Petition for Writ of Certiorari — Russell Davis, Petitioner v. United States

Case: 22-3603

Document: 34-1

Filed: 01/04/2024

Page: 1

No. 22-3603

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RUSSELL DAVIS,

Defendant-Appellant.

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Jan 4, 2024

KELLY L STEPHENS, Clerk

ORDER

BEFORE: GILMAN, KETHLEDGE, and MURPHY, 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. Judge Gilman would grant rehearing for the reasons

stated in his dissent.

ENTERED BY ORDER OF THE COURT

Case: 22-3603

Document: 34-2

Filed: 01/04/2024

Page: 1

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

Kelly L. Stephens

Clerk

Tel. (513) 564-7000

www.ca6.uscourts. gov

Filed: January 04, 2024

Mr. William Bernard Norman

Norman Law

115 Lincoln Avenue

Berea, OH 44017

Re: Case No. 22-3603, USA v. Russell Davis

Originating Case No.: 1:16-cr-00260-l

Dear Mr. Norman,

The Court issued the enclosed Order today in this case.

Sincerely yours,

s/Beverly L. Harris

En Banc Coordinator

Direct Dial No. 513-564-7077

cc: Mr. Matthew B. Kali

Enclosure

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RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0232p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

United States of America,

Plaintiff-Appellee,

>

No. 22-3603

v.

Russell Davis,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Ohio at Cleveland.

No. l:16-cr-00260-l—Christopher A. Boyko, District Judge.

Decided and Filed: October 23,2023

Before: GILMAN, KETHLEDGE, and MURPHY, Circuit Judges.

COUNSEL

ON BRIEF: William Bernard Norman, W.E.B. NORMAN LAW, INC., Berea, Ohio, for

Appellant. Matthew B. Kali, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for

Appellee.

MURPHY, J., delivered the opinion of the court in which KETHLEDGE, J., joined.

GILMAN, J. (pp. 15-19), delivered a separate dissenting opinion.

OPINION

MURPHY, Circuit Judge. If a police officer violates the Fourth Amendment by

conducting a search without probable cause, the “exclusionary rule” requires a court to prohibit

the use of any recovered evidence at the defendant’s criminal trial. See generally Mapp v. Ohio,

361 U.S. 643 (1961). In United States v. Leon, 468 U.S. 897 (1984), however, the Supreme

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United States v. Davis

Page 2

Court held the exclusionary rule typically will not apply if the officer obtained a warrant for this

search—even if the judge who issued the warrant erred in finding that probable cause existed.

See id. at 922. That said, Leon added that the officer cannot rely on the judge’s probable-cause

ruling to avoid the exclusionary rule if the affidavit requesting the warrant was so bare bones that

no reasonable officer could believe that it established probable cause. See id. at 923. This case,

which reaches us for a second time, raises a novel issue under Leon’s framework.

Russell Davis sold fentanyl that caused a deadly overdose,

After a thorough

investigation, a detective obtained a warrant from an Ohio magistrate to search Davis’s home in

Lorain, Ohio. In Davis’s first appeal, the government conceded that the detective’s affidavit in

support of this warrant omitted facts showing the required probable-cause “nexus” between

Davis and his home.

United States v. Davis, 970 F.3d 650, 666 (6th Cir. 2020). But we

remanded for an evidentiary hearing because the government contended that the detective had

provided additional (unrecorded) oral testimony in front of the magistrate. Id. During this later

federal hearing, the detective stated that he believed he had told the magistrate about the

evidence connecting Davis to the home, but he could not recall any specifics. The district court

held that this general belief sufficed to avoid the “bare-bones” label and thus to trigger Leon’s

exception to the exclusionary rule.

We agree for two basic reasons.

First, the detective had uncovered overwhelming

evidence tying Davis to the home. And second, the magistrate (not the detective) bore any blame

for failing to transcribe the detective’s additional oral testimony under state law. We also reject

Davis’s other challenges to the warrant. So we now affirm Davis’s conviction in full.

I

A

On the morning of March 7, 2016, Jacob Castro-White’s mother tragically discovered

that he had died from a drug overdose in their Lorain home. Id. at 654. A first responder alerted

Detective Ernest Sivert of the Lorain Police Department. Id. At Davis’s trial, Sivert detailed his

ensuing investigation. Id. at 663. Sivert noticed that Castro-White’s phone had many missed

calls from Zaharias (“Harry”) Karaplis. Id. During an initial interview, Karaplis implicated an

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United States v. Davis

individual known as “Red” as the drug dealer who might have sold the fatal drugs to CastroWhite. Id. But Karaplis also lied to Sivert by denying any involvement. Id.

Sivert learned of this lie after receiving Castro-White’s phone records. Id. Those records

revealed Castro-White’s activities on the evening of March 6. Id. at 654-55. Around 10:00

p.m., Castro-White began to text another friend, Corey Stock, about obtaining heroin. Id. Stock

said that he could ask a drug-dealer acquaintance if she had heroin, but Castro-White declined

the offer and said he would wait for Red. Id. at 654. Shortly before midnight, he texted Karaplis

to see if Karaplis could arrange a drug deal with this person. Id. at 654-55.

In a follow-up interview with Sivert, Karaplis continued to lie about his involvement.

Sivert confronted him with the texts. Id. at 663. Karaplis then requested a lawyer. Id. Before

doing so, he identified the “Stock” in Castro-White’s texts as Corey Stock. Id. Stock later told

Sivert that he had bought drugs from “Red” at a “Garden Avenue home” in Lorain. Id.

After retaining counsel, Karaplis spoke with Sivert a third time.

At last, Karaplis

admitted his role. Id. He had arranged the heroin deal with Davis, and Castro-White had driven

him to Davis’s Garden Avenue house at 12:34 a.m. on March 7. Id. at 655. Karaplis paid Davis

$50 for “what he thought was heroin,” and Karaplis and Castro-White split the drugs. Id. It

turns out that Davis had provided the men with fentanyl—a much stronger drug. Id. When

speaking to Sivert this third time, Karaplis described Red and Red’s car, provided Red’s phone

number, and located on Google Maps the specific home where he had bought drugs from Red.

Id. at 663.

Sivert traveled to this home and spotted a car parked nearby that fit Karaplis’s

description. Id. Sivert learned that the car’s license plate was registered to “Russell Davis” and

that Davis’s nickname was “Big Red.” Id. He also asked Karaplis to look at a photo array. Id.

Karaplis identified Davis’s picture as “Red” with “100 percent” confidence. Id.

About a week later, Karaplis received a text message from Davis. Id. Karaplis contacted

Sivert. Id. Sivert had Karaplis set up a phone call with Davis. When Karaplis began to discuss

Castro-White’s death, Davis asked if the police had “sweat[ed]” him about it. Id.

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United States v. Davis

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After this call, Sivert asked an Ohio magistrate for a warrant to search Davis’s Garden

Avenue home for his cellphone. Id. Sivert’s affidavit summarized the events as follows:

1. In the early morning hours of ... March 7, 2016, Jacob Castro-White was in

contact with Zaharias Karaplis, another heroin user, for the purpose of

obtaining heroin.

2. Zaharias Karaplis and Jacob Castro-White made contact with a male known as

“Red” and later identified as Russell Davis, on his cellular phone (216) 5268810 for the purpose of purchasing heroin, both through text and voice

communication.

3. Zaharias Karaplis and Jacob Castro-White met with Russell “Red” Davis on

March 7, 2016 for the purpose of buying heroin from him.

4. Jacob Castro-White ingested the purported heroin from Russell “Red” Davis

and it caused him to overdose. The time between the purchase of the heroin

from Russell “Red” Davis and the estimated time of death, by the Lorain

County Coroner Steven Evans is approximately one (1) hour.

5. Toxicology tests conducted by the Lorain County Coroner’s Office revealed

that Jacob Castro-White had a lethal dose of Fentynal in his sytem [sic].

6. On April 12, 2016 at 0945 hours Zaharias Karaplis received a text message

from Russell “Red” Davis via his cellular telephone with the number (216)

526-8810.

Id. at 663-64. “Based on this investigation,” Sivert added, he believed that Davis had been

“trafficking in heroin” from the Garden Avenue home and using his cellphone as an “instrument”

of that “trafficking business.” Aff., R.31-1, PagelD 121. Sivert also opined that the phone was

likely still at the Garden Avenue home, referring to it as the “residence of Davis.” Id.

The magistrate granted the search warrant. Davis, 970 F.3d at 664. During the search of

Davis’s home, police found, among other things, the phone and illegal drugs. Id.

The government indicted Davis on two drug counts. Id. at 654. Davis moved to suppress

the evidence recovered from his home. Id. at 664. The district court denied this motion. Id.

Davis stood trial on one of the drug counts. Id. at 654-55. A jury convicted him of

distributing fentanyl and found that the distribution caused Castro-White’s death. Id. at 655.

Given this fatality, the district court sentenced Davis to a mandatory life sentence. Id.

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United States v. Davis

In his first appeal, Davis sought to overturn his conviction on many grounds.

We

rejected all of his claims except for two concerning Davis’s Fourth Amendment challenge to

Sivert’s affidavit. Id. at 656-66. Alleging that Sivert had omitted material facts from his

affidavit, Davis argued that the district court should have held a hearing to examine the

detective’s truthfulness under Franks v. Delaware, 438 U.S. 154 (1978). Davis, 970 F.3d at 664.

Alternatively, Davis argued that Sivert’s affidavit did not assert any facts to show that Davis

lived at the Garden Avenue home.

In response to the second argument, the government

conceded that the affidavit lacked the required probable-cause “nexus” between Davis and this

home. Id. at 666. But it suggested that Sivert had given more oral testimony in front of the

magistrate who issued the warrant. Id.

Ultimately, we remanded the case so the district court could hold an evidentiary hearing

about what Sivert told the magistrate in person. Id. at 664, 666. We reasoned that the Fourth

Amendment did not require written testimony. Id. at 666. We added that Sivert’s investigation

showed that he had plenty of facts connecting Davis to the Garden Avenue home. Id.

B

On remand, the district court held a hearing at which two witnesses testified: the

magistrate who issued the warrant and Detective Sivert.

Tr., R..147, PagelD 2868.

The

magistrate explained that he followed a standard “process” when reviewing warrant requests.

Id., PagelD 2880. He would “swear the officer,” “review” the affidavit, and “discuss the issue

with the officer[.]”

Id.

The magistrate did not use a court reporter to transcribe these

conversations. Id. If an affidavit fell well short of probable cause but the officer knew more

facts, the magistrate would ask the officer to draft another affidavit. Id., PagelD 2889-90. But

the magistrate might not require a second affidavit if the first one fell “close” to the probablecause line and the magistrate “needed clarification” on just one issue.

Id., PagelD 2891.

Although the magistrate described his general practice, he lacked a “specific recollection” of

Davis’s case. Id., PagelD 2882. But he would have been “shocked” if he had not spoken with

Sivert about the warrant. Id.

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United States v. Davis

Page 6

Detective Sivert recalled more. Davis’s case “stuck in [his] mind” because he knew the

victim’s grandfather, a retired police officer. Id., PagelD 2932. Sivert “discussed the majority of

the case” with the magistrate but could not remember any details that he had disclosed. Id.,

PagelD 2933. He stated that he was “sure” that he had conveyed the many facts connecting

Davis to the Garden Avenue home, but he added that he could not “be a hundred percent

certain[.]” Id.

After this hearing, the district court again denied Davis’s motion to suppress. See United

States v. Davis, 2022 WL 2314009, at *1 (N.D. Ohio June 28, 2022). The court agreed that the

affidavit failed to establish a probable-cause nexus between Davis and the Garden Avenue home.

See id. at *4. It also found that the magistrate had put Sivert under oath to discuss the case. Id.

at *6. But neither the magistrate nor Sivert could recall what Sivert had said. Id. at *6-7. Given

the “unknown specifics,” the court held that this testimony did not prove that Sivert conveyed

facts to create probable cause that Davis lived at the home. Id. at *7.

Even so, the court held that the exclusionary should not apply under Leon because Sivert

had relied on the magistrate’s issuance of the warrant. Id. at *8-10. It initially rejected Davis’s

claim that Leon's exception to the exclusionary rule could not apply because the magistrate had

“abandoned] his role as a judicial officer.” Id. at *9. The court next rejected Davis’s claim that

Leon's exception should not apply because Sivert’s supporting affidavit was “bare bones.” Id. at

*9-10. It decided that Sivert’s general “belief’ that he had told the magistrate the facts that

connected Davis to the home sufficed to avoid the bare-bones label. Id. at *10. The court lastly

rejected Davis’s claim that Sivert’s affidavit presented materially false information. Id. at *5.

Davis appeals a second time. We review the district court’s findings of historical fact for

clear error and its legal conclusions de novo. United States v. Baker, 976 F.3d 636, 641 (6th Cir.

2020). And we treat the court’s ultimate decision to apply Leon's warrant exception to the

exclusionary rule as a legal conclusion. United States v. Reed, 993 F.3d 441, 446 (6th Cir.

2021).

No. 22-3603

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United States v. Davis

II

The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.” U.S. Const, amend. IV.

To establish the probable cause

necessary for a warrant, an officer’s supporting affidavit must show a “probable-cause ‘nexus’”

tying the place to be searched to the items to be seized. Reed, 993 F.3d at 447. Here, Detective

Sivert sought to seize Davis’s phone from the Garden Avenue home. But Sivert’s affidavit

mistakenly omitted facts showing that Davis lived there. So the government does not dispute

that the affidavit failed to establish probable cause that the police would find the phone at this

location.

This case instead concerns the proper response to this Fourth Amendment problem. The

Fourth Amendment’s text does not require any specific remedy when a magistrate issues a

warrant lacking probable cause. See Herring v. United States, 555 U.S. 135, 139 (2009). But the

Supreme Court has long adhered to a judge-made “exclusionary rule” that sometimes bars the

use of evidence at a defendant’s trial if the police uncovered it in violation of the amendment.

See Davis v. United States, 564 U.S. 229, 236-38 (2011); Arizona v. Evans, 514 U.S. 1, 10-11

(1995). The Court now applies this rule only if its benefits in stopping constitutional violations

exceed its costs in hindering the trial’s “truth-finding function” and permitting “wrongdoers” to

escape punishment. United States v. Robinson, 63 F.4th 530, 534 (6th Cir. 2023).

Engaging in this cost-benefit balance, the Court in Leon held that the exclusionary rule

generally should not apply if a judge issues a search warrant that violates the Fourth Amendment

because it rests on an affidavit that does not establish probable cause. 468 U.S. at 916-21. Leon

reasoned that the exclusionary rule exists to deter the misconduct of police officers—not judges.

See id. at 916. In most cases, moreover, the officer seeking a warrant will “defer to the judge’s

legal conclusion” about whether probable cause exists. Reed, 993 F.3d at 450. So the blame for

a bad warrant generally will fall on the judge. See Leon, 468 U.S. at 920-21.

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United States v. Davis

Leon’s rejection of the exclusionary rule would seem to govern Davis’s case. After all,

Sivert relied on the magistrate’s conclusion that probable cause existed when he searched

Davis’s home based on the warrant that the magistrate had issued. And the magistrate (not

Sivert) would have committed the primary “error” by overlooking that Sivert’s affidavit failed to

disclose facts showing that Davis lived at the home that Sivert sought to search. Id. at 921.

At the same time, Leon recognized that officers might sometimes bear the blame for

unlawful warrants in “unusual” situations. Id. at 918. The Court identified “four” circumstances

in which the exclusionary rule will still apply even if an officer obtains a warrant. Baker, 976

F.3d at 647 (citation omitted); see Leon, 468 U.S. at 923.

Davis invokes three of these

circumstances.

Circumstance One: “Bore-Bones “ Affidavits. Leon held that the exclusionary rule should

still apply even when an officer gets a warrant if the officer’s supporting affidavit contained so

little information that no reasonable officer could believe it established probable cause. 468 U.S.

at 923. The classic example of this “bare-bones affidavit” alleges the officer’s conclusory belief

that probable cause exists without identifying any facts. United States v. White, 874 F.3d 490,

496, 498-99 (6th Cir. 2017). If, by contrast, an affidavit alleges “some modicum of evidence,

however slight,” connecting the sought-after items to the to-be-searched place, it will fall within

Leon’s exception to the exclusionary rule. Reed, 993 F.3d at 451 (citation omitted).

Davis argues that Sivert drafted a bare-bones affidavit because it did not identify even a

“modicum” of a connection between himself and his home. The government does not dispute

Davis’s claim that the affidavit alone was bare bones. So we need not consider that issue.

Rather, we must ask only whether Sivert’s further testimony took this case outside the

“bare-bones” camp. The district court could not identify any specific facts that Sivert told the

magistrate because neither witness could recall the details years later. See Davis, 2022 WL

2314009, at *7. At best, Sivert stated a general “belief’ that he told the magistrate about the

information tying Davis to the residence. Id. at *10. The district court held that this belief

provided the “modicum of evidence” required to trigger Leon’s exception. Id. We agree for two

reasons.

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First, Sivert uncovered plenty of evidence tying Davis to the Garden Avenue home.

Stock told Sivert that he had bought drugs from “Red” at this home. See Davis, 970 F.3d at 663.

Karaplis likewise identified the home on Google Maps as the place of the drug deal that led to

the fatal overdose. See id. And Sivert corroborated their information. See id. When surveilling

the home, he noticed the car that Karaplis identified as Red’s and confirmed that the car

belonged to Davis. Id. At the evidentiary hearing, Sivert added that he had run Davis’s phone

number through a police database, which also listed the Garden Avenue address as Davis’s

home. Tr., R.147, PagelD 2946-47, 2960. If disclosed in Sivert’s testimony, this evidence

would have satisfied the Fourth Amendment by establishing probable cause that Davis lived at

the home. Davis, 970 F.3d at 666.

In some courts, this evidence also would have triggered Leon’s exception to the

exclusionary rule even if Sivert had not disclosed it to the magistrate. These courts hold that

they may consider all of the circumstances (including facts “outside of the four comers of the

affidavit”) to evaluate whether an officer reasonably relied on a judge’s finding that probable

cause existed when issuing a warrant.

United States v. Farlee, 757 F.3d 810, 819 (8th Cir.

2014); United States v. McKenzie-Gude, 671 F.3d 452, 459-60 (4th Cir. 2011); United States v.

Martin, 297 F.3d 1308, 1318-19 (11th Cir. 2002); United States v. Dickerson, 975 F.2d 1245,

1250 (7th Cir. 1992); see also State v. Dibble, 150 N.E.3d 912, 916-17 (Ohio 2020); Adams v.

Commonwealth, 657 S.E.2d 87, 93-94 (Va. 2008); Moore v. Commonwealth, 159 S.W.3d 325,

328 (Ky. 2005); State v. Edmonson, 598 N.W.2d 450, 460-61 (Neb. 1999); Moya v. State, 981

S.W.2d 521, 525-26 (Ark. 1998).

Admittedly, our court rejects this rule. When engaging in the Leon inquiry, we will not

rely on information known only to the officer (and not the magistrate). See United States v.

Waide, 60 F.4th 327, 342 (6th Cir. 2023); United States v. Laughton, 409 F.3d 744, 751-52 (6th

Cir. 2005); see also United States v. Knox, 883 F.3d 1262, 1270-73 & n.7 (10th Cir. 2018);

United States v. Hove, 848 F.2d 137, 140 (9th Cir. 1988). We instead will consider only the

outside-the-affidavit information that an officer discloses to a magistrate by other means. See

United States v. Frazier, 423 F.3d 526, 535-36 (6th Cir. 2005); see also United States v.

No. 22-3603

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Thomas, 852 F. App’x 189, 198-99 (6th Cir. 2021). Under our approach, then, Sivert’s personal

knowledge that Davis lived at the Garden Avenue home does not alone satisfy Leon.

Yet this approach brings us to our second reason why we will apply Leon's warrant

exception to the exclusionary rule: Sivert provided more facts to the magistrate.

And the

magistrate bears the blame for failing to make a record of these facts.

To begin with, the district court found that the magistrate had put Sivert under oath and

obtained more information about the case. See Davis, 2022 WL 2314009, at *6. Our caselaw

permits us to consider this extra information. See Frazier, 423 F.3d at 535-36. Sivert later

opined that he “believe[d]” he told the magistrate the facts connecting Davis to the residence.

Tr., R.147, PagelD 2933. And the district court concluded that his testimony did not satisfy the

Fourth Amendment only because nobody transcribed it. See Davis, 2022 WL 2314009, at *6-7.

Who is to blame for this oversight? That question matters under Leon. The Supreme

Court has made clear that the exclusionary rule exists to deter only police misconduct. See

Davis, 564 U.S. at 246. When an unlawful search arises from a judge’s action, the Court has

refused to exclude any evidence. That occurred in Leon itself, which reasoned that a judge bears

the blame for issuing a warrant without probable cause. 468 U.S. at 921. The Court has since

expanded this principle to other judicial errors. It refused to apply the exclusionary rule when a

court clerk wrongly failed to notify the police that an arrest warrant had been quashed. See

Evans, 514 U.S. at 4-5, 14-16. And it refused to apply the exclusionary rule when a police

officer relied on an appellate court’s misreading of the Fourth Amendment. See Davis, 564 U.S.

at 241.

This principle applies here too. The magistrate (not Detective Sivert) had a duty to

record his testimony under Ohio law. See Dibble, 150 N.E.3d at 921. When considering warrant

requests, Ohio judges “may require the affiant to appear personally ..., and may examine under

oath the affiant and any witnesses the affiant may produce.” Ohio Crim. R. 41(C)(2). This Ohio

rule adds: “Such testimony shall be admissible at a hearing on a motion to suppress if taken

down by a court reporter or recording equipment, transcribed, and made part of the affidavit.”

Id. The Ohio Supreme Court has held that any blame for failing to record this testimony belongs

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to a judge. Dibble, 150 N.E.3d at 921. It reasoned that the “officer has no control over the

court’s recording and transcription procedures.” Id. In this case, then, the “very fact” that the

magistrate took more testimony would have led Sivert to reasonably “believe that the testimony

[had] legal significance and [was] being properly considered in assessing probable cause.” Id.

In sum, even if Sivert’s affidavit could be described as bare bones, the added information

that he gave the magistrate suffices to avoid the exclusionary rule.

Sivert had substantial

evidence connecting Davis to the Garden Avenue home. He testified about his investigation.

And we lack specific details about his testimony only because the magistrate failed to transcribe

it. Since Sivert did not engage in any intentional or reckless misconduct, the exclusionary rule

should not apply to the evidence recovered from his search. See Herring, 555 U.S. at 147^48.

In response, Davis argues that we may not consider Sivert’s oral testimony because Ohio

law allegedly prohibits courts from relying on unrecorded evidence at later suppression hearings.

Ohio Crim. R. 41(C)(2). His argument suffers from two problems. For one thing, this Ohio rule

regulates state courts and does not govern in these federal proceedings. See, e.g., United States

v. Beals, 698 F.3d 248, 263-64 (6th Cir. 2012); United States v. Wright, 16 F.3d 1429, 1434 (6th

Cir. 1994). And under our court’s view of federal law, we may rely on information outside an

affidavit where, as here, an officer conveys the information to the magistrate. See Frazier, 423

F.3d at 535-36. We have not limited this principle only to recorded information. For another

thing, the Ohio Supreme Court itself recently held that this Ohio rule does not bar the use of

unrecorded testimony when evaluating a Leon defense in Ohio’s own courts. See Dibble, 150

N.E.3d at 920-21. So it would make no sense for us to rely on the rule to reject the testimony in

federal court.

Circumstance Two: Officer Falsehoods. Leon also held that the exclusionary rule should

apply despite a magistrate’s issuance of a warrant if a police officer obtained the warrant by

making a knowingly or recklessly false statement in the affidavit requesting it. 468 U.S. at 923.

Leon cited the Court’s earlier holding in Franks for this rule. Leon, 468 U.S. at 923. Franks

held that a false statement in an affidavit can invalidate an ensuing warrant if the defendant

proves two elements: that the officer knowingly or recklessly included the false statement and

that the affidavit would not have established probable cause without it. 438 U.S. at 155-56.

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Davis argues that this Franks rule should apply here because Sivert’s affidavit did not tell

the magistrate about Harry Karaplis’s credibility issues, including his lies during their first two

interviews. Davis thus does not rely on a false statement of fact in Sivert’s affidavit. He relies

on the omission of facts from the affidavit.

Although we have not categorically excluded these types of omissions from the Franks

inquiry, we have repeatedly held that a defendant must meet a “higher” standard to invalidate a

warrant based on an omission (rather than a false statement).

United States v. Neal, 577

F. App’x 434, 450 (6th Cir. 2014) (quoting United States v. Fowler, 535 F.3d 408, 415 (6th Cir.

2008)); see, e.g., United States v. Fisher, 824 F. App’x 347, 353-54 (6th Cir. 2020); United

States v. Alford, 717 F. App’x 567, 570 (6th Cir. 2017); United States v. Martin, 920 F.2d 393,

398 (6th Cir. 1990). When describing this higher standard, we have sometimes noted that a

defendant must prove that an officer omitted the information “with an intention to mislead” (not

just with recklessness) and that the omission of the information was “critical to the finding of

probable cause[.]” Mays v. City ofDayton, 134 F.3d 809, 816 (6th Cir. 1998); see Hale v. Kart,

396 F.3d 721, 726-27 (6th Cir. 2005).

Other times, though, we have suggested that the

defendant must show that the officer omitted the information intentionally or with reckless

disregard. See United States v. Graham, 275 F.3d 490, 506 (6th Cir. 2001); United States v.

Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997). If the latter rule applies, it is unclear how we have

set a “higher” standard for omissions than the one that governs false statements (as we have

said).

Regardless, Davis cannot meet any version of Franks' s first element. The district court

found that Sivert had not intentionally misled the magistrate or acted in reckless disregard of the

truth when failing to disclose Karaplis’s credibility problems. See Davis, 2022 WL 2314009, at

*5. We treat this conclusion as a finding of historical “fact” about Sivert’s state of mind and so

review it under the deferential clear-error standard. See United States v. Poulsen, 655 F.3d 492,

504 (6th Cir. 2011); United States v. Bonds, 12 F.3d 540, 568-69 (6th Cir. 1993). Yet Davis

does not point to any evidence to suggest—nor does he even argue—that Sivert intended to

mislead the magistrate or acted in reckless disregard of the truth. Plenty of evidence shows the

contrary. Sivert testified that he found Karaplis’s statements credible despite his earlier lies. See

No. 22-3603

United States v. Davis

Page 13

Davis, 2022 WL 2314009, at *5. Sivert also did much to corroborate the statements. See id. He

reviewed Castro-White’s phone records, interviewed Corey Stock, and surveilled Davis’s house.

Circumstance Three: Biased Magistrates. Leon lastly held that the exclusionary rule

should apply despite a magistrate’s issuance of a warrant if the magistrate “wholly abandoned” a

“judicial role” and failed to act as a neutral adjudicator. 468 U.S. at 923. Leon highlighted the

decision in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979), as containing the prototypical

facts that fit this exception. See Leon, 468 U.S. at 923. In Lo-Ji, a “Town Justice” issued a

warrant to search a store for allegedly obscene films. 442 U.S. at 321-22. This judge then

accompanied the police to the store and oversaw the search. Id. at 322-23. The Court held that

the judge had not acted with the “neutrality and detachment” required of those who have the duty

to issue warrants because he had joined in the executive branch’s criminal investigation. Id. at

326-27.

Since Leon, we have interpreted this exception to apply if a magistrate acted as a mere

“rubber stamp” for an officer by issuing the warrant without independently examining whether

probable cause exists. See United States v. Abdalla, 972 F.3d 838, 847 (6th Cir. 2020); United

States v. Thomas, 605 F.3d 300, 311 (6th Cir. 2010); United States v. Leake, 998 F.2d 1359,

1366 (6th Cir. 1993); see also Leon, 468 U.S. at 914. But prevailing on this theory takes more

than a perfunctory allegation.

Indeed, we have repeatedly rejected claims that magistrates

abdicated their roles in this way. We, for example, held that a magistrate did not act as a “rubber

stamp” just because he failed to catch that the warrant listed the wrong address in one section of

the document. See Abdalla, 972 F.3d at 847-48. We also rejected such a claim when the

magistrate edited an affidavit on the officer’s behalf, noting that this attention to detail instead

revealed that the magistrate had reviewed the warrant request “with a critical eye.” United States

v. Warren, 365 F. App’x 635, 637 (6th Cir. 2010) (quoting Frazier, 423 F.3d at 538).

Davis’s claim here suffers from the same fate as the claims in these other cases. The

magistrate neither participated in Sivert’s investigation nor “rubber stamped” his affidavit.

Indeed, the magistrate did not even rely solely on the affidavit. Rather, he put Sivert under oath

and interrogated him about the investigation. As in our other cases, then, the record shows that

No. 22-3603

United States v. Davis

Page 14

the magistrate reviewed Sivert’s warrant request with healthy skepticism, not blanket trust. See

id.

Davis counters that the magistrate violated Ohio Rule of Criminal Procedure 41 by

failing to record Sivert’s testimony. As the Ohio Supreme Court noted, however, this rule

provides only that oral testimony will be admissible in later suppression hearings if a magistrate

records it. Dibble, 150 N.E.3d at 920. The rule did not require such a recording.

Davis also makes much of the magistrate’s opinion that Sivert had “unquestionable”

credibility based on the 25 years that they have known each other. Tr., R.147, PagelD 2902. Yet

the magistrate still did not “rubber stamp” Sivert’s affidavit despite the high regard in which he

held the detective’s character. And Davis cites no caselaw holding that a judge’s favorable

opinion of a witness’s credibility alone renders the judge biased under Leon.

We affirm.

No. 22-3603

United States v. Davis

Page 15

DISSENT

RONALD LEE GILMAN, Circuit Judge, dissenting. Because the record is still devoid of

what information was conveyed to the state-court magistrate at the time Detective Sivert applied

for the search warrant in question, I am not persuaded that the testimony on remand saves the

bare-bones affidavit. I would therefore reverse the judgment of the district court and remand for

the court to consider the government’s alternative argument predicated on harmless error.

I. BARE-BONES ANALYSIS

In United States v. Leon, 468 U.S. 897, 920 (1984), the Supreme Court held that evidence

obtained pursuant to an invalid search warrant need not be suppressed “when an officer acting

with objective good faith has obtained a search warrant from a judge or magistrate and acted

within its scope.” But an officer does not act in objective good faith if the warrant is “based on

an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence

entirely unreasonable.’” Id. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975)

(Powell, J., concurring in part)). Such an affidavit has been characterized as “bare bones.” Id. at

915,926.

When assessing an officer’s good-faith reliance on a search warrant, “[t]his court has

been unequivocal in holding that... ‘a determination of good faith reliance ... must be bound

by the four comers of the affidavit.’” United States v. Waide, 60 F.4th 327, 342 (6th Cir. 2023)

(quoting United States v. Laughton, 409 F.3d 744, 751 (6th Cir. 2005)). But our court carved out

a narrow exception to this rule in United States v. Frazier, 423 F.3d 526, 534-36 (6th Cir. 2005),

for omitted information known to the affiant and revealed to the magistrate.

In Frazier, this court affirmed a district-court order denying the defendant’s motion to

suppress evidence that yielded marijuana and firearms. Id. at 529. The record in Frazier

contained highly probative information concerning the defendant’s participation in two prior

drug transactions that was omitted from the affidavit. Id. at 535. Neither party disputed that the

officers independently informed the magistrate that an informant had recorded the defendant’s

No. 22-3603

Page 16

United States v. Davis

participation in these two transactions. Id. The officers included this probative information in

five related warrant affidavits presented contemporaneously to the magistrate. Id. This court

held that “a court reviewing an officer’s good faith under Leon may look beyond the four comers

of the warrant affidavit to information that was known to the officer and revealed to the

magistrate.” Id. at 535-36 (emphasis added).

Frazier’s narrow exception was subsequently applied in United States v. Thomas,

852 F. App’x 189 (6th Cir. 2021). In that case, a magistrate evaluated two related affidavits

concerning a house and a barber shop. Id. at 191.

The affidavit pertaining to the house

contained highly probative information about the defendant’s frequent meetings with a known

drug dealer that was omitted from the barber-shop affidavit. Id. at 197. There was also evidence

in the house affidavit that the drug dealer met with the defendant only when the dealer’s drug

supply was low. Id. at 197-98. Both warrants were issued the same day. Id. at 198. Because

there was no question that the magistrate was presented with the key facts relevant to each

warrant, there was no reason to believe that the magistrate did not recall and consider these key

facts omitted from the barber-shop affidavit. Id. The omitted facts were therefore permitted to

be considered under these circumstances. Thomas ultimately interpreted Frazier as standing for

the proposition that “the good-faith exception could apply where information clearly known and

considered by the magistrate, but inadvertently excluded from an affidavit, supported a finding

of probable cause.” Id. (emphasis added) (citation omitted).

In the present case, the government does not dispute that the affidavit at issue is bare

bones. See Majority Op. at 8. Reliance on the affidavit alone would therefore be objectively

unreasonable. See Leon, 468 U.S. at 923. To address this issue, we remanded this case with

instructions for the district court to hold an evidentiary hearing. United States v. Davis, 970 F.3d

650, 666 (6th Cir. 2020). We reasoned that a remand was necessary because “[n]o evidence tells

us whether [Detective] Sivert conveyed these facts [connecting Davis to the residence] under

oath to the magistrate before the magistrate issued the warrant.” Id. (citing United States v.

Beals, 698 F.3d 248, 268 (6th Cir. 2012)).

No. 22-3603

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United States v. Davis

But even after the remand, we have no clue about what material information Detective

Sivert conveyed to the magistrate, let alone information “clearly known and considered by the

magistrate.” See Thomas, 852 F. App’x at 198. The magistrate has no recollection at all of any

additional facts that Detective Sivert discussed with him. And Detective Sivert has no more than

a “belief’ that he informed the magistrate about the facts tying Davis to the residence in

question.

The majority, for its part, agrees that, “[a]t best, Sivert stated a general belief that he told

the magistrate about information tying Davis to the residence.” Majority Op. at 8. But the

majority contends that Detective Sivert’s general belief provided “a modicum of evidence”

to trigger Leon's good-faith exception.

the modicum-of-evidence

analysis

to

Id.

settle

This court, however, has never applied

what the ■ magistrate

was

clearly

told.

The modicum-of-evidence test is instead relevant only in analyzing Leon's good-faith nexus

between criminal activity and the places to be searched. See, e.g., Laughton, 409 F.3d at 749

(observing that good faith may be found where review “tum[s] up some modicum of evidence,

however slight, to connect the criminal activity described in the affidavit to the place to be

searched”); United States v. Rose, 714 F.3d 362, 368 (6th Cir. 2013) (holding that a modicum of

evidence triggered the good-faith exception because “the . . . affidavit does . . . establish a link

between criminal activity and [the defendant]....”).

Neither the majority nor the government has identified a case equating Leon's good-faith

nexus analysis with the quantum of proof necessary to clearly show that the magistrate knew of

and considered facts omitted from an affidavit. The facts here are thus materially different from

those in the cases of Frazier, 423 F.3d at 535, and Thomas, 852 F. App’x at 191, that are cited by

the majority. Given that we lack what information Detective Sivert told the magistrate, I find no

basis for the majority’s conclusion that we may look beyond the affidavit under these

circumstances. Absent additional evidence supplementing the affidavit, then, the bare-bones

affidavit is insufficient to support a finding of good faith.

No. 22-3603

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United States v. Davis

II. DETECTIVE SIVERT’S UNREASONABLE RELIANCE

The majority’s second reason for applying Leon's good-faith exception is because “the

magistrate bears the blame for failing to make a record of these facts [provided by Detective

Sivert].” Majority Op. at 10. To the contrary, good faith under Leon is a question of the

officer’s reasonableness, not the reasonableness of the issuing magistrate. Frazier, 423 F.3d at

533 (“The ‘good faith inquiry is confined to the objectively ascertainable question whether a

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

magistrate’s authorization.’”) (quoting Leon, 468 U.S. at 922 n.23); Thomas, 852 F. App’x at

198 (“[GJood-faith is ultimately a question of officer reasonableness in executing the warrant,

not the reasonableness of the issuing magistrate.”).

Consequently, irrespective of the magistrate’s failure to transcribe Detective Sivert’s oral

testimony (whatever it was), the blame for relying on an undisputedly bare-bones affidavit falls

on Detective Sivert. And bare-bones affidavits do not fall within Leon's good-faith exception to

the exclusionary rule. United States v. Reed, 993 F.3d 441,450 (6th Cir. 2021).

III. HARMLESS ERROR

Alternatively, the government argues that affirming on the basis of harmless error would

be appropriate because the government had already obtained phone records, text messages, and

“compelling evidence” proving that Davis sold the heroin that caused Castro-White’s death. The

district court did not reach the government’s harmless-error argument because the court found

that Leon's good-faith exception applied. See United States v. Davis, No. 1:16CR260, 2022 WL

2314009, at *10 (N.D. Ohio June 28, 2022). I would remand this case so that the district can

address in the first instance whether the government’s error was harmless in light of the other

evidence implicating Davis in Castro-White’s death.

See Albemarle Paper Co. v. Moody,

422 U.S. 405, 436 (1975) (“[This] is a matter best decided, in the first instance, by the District

Court. That court will be free to take... new evidence ....”).

No. 22-3603

United States v. Davis

Page 19

IV. CONCLUSION

In sum, because Detective Sivert’s testimony on remand does not shed any light on why

he relied on a bare-bones affidavit, I believe that the Leon good-faith exception does not apply.

I would therefore reverse the judgment of the district court and remand this case for the court to

consider the government’s alternative argument predicated on harmless error. Accordingly,

I respectfully dissent.

Case: l:16-cr-00260-CAB Doc#: 152 Filed: 06/28/22 lot20. PagelD#: <pagelD>

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.

RUSSELL DAVIS,

Defendant.

CASE NO. 1:16CR260

)

)

)

)

)

)

)

)

)

SENIOR JUDGE

CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO. SR. J.:

After a limited remand from the Sixth Circuit, Defendant asks this Court to exclude

evidence because probable cause was not established to search his residence. (Doc. 141).

However, the exclusionary rule does not automatically exclude evidence uncovered in violation

of the Fourth Amendment. This is especially true where, as here, law enforcement exhibited

good faith in their reliance on a judicially approved search warrant.

Accordingly, the Court Denies Defendant’s Motion to Suppress.

I. Background1

On May 4, 2018, a Jury convicted Defendant for his distribution of fentanyl, from which

a death resulted. Defendant appealed. The Sixth Circuit affirmed the conviction but, after

concession by the Government, remanded the case back to this Court for a probable cause

hearing. United States v. Davis, 970 F.3d 650, 666 (6th Cir. 2020).

1 This Court’s Background is taken from testimony received on remand, with supplementation from the trial

transcript as necessary.

-1AUTHENTICATED

US. GOVERNMENT

INFORMATION /

CPO^r

Case: l:16-cr-00260-CAB Doc#: 152 Filed: 06/28/22 2 of 20. PagelD#: <pagelD>

On remand, the Court ordered cross-briefs and held a hearing on March 10, 2022. Two

witnesses testified on behalf of the Government: Lorain Municipal Court Magistrate D. Chris

Cook2 and Detective Ernest “Buddy” Sivert, a retired 29-year veteran of the Lorain Police

Department. Defendant did not present any witnesses.

While the Sixth Circuit’s remand concerns the events that occurred on April 12, 2016,

more background is necessary. A month earlier, on March 7, 2016, Detective Sivert responded

to a call concerning an overdose death. The victim was JCW, a young male whose grandfather

had been a Lorain Police Officer. From this initial call, the case stood out to Detective Sivert.

An investigation ensued. Relevant here, police obtained JCW’s cellphone. The

cellphone was password protected and authorities were unable to move pass the lock screen.

Unable to review the content of JCW’s cellphone, Detective Sivert subpoenaed Verizon (JCW’s

cellphone provider) for relevant records.

Despite the cellphone being locked, law enforcement could see that one person attempted

to contact JCW numerous times that morning. That person was Zaharias “Harry” Karaplis. So,

Detective Sivert asked Harry to come to the police station, which Harry did on March 7, 2016.

During that interview, Harry lied to Detective Sivert about his involvement with narcotics. But

Harry did confirm that JCW had a drug problem and Harry identified an individual by the name

of “Red” as the potential source of the narcotics.

Two days after meeting with Harry, Detective Sivert received phone logs from Verizon.

After organizing the information, Detective Sivert realized that Harry had not been completely

forthcoming during his interview. Based on his review, Detective Sivert determined that Harry

and JCW went together to purchase narcotics that night.

2 Magistrate Cook has since been elected to the Lorain County Court of Common Pleas. The Court refers to him as

“Magistrate” simply to reflect the position he held during the relevant period.

-2-

Case: l:16-cr-00260-CAB Doc #: 152 Filed: 06/28/22 3 of 20. PagelD #: <pagelD>

Detective Sivert then asked Harry back to the police station for a follow up interview.

During this second interview, Detective Sivert presented Harry with the evidence from JCW’s

cellphone. At this point, Harry requested an attorney.

During the second interview with Harry, Detective Sivert confirmed another potential

witness - Corey Stock. Stock’s name had appeared throughout the text messages that Detective

Sivert received on March 9. Detective Sivert asked Stock to come to the police station for a

conversation. The two met on March 22. During that conversation, Detective Sivert obtained a

“location of a house” and “a description of someone.”3

Detective Sivert thought it was necessary to meet with Harry for a third time. This time,

Harry came with counsel. At this meeting, Harry, using Google Maps, identified the residence

where he and JCW went to purchase drugs the morning of March 7. That residence was

identified as 1832 Garden Avenue. Harry also provided a physical description of Defendant, as

well as a description of Defendant’s vehicle.

The same day as Harry’s third meeting, Detective Sivert surveilled the suspect residence

on Garden Avenue. During surveillance, Detective Sivert located 1832 Garden Avenue and

matched it to the property identified by Harry. Detective Sivert also observed a vehicle outside

of the residence that matched Harry’s description. He ran the vehicle’s license plate through

police database and determined that Defendant owned the vehicle.

Back at the station, Detective Sivert continued his search of police records. This resulted

in evidence showing that Defendant had the nickname of “Big Red.” Detective Sivert also

3 This paragraph is supplemented by Detective Sivert’s testimony at Trial. During the remand hearing, Detective

Sivert did discuss talking with Stock and Stock telling Detective Sivert where Defendant’s house was located. (Doc.

147, PagelD: 2959-60).

-3-

Case: l:16-cr-00260-CAB Doc#: 152 Filed: 06/28/22 4of 20. PagelD#: <pagelD>

conducted a photo array containing Defendant’s picture. After being shown this photo array,

Harry indicated on Defendant’s photograph that “100% this is Red.” (Doc. 148-2).

A few days later, on April 12, Harry met with Detective Sivert for a fourth time. This

time, Harry showed the detective a text message he said came from Red. This prompted

Detective Sivert to attempt a controlled phone call between Harry and Red that would be

recorded for evidence. During the call, Defendant provided damaging information.

On the same day as the controlled call, law enforcement sought a search warrant for 1832

Garden Avenue. Specifically, police sought Defendant’s cellphone. In support of the search,

Detective Sivert4 made the following allegations:

1. In the early morning hours of...March 7, 2016, [JCW] was in

contact with Zaharias Karaplis, another heroin user, for the

purpose of obtaining heroin.

2. Zaharias Karaplis and [JCW] made contact with a male known

as “Red” and later identified as Russell Davis, on his cellular

phone (***) ***-8810 for the purpose of purchasing heroin, both

through text and voice communication.

3. Zaharias Karaplis and [JCW] met with Russell “Red” Davis on

March 7, 2016 for the purpose of buying heroin from him.

4. [JCW] ingested the purported heroin from Russell “Red” Davis

and it caused him to overdose. The time between the purchase

of the heroin from Russell “Red” Davis and the estimated time

of death, by the Lorain County Coroner Steven Evans is

approximately one (1) hour.

5. Toxicology tests conducted by the Lorain County Coroner’s

Office revealed that [JCW] had a lethal dose of Fentanyl* in his

system.

6. On April 12, 2016, at 0945 hours Zaharias Karaplis received a

text message from Russell “Red” Davis via cellular telephone

with the number (***) ***-8810.

4 Detective Sivert did not draft the Affidavit. Instead, a fellow officer drafted it, Detective Sivert reviewed it and

ultimately executed it.

-4-

Case: l:16-cr-00260-CAB Doc #: 152 Filed: 06/28/22 5 of 20. PagelD #: <pagelD>

(Doc. 31-1, PagelD: 121).

The crux of the issue before the Court on remand is whether Detective Sivert presented

additional testimony to supplement this Affidavit. Magistrate Cook testified that, while it is his

normal process to read the affidavit, place the affiant under oath and then engage in further

discussion, he did “not have a specific recollection of discussing th[is] case” with Detective

Sivert. (Doc. 147, PagelD: 2882). For his part, Detective Sivert testified that he and Magistrate

Cook,

Discussed the majority of the case. I can’t sit here today and say

specifically what we talked about, but it was general information

about the case, basically how it started, the whole thing, and how we

were able to reach the conclusion why we wanted a search warrant

to obtain the phone.

(Id. at PagelD: 2933).

Following the hearing, the Court requested additional briefing. The Government filed its

post-hearing brief on April 18, 2022 (Doc. 149) and Defendant filed his brief on April 20, 2022.

(Doc. 151).

II. Law & Analysis

A.

Standard of Review

The Fourth Amendment to the United States Constitution states:

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

and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.

U.S. Const, amend. IV.

Probable cause is defined as “reasonable grounds for belief, supported by less than prima

facie proof, but more than mere suspicion” and exists “when there is a ‘fair probability’ given the

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Case: l:16-cr-00260-CAB Doc #: 152 Filed: 06/28/22 6 of 20. PagelD #: <pagelD>

totality of the circumstances, that contraband or evidence of a crime will be found in a particular

place.” United States v. Lattner, 385 F.3d 947, 951 (6th Cir. 2004), cert, denied, 543 U.S. 1095

(2005) (citing United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)).

In Illinois v. Gates, the Supreme Court announced the basic standard for determining

whether an affidavit establishes probable cause to issue a search warrant:

The task of the issuing magistrate is simply to make a

practical, commonsense decision whether, given all the

circumstances set forth in the affidavit before him [or

her],.. .there is a fair probability that contraband or evidence

of a crime will be found in a particular place. And the duty

of the reviewing court is simply to ensure that the magistrate

had a substantial basis for concluding that probable cause

existed.

426 U.S. 213,238-39 (1983) (emphasis added); see also United States v. Helton, 314 F.3d 812,

819 (6th Cir. 2003); Davidson, 939 F.2d at 859.

A finding of probable cause “should be paid great deference by reviewing courts.”

Gates, 462 U.S. at 236. However, reviewing courts must ensure that the issuing magistrate or

judicial officer did “not serve merely as a rubber stamp for the police.” United States v. Leon,

468 U.S. 897, 914 (1984) (quoting Aguilar v. Texas, 378 U.S. 108, 111 (1964)). Further,

reviewing courts “will not defer to a warrant based on an affidavit that does not ‘provide the

magistrate with a substantial basis for determining the existence of probable cause.’” Id. at 915

(quoting Gates, 462 U.S. at 239)).

Typically, a reviewing court concerns itself with only those facts which appear within the

four comers of the affidavit. United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1998) (citing

Whitley v. Warden, 401 U.S. 560, 564-65 (1971)); Untied States v. Hatcher, 473 F.2d 321, 324

(6th Cir. 1973). There is also a presumption of validity with respect to affidavits supporting

search warrants. Franks v. Delaware, 438 U.S. 154, 171 (1978). Finally, it is well-recognized

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that “affidavits are normally drafted by nonlawyers in the midst and haste of a criminal

investigation,” and courts should “remain cautious not to interpret the language of affidavits in a

hyper-technical manner.” Weaver, 99 F.3d at 1378 (citations omitted).

In its post-hearing brief, the Government asks the Court to answer three questions: 1) did

the Affidavit on its own establish probable cause to search 1832 Garden Avenue?; 2) if not, did

Detective Sivert’s oral testimony provide the additional facts necessary to search the residence?;

and 3) if the answer is no, does the good-faith exception to the exclusionary rule apply? The

Court answers these questions in turn.

B.

The Affidavit’s Four Corners Do Not Establish Probable Cause to Search the

Residence

The four-comers of the Affidavit did not establish the requisite nexus to search 1832

Garden Avenue. A finding of probable cause requires a “sufficient nexus between the place

searched and the evidence sought.” United States v. Kenny, 505 F.3d 458, 461 (6th Cir. 2007);

United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004). The affidavit must suggest 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 and not merely that the owner of the property is

suspected of crime. United States v. McPhearson, 469 F.3d 518, 524 (6th Cir. 2006) (quoting

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

Detective Sivert’s Affidavit contains just six short factual paragraphs that detail JCW’s

overdose, the events preceding it and Defendant’s role as the suspected supplier of the deadly

drugs. It also includes facts that Defendant used his cellphone to facilitate drug sales and contact

Harry after JCW’s death. From these factual averments, Detective Sivert concluded “that

[Defendant] is trafficking in heroin from the residence of 1832 Garden Avenue and is using his

cellular telephone (***)

-8810 as an instrument of his trafficking business.. .[and] that the

-7-

Case: l:16-cr-00260-CAB Doc#: 152 Filed: 06/28/22 8 of 20. PagelD#: <pagelD>

cellular telephone...is still inside 1832 Garden Avenue, Lorain, Ohio, the residence of

[Defendant].” (Doc. 31-1, PagelD: 121).

Beyond this conclusion, what is noticeably absent from Detective Sivert’s averments are

any factual allegations connecting Defendant to 1832 Garden Avenue. The only references to

this address are in the recited conclusion and the opening paragraphs, with brief references to

where the crimes were committed and the request to search the residence. This is improper, as

the law requires an affidavit be supported by facts, rather than unadorned conclusions. Weaver,

99 F.3d at 1377. And since the Affidavit does not allege any facts connecting Defendant, his

cellphone and his activities to 1832 Garden Avenue, the Affidavit does not present a “sufficient

nexus between the place searched and the evidence sought.” Kenny, 505 F.3d at 461.

The Government seemed to agree with this conclusion when the case was before the

Sixth Circuit. See Davis, 970 F.3d at 666 (“The government now concedes that Sivert’s affidavit

did not contain enough facts tying Davis (and his phone) to this location”). And the Government

does not seriously contend now that the Affidavit established the proper nexus to the residence.

Instead, the Government relies on Detective Sivert’s testimony at the remand hearing to establish

probable cause. But we are not there yet. Accordingly, the answer to the Government’s first

question is “no” - the Affidavit on its face did not provide sufficient probable cause for issuing

the warrant.

Before moving to Detective Sivert’s testimony, the Court addresses Defendant’s

argument that the Affidavit presented materially false information under Franks v. Delaware.

Throughout briefing and oral argument, Defendant attacks the Affidavit on facts that it did not

contain. According to Defendant, if law enforcement would have included facts about the

credibility of Harry, the Magistrate would have never issued the search warrant in the first place.

-8-

Case: l:16-cr-00260-CAB Doc#: 152 Filed: 06/28/22 9 of 20. PagelD#: <pagelD>

The Government argues this disclosure was unnecessary because each item was independently

verified through further investigation.

To reiterate the above - when making a probable cause determination, courts are

generally concerned with only those facts within the four comers of the affidavit. Weaver, 99

F.3d at 1378. Defendant would like the Court to consider additionalfacts not contained in the

Affidavit. This is plausible, as a Franks issue may be predicated on material omissions. United

States v. Graham, 275 F.3d 490, 506 (6th Cir. 2001). But the Sixth Circuit has “recognized that

an affidavit which omits potentially exculpatory information is less likely to present a question of

impermissible official conduct than one which affirmatively includes false information.” United

States v. Atkins, 107 F.3d 1213, 1217 (6th Cir. 1997). To be entitled to a hearing, a defendant

must (1) make “a substantial preliminary showing that the affiant engaged in a deliberate

falsehood or reckless disregard for the truth in omitting information from the affidavit; and (2)

[show that] a finding of probable cause would not be supported by the affidavit if the omitted

material were considered[.]” United States v. Fowler, 535 F.3d 408,415 (6th Cir. 2008); see

also United States v. Fisher, 824 Fed. App’x 347, 353 (6th Cir. Aug. 19, 2020) (a defendant must

show “that the affiant with an intention to mislead excluded critical information from the

affidavit, and the omission is critical to the finding of probable cause”). Finally, when alleging

material omissions, a defendant faces a higher bar for obtaining a hearing as opposed to an

allegedly false affirmative statement. Fowler, 535 F.3d at 415; see also Graham, 275 F.3d at

506 (a Franks hearing is only merited in cases of omissions in ‘rare instances’).

Defendant has not established that the omitted material should have been included in the

Affidavit. Even though Defendant did not hurdle the ‘higher bar’ to show his entitlement to a

hearing, the Court allowed Defendant to proceed on this theory and question both witnesses

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about his claims. But counsel’s questioning did not establish that Detective Sivert engaged in

any deliberate falsehood or recklessly disregarded the truth. Rather, it established that Detective

Sivert verified and pursued additional investigatory tactics as he uncovered more information.

As the Detective stated himself, he “wouldn’t have presented [information obtained from Harry]

if [he] didn’t think it was credible.” (Doc. 147, PagelD: 2943). This certainly does not support

Defendant’s theory that the detective misled the Magistrate with certain omissions.

Furthermore, the Affidavit identified the main witness - Harry. This is not a scenario

where law enforcement is relying on an anonymous source or a confidential informant. Rather,

it was a witness known to law enforcement and the magistrate. Harry also admitted to certain

criminal behavior, which is relevant to a probable cause finding. See United States v. Harris,

403 U.S. 573, 583 (1971) (“Admissions of crime, like admissions against proprietary interests,

carry their own indicia of credibility - sufficient at least to support a finding of probable cause to

search”).

Finally, the probable cause inquiry would not be impacted by the inclusion of this

information. The fact that Harry initially lied to Detective Sivert about his own drug use has no

bearing on the nexus to the residence - which the Court found was the missing link for probable

cause. Accordingly, Defendant’s challenge under Franks has no merit.

C.

Detective Sivert’s Supplemental Testimony Did Not Provide Probable Cause

Next, the Government claims that Detective Sivert provided the required nexus orally

when he sought the search warrant from the Magistrate. Because the Detective did this while

under oath, the subsequent search did not offend the Fourth Amendment. Defendant disagrees.

He points to one fact gleaned from the hearing on remand - no one could testify as to the

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specifics of what was discussed between the Magistrate and the Detective. Accordingly, it is

impossible to find that the Detective provided the requisite nexus to the residence.

The Sixth Circuit has “long held that an affiant may supplement an inadequate affidavit

with factual allegations presented to the magistrate through sworn testimony.” Davis, 970 F.3d

at 666 (collecting cases). This is because the Fourth Amendment “does not require oral

testimony to be transcribed or otherwise recorded. Nor did the American legal tradition at the

time of the Fourth Amendment’s adoption.” Id. (quoting United States v. Patton, 962 F.3d 972,

974 (7th Cir. 2020)). The important part, for Fourth Amendment purposes, is that the affiant be

under oath when he provides the supplemental information. See id.; Sparks v. United States, 90

F.2d 61 (6th Cir. 1937) (supplemental testimony must be competent and sworn before

supplementing a written affidavit); United States v. Hang Le-Thy Tran, 433 F.3d 472, 482 (6th

Cir. 2006) (“the issuing magistrate may consider sworn, unrecorded oral testimony

supplementing a duly executed affidavit to determine whether there is probable cause upon

which to issue a search warrant”); United States v. Parker, 4 Fed. App’x 282,284 (6th Cir. 2001)

(supplemented information provided while under oath is clearly entitled to consideration, while

unsworn testimony must be disregarded because probable cause affidavits are not to be

supplemented with unsworn statements); Patton, 962 F.3d at 974 (reciting the Fourth

Amendment’s requirement of an “oath” supporting probable cause).

While the parties overlook the significance of the oath requirement, the Court finds that

the evidence supports the fact that Magistrate Cook placed Detective Sivert under oath before

discussing the investigation and issuing the warrant to search 1832 Garden Avenue. When asked

directly by the Court, Detective Sivert answered that Magistrate Cook placed him under oath

before discussing the case further. (Doc. 147, PagelD: 2965). And for his part, Magistrate Cook

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stated that it was his practice to always place officers appearing before him under oath. (Id. at

PagelD: 2880). Defendant did not contest either statement. Thus, the Court finds that Detective

Sivert was under oath when he discussed the investigation with Magistrate Cook.

The issue for the Government, however, is that the record does not definitively establish

what (i.e., the substance) Detective Sivert told Magistrate Cook under oath. And this is where

Rule 41’s requirement of transcribed oral statements would be helpful.5 But the Court does not

have that evidence because Magistrate Cook neglected to memorialize the conversation.

Instead, the Court is left with the evidence revealed at the hearing on remand and the

witnesses’ (understandably) hazy memories. Start with Magistrate Cook - he testified that he

could not specifically recall issuing the warrant in this case. While it was his practice to talk

about the investigation with affiants, he cannot recall doing so with Detective Sivert. (Doc. 147,

PagelD: 2881-82).

For his part, Detective Sivert does remember talking about this case with Magistrate

Cook. That is because this investigation stood out to him - a retired officer’s grandson dying of

an overdose. But as to the substance of the conversation, that remains unclear. While on direct

examination (and subject to substantial leading from the prosecutor), Detective Sivert testified

that he “believed” he talked about Defendant’s connection to 1832 Garden Avenue. Specifically,

Detective Sivert said he:

Believed we talked about the vehicle and the residence. Like I

explained, I think we pretty much discussed a lot about the case, as

far as how we obtained evidence and how we obtained information

5 The Government wants to distinguish the requirements between Ohio Criminal Rule 41 and Federal Criminal Rule

41. But both Rules require a judicial officer to record any oral supplementation of an affidavit for a search warrant.

Compare Fed. R. Crim. P. 41(d)(2)(C) (“testimony taken in support of a warrant must be recorded by a court

reporter or by a suitable recording device, and the judge must file the transcript or recording with the clerk, along

with any affidavit”) with Ohio R. Crim. P. 41(C)(2) (“Before ruling on a request for a warrant, the judge... may

examine under oath the affiant and any witnesses the affiant may produce. Such testimony shall be admissible at a

hearing on a motion to suppress if taken down by a court reporter or recording equipment, transcribed, and made

part of the affidavit”).

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that led us to this point. That’s a standard thing I would do in any

search warrant, but specifically, verbatim I don’t know if I could

explain exactly what was said, but it was mostly about the process

of the case, how it went through investigation.

{Id. at PagelD: 2937).

On cross-examination, Detective Sivert reiterated he could not recall any specifics of the

conversation and that he did not make a contemporaneous record. {Id. at PagelD: 2938-39). On

redirect then, the Government focused on all the information the Detective had at the time of the

search that tied Defendant to 1832 Garden Avenue: i) a description of the suspect house,

including location; ii) a description of the suspect vehicle; iii) police records tying Defendant to

the residence; iv) surveillance of the residence by law enforcement; v) confirmation that the

residence matched the provided information; and vi) confirmation that the vehicle matched the

provided information, as well as that it was owned by Defendant.6 {See generally, id. at PagelD:

2955-62).

The witnesses’ “hazy” recollections make these “frothy nexus waters,” see United States

v. Reed, 993 F.3d 441,452 (6th Cir. 2021), even more unclear. To approve this warrant and

supplementation, the Court must find that Magistrate Cook had a “substantial basis” to find

probable cause to search a location. But the unknown specifics here, even considering Detective

Sivert’s “belief,” make it impossible to determine if that substantial basis - and the all-important

nexus - were discussed here. Because of this, the Court finds that the Affidavit, even after

6 The Government also cites the text “Garden” from Defendant to Corey Stock as information that law enforcement

had prior to the search of the residence. {See Doc. 147, PagelD: 2956-57). This is factually incorrect. As the

Government’s Exhibit shows, the “Garden” text came from the Cellebrite of Defendant’s phone, which was

uncovered after authorities searched the residence. Detective Sivert testimony at trial confirms this fact. (Doc. 97,

PagelD: 909-10, discussing that the Federal Bureau of Investigation conducted the Cellebrite search after authorities

found Defendant’s phone at his residence). The Government’s mistake here underscores the issue presented in the

case — what was relayed from Detective Sivert to Magistrate Cook at the time he applied for the Search Warrant?

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considering Detective Sivert’s additional sworn testimony, did not provide a substantial basis to

search the residence.

D.

Law Enforcement Relied in Good Faith on the Search Warrant

Despite the lack of probable cause, the Court finds that Detective Sivert and his fellow

officers relied on the court-issued search warrant in good faith. Accordingly, the Court will not

exclude the evidence uncovered at Defendant’s residence.

The exclusionary rule - the court-developed remedy for Fourth Amendment violations,

see Mapp v. Ohio, 367 U.S. 643 (1961) - does not mechanically suppress evidence for every

Fourth Amendment violation. United States v. Asgari, 918 F.3d 509, 512 (6th Cir. 2019). One

exception exists when a judicial officer (like Magistrate Cook here) makes the independent

decision that probable cause existed for the search. Reed, 993 F.3d at 450. In those cases, if an

officer relies in good faith on the court-issued search warrant, then the court should not bar the

evidence found, so long as four exceptions to the good-faith rule do not apply. Asgari, 918 F.3d

at 512; United States v. Gilbert, 952 F.3d 759, 763 (6th Cir. 2020) (Leon outlined four

circumstances in which an officer’s reliance would not be objectively reasonable). Defendant

argues that two of the four circumstances are present here.7

i.

Magistrate Cook did not Abandon His Role

First, Defendant claims that Magistrate Cook acted as a rubber stamp for the police.

Defendant argues three facts support this determination: 1) Magistrate Cook did not inquire into

the source’s reliability and basis of knowledge of any hearsay evidence; 2) Magistrate Cook did

not observe the procedural safeguards of Ohio Criminal Rule 41; and 3) no one could testify to

7 Defendant also mentions that law enforcement’s dishonesty in line with Franks also precludes the application of

good faith. But as discussed above, officers did not deliberately convey a falsehood or display a reckless disregard

for the truth by not including credibility considerations of Harry. (See Section B).

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the specific facts relayed by Detective Sivert in supplementing the Affidavit. The Government

barely addresses this argument, instead arguing that “there is no allegation that the issuing

Magistrate was not neutral and detached in evaluating the [Affidavit.” (Doc. 149, PagelD:

3022).

Leon found that an exception to its good-faith rule would be if the issuing magistrate

wholly abandoned his judicial role. 468 U.S. at 923. In such a case, it would be unreasonable

for law enforcement to rely on the judicially-approved warrant. Id. When a defendant makes

such an argument, he bears the burden to prove that the judicial officer acted as a rubber stamp.

United States v. Frazier, 423 F.3d 526, 537 (6th Cir. 2005).

To highlight a scenario where a judicial officer abandoned his role, the Leon Court cited

its decision in Lo-Ji Sales, Inc. v. New York. In Lo-Ji, the town justice issued an open-ended

search warrant that allowed for the seizure of unidentified items that the town justice himself

thought met the definition of obscenity. 442 U.S. 319, 321-22 (1979). And to make that

determination, the town justice participated - indeed, led - the police search of the property. Id.

at 322. The Lo-Ji Court found that this violated the judicial officer’s role to remain detached and

neutral, as the town justice acted more like a law enforcement officer rather than a judicial

officer. Id. at 327.

The example of Lo-Ji demonstrates why Magistrate Cook did not abandon his role as a

judicial officer. And Defendant’s three facts to the contrary do not satisfy his burden in

demonstrating otherwise. First, Defendant cites no Fourth Amendment caselaw that supports the

requirement that a judicial officer must inquire into the facts and allegations of an Affidavit. To

the contrary, affidavits are reviewed based on what they contain, not on what they lack. United

States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) (“The affidavit is judged on the adequacy of

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what it does contain, not on what it lacks, or on what a critic might say should have been

added”). Moreover, as discussed above, Detective Sivert independently verified each of the facts

alleged, thereby not relying solely on Harry’s information.

Second, Defendant faults Magistrate Cook for not recording the supplemental testimony

as called for in Ohio Criminal Rule 41. While the Court agrees that a recording of this

interaction would have been helpful for probable cause purposes, the Court disagrees that this

means Magistrate Cook abandoned his role as a judicial officer. Indeed, the Sixth Circuit has

applied Leon’s good-faith exception despite the judicial officer not following the prescribed rules

of criminal procedure. See United States v. Chaar, 137 F.3d 359 (6th Cir. 1998) (applying Leon

despite a technical violation of Federal Criminal Rule 41(c) telephonic warrant requirements).

Thus, Leon tolerates judicial officers not strictly complying with the criminal rules of procedure.

Defendant’s final point is that no one can testify to the specifics of the conversation

between Magistrate Cook and Detective Sivert. Thus, Magistrate Cook acted simply as a rubber

stamp. While this fact is relevant (indeed, determinative) for a probable cause finding, it does

not show that Magistrate Cook abandoned his role. Defendant does not argue that Magistrate

Cook did not read the Affidavit and simply approved the warrant because of his blind faith in

Detective Sivert. Indeed, Magistrate Cook indicated that he would have reviewed the affidavit

prior to authorizing the search. (Doc. 147, PagelD: 2883). Thus, much of Defendant’s attack

goes to the specifics of the supplemental conversation - and not that a supplemental

conversation, under oath, occurred. The Court finds that such supplementation demonstrates

Magistrate Cook’s neutrality. It reflects a quest for additional facts - albeit specifics that are

unknown to this Court.

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All told, Defendant’s cited examples do not reflect Magistrate Cook’s abandonment of

his role or his lack of neutrality. Leon and its progeny tolerate some degree of judicial mistake.

And Magistrate Cook’s actions fall within that acceptable threshold.

ii.

The Affidavitfor Search, Coupled with Additional Testimony, was not Bare-Bones

Defendant also attacks law enforcement’s good faith by arguing that the Affidavit was

bare bones. A second exception to the good-faith rule involves situations where the affidavit is

“so lacking in indicia of probable cause as to render official belief in its existence entirely

unreasonable.” Leon, 468 U.S. at 923. This exception applies to affidavits commonly classified

as “bare-bones.” United States v. Baker, 976 F.3d 636, 647 (6th Cir. 2020). A bare-bones

affidavit is one that “merely states suspicions, or conclusions, without providing some

underlying factual circumstances regarding the veracity, reliability and basis of knowledge.”

Gilbert, 952 F.3d at 763.

When the affidavit is threadbare with allegations concerning the nexus to the place to be

searched, the affidavit will avoid the bare bones label so long as it identifies a ‘minimally

sufficient’ nexus between the criminal activity and the place to be searched. Reed, 993 F.3d at

450. The Sixth Circuit reminds district courts of the “daylight” between proper nexus for

probable cause and a minimally sufficient one for Leon. Id. at 450-51; Gilbert, 952 F.3d at 763

(“there must be daylight between the “bare bones” and “substantial basis” standards if Leon’s

good-faith exception is to strike the desired balance between safeguarding Fourth Amendment

rights and facilitating the criminal justice system’s truth-seeking function”). And a minimally

sufficient connection is “one in which there is ‘some connection, regardless of how remote it

may have been - some modicum of evidence, however slight - between the criminal activity at

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issue and the place to be searched.’” Reed, 993 F.3d at 451 (quoting United States v. McCoy,

905 F.3d 409,416 (6th Cir. 2018)).

Finally, Defendant argues that the Court cannot look past the four-comers of the affidavit

to determine whether law enforcement acted in good faith. Citing the Sixth Circuit’s 2005

decision in United States v. Laughton, Defendant argues that “a determination of good-faith

reliance.. .must be bound by the four-comers of the affidavit.” 409 F.3d 744, 751. While this is

generally true, the Sixth Circuit distinguished Laughton and noted one significant exception: “a

court reviewing an officer’s good faith under Leon may look beyond the four-comers of the

warrant affidavit to information that was known to the officer and revealed to the issuing

magistrate.” Frazier, 423 F.3d at 535-36 (emphasis added). And the pronouncement in Frazier

has been repeatedly affirmed in subsequent Sixth Circuit opinions. See, e.g., Reed, 993 F.3d at

453; United States v. Tucker, 742 Fed. App’x 994, 999 (6th Cir. Aug. 7, 2018) (“when

determining whether the executing officers acted in good faith, we are bound by the four comers

of the affidavit and may not consider what the officer executing the warrant knew or believed

unless the extra-affidavit information was made known to the issuing magistrate”) (citations

omitted).

With the above in mind, the Court holds that the Affidavit, along with oral

supplementation, provided a minimally sufficient connection between Defendant’s drug dealing,

his cellphone and his residence. Thus, Detective Sivert reasonably relied on the search warrant

issued by Magistrate Cook.

At the outset, the Court finds Detective Sivert’s testimony credible. And as discussed

above, this case is different than Laughton. Here, we have testimony that Magistrate Cook

placed Detective Sivert under oath and discussed the investigation. Defendant does not dispute

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these facts. There is also evidence that Detective Sivert conducted a thorough investigation

between the time of JCW’s death and the search of Defendant’s residence. Again, Defendant

does not attack the Detective’s investigation - including surveilling the property, reviewing

governmental records and corroborating witness statements concerning the residence. And the

Court finds that Detective Sivert’s ‘belief that he discussed this information with Magistrate

Cook satisfies the ‘modicum of evidence’ necessary to connect Defendant, his drug dealing and

his phone to 1832 Garden Avenue. While this belief may not have been enough for probable

cause, the Court holds that it satisfies the “less-demanding showing” necessary for good faith

under Leon. See Laughton, 409 F.3d at 748-49.

III. Conclusion

This case presents a difficult determination of whether probable cause existed to search

1832 Garden Avenue. And the passage of time does not aid in that analysis. Neither does the

judicial officer’s failure to follow the rules of criminal procedure.

But while the record “does not definitively establish the presence of probable cause,

neither does its definitively establish its absence.” Patton, 962 F.3d at 974. And Magistrate

Cook’s mistake cannot justify punishing law enforcement in this case. There was no debate either at trial or at the hearing on remand - that Detective Sivert took additional investigatory

steps not disclosed in his Affidavit. More importantly, there was no serious contention that

Detective Sivert did not talk to Magistrate Cook while under oath. Detective Sivert testified that

he discussed the entire case with Magistrate Cook. From Detective Sivert’s point of view then,

he complied with everything the judicial officer required of him. And since there is no evidence

that he acted in bad faith throughout his investigation and relied on the Search Warrant, the

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Court declines to suppress the evidence uncovered at 1832 Garden Avenue. Accordingly, the

Court Denies Defendant’s Motion.

IT IS SO ORDERED.

s/ Christopher A. Boyko

CHRISTOPHER A. BOYKO

Senior United States District Judge

Dated: June 28, 2022

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