2
according to a quote "known source," that was included in
3
the affidavit, shot at the victim, according to that known
4
source.
5
multiple sources supported what the known source said and
6
they added more information, which was that one of the two
7
shooters, Walker and Smith, might have been hit during the
8
exchange of gunfire.
9
02:53:59
02:54:19
02:54:58
Then Gates goes on to tell Judge Blatchford that
Well, that gets to how much of this information was
10
corroborated independently by the police.
11
lot of it was.
12
week later that both Walker and Smith were both apprehended
13
by the police and they both had loaded firearms on them,
14
which I think is very pertinent to a shooting case that's
15
being investigated.
16
02:54:39
Walker and Smith,
Well, I submit a
We know, first of all, that it was around a
As you've already noted in your question, Smith
17
does have a wound that the officer that saw it concluded was
18
a gunshot wound.
19
it off as a stabbing, but the officer said it didn't look
20
like a stabbing wound to me.
21
that, we have got Walker apparently lying about how he got
22
shot in addition to the fact that he suffered a gunshot
23
wound.
The officer said that Smith tried to pawn
So that means, in addition to
24
So the fact that we have multiple sources, even
25
though they are not disclosed in the affidavit, that's a
54a
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Appendix D15
02:55:19
1
common thing for the police not to have known listed people
2
in the affidavit, the Supreme Court said long ago that's not
3
necessary, the fact that one of them is known to the police,
4
I think, the law makes clear that's significant legally to
5
the probable cause determination, because if you go to a
6
police officer and say something happened, and it turns out
7
to be false, you're putting yourself on the line for being
8
prosecuted for giving a false police report.
9
02:55:36
02:55:59
So according to Officer Gates, who was the affiant,
10
he swore that one of the people that told him about this
11
shooting and told Judge Blatchford, Walker and Smith were
12
part of this exchange of gunfire, I know that because a
13
known source told me.
14
that known source is now subject to jeopardy him or herself
15
for saying something that's false.
16
intentionally false.
17
thing for the Court to consider.
18
02:56:14
02:56:34
If that known source was lying, then
Assuming it's
So that becomes, I think, an important
These other multiple sources, I'll admit, they are
19
not specified as being known to law enforcement, so let's
20
assume they are not known with a track record to law
21
enforcement.
22
means they are worth something, if they corroborate each
23
other, and they corroborate the known source which, in fact,
24
they do.
25
Department that Walker and Smith were involved in the
That doesn't mean they are worth nothing.
It
These multiple sources told the Kalamazoo Police
55a
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Appendix D16
02:56:54
02:57:16
02:57:36
02:58:00
1
shooting, just like the known source said.
2
that one of the two might have been injured himself in the
3
exchange of gunfire.
4
we know that that pans out.
5
Judge Blatchford plenty of information to decide the
6
question of, and I'll quote here from the most recent case I
7
could find, U.S. vs. Christian, which is an en banc Sixth
8
Circuit case, "Was there a probability or substantial chance
9
of criminal activity" to be found on those cell phones.
10
proof positive, proof beyond a reasonable doubt, all of
11
those higher standards that we deal with for trials, this is
12
just a chance.
13
for anybody to draw, including Judge Blatchford, to say that
14
where you've got a crime where two people were involved,
15
Walker and Smith, the chances that their cell phones have
16
information linking them to the crime, either talking about
17
what they are going to do before the crime, recording it, or
18
taking pictures of it during it, talking about it
19
afterwards, that's an easy thing for a judge in the 21st
20
century with everybody having a cell phone to decide.
21
22
And of course, as I've already said,
And so I think all of this gave
Not
Well, there I think it's an easy inference
THE COURT:
How does the affidavit connect this
phone to the homicide?
23
02:58:25
They also said
MR. VERHEY:
It simply says that Walker had the
24
phone at the time of his arrest seven days after the
25
homicide.
And it links, I mean, it says that Walker was one
56a
Case 1:20-cr-00071-PLM ECF No. 90, PageID.479 Filed 08/16/21 Page 17 of 41
Appendix D17
02:58:42
02:59:09
1
of two people involved in the shooting, which I think is
2
significant, because --
3
THE COURT:
Just focusing on the phone right now.
4
MR. VERHEY:
Sure.
5
THE COURT:
I mean in contrast to connecting the
6
phone to the drug offense which is attendant to this case,
7
which occurred on April 18th, what is there in the affidavit
8
that -- because the focus of the affidavit is on the events
9
of April 11th, as I understand it, involving the fatal
10
shooting, and don't you -- in light of that, as opposed to
11
the alleged drug dealing that was going on on the 18th,
12
don't you have to tie that phone in some fashion to the
13
events of April 11 in order to justify the search?
14
02:59:33
15
MR. VERHEY:
03:00:07
The bottom line for me is,
I don't think so, but let me tell you how I get there.
16
02:59:50
I don't --
First of all, we have Officer Gates saying, in his
17
affidavit, based on his training and experience, he says,
18
"People involved in criminal activity regularly employ their
19
mobile electronic devices in the planning, the commission,
20
or the concealment of crime, and that they will document
21
criminal activity through photographs, texts, and other
22
electronic data contained within and accessed by such
23
devices.
24
devices in the successful prosecution of violent criminals."
25
So he does give us that much through his training and
Affiant has employed facts obtained from such
57a
Case 1:20-cr-00071-PLM ECF No. 90, PageID.480 Filed 08/16/21 Page 18 of 41
Appendix D18
1
2
03:00:23
03:01:17
03:01:41
But the fallout from taking that
position is, is that whenever someone has a cell phone on
4
them and they have allegedly been involved in a crime
5
involving more than one person, you automatically get into
6
the phone.
8
03:00:50
THE COURT:
3
7
03:00:40
experience.
Am I right about that?
MR. VERHEY:
If an officer says people engaged in
violent crime have information like that.
9
THE COURT:
10
point pursuant to a warrant?
11
MR. VERHEY:
If --
12
THE COURT:
Is that your position?
13
MR. VERHEY:
If an officer is willing to take an
All cell phones are searchable at that
14
oath and tell a judge that it's been his experience that it
15
is common, I would say all cases like that with concerted
16
activity fall within the probable cause range.
17
reason I say that, your Honor, is the Golston case, which
18
I've pulled out of many cases for your review, it was a bank
19
robbery case, which involved two bank robbers.
20
similar to this case, the police thought they had suspects,
21
they caught Mr. Golston, he had a cell phone on him, and the
22
police got a search warrant just like they did here to get
23
his phone, and the Eastern District of Michigan court said,
24
"If two people are engaged in a crime, it's likely that they
25
will talk about it before, during, or after."
58a
And the
And very
And I think
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Appendix D19
03:02:02
03:02:22
03:02:42
03:03:03
03:03:24
1
you don't even need an expert to tell you that, because here
2
we are in 2020, everybody documents everything on their
3
phone.
4
that people would either communicate about why they are
5
angry with the potential victim, talk about meeting
6
co-conspirators or co- participants to go carry out a crime
7
and then talk about how they are going to escape from being
8
caught for the crime.
9
that was a reasonable inference.
So I don't think it's a crazy proposition to say
10
So certainly Judge Blatchford thought
And once again, the proper focus, I think for us to
11
remember, is it's not whether you or I might draw the same
12
conclusion now if this warrant application were put in front
13
of us, it's whether essentially Judge Blatchford was -- I
14
don't want to use the word crazy, but close to that, to sign
15
it.
16
warrant.
17
anything presented to you to show that this is somehow
18
outside the scope of Leon.
19
no probable cause, the next issue, of course, is whether
20
this somehow falls outside of the good faith exception.
21
I do not agree with defense counsel that being
22
vague in your affidavit is the same thing as lying in a
23
search warrant affidavit, which is one of the exceptions to
24
the Leon rule.
25
think the best argument -- a very few good arguments the
She acted within her discretion, I say, in signing this
And there certainly, I don't think, has been
If you decide this warrant has
I've never seen a case that says that.
59a
I
Case 1:20-cr-00071-PLM ECF No. 90, PageID.482 Filed 08/16/21 Page 20 of 41
Appendix D20
03:03:45
03:04:06
03:04:26
03:04:43
03:05:00
1
defense has is this is a bare bones warrant.
2
Christian case was taken en banc.
3
the litigants, because the panel that decided the Christian
4
case said well, there is no probable cause, so it has to be
5
bare bones.
6
there's a lot of space between an affidavit that doesn't
7
have probable cause and one that has so little in it that it
8
becomes bare bones.
9
saying, as an affiant, I think there is probable cause,
10
Judge, so sign the affidavit or sign the warrant.
11
have a lot of facts, and I've already told you what they
12
are, I won't go back into that.
13
warrant.
14
find probable cause.
15
the day, if you disagree with the fact that a warrant was
16
issued here, I just see no way to get around upholding the
17
search as an exercise of good faith based on the warrant
18
that was issued.
19
that's all I had prepared to show you.
20
Well, the
I can tell you as one of
And Christian goes into great detail to say no,
Bare bones means --
You're essentially
Here we
This is not a bare bones
It had plenty of facts for a reasonable judge to
So I don't think, even at the end of
So unless you have questions for me,
THE COURT:
How do you read Ramirez, which is out
21
of the Western District of Kentucky, which appears to go the
22
other direction from Golston in the context of a drug case.
23
MR. VERHEY:
24
prior to coming in here, so.
25
THE COURT:
I apologize, I did not read that case
180 F.Supp. 491.
60a
It's a drug case.
Case 1:20-cr-00071-PLM ECF No. 90, PageID.483 Filed 08/16/21 Page 21 of 41
Appendix D21
03:05:22
1
Defendant had a cell phone on him when he was arrested.
2
warrant noted two facts:
3
training, individuals keep text messages or other electronic
4
information stored in their phones, which may relate to the
5
crime or -- and/or a co-defendants, the Court found that
6
that language was insufficient to support the issuance of a
7
warrant they also found that Leon didn't save it.
8
03:05:50
03:06:09
03:06:29
In the officers' experience and
Your Honor, based on the summary you
9
gave me, I would agree with that decision, because there is
10
a line of cases in the Sixth Circuit that say you can't get
11
a nexus to a particular item to be seized simply through
12
training and experience in the affidavit there has to be
13
something more.
14
underlying crime involved two people, according to the
15
affidavit, which was Smith and Walker, and that brings into
16
it, you know, if you got two people, then they are going to
17
be talking to each other usually by texting on cell phone
18
these days.
19
single defendant with a cell phone, and training and
20
experience was all that was in that affidavit, might not
21
find very many judges that would sign that warrant.
22
03:06:49
MR. VERHEY:
The
And here that something more is the
If you are telling me that other case was a
I would respectfully disagree that that makes it
23
bare bones, because I think one of reasons the Sixth Circuit
24
took Christian en banc was there were way too many decisions
25
saying, oh, no P.C., must mean it's bare bones, that's not
61a
Case 1:20-cr-00071-PLM ECF No. 90, PageID.484 Filed 08/16/21 Page 22 of 41
Appendix D22
03:07:07
03:07:21
1
the case, so I would still say there is a lot of daylight
2
between an affidavit lacking probable cause and one that is
3
so bad that it's bare bones.
4
judge, I would have said Leon did apply there.
5
warrant probably was not supported by probable cause.
6
THE COURT:
7
Counsel, go ahead.
8
MR. NYAMFUKUDZA:
9
I was before, your Honor.
10
11
03:07:38
03:08:06
03:08:22
THE COURT:
you.
So I would say, if I were that
All right.
But the
Thank you, sir.
Try to be much more concise than
No, that's okay.
I don't want to rush
Go ahead.
12
MR. NYAMFUKUDZA:
13
I'll start kind of where Mr. VerHey left off.
14
Everyone --
Thank you.
People document everything on their
15
phone today, and that may not be precise statement, but I
16
think that was the gist of what he was getting at.
17
is precisely why the Court in Riley said look, you can't
18
just say based on my training and experience, right.
19
Because as the Court noted in Riley, a thorough search of
20
the house often will not turn up as much as a search of a
21
cell phone would, because banking records, your location
22
sometimes for up to a year, depending on how long you've had
23
the phone, all sorts of things that law enforcement would
24
have to spend literally thousands of hours to gather is
25
that's all available in the palm of somebody's hand.
62a
And that
So --
Case 1:20-cr-00071-PLM ECF No. 90, PageID.485 Filed 08/16/21 Page 23 of 41
Appendix D23
1
2
03:08:39
03:08:56
03:09:14
03:10:02
day.
My phone's got me driving on I-94 every
I agree with you.
Go ahead.
3
MR. NYAMFUKUDZA:
4
To say that his training and experience tells him
Yes, your Honor.
5
that people who commit crimes it would be the same as saying
6
people who commit crimes live in houses, so we should be
7
able to get into anyone's house if they are accused of a
8
crime.
9
circumstances that lead them into Mr. Smith's phone?
10
is what is critical here.
No, that's not enough.
What is it about the
That
11
He talks about gunshot injuries.
12
exchanged, it's likely that somebody was injured.
13
don't know that that makes the un-named individual
14
particularly reliable because gunshots were exchanged,
15
people get hit.
16
03:09:33
THE COURT:
THE COURT:
If bullets were
So I
Well, apparently the officers didn't
17
know that until somebody gave them that information.
18
does seem to me that in terms of looking at it from the
19
standpoint of Judge Blatchford, you have an admittedly
20
un-named source saying that there were two people, and that
21
one of the assailants was wounded by a gun shot during the
22
course of the exchange, and then Mr. Walker is found with a
23
wound, that based on the officer's experience, was he felt
24
was a gunshot wound as opposed to the assertion by Mr.
25
Walker that it was a knife wound.
63a
And it
I mean isn't that --
Case 1:20-cr-00071-PLM ECF No. 90, PageID.486 Filed 08/16/21 Page 24 of 41
Appendix D24
03:10:27
1
isn't the officer's observation corroborative of the
2
information that this, admittedly again, un-named individual
3
gave to law enforcement about the shooting circumstances?
4
MR. NYAMFUKUDZA:
5
Walker, but not Mr. Smith.
6
when he said Mr. Smith pawned it off as -- I don't think
7
that was intentional, but it was.
8
9
03:10:40
03:11:10
03:11:31
03:11:51
THE COURT:
Perhaps as it speaks to Mr.
And I think Mr. VerHey misspoke
It's clearly Mr. Walker who has got the
wound.
10
MR. NYAMFUKUDZA:
11
So I don't know if I answered your question.
12
THE COURT:
13
MR. NYAMFUKUDZA:
Yes.
Yes.
No, you're good.
Go ahead.
And it's not that -- I don't
14
think it matters a great deal that the source's names are
15
not disclosed in the affidavit.
16
Gates decided that these people were reliable?
17
the Sixth Circuit has demanded.
18
name a secret, but tell us how it is that you decided that
19
this individual was reliable.
20
because Officer Friendly knows John Q. Public's name, and he
21
walks up to you and tells you a fact, what is it about your
22
interaction?
23
the four corners of the affidavit what it is about any of
24
those people that makes them reliable.
25
take that statement out and that training and experience,
Why?
That is what
You can keep this person's
Again, we don't know -- just
Is it the frequency?
64a
How is that Detective
We have no idea based on
And again, if we
Case 1:20-cr-00071-PLM ECF No. 90, PageID.487 Filed 08/16/21 Page 25 of 41
Appendix D25
03:12:08
03:12:26
03:12:48
03:13:11
03:13:30
1
then there is nothing that leads to Mr. Smith's phone.
2
if we look at the particular text messages about the green
3
van, all it says is need hundred dollars.
4
mention of any unit of drugs, no type of drugs, no weight or
5
anything.
6
suggesting could lead to a trial within a trial.
"Need
7
hundred dollars."
"I'll meet
8
you somewhere."
9
drugs or anything.
10
THE COURT:
And
There is no
And those are the sorts of vagaries which I'm
That is exactly what it says.
Doesn't say meet me somewhere to exchange
That goes to the weight of the
11
information.
12
perspective, apparently these are text messages that occur
13
before the April 18 encounter with the green vehicle.
14
from the government's perspective, they are going to argue,
15
look, this is your client sitting up the drug deal and they
16
are there observing your client under surveillance, and
17
again, from their perspective, trained officers would
18
indicate based on what they saw that this was a -- that this
19
was a drug deal going down in the parking lot.
20
to me that argument goes to the weight of the text messages,
21
you're trying to keep the text messages out, and I
22
appreciate the evaluation of the evidence, but I'm not sure
23
that's important for purposes of evaluating whether there is
24
probable cause or not.
25
I mean the government -- from the government's
MR. NYAMFUKUDZA:
65a
May I touch --
And
So it seems
Case 1:20-cr-00071-PLM ECF No. 90, PageID.488 Filed 08/16/21 Page 26 of 41
Appendix D26
1
2
03:13:51
03:14:12
03:14:35
03:14:55
03:15:17
THE COURT:
Come back at me if you want.
I ask provocative questions for a reason.
Sometimes
Go ahead.
3
MR. NYAMFUKUDZA:
4
I think we could certainly have an endless tennis
Indeed, indeed.
5
match about what could have and should have been done.
6
we know a lot about what officers did not see also on that
7
day.
8
this mysterious green van nobody was stopped, there is no
9
mention of anyone seeing money exchanging hands or anything
10
exchanging hands.
11
-- if I hand your Honor my phone, you could pick any text
12
message, even ones I've exchanged with my mother, and read
13
nefarious intent into those, and but nothing in the four
14
corners leads into Mr. Smith's phone, and we are now, again,
15
looking back, based on what the charges are and saying oh,
16
boy, okay, on the 18th of April, although they didn't have
17
these until whatever two Thursdays ago was, we think these
18
should come in, but if we are looking at the four corners of
19
the document that the judge signed, nothing leads directly
20
into Mr. Smith's phone except the training and experience.
21
Which again, the Court in Riley told us is not sufficient.
22
There is nothing that leads us directly into his phone in
23
any observations that Officer Gates made were about Mr.
24
Walker and not Mr. Smith.
25
myself but, your Honor, I don't see anything in that
But
While they saw what they suspected was a drug deal,
So taken out of context, any text message
So I don't want to keep repeating
66a
Case 1:20-cr-00071-PLM ECF No. 90, PageID.489 Filed 08/16/21 Page 27 of 41
Appendix D27
03:15:27
03:15:37
1
document which speaks to why they get into Mr. Smith's
2
phone.
3
Thank you.
4
THE COURT:
5
Mr. VerHey, go ahead, sir.
6
MR. VERHEY:
03:16:41
Your Honor, I don't have anything else
to add unless you have a question for me based on the
8
last --
9
THE COURT:
All right.
10
MR. VERHEY:
-- exchange.
12
03:16:23
Thank you, counsel.
7
11
03:16:00
All right.
Thank you.
If you would like to see
the text messages, I have copies for you, but.
THE COURT:
I gather Detective Gates, obviously his
13
focus in terms of the application for the search warrant was
14
the homicide and not what occurred in the parking lot.
15
MR. VERHEY:
That is correct.
And I didn't see an
16
argument directly on point about this, but I heard defense
17
counsel kind of cast out on why we should use evidence from
18
a homicide investigation in a drug case.
19
caselaw that says, you know, unless what you were looking
20
for is what you find, it can't be admitted.
21
of Sam case was broken when Mr. Berkowitz left his car
22
somewhere and got tickets and they towed it away and found a
23
dead body in the trunk, so I mean that happens all the time,
24
you find things you are not looking for.
25
THE COURT:
There is no
I mean the Son
You are dating yourself now, Mr.
67a
Case 1:20-cr-00071-PLM ECF No. 90, PageID.490 Filed 08/16/21 Page 28 of 41
Appendix D28
1
VerHey.
2
3
MR. VERHEY:
03:17:04
So I don't think that's a good argument to say
5
well, they weren't looking for drug evidence, but they found
6
some.
7
told you in our papers and what I just said.
So absent that, your Honor, I'll just rely on what we
8
Thank you.
9
THE COURT:
10
Well, this is defendant's motion to suppress
11
certain text messages found by law enforcement pursuant to a
12
search warrant issued by District Judge Blatchford of the
13
Kalamazoo County District Court.
14
03:17:25
03:17:57
All right.
Thank you.
The Court's had the benefit of the pleadings filed
15
by the government and the defendant in support of their
16
positions.
17
as a result of the review of the text messages in the phone,
18
the government seeks to introduce some of those text
19
messages found on the phone in this particular case as it
20
relates apparently to the drug charge which is attendant to
21
the Indictment.
22
03:18:19
I don't need any reminding of
that.
4
03:16:51
I know.
Judge Blatchford issued the search warrant, and
"The Fourth Amendment requires a finding of
23
probable cause to justify a search pursuant to a search
24
warrant."
25
circuit case of our circuit, citing Christian at 925 F.3d
That is U.S. vs. Crawford, 943 F.3d 297, a 2019
68a
Case 1:20-cr-00071-PLM ECF No. 90, PageID.491 Filed 08/16/21 Page 29 of 41
Appendix D29
1
2
03:18:43
03:19:00
03:19:49
03:20:13
When determining whether a supporting affidavit
3
establishes probable cause, the Court considers the totality
4
of the circumstances.
5
satisfied when the facts and circumstances within the
6
officer's knowledge, including the knowledge obtained
7
through reasonably trustworthy sources, warrant a man of
8
reasonable caution to believe that an offense has been
9
committed and has been or is being committed."
10
at 430 F.3d.
11
03:19:26
305, an en banc 2019 Sixth Circuit case.
The probable cause standard is
That's Davis
The affidavit's focus here, of course, was based on
12
a shooting one week earlier, on April the 11th, which
13
resulted in the death of one individual.
14
outlines, from anonymous sources, concerning the
15
circumstances of that shooting, names the Defendant Smith as
16
well as an individual by the name of Walker as having
17
participated in the shooting.
18
warrant asserts that another piece of information given to
19
law enforcement was that one of the individuals was wounded
20
during the course of the event on April the 11th.
21
Subsequent to that time, before the swearing out of the
22
affidavit for the search warrant, Mr. Walker by observation
23
of law enforcement had a wound consistent, in the officer's
24
opinion, with a gunshot wound, and that information is
25
contained in the search warrant.
69a
The affidavit
In addition to that, the
Case 1:20-cr-00071-PLM ECF No. 90, PageID.492 Filed 08/16/21 Page 30 of 41
Appendix D30
1
03:20:43
03:21:15
03:21:41
03:22:03
03:22:41
The burden for the government here is to tie this
2
phone to the crime committed, in this case the shooting
3
which occurred on April 11.
4
circumstances must indicate why the evidence of illegal
5
activity was going to be found on the phone, and a nexus is
6
required between, in this case, the phone, which is -- the
7
contents of the phone and the crime which occurred on April
8
the 11th involving the homicide.
9
this warrant, and I'm not allowed in anticipation of a
10
challenge to Judge Blatchford's decision to issue the
11
warrant, I'm not allowed to substitute my own judgment as to
12
whether I would have issued that warrant.
13
about the strength of the affidavit here in tying the
14
probable cause together, and this is a clearly a close
15
issue, but given the deference that I must give to Judge
16
Blatchford and her issuance of the warrant under the
17
circumstances, in the Court's judgment, by the barest of
18
margins, I believe that the warrant was lawfully issued by
19
Judge Blatchford, and accordingly, the search of the cell
20
phone was appropriate.
21
Court having analyzed the warrant pursuant to the Leon
22
decision, would find that the officers could rely on the
23
warrant in good faith.
24
argument here.
25
does find that for purposes of analysis of the good faith
And to justify a search, the
Judge Blatchford issued
I have concerns
Even if I'm wrong about that, the
That's part of the government's
That's Leon at 468 U.S. 897.
70a
And the Court
Case 1:20-cr-00071-PLM ECF No. 90, PageID.493 Filed 08/16/21 Page 31 of 41
Appendix D31
1
elements contained in the Leon decision, that the good faith
2
exception to the search warrant requirement would also
3
apply.
4
03:23:02
03:23:31
5
the defendant's motion to suppress.
6
will move to the final pretrial issues.
7
appreciates the fact that the trial briefs are in, proposed
8
voir dire by the government and the defendant have also been
9
filed.
10
23rd of this month.
11
03:23:50
03:24:22
03:24:47
So for all of those reasons, the Court will deny
And accordingly, we
The Court
The proposed jury instructions were filed on the
This case is set for trial on November 3rd.
12
Ordinarily with the length of the case, which I think is
13
estimated at two days, if I'm not mistaken, I would pick
14
only 13 jurors, but I'm going to pick 14 given the COVID
15
situation.
16
extra peremptory challenge.
17
know it, but the alternates will be the two individuals who
18
will get the seats in the auxiliary seats to the far right
19
as you are looking at the jury box.
20
sitting in the black chairs, and not the more comfortable
21
red chairs, the Court's also already had some comments about
22
the comfort level the black chairs from jurors who have sat
23
in those chairs for prolonged periods of time, but there is
24
nothing I can do about that, but the alternates will be in
25
the front two rows as you are viewing the jury seating
We will pick 14 jurors.
71a
I'll give each side one
The alternates, they will not
The jurors will be
Case 1:20-cr-00071-PLM ECF No. 90, PageID.494 Filed 08/16/21 Page 32 of 41
Appendix D32
1
2
03:25:11
03:25:36
03:26:05
03:26:40
The case will start on Tuesday at 8:45.
At some
3
point during the course of the day, I'll inquire as to
4
whether any jurors want to leave early for purposes of
5
voting, if they have not voted yet, so we might break a
6
little bit early on Tuesday.
7
a full lunch break, the Court's got to leave the courthouse
8
at 2:15 on that particular day, so we will have probably two
9
short breaks during the course of Wednesday, but if we are
10
not completed by 2:15, we will break for the day on
11
Wednesday and resume on Thursday if we are not completed.
12
The Court operates under no-strike-back rule for
On Wednesday, we will not take
13
the jurors.
14
for cause in the first round of peremptories, they will sit
15
on the jury absent an indication from further questioning
16
for one reason or another that a juror is excusable after
17
the first round, and we will continue in that fashion until
18
we get a jury which everybody is satisfied.
19
03:26:28
format there, and to the far -- to your far right.
20
Once the jurors have survived the challenges
So with that introduction, let me see if there's
any questions.
Mr. VerHey?
Ms. Lane?
21
MS. LANE:
None from the government, your Honor.
22
THE COURT:
All right.
23
Counsel, any questions?
24
MR. NYAMFUKUDZA:
25
Honor, please.
72a
Thank you.
If I may have a moment, your
Case 1:20-cr-00071-PLM ECF No. 90, PageID.495 Filed 08/16/21 Page 33 of 41
Appendix D33
1
THE COURT:
2
(Pause in proceedings.)
3
03:27:04
THE COURT:
additional time, I'll step off and I'll come back, if you
5
want me to.
7
MR. NYAMFUKUDZA:
9
03:34:50
03:35:00
It won't take very long, your
Honor.
8
03:34:32
Counsel, if you want a little
4
6
03:27:10
Sure.
THE COURT:
All right.
Let Amy know when you're
ready.
10
MR. NYAMFUKUDZA:
11
THE COURT:
12
COURT CLERK:
13
Court is in recess.
14
(At 3:27 p.m., recess.)
15
(At 3:34 p.m., proceedings continued.)
Yes.
Thank you.
Okay.
All rise, please.
16
THE COURT:
17
Counsel, anything further?
18
MR. NYAMFUKUDZA:
We are back on the record in 20-71.
Your Honor, when you gave us the
19
opportunity to ask questions, was that specifically limited
20
to what you just listed or could we ask about some --
21
THE COURT:
22
as the trial is concerned.
23
MR. NYAMFUKUDZA:
24
THE COURT:
25
Anything you want to talk about, as far
Certainly.
In terms of logistics or anything else,
go ahead.
73a
Case 1:20-cr-00071-PLM ECF No. 90, PageID.496 Filed 08/16/21 Page 34 of 41
Appendix D34
1
03:35:15
03:36:12
03:36:39
Before I get to the
question I actually discussed with Mr. Smith, I would like
3
to know -- I know this won't come up for a little bit, but
4
in terms of approaching witnesses, do we have to request
5
permission each time or do we have continuing permission?
7
03:35:47
Okay.
2
6
03:35:24
MR. NYAMFUKUDZA:
THE COURT:
I think it's better to ask all the --
each time.
8
MR. NYAMFUKUDZA:
9
THE COURT:
10
MR. NYAMFUKUDZA:
11
that I did have for the Court is --
12
don't get fed, but I'll ask anyhow --
13
either on before we bring the jury in or the day before
14
entertain any additional motions?
Okay.
Yes.
15
THE COURT:
16
MR. NYAMFUKUDZA:
All right.
Now, the question
I know closed mouths
Would the Court
Like?
In my discussion with Mr. Smith,
17
I think he would like to challenge the underlying arrest, so
18
that's something that we discussed very recently, and I
19
haven't had an opportunity to put together.
20
THE COURT:
21
with it, if that --
22
hasn't that been addressed before now?
Well, if you file it, I've got to deal
My inquiry, of course, would be why
23
MR. NYAMFUKUDZA:
24
developing and that is --
25
THE COURT:
So --
Your Honor, discovery has been
Well, the lawfulness of the arrest
74a
Case 1:20-cr-00071-PLM ECF No. 90, PageID.497 Filed 08/16/21 Page 35 of 41
Appendix D35
03:36:55
03:37:15
03:37:37
03:37:46
1
wouldn't have anything to do with discovery, either they had
2
probable cause to arrest your client on that day or not.
3
And there has already been some discussion about the fact
4
there was a warrant out for him, right?
5
Yes, your Honor.
But at the same
6
time, I think Governor Whitmer issued orders that prevented
7
people from turning themselves in, and he did try to do that
8
so, I know that concern is certainly at the forefront of his
9
mind in terms of whether he should have, in fact --
10
THE COURT:
Counsel, if you believe there is a
11
meritorious motion out there, I'm certainly not going to
12
prevent you from filing it.
All I can ask you is to get it
13
in as quickly as you can.
And doesn't sound to me, based on
14
your description, that it would require an evidentiary
15
hearing or oral argument, but get it in as quick as you can,
16
and we will deal with it as quick as we can.
17
MR. NYAMFUKUDZA:
18
THE COURT:
19
MR. NYAMFUKUDZA:
20
THE COURT:
21
03:37:57
MR. NYAMFUKUDZA:
Yes, your Honor.
Okay.
Okay.
All right.
Thank you.
Anything else we need to
talk about?
22
MR. NYAMFUKUDZA:
23
MR. VERHEY:
One thing on our side, your Honor.
24
THE COURT:
Sure.
25
MR. VERHEY:
If you've read our trial brief or even
75a
No, your Honor.
Case 1:20-cr-00071-PLM ECF No. 90, PageID.498 Filed 08/16/21 Page 36 of 41
Appendix D36
03:38:14
03:38:39
03:39:03
03:39:25
03:39:42
1
if you haven't, you know that this case came to light
2
because of a homicide investigation.
3
recognize that talking about that in this case would be
4
inappropriate, we are not going to.
5
because that's caused some problems as recently as a trial
6
last week where the police were doing a different
7
investigation and encountered a defendant who is an African
8
American, like this defendant is, and the jury really got
9
hung up on why were the police focusing on this African
10
American man?
11
we tried last week was it was a parallel investigation, and
12
then we found the defendant with drugs, etcetera.
13
that is background for, we are trying to figure -- and it
14
led to six jury questions and two days of deliberation, I
15
think over just that issue, whether there was unfair
16
targeting.
17
is when we have the officers on the stand about why, you
18
know, six officers were at that Marathon gas station
19
arresting the defendant, why they were looking at him,
20
rather than of course saying because we thought he was
21
involved in a homicide, we would like to ask them something
22
like or have them say, we were investigating a different
23
case and wanted to talk to him.
24
would suggest officers say.
25
We, of course,
But I bring it up now
What reason was there?
And the solution that
All of
So what we would like to propose to the Court,
I mean that would be what I
And then I would even invite the Court, if you
76a
Case 1:20-cr-00071-PLM ECF No. 90, PageID.499 Filed 08/16/21 Page 37 of 41
Appendix D37
03:40:01
03:40:24
03:40:42
03:40:58
03:41:19
1
thought it was appropriate, to give a limiting instruction
2
like, you know, don't bother worrying about what that was,
3
that's not part of this case or whatever you think is
4
appropriate, just to kind of nip that kind of speculation in
5
the bud about why were the police focusing on Mr. Smith.
6
Because without that, all the jury is going to know is that
7
the police were following him around and took a lot of pains
8
to arrest him at the Marathon station, you know, with guns
9
drawn and things like that, and the only thing the jury is
10
going to hear, I think so far, is he had a malicious
11
destruction of property warrant which, of course, wouldn't
12
warrant all of that.
13
consider allowing us to do, try to tiptoe around the
14
homicide investigation with something that we view as fairly
15
innocuous, and that doesn't make the defendant look like a
16
bad person, because they just wanted to talk to him, but
17
I'll, of course, entertain any kind of guidance you might
18
have on that.
So that's what I'm asking the Court to
19
THE COURT:
20
Counsel, do you want to react to that?
21
MR. NYAMFUKUDZA:
22
I certainly don't plan to open the door and ask
23
them what the other reason was or why they were following
24
him, but I think just leaving it hanging out there makes
25
them think well geez, he's got more stuff going on than
All right.
77a
Thank you.
Go ahead.
Thank you, your Honor.
Case 1:20-cr-00071-PLM ECF No. 90, PageID.500 Filed 08/16/21 Page 38 of 41
Appendix D38
03:41:38
1
this, he had a warrant they found all of this stuff on him
2
and there is other things.
3
negative inferences so certainly better than mentioning the
4
specific thing that they were investigating, but I don't
5
know that we are in a much better position if we just leave
6
it dangling out there.
7
the validity of the surveillance, because I'm not going to
8
open that door into the homicide.
9
03:41:54
03:42:12
03:42:29
I certainly will not ask them about
Well, do you have a specific reaction
10
to what Mr. VerHey just suggested?
11
MR. NYAMFUKUDZA:
I appreciate the attempt to not
12
muddy up things by mentioning the homicide, but I think just
13
leaving it dangling, your Honor, I don't think it does very
14
much.
15
guy, he's got so much going on, because the police don't
16
generally come and talk to people because they, you know,
17
they helped somebody cross the street, for example.
18
think the inference is that it was for something negative
19
and it just muddies the waters up, even though they don't
20
know what it is.
21
solution, but I don't like it, and I do appreciate the
22
effort though.
23
03:42:45
THE COURT:
I think that allows them to draw
It just makes them think, I think, that he is a bad
Doesn't sit well with me.
THE COURT:
So I
I don't have a
Well, my suggestion would be that
24
counsel get together, see if they can agree on an approach.
25
I mean the trial briefs clearly indicate that there is not
78a
Case 1:20-cr-00071-PLM ECF No. 90, PageID.501 Filed 08/16/21 Page 39 of 41
Appendix D39
03:43:08
1
going to be any challenge to the reason why the officers
2
were there that night.
3
to be a challenge to the surveillance.
4
I mean the ambiguity suggested by Mr. VerHey gets us away
5
from the officers' concerns about a homicide, but it does
6
provide some ambiguity, which while not as prejudicial as
7
mentioning a homicide, may lead to its own conclusions.
8
03:43:38
03:44:24
03:44:46
I mean maybe one --
Maybe the other thing to do, or at least I would
9
ask you to explore it, is to whether there is some
10
stipulated statement that both of you can make that
11
satisfies both sides on this issue and takes care of the
12
government's concern as well as the defendant's.
13
03:43:57
In other words, they are not going
So why don't you work together on it and, you know,
14
I'm open to -- I mean obviously if you agree on something,
15
that's fine.
16
recognizes that the jury needs to be insulated from the
17
information regarding the homicide, I do understand their
18
concern that, all right, there's six officers doing the
19
surveillance and the apprehension of Mr. Smith was a fairly
20
strong law enforcement presence, and if all that's out there
21
is a misdemeanor warrant for malicious destruction of
22
property, that may send its own signal and may cause the
23
juror to, by its -- on its own, to have some negative
24
thoughts about the situation.
25
it out, and if you can, great; if you can't, then I'll make
But I think to the extent that the government
79a
So why don't you try to work
Case 1:20-cr-00071-PLM ECF No. 90, PageID.502 Filed 08/16/21 Page 40 of 41
Appendix D40
1
2
03:45:01
03:45:14
03:45:25
a decision based on what is submitted.
MR. NYAMFUKUDZA:
One comment you did make does
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raise a question, your Honor.
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THE COURT:
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MR. NYAMFUKUDZA:
Sure.
I'm hearing you.
As far as stipulations, there are
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some that I think we have agreed on, but others that we are
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still working to fine tune.
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final stipulations?
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THE COURT:
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When does the Court expect the
You can give me the stipulations on
Friday or Monday, that's fine with me.
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MR. NYAMFUKUDZA:
Thank you.
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THE COURT:
All right.
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That's all for today.
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MR. VERHEY:
Thank you, your Honor.
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COURT CLERK:
All rise, please.
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Court is adjourned.
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Okay.
Very good.
(At 3:45 p.m., proceedings concluded.)
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Case 1:20-cr-00071-PLM ECF No. 90, PageID.503 Filed 08/16/21 Page 41 of 41
Appendix D41
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C E R T I F I C A T E
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I, Kathleen S. Thomas, Official Court Reporter for the
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United States District Court for the Western District of
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Michigan, appointed pursuant to the provisions of Title 28,
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United States Code, Section 753, do hereby certify that the
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foregoing is a true and correct transcript of proceedings
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had in the within-entitled and numbered cause on the date
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hereinbefore set forth; and I do further certify that the
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foregoing transcript has been prepared by me or under my
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direction.
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/s/
_____________________________________
Kathleen S. Thomas, CSR-1300, RPR
U.S. District Court Reporter
410 West Michigan
Kalamazoo, Michigan
49007
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Case 1:20-cr-00071-PLM ECF No. 44-2, PageID.145 Filed 10/20/20 Page 1 of 3
Appendix E
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Case 1:20-cr-00071-PLM ECF No. 44-2, PageID.146 Filed 10/20/20 Page 2 of 3
Appendix E
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Case 1:20-cr-00071-PLM ECF No. 44-2, PageID.147 Filed 10/20/20 Page 3 of 3
Appendix E
84a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.