Petition for Writ of Certiorari — Brandon Quane Hudson, Petitioner v. United States

NO. __________________

_____________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

______________________________________________________________________

BRANDON QUANE HUDSON, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

_________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_________________________________________________________________

WESLEY P. PAGE

FEDERAL PUBLIC DEFENDER

JONATHAN D. BYRNE

APPELLATE COUNSEL

Counsel of Record

RHETT H. JOHNSON

ASSISTANT FEDERAL PUBLIC DEFENDER

Office of the Federal Public Defender, SDWV

300 Virginia Street, East, Room 3400

Charleston, West Virginia 25301

Telephone: 304/347-3350

Counsel for Petitioner

Dated: April 25, 2023

I. QUESTION PRESENTED FOR REVIEW

In this case, police executed a search warrant at a person’s home based solely

on the fact that said person was involved in the sale of drugs, when other

information suggested that drugs were stored in another person’s nearby home.

Both the district court and Fourth Circuit correctly assumed that the warrant

lacked sufficient probable cause to support a search but held that the evidence

recovered during the search was admissible under the good-faith exception set forth

in United States v. Leon, 468 U.S. 897 (1984). The issue presented in this Petition is

whether the Leon exception applies in such a situation or whether it was the type of

magisterial rubber stamp of a request to search that the evidence should have been

suppressed because no police officer could have reasonably relied on the warrant.

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II. TABLE OF CONTENTS

I.

QUESTION PRESENTED FOR REVIEW ........................................................ 1

II.

TABLE OF CONTENTS ..................................................................................... 2

III.

TABLE OF AUTHORITIES ............................................................................... 4

IV.

LIST OF ALL DIRECTLY RELATED PROCEEDINGS ................................... 6

V.

OPINIONS BELOW............................................................................................ 7

VI.

JURISDICTION .................................................................................................. 7

VII.

STATUTES AND REGULATIONS INVOLVED ............................................... 7

VIII. STATEMENT OF THE CASE ............................................................................ 8

IX.

A.

Federal Jurisdiction ................................................................................. 8

B.

Facts Pertinent to the Issue Presented ................................................... 8

1.

Police search Hudson’s home, pursuant to a

warrant, finding drugs and a firearm ........................................... 9

2.

The district court denies Hudson’s motion to

suppress, applying the good-faith doctrine................................. 12

3.

The Fourth Circuit affirms the denial of Hudson’s

motion to suppress ....................................................................... 15

REASON FOR GRANTING THE WRIT .......................................................... 16

The Petition should be granted to determine whether the Leon goodfaith exception applies to a search pursuant to a warrant that was

deficient in setting forth a nexus between observed drug activity and

the place to be searched, Hudson’s home ......................................................... 16

A.

The district court’s assumption – that the warrant affidavit did

not prove a sufficient nexus between drug trafficking and

Hudson’s home – was correct ................................................................. 17

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X.

B.

The Leon good-faith exception does not apply because the bare

bones warrant affidavit led to the magistrate judge rubber

stamping the officers’ assertions and led to a warrant that no

reasonable officer could think was sufficient ........................................ 20

C.

There is no per se rule that probable cause exists to search a

home because a person associated with drug trafficking enters it

with a key ............................................................................................... 24

CONCLUSION .................................................................................................. 28

APPENDIX A: Unpublished Opinion of the

United States Court of Appeals

for the Fourth Circuit

entered January 25, 2023 .......................................................... A-1

APPENDIX B: Memorandum Opinion and Order of the

United States District Court

for the Southern District of West Virginia

entered January 19, 2021 .......................................................... B-1

APPENDIX C: Judgment in a Criminal Case,

United States District Court for the

Southern District of West Virginia

entered May 25, 2021................................................................. C-1

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IV. TABLE OF AUTHORITIES

Cases

Carroll v. United States, 267 U.S. 132 (1925)....................................................... 20, 21

Davis v. United States, 564 U.S. 229, 231 (2011) ....................................................... 21

Florida v. Jardines, 569 U.S. 1, 6 (2013) ........................................................ 16, 17, 18

United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988) ................................... 18

United States v. Brinkley, 980 F.3d 377, 386 (4th Cir. 2020) .................................... 27

United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002)....................................... 20

United States v. Garcia, 809 F.Supp.2d 1165, 1175 (N.D. Cal. 2011) ....................... 23

United States v. Gonzales, 399 F.3d 1225 (10th Cir. 2005)........................................ 22

United States v. Grossman, 400 F.3d 212 (4th Cir. 2005)........................ 24, 25, 26, 27

United States v. Hudson, ___ F.App’x ___, 2023 WL 387026 (4th Cir. 2022) ... 6, 15-17

United States v. Kemp, 690 F.2d 397, 401 (4th Cir. 1982) ......................................... 21

United States v. Lalor, 996 F.2d 1578, 1583 (4th Cir. 1993) ..................................... 18

United States v. Leon, 468 U.S. 897 (1984)......................................................... Passim

United States v. McPhearson, 469 F.3d 518 (6th Cir. 2006) ................................ 21, 22

United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996) ........................................ 20

United States v. Williams, 548 F.3d 311 (4th Cir. 2008)............................................ 19

United States v. Woodley, 447 F.Supp.3d 487, 495 (E.D. Va. 2020) .......................... 23

Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978) ........................................... 17, 20

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Constitutional Provisions

U.S. Const. amend. IV ......................................................................................... Passim

Statutes

18 U.S.C. § 922(g)(1) ...................................................................................................... 8

18 U.S.C. § 924(a)(2) ..................................................................................................... 8

18 U.S.C. § 3231 ............................................................................................................. 8

18 U.S.C. § 3742 ............................................................................................................. 8

21 U.S.C. § 841(a)(1) ...................................................................................................... 8

28 U.S.C. § 1254 ............................................................................................................ 7

28 U.S.C. § 1291 ............................................................................................................. 8

Rules

Sup. Ct. R. 10(c) ........................................................................................................... 16

Sup. Ct. R. 13.1 .............................................................................................................. 7

Sup. Ct. R. 13.3 ............................................................................................................. 7

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II. LIST OF ALL DIRECTLY RELATED PROCEEDINGS

•

United States v. Hudson, No. 3:20-cr-00093, U.S. District Court for the

Southern District of West Virginia. Judgement entered May 25, 2021.

•

United States v. Hudson, ___ F.App’x ___, 2023 WL 387026 (4th Cir.

2022), U.S. Court of Appeals for the Fourth Circuit. Judgment entered

on January 25, 2023.

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V. OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fourth Circuit

affirming the denial of Hudson’s motion to suppress is unpublished and is attached

to this Petition as Appendix A. The district court’s ruling denying the motion was

made in a written order in each case and is attached to this Petition as Appendix B.

The judgment order is unpublished and are attached to this Petition as Exhibit C.

VI. JURISDICTION

This Petition seeks review of a judgment of the United States Court of Appeals

for the Fourth Circuit entered on January 25, 2023. No petition for rehearing was

filed. This Petition is filed within 90 days of the court’s entry of its judgment.

Jurisdiction is conferred upon this Court by 28 U.S.C. § 1254 and Rules 13.1 and 13.3

of this Court.

VII. STATUTES AND REGULATIONS INVOLVED

This case requires interpretation and application of the Fourth Amendment to

the United States Constitution, which says:

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

houses, papers, and effects, against unreasonable searches

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

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

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VIII. STATEMENT OF THE CASE

A.

Federal Jurisdiction

On June 23, 2020, an indictment was filed in the Southern District of West

Virginia charging Brandon Quane Hudson with possession with intent to distribute

crack cocaine and methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (Count

One) and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2) (Count Two). J.A. 7-9. 1 Because those charges constitute offenses

against the United States, the district court had original jurisdiction pursuant to

18 U.S.C. § 3231. This is an appeal from the final judgment and sentence imposed

after Hudson pleaded guilty to the indictment. J.A. 134-136. A Judgment and

Commitment Order was entered on May 25, 2021. J.A. 137-143. Hudson filed a

timely notice of appeal on June 8, 2021. J.A. 144. The United States Court of Appeals

for the Fourth Circuit had jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C.

§ 1291.

B.

Facts Pertinent to the Issue Presented

This case arises from the execution of a search warrant at Hudson’s home.

Inside, officers found crack cocaine, methamphetamine, and a firearm, along with

Hudson. At issue is whether the warrant application failed to establish a nexus

between the sale of drugs and Hudson’s home was so deficient that officers could not

have executed the resulting warrant in good faith.

1 “J.A.” refers to the Joint Appendix filed in this appeal before the Fourth Circuit.

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1.

Police search Hudson’s home, pursuant to a

warrant, finding drugs and a firearm.

The investigation that led to the search in this case took place within a few

block radius in Huntington, West Virginia:

It involved the following locations:

•

912 6th Street – the apartment of Christopher Gray, also known as “Skinny”

•

909 7th Street – Hudson’s apartment, where the search warrant at issue was

executed

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•

The intersection of 6th Street and 10th Avenue – where a concerned

citizen reported what they believed was a drug transaction taking place

•

The 1100 block of 7th Avenue – where police saw Hudson riding a bike and

interacting with a blue Chevy Cobalt, driven by Gray and later the subject of

a traffic stop

•

823 8th Street (not shown on map) – where police stopped the Cobalt

On March 3, 2019, a cooperating witness told police that Gray lived at 912 6th

Street. J.A. 30. Speaking with the landlord of that address the next day, officers

confirmed that a woman, thought to be Gray’s girlfriend, rented the apartment that

the landlord believed drugs were being sold, and that another “known drug associate”

to the Macon operation, who was now in prison for distributing methamphetamine,

was connected to that address. J.A. 31. Five months later, on August 9, 2019, police

also responded to a shots fired report in another part of Huntington, 2 where the

victim stated that Gray had resided for several weeks and that Hudson “frequented

the residence.” Ibid.

On August 16, 2019, police received information from a “concerned citizen” who

allegedly witnessed what they believed was a drug transaction at the intersection of

6th Street and 10th Avenue. One of the men involved in the alleged transaction was

a black man with gold teeth on a bicycle, who investigators later identified as Hudson.

According to Google Maps, the address where the shooting occurred, 1685

Charleston Avenue, is approximately 1.5 miles away from Gray’s apartment and

Hudson’s apartment.

2

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On August 19, 2019, officers were surveilling the area when they saw a blue Chevy

Cobalt with several occupants. Officers watched Hudson, on a bicycle, stop and use

his cell phone, then ride to an alley “adjacent to the Clark Apartments at 912 and 918

6th Street,” then return to the Cobalt, where officers believe they observed a drug

transaction take place. J.A. 32. Officers performed a traffic stop of the Cobalt at 823

8th Street, which led to the recovery of 4.3 grams of methamphetamine. One of the

occupants of the car stated that they “had just met with” Hudson, although the

affidavit does not contain an allegation that they bought the methamphetamine from

him. Ibid.

The next day, August 20, 2019, officers made a traffic stop of the car Gray was

driving, after seeing it stop momentarily next to another vehicle, a blue Honda. A

search of Gray’s car uncovered drug paraphernalia and $900 in cash. J.A. 33-34. Later

that day, officers saw the Honda parked outside of 909 7th Street, which is allegedly

Hudson’s apartment. They watched as he entered and exited the apartment (the

affidavit does not say how long he was inside), using a key, then walked down the

street. While officers lost sight of Hudson, they later encountered a person who was

in possession of methamphetamine that they had allegedly purchased from Hudson.

J.A. 34-35. They also stated that they had purchased methamphetamine from

Hudson for “one or two months,” generally meeting Hudson “within the area of 7th

Street and 9th Avenue.” J.A. 35.

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In the affidavit supporting the warrant issued to search Hudson’s home, the

officer made a lengthy recitation of the investigation of Hudson and his alleged

associates. J.A. 18-36. Most of the affidavit relates to Gray, described as a member

of a “Macon, Georgia Drug Trafficking Organization,” and his suspected drug

distribution activities. 3 J.A. 30. The search of Hudson’s apartment uncovered drugs

and a firearm. Hudson was present when the search took place. J.A. 40-41.

2.

The district court denies Hudson’s motion to

suppress, applying the good-faith doctrine.

As a result of what was found during the search, Hudson was charged with

possession with intent to distribute drugs (crack cocaine and methamphetamine) and

being a felon in possession of a firearm. J.A. 7-9. On October 15, 2020, Hudson moved

to suppress all the evidence found in his apartment. J.A. 10-17. Specifically, Hudson

argued that the affidavit in support of the search warrant did not establish a

sufficient nexus between Hudson’s home and any drug trafficking. J.A. 10. The “lone

observation of Hudson entering and exiting” his apartment “shortly before an alleged

drug transaction, without more, does not establish a sufficient nexus.” J.A. 13. The

Government countered that the affidavit was sufficient and, even if it was not, it fell

under the good-faith exception to the warrant requirement set forth in United States

v. Leon, 468 U.S. 897 (1984). J.A. 42-52.

The shooting victim from August 9 was also an alleged “co-conspirator” in the

operation. J.A. 31.

3

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A hearing on Hudson’s motion to suppress was held on November 4, 2020,

which consisted entirely of argument from the parties and colloquies with the district

court, without any testimony presented. J.A. 58-88. After the Government had

described some of the investigation, the district court said, “[t]hese are all small

amounts, though, right?” J.A. 61. The Government agreed, leading the district court

to observe that Hudson “wouldn’t need to have them anywhere other than his pocket,

whether he was on a bike, in a car, walking or coming from his home.” J.A. 62. The

district court also recognized that “generally you can’t just assume that the residence

is involved just because you have evidence of a defendant engaging in drug deals,”

that it “takes something more than that to make the connection.” Ibid. The district

court also observed that “most of the investigation seems to emanate from the officers

identifying Skinny” as the “leader of a drug trafficking organization.” Ibid.

As to the locations involved, the district court explained that “I live not far from

here, so I’m fairly familiar with 9th and 10th Avenues and 6th and 7th Streets.” J.A.

63. Furthermore, the district court noted that Gray’s apartment at 912 6th Street was

“right behind 909 7th Street” – Hudson’s apartment. Ibid. Thus, “it does strike me

that it’s certainly at least as plausible that that is the home base of the activities,”

rather than Hudson’s home. J.A. 64. The district court also suggested that “if Gray is

the leader . . . the inference is that Gray is supplying him with drugs, and then he’s

going out and meeting people and selling them.” J.A. 65. “I don’t see,” the district

court explained, “how the affidavit supports identifying his residence as the place

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where he’s storing his drugs given all this other information that seems to suggest to

me that he’s getting drugs from Gray, and he just met with Gray.” J.A. 66. The

Government argued it was “just as reasonable” to believe Hudson got drugs from his

home as it was Gray’s apartment. J.A. 77.

In post-hearing briefing, Hudson renewed his argument that there was not a

sufficient nexus between Hudson’s home and the drug trafficking activities. J.A. 9296. In addition, he argued that Leon should not apply to save the search, as the

warrant issued was “the result of the magistrate rubber stamping the insufficient

application on behalf of the police” and was “so facially deficient on its face . . . that

no reasonable officer should have relied upon it.” J.A. 97-98. The Government

renewed its arguments that there was a sufficient proof of the required nexus and, if

not, Leon good faith applied as a basis for denying Hudson’s motion. J.A. 99-114.

The district court denied Hudson’s motion to suppress in a written

memorandum opinion and order. J.A. 115-119. The district court did not directly

address the nexus issue, concluding that “even if this Court assumes there was no

probable cause to search 909 7th Street, the search warrant is valid under the good

faith exception.” J.A. 117. After “[r]eviewing the warrant in its entirety,” the district

court concluded that “the officers had an objectively reasonable belief that there was

probable cause to search the residence at 909 7th Street.” J.A. 118. Evidence in the

affidavit “supports a reasonable inference that [Hudson] stored controlled substances

at the 909 7th Street address,” although the district court conceded it “may also

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support other reasonable inferences.” Ibid. However, another inference “[d]oes not

make the officers’ inference or the Magistrate Judge’s findings unreasonable.” Ibid.

Following the denial of his motion to suppress, Hudson entered into a plea

agreement with the Government in which he preserved his ability to appeal that

denial. J.A. 128. After pleading guilty to both counts in the indictment, Hudson was

sentenced to concurrent terms of 180 months in prison, followed by concurrent terms

of three and five years of supervised release. J.A. 138-139.

3.

The Fourth Circuit affirms the denial of

Hudson’s motion to suppress.

Hudson appealed the district court’s decision to the Fourth Circuit Court of

Appeals, which ultimately affirmed the denial of the motion to suppress. United

States v. Hudson, ___ F.App’x ___, 2023 WL 387026 (4th Cir. 2023). In his briefs,

“Hudson contend[ed] that the nexus between his alleged drug activities and the

residence was so inadequate that the magistrate judge acted as a rubber stamp in

signing the search warrant, and that the supporting affidavit was so bare that no

police officer could have reasonably relied on the warrant.” Id. at *2. As a result,

Hudson argued, the “good faith” exception of Leon did not apply. The Fourth Circuit

disagreed, concluding that the warrant “affidavit contained sufficient indicia of

probable cause such that the investigator’s reliance on the warrant was objectively

reasonable,” including the identification of Hudson as involved with a drug trafficking

organization and that he had a key to the residence that was searched. Ibid.

“Considering the totality of this information, the affidavit was not so lacking in

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indicia of probable cause as to render reliance on the warrant entirely unreasonable.”

Ibid. Nor had “the magistrate judge acted as a ‘rubber stamp’ for the police in issuing

a warrant based on a ‘bare bones’ affidavit.” Ibid.

IX. REASON FOR GRANTING THE WRIT

The Petition should be granted to determine whether the Leon

good-faith exception applies to a search pursuant to a warrant

that was deficient in setting forth a nexus between observed

drug activity and the place to be searched, Hudson’s home.

The Constitution protects the rights of citizens “to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const.

amend. IV. “[W]hen it comes to the Fourth Amendment, the home is first among

equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013). In this case, both the district court

and Fourth Circuit correctly assumed that the warrant used to search Hudson’s home

was deficient. Nevertheless, the courts concluded that the evidence discovered as a

result of that search was admissible under the good-faith doctrine set forth by this

Court in United States v. Leon, 468 U.S. 897 (1984). Whether the exception should

have been applied in a case like this, where the only link between the place searched

and drug activity was that it was Hudson’s home and where another location was the

more likely site for the storage of drugs and drug paraphernalia, is an important

question of federal law that this Court should resolve. See Rules of the Supreme Court

10(c).

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A.

The district court’s assumption – that the warrant

affidavit did not prove a sufficient nexus between drug

trafficking and Hudson’s home – was correct.

The district court did not specifically hold that the warrant affidavit in this

case failed to show the required nexus between Hudson’s home and drug trafficking.

Instead, it “assume[d]” that to be the case and moved on to the Leon good-faith

analysis. J.A. 117. The Fourth Circuit did the same. Hudson, 2023 WL 387026 at *2

(“even if the warrant was not supported by probable cause”). As evidenced by the

district court’s observations during the suppression hearing, the assumption that the

warrant affidavit was insufficient was correct. It does not demonstrate that probable

cause existed to believe that contraband would be found in Hudson’s apartment.

There is no dispute that probable cause existed to believe that Hudson was

involved with sale of drugs. Officers observed Hudson engage in what appeared to be

a drug deal on the street, then confirmed with the buyers that Hudson had sold them

methamphetamine. J.A. 32. However, that is not a sufficient basis to justify a search

of Hudson’s home. That requires a sufficient nexus between that probable cause and

his home, so as to provide probable cause to support a warrant to search it. See

Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978)(the “critical element in a

reasonable search is not that the owner of the property is suspected of crime but 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”). This Court has held that

“when it comes to the Fourth Amendment, the home is first among equals.” Jardines,

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569 U.S. at 6. To pass constitutional muster, a search warrant must establish a

sufficient nexus between the alleged criminal conduct and the place to be searched.

See United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988).

The district court highlighted numerous reasons why the information in the

warrant affidavit could not show a nexus between drug trafficking and Hudson’s

home. First, the amounts of drugs involved in the observed transactions were “small,”

suggesting that Hudson “wouldn’t need to have them anywhere other than his pocket,

whether he was on a bike, in a car, walking or coming from his home.” J.A. 62. Second,

“most of the investigation seems to emanate from the officers identifying Skinny” –

Gray – as the “leader of a drug trafficking organization,” rather than Hudson. Ibid.

Third, the investigation connected Gray with “a residence that is also in the same

vicinity.” J.A. 63. Indeed, from the district court’s personal knowledge, it observed

that Gray’s apartment was “literally right behind” Hudson’s. Ibid. That suggests that

the “base of activities” was Gray’s apartment, not Hudson’s. J.A. 64. Furthermore, “if

Gray is the leader . . . the inference is that Gray is supplying [Hudson] with drugs,

then he’s going out and meeting people and selling them.” J.A. 65. The district court

concluded that “I don’t see how the affidavit supports identifying his residence as the

place where he’s storing his drugs given all this other information that seems to

suggest to me that he’s getting drugs from Gray, and he just met with Gray.” J.A. 66;

see also United States v. Lalor, 996 F.2d 1578, 1583 (4th Cir. 1993)(warrant

unsupported by probable cause where drug sales occurred elsewhere and there was

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otherwise no basis to conclude that evidence would be stored at the defendant’s

residence).

That slight connection to the place searched, as well as Hudson’s small role in

the investigation, is what sets this case apart from cases like United States v.

Williams, 548 F.3d 311 (4th Cir. 2008), as the district court recognized. J.A. 66-67.

The 26-page affidavit in Williams contained information based on “a confidential

informant, controlled purchases, intercepted phone calls, and physical surveillance”

which indicated that Williams was not just selling drugs but was “managing an

ongoing drug distribution network that operates throughout the United States of

America.” Id. at 313, 314. It also included a recitation of Williams’ multiple prior drug

and firearm related convictions. 4 Notably, the affidavit also included the applying

officer’s declaration that, based on his experience, drug dealers kept narcotics and

other implements of the drug trade in their home. Id. at 314. No such assertion

appeared in the affidavit in this case.

As the district court observed during the suppression hearing, “generally you

can’t just assume that the residence is involved just because you have evidence of a

defendant engaging in drug deals.” J.A. 62. Rather, it “takes something more than

that to make the connection.” Ibid. The connection was never made in this case. While

there was evidence that Hudson was selling drugs, there was insufficient evidence to

create probable cause to search his apartment for evidence of that conduct.

4 Nothing about Hudson’s criminal history was included in the affidavit in this case.

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B.

The Leon good-faith exception does not apply because the

bare bones warrant affidavit led to the magistrate judge

rubber stamping the officers’ assertions and led to a

warrant that no reasonable officer could think was

sufficient.

Where a search warrant fails to survive scrutiny on review, a court must then

determine whether the issued warrant falls under the “good faith” exception set forth

in Leon. Leon holds that a reviewing court should not suppress evidence discovered

“under the authority of a warrant, even a ‘subsequently invalidated’ warrant, unless

‘a reasonably well trained officer would have known that the search was illegal

despite the magistrate’s authorization.’” United States v. Bynum, 293 F.3d 192, 195

(4th Cir. 2002), quoting Leon, 468 U.S. at 922 n.23. However, “[g]ood faith is not a

magic lamp for police officers to rub whenever they find themselves in trouble.”

United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996). An officer cannot be found

to have acted with “objective reasonableness” excluding application of this “good faith

exception,” in any of the several circumstances. Bynum, 293 F.3d at 195. As relevant

to this case, those circumstances include when “the magistrate acted as a rubber

stamp for the officers and so ‘wholly abandoned’ his detached and neutral ‘judicial

role’” and when the “‘warrant [is] so fatally deficient . . . that the executing officers

cannot reasonably presume it to be valid.’” Ibid.

That a valid search warrant application must demonstrate a nexus between

the items to be seized and the place to be searched is a longstanding legal

requirement. See, e.g., Zurcher, 436 U.S. at 556, citing Carroll v. United States, 267

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U.S. 132 (1925); United States v. Kemp, 690 F.2d 397, 401 (4th Cir. 1982)(the

“probable cause necessary for a search to be reasonable is probable cause to believe

that law enforcement officials will find in a certain place contraband or evidence of a

crime”). This is not a case where the police acted in accordance with the law at the

time of the search which has subsequently been changed. See, e.g., Davis v. United

States, 564 U.S. 229, 231 (2011). Instead, the law was clear that a sufficient nexus

had to be shown between Hudson’s home and the items to be seized there. As shown

above, the affidavit in support of the application for a search warrant in this case does

not demonstrate that nexus. The warrant that was issued was the result of the

magistrate rubber stamping the insufficient application on behalf of the police. It was

also so fatally deficient on its face with respect to the premises to be searched that no

reasonable officer should have relied upon it. In similar cases, courts have correctly

found that Leon did not apply.

In United States v. McPhearson, 469 F.3d 518 (6th Cir. 2006), officers went to

McPhearson’s home to arrest him on state assault charges. Once in custody, he was

patted down and found to be in possession of 6.4 grams of crack cocaine. On that basis

alone, officers sought a warrant to search McPhearson’s home. The warrant was

issued and large amounts of drugs and firearms were found in the home. Id. at 520521. The district court granted McPhearson’s motion to suppress, finding that the

warrant affidavit was insufficient and that Leon did not apply. The Sixth Circuit

affirmed, noting first that the deciding “whether the affidavit is so bare bones as to

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preclude application of the good-faith exception is a less demanding inquiry than the

one involved in determining whether the affidavit provided a “substantial basis” for

the magistrate's conclusion of probable cause,” because if “the inquiries were

identical, the probable cause determination would subsume the good-faith exception.”

Id. at 526. The court held that the “only connection in the affidavit” between

McPhearson’s home and drug trafficking – that he was in possession of crack when

arrested at his home – “cannot establish the minimal nexus that has justified

application of the good-faith exception in cases where the nexus between the place to

be searched and the evidence to be sought was too weak to establish probable cause.”

Ibid.

Similarly, in United States v. Gonzales, 399 F.3d 1225 (10th Cir. 2005),

Gonzales was arrested following a traffic accident for driving under the influence. A

search of his vehicle uncovered a loaded magazine for a firearm, but no firearm itself.

After learning Gonzales has a prior felony conviction, officers obtained a warrant to

search his home. Id. at 1227-1228. That search uncovered “several firearms and

abundant weapon-related paraphernalia.” Id. at 1228. Again, the district court

granted a motion to suppress, rejecting reliance on Leon. On appeal, the Tenth Circuit

held that the search warrant affidavit was insufficient because “there were no facts

explaining how the address was linked to Mr. Gonzales, the vehicle, or suspected

criminal activity, or why the officer thought the items to be seized would be located

in the residence.” Id. at 1230. The shield of Leon’s good-faith exception could not apply

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when the connection between the place to be searched and criminal activity “is wholly

absent.” Id. at 1231; see also United States v. Garcia, 809 F.Supp.2d 1165, 1175 (N.D.

Cal. 2011)(good-faith exception did not apply in case where police found defendant

in possession of drugs following arrest and subsequently searched his home, where

the Government “has not met its burden to demonstrate that the officers in this case

could have harbored an objectively reasonable belief that probable cause existed”);

United States v. Woodley, 447 F.Supp.3d 487, 495 (E.D. Va. 2020)(good-faith

exception did not apply to search of home based on traffic stop where marijuana was

discovered and it was “equally plausible to assume that the Defendant obtained the

drugs to sell and distribute from another person, i.e., another drug dealer, a stash

house, or from any number of sources other than his residence”).

The good-faith exception exists to preclude exclusion where police did precisely

what the Fourth Amendment requires and sought a search warrant from a neutral

and detached magistrate. “Deference to a magistrate, however, is not boundless.”

Leon, 468 U.S. at 914. A magistrate who “fail[s] to manifest that neutrality and

detachment . . . and who acts instead as an adjunct law enforcement officer cannot

provide a valid authorization for an otherwise unconstitutional search.” Ibid.

(internal quotation omitted). That is what happened in this case. The magistrate who

issued the warrant to search Hudson’s home acted as a rubber stamp for the police.

As a result, a warrant was issued that no reasonable officer could think was sufficient

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to support the search of Hudson’s home. Leon was not intended to allow such

violations of the Fourth Amendment to go uncorrected.

C.

There is no per se rule that probable cause exists to search

a home because a person associated with drug trafficking

enters it with a key.

On appeal, the Government relied heavily on, and the Fourth Circuit cited,

United States v. Grossman, 400 F.3d 212 (4th Cir. 2005), to support the district court’s

denial of Hudson’s motion to suppress. In doing so, the Government placed great

weight in the concept that a drug dealer who uses a key to enter a home must store

drugs there. Government Brief at 13, 16. That requires taking an observation the

Fourth Circuit made in Grossman out of context and ignoring the numerous factors

that made that case different than this one.

Grossman began when a police officer in Baltimore “received information from

a confidential source about the drug trafficking activity of Kenneth Grossman,”

including that he was “keeping large quantities of [cocaine] in ‘stash houses’ in

northeast and west Baltimore.” Grossman, 400 F.3d at 214. The source had

previously proven reliable and the officer was able to corroborate the tipster’s

information about Grossman’s prior record, which included convictions for “felony

drug offenses.” Ibid. Armed with this information, the officer performed surveillance

on Grossman, following him to a home in northeast Baltimore. To get there

“Grossman drove at least ten blocks out of his way, a driving pattern typical of those

involved in drug-trafficking and familiar with surveillance techniques.” Id. at 215.

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The officer then watched as Grossman got out of his car, “look[ed] around in all

directions, and use[d] a set of keys to open the front door.” Ibid. It was forty minutes

before Grossman came back out. As he went to his car (a different car than the one in

which he arrived), the officer confronted him and began to ask questions. Ibid.

To those questions, Grossman answered in a series of lies, each more incredible

than the last. First, he alleged that he had not just come out of the residence. Second,

he said he had been driving the car he was standing next to, not the other one in

which the officer saw him arrive. Third, after being told by the officer that he saw

Grossman leave the home, “Grossman asserted that his girlfriend let him in.”

Grossman, 400 F.3d at 215. However, after being told that the officer watched him

use a key, “Grossman admitted as much.” Ibid. Fourth, after initially stating that his

girlfriend let him in, Grossman then “contradicted himself again by stating that he

was the only one home.” Ibid. When the officer asked for permission to search the

home, Grossman said his girlfriend would have to give permission, but he said “he

did not have any way of contacting his girlfriend, and he actually did not even

remember how to spell her name.” Ibid. It was “[a]t this point” that the officer sought

a warrant. Ibid.

Grossman moved to suppress the evidence found in that search, as well as

those found in two other locations (the results of the first search provided probable

cause for the second, which then provided probable cause for the third). Grossman,

400 F.3d at 216. The Fourth Circuit found the first search was supported by probable

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cause, noting that “the application for the warrant to search [the first home]

contained an affidavit from [the officer] which related the events as described above”

including his “own observations of Grossman’s suspicious and evasive behavior.” Id.

at 217. After noting that a sufficient nexus needed to be proven between the place to

be searched and contraband, this Court concluded that “[u]nder these

circumstances, it is reasonable to suspect that a drug dealer stores drugs in a home

to which he owns a key.” Id. at 218 (emphasis added).

It is that first phrase – “under these circumstances” – which is missing from

the Government’s reliance on Grossman and for good reason – the circumstances of

this case are far different than those in Grossman and leave that case with little

application to this one. The tip that began this investigation was directed toward

Gray, not Hudson (if we’re making comparisons to Grossman it is Gray who was the

large-scale drug dealer as Grossman was). J.A. 30-31. Where the officer in Grossman

learned that Grossman had previous convictions for drug offenses, there is nothing

in the warrant affidavit in this case about Hudson’s past. Where the officer in

Grossman observed driving behavior that suggested Grossman was trying to avoid

surveillance, Hudson engaged in no such attempted subterfuge. Likewise, while the

officer saw Grossman look around suspiciously before entering, Hudson simply

entered the door without incident. While the affidavit in this case does not state how

long Hudson was inside his home, the officer in Grossman noted forty minutes passed

between the time Grossman entered the home and left. Beyond those differences, of

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course, this case has none of the falsehoods that came out during the officer’s

questioning of Grossman after he left his home.

It is well established that in determining whether probable cause exists to

support a search courts should view the “totality of the circumstances,” rather than

rely on particular, discrete facts. United States v. Brinkley, 980 F.3d 377, 386 (4th

Cir. 2020). Grossman does not create a bright-line rule that probable cause exists to

search a place because a drug dealer has a key to that location. It stands only for the

unsurprising conclusion that probable cause exists in such a situation when the other

circumstances include historical evidence of drug dealing, attempts to evade police

surveillance, and numerous falsehoods stated by the suspect while trying to outwit

the police. In this case, where the circumstances are radically difference, Grossman

does not support the Government’s argument that there was probable cause to believe

there were drugs present in Hudson’s home when the search warrant was issued.

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X. CONCLUSION

For the reasons stated, this Court should grant certiorari in this case.

Respectfully submitted,

BRANDON QUANE HUDSON

By Counsel

WESLEY P. PAGE

FEDERAL PUBLIC DEFENDER

Jonathan D. Byrne

Appellate Counsel

Counsel of Record

for

Rhett H. Johnson

Assistant Federal Public Defender

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