Petition for Writ of Certiorari — Montel Westley, Petitioner v. United States

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

Deborah S. Hunt

Clerk

Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: August 22, 2023

Mr. Marc Bullard

Office of the U.S. Attorney

801 W. Superior Avenue

Suite 400

Cleveland, OH 44113

Mr. James R. Willis

Law Offices

323 W. Lakeside Avenue

Suite 420 Lakeside Place

Cleveland, OH 44113

Re: Case No. 22-3356, USA v. Montel Westley

Originating Case No. : 1:20-cr-00487-1

Dear Counsel,

The Court issued the enclosed opinion today in this case.

Enclosed are the court’s unpublished opinion and judgment, entered in conformity with Rule

36, Federal Rules of Appellate Procedure.

Sincerely yours,

s/Cathryn Lovely

Opinions Deputy

cc: Ms. Sandy Opacich

Enclosures

Mandate to issue

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NOT RECOMMENDED FOR PUBLICATION

File Name: 23a0392n.06

No. 22-3356

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

MONTEL WESTLEY,

Defendant-Appellant.

)

FILED

Aug 22, 2023

DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE NORTHERN

DISTRICT OF OHIO

OPINION

BEFORE: MOORE, CLAY, and MATHIS, Circuit Judges.

CLAY, J., delivered the opinion of the court as to Parts I and II.A.1, in which MOORE and

MATHIS, JJ., joined, and announced the judgment, in which MOORE and MATHIS, JJ., also

joined. MOORE, J. (pp. 23–30), delivered the opinion of court, in which MATHIS, J., joined, as

to the issues addressed in her opinion.

CLAY, Circuit Judge. Defendant Montel Westley appeals the district court’s denial of

his motion to suppress and motion for a new trial. After his motion to suppress was denied, a jury

convicted Westley on five counts of possession with intent to distribute various controlled

substances in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and one count of possession of a

firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). The

district court sentenced Westley to 55 months’ incarceration for the drug convictions, consecutive

to 60 months for his firearm conviction. Westley alleges that the three warrants issued in the case

were not supported by probable cause, and that the evidence obtained using these warrants should

have been suppressed. For the reasons set forth below, we AFFIRM the district court’s judgment;

however, we note that the concurrence constitutes the majority as to the issues it discusses.

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I. BACKGROUND

Factual Background

In June 2020, the Cuyahoga County sheriff’s department initiated a drug investigation of

Montel Westley based on information received from a confidential informant. The officers

believed Westley resided at 10701 Linnet Avenue, Cleveland, Ohio (“Linnet Residence”), and on

June 24, 2020, searched the trash of the Linnet Residence, finding “numerous clear plastic bags

and a broken kitchen plate, with white and brown residue.1 (Linnet Residence Warrant, R. 27-1,

Page ID # 151). In furtherance of their investigation, the officers organized a controlled buy of

cocaine and ecstasy from Westley, with the use of a confidential informant outfitted with live audio

and video feed technology. The officers observed Westley leave from the Linnet Residence to the

location where the sale would occur, and Westley purportedly made no stops in between the two

locations. After the sale, the confidential informant provided the officer with the cocaine and

ecstasy purchased from Westley, which was later sent to the Cuyahoga County Medical

Examiner’s Office and tested positive for cocaine. Cuyahoga County law enforcement then

applied for a search warrant for the Linnet Residence. The warrant application included an

affidavit from an officer stating that probable cause to search the residence existed based on: the

controlled buy, evidence found in the trash at the residence, a law enforcement data base matching

Westley with the Linnet Address, the officer’s experience that drug dealers store weapons and

drugs in a residence near the site of their sale, Westley’s criminal history, and an active warrant

One of the plastic bags tested positive for the presence of cocaine; however, these results were

not included in the officer’s application for the Linnet Residence search warrant.

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for Westley’s arrest with a different police department. A Cuyahoga County judge issued a search

warrant based on this application for the Linnet Residence (“Linnet Residence Warrant).

On June 30, 2020, the officers executed the search warrant on the Linnet Residence and

found court documents belonging to Westley; 0.5 grams of cocaine; 0.5 grams of

methamphetamine; two digital scales, which tested positive for cocaine residue; and other

packaging material commonly associated with drug distribution. Further, officers seized several

firearms2 and ammunition while conducting the search. Subsequent to this search, the government

filed a complaint and application for a federal arrest warrant in the Northern District of Ohio on

August 5, 2020, charging Westley with possession with intent to distribute methamphetamine and

cocaine, in violation of 21 U.S.C. § 841 (a)(1), and knowingly and intentionally possessing a

firearm by a person prohibited from doing so in violation of 18 U.S.C. § 922 (g).3 Westley was

not present during the Linnet Residence search, and his location was unknown at the time the

complaint was filed. The federal arrest warrant for Westley was issued (“Arrest Warrant”). Three

weeks later, on August 24, 2020, Westley was arrested in a hotel room in Cleveland, Ohio.

Officers arrived at Westley’s hotel room, and upon request, Westley came to the door and exited

the hotel room. Officers secured the room and applied for a search warrant for Westley’s hotel

room averring that probable cause existed based on the June 30, 2020, search, plain view

observations officers made during Westley’s arrest, Westley’s criminal history, and his two other

outstanding arrest warrants from different police departments. A magistrate judge for the Northern

District of Ohio approved the hotel room search warrant (“Hotel Warrant”). Police executed the

The firearms seized were determined not to have been manufactured in the state of Ohio, and thus

were a product of interstate and/or foreign commerce.

The firearm charge in violation of 18 U.S.C. § 922 (g) was based on Defendant being prohibited

from possessing a firearm, which was later found to be a mistake. Thus, no indictment was pursued as to

that charge.

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warrant the same day Westley was arrested, and the officers recovered various controlled

substances, including, approximately: 8 grams of fentanyl mixture, 9.2 grams of cocaine base,

13.38 grams of cocaine, 10.6 grams of pills containing fentanyl, and 49 unit doses of LSD in the

hotel room. Also, agents located a loaded firearm under the bed in the hotel room, and various

tools commonly used for the drug trade.

Procedural History

On September 3, 2020, Defendant Westley was indicted on eight federal drug and firearm

counts related to the June 30, 2020, and August 24, 2020, searches. Counts 1 and 2 charged

Westley with possession with intent to distribute cocaine and methamphetamine, in violation of

21 U.S.C. §§ 841(a)(1) and (b)(1)(C), resulting from the search of the Linnet Residence on June

30, 2020. Counts 3 through 7 charged Westley with possession with intent to distribute: a mixture

of fentanyl, cocaine, and methamphetamine; cocaine base; cocaine; fentanyl; and LSD; in violation

of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), resulting from the search of the hotel on August 24, 2020.

Count 8 charged Westley with possession of a firearm in furtherance of a drug trafficking crime

in violation of 18 U.S.C. § 924(c)(1)(A)(i).

On February 10, 2021, Westley moved to suppress evidence seized from the Linnet

Residence search and filed a corrected copy of this motion on February 23, 2021, arguing that the

warrant application failed to establish probable cause. Westley filed a supplemental suppression

motion on April 19, 2021 claiming that the Arrest Warrant and the Hotel Warrant were fruit of a

poisonous tree. The government opposed each motion.

At a status hearing, the district court questioned whether a suppression hearing was

warranted, based on the issues Westley raised in his motions. The district court found that the

suppression motions would, necessarily, be decided by considering the four corners of the affidavit

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and no hearing was necessary. After the district court decided that it would resolve Westley’s

suppression motion without a hearing, the parties submitted supplemental suppression briefing.

Because the basis of Westley’s suppression motion was based on the validity of the Linnet

Residence Warrant, the district court focused on the Linnet Residence Warrant in its order and

found that the warrant application provided by the Cuyahoga County sheriff’s department “showed

a ‘fair probability’ that Westley was engaged in drug trafficking.” (Suppression Order, R. 38, Page

ID # 230, 231 (quoting United States v. Martin, 526 F.3d 926, 936 (6th Cir. 2008)). The district

court briefly addressed the Arrest and Hotel Warrants, finding that:

“Law enforcement’s

controlled-buy observations and the recovered Linnet Avenue drug and firearm evidence were

sufficient to establish probable cause for Westley’s arrest” and “[w]hile arresting Westley, officers

observed suspected drugs in plain view in his hotel room, justifying the search warrant.” (Id., Page

ID # 232).

After the district court denied Westley’s suppression motion, the government notified the

court on July 16, 2021, that a statement made in its affidavit for its Complaint, Arrest and Hotel

Warrant applications, and response to Westley’s motion to suppress was inaccurate. Specifically,

the government, had previously stated that “detectives [ ] discovered discharge papers for a

gunshot wound addressed to Montel Westley in the trash [of the Linnet Residence].”

(Supplemental Information, R. 40, Page ID # 236). However, upon review of the evidence, the

government realized that the name on the discharge papers was “Orlando” Westley, not “Montel”

Westley, with no reference to any residence. (Id.). The discharge paperwork was not used in the

Linnet Residence warrant application. Further, the district court’s review of the adequacy of the

Linnet Residence Warrant looked only to the affidavit within its application, and thus the discharge

paperwork was not included as part of the district court’s reasoning in denying Westley’s motion

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to suppress. Westley filed a response to the government’s supplemental information arguing that

the incorrect statement was indicative of the truthfulness of all the government’s statements, and

that the entirety of the evidence used to justify the Linnet Residence Warrant should be called into

question. The district court then entered an order finding that the misstatement was immaterial

because “the discharge papers were not mentioned in the affidavit for the Linnet Avenue search

warrant . . . . [and]were not relevant to the suppression order addressing the affidavits sufficient

showing of probable cause supporting the Linnet Avenue search.” (Docket Entry, July 27, 2021).

Following the district court’s order, Westley filed a motion for reconsideration, arguing

that: (1) he was entitled to a Franks hearing based on the government’s misrepresentation, see

Franks v. Delaware, 438 U.S. 154 (1978), (2) the Linnet Residence Warrant application did not

establish probable cause, and (3) law enforcement’s seizure of the firearms found at the Linnet

Residence violated Arizona v. Hicks, 480 U.S. 321 (1987). The district court found that Westley’s

reconsideration motion “[fell] woefully short of the Franks hearing standard” because Westley

failed to justify why any statement in the affidavit used to support the Linnet Residence Warrant

was false. (Reconsideration Order, R. 46, Page ID # 282). The district court again found that

probable cause was established in the Linnet Residence Warrant application, and noted that

Westley’s argument that the Linnet Residence was not where he resides and that the evidence

seized did not belong to him, were appropriate defenses at trial, but did not show that the warrant

was unlawfully obtained. Thus, the district court found that the evidence was “sufficient to tie the

Linnet Avenue residence to Westley’s drug trafficking activity,” regardless of whether Westley

lived there. (Id.). Finally, the district court found Hicks distinguishable, because Hicks involved

a warrantless search whereas, in this case, the officer obtained a warrant for the Linnet Residence

and the warrant included firearms that may be in the residence. See Hicks, 480 U.S. at 325.

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On August 16, 2021, prior to trial, Westley filed a motion in limine. Westley requested

that the district court bar “the government from showing that the arrest made of defendant was

lawful” and permit Westley to “object to the admission of the items seized” to ensure that the jury

was not left with the impression that “the government’s evidence was legally and lawfully

acquired.” On the first day of trial, August 23, 2021, the district court orally denied the motion in

limine on the basis that the issues had already been briefed and decided. The case proceeded to

jury trial.

On August 24, 2021, a jury convicted Defendant Westley on six counts: Counts 3 through

7 for possession with intent to distribute: a mixture of fentanyl, cocaine, and methamphetamine;

cocaine base; cocaine; fentanyl; and LSD; in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)

resulting from the search of the hotel on August 24, 2020; and Count 8 for possession of a firearm

in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). The jury

acquitted Westley on Counts 1 and 2 for possession with intent to distribute cocaine and

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) resulting from the search

of the Linnet Residence on June 30, 2020.

Westley then filed a motion for a new trial or judgment of acquittal, arguing that: (1) the

Linnet Residence Warrant was not supported by probable cause, (2) the Arrest Warrant was

deficient because the application mischaracterized the hospital discharge papers, and

(3) government counsel falsely asserted in its closing statement that law enforcement’s entry into

Westley’s hotel room was lawfully based on a security sweep. The district court denied Westley’s

motion. The district court found that the controlled buy with the observation of Westley leaving

the residence to conduct the sale and the drug residue found in the trash provided probable cause

for the Linnet Residence Warrant. As to the Arrest Warrant, the district court found that “[t]he

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search warrant affidavit provided sufficient probable cause to arrest Defendant Westley even

without the statement about hospital discharge papers.” (New Trial Order, R. 62, Page ID # 481).

The district court reasoned that the evidence of “a bag with drug residue found in the trash pull; a

controlled buy involving Defendant Westley; drugs, guns, and packaging materials found during

the Linnet Avenue search; and papers with Defendant Westley’s name in a nightstand that also

held drugs” was sufficient to justify the Arrest Warrant. (Id.) Additionally, the district court found

that Westley was heard on the issue because Defense counsel directly examined, in front of the

jury, the officer responsible for including the misstatement in the Arrest Warrant’s affidavit. As

to Westley’s argument that the government improperly described his arrest in its closing argument,

the district court found that regardless of Westley’s lack of objection during trial, “even if this

amounts to an improper argument, it is not sufficient to justify a new trial.” (New Trial Order, R.

62, Page ID # 481–82). In sum, the district court denied Westley’s motion for judgment of

acquittal or for a new trial, “because the government presented sufficient evidence for a rational

juror to find each element of the convicted offenses beyond a reasonable doubt.” (New Trial Order,

R. 62, Page ID # 482).

On April 4, 2021, the district court sentenced Westley to 55 months’ incarceration on

counts 3 through 7, consecutive to 60 months on count 8. On April 19, 2022, Westley timely filed

his notice of appeal.

II. DISCUSSION

A. Motion to Suppress

This Court reviews a district court’s decision on a suppression motion for clear error as to

factual findings and de novo as to conclusions of law. United States v. Master, 614 F.3d 236, 238

(6th Cir. 2010) (citing United States v. Jenkins, 396 F.3d 751, 757 (6th Cir. 2005)). “A factual

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finding is clearly erroneous when, although there may be evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm conviction that a mistake has been

committed.” United States v. Blair, 524 F.3d 740, 747 (6th Cir. 2008) (citation and quotation

omitted). The Court views the evidence in the light most likely to support the district court’s

decision. United States v. Shamaeizadeh, 80 F. 3d 1131, 1135 (6th Cir. 1996). The Court reviews

a “district court’s denial of a Franks hearing under the same standard as for the denial of a motion

to suppress: the district court’s factual findings are reviewed for clear error and its conclusions of

law are reviewed de novo.” United States v. Graham, 275 F.3d 490, 505 (6th Cir. 2001).

The Constitution’s 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. A “state search warrant

being challenged in a federal court must be judged by federal constitutional standards.” United

States v. McManus, 719 F.2d 1395, 1397 (6th Cir. 1983) (citing Elkins v. United States, 364 U.S.

206 (1960)). “Probable cause is defined as ‘reasonable grounds for belief, supported by less than

prima facie proof but more than mere suspicion.’” United States v. King, 227 F.3d 732, 739 (6th

Cir. 2000) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990)).

When

determining whether an affidavit establishes probable cause, the Court looks only to the “four

corners of the affidavit.” United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010).

1. Evidentiary Hearing

Westley argued before the district court that it erred in denying his request for an

evidentiary hearing. Although it is not clear if Westley continues to make the same argument on

appeal, in arguing that the motion to suppress was erroneously denied, he references the district

court’s failure to provide a hearing. We find no error.

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If a defendant makes a substantial showing that an affiant lied in an affidavit for a search

warrant, then the defendant is entitled to an evidentiary hearing to determine whether, absent

falsehood, probable cause exists to sustain the warrant. See Franks v. Delaware, 438 U.S. 154,

155–56 (1978). To qualify for a Franks hearing, a defendant must show that “a false statement

knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant

in the warrant affidavit, and . . . the allegedly false statement is necessary to the finding of probable

cause.” Id. “[N]o hearing is required” when the “material that is the subject of the alleged falsity

or reckless disregard is set to one side, [and] there remains sufficient content in the warrant

affidavit to support a finding of probable cause.” Id. at 171–172. In this case, we find that the

district court properly denied Westley a Franks hearing.

On appeal, Westley points to the misstatement the government made in its affidavit for its

Complaint, Arrest and Hotel Warrant application, and its response to Westley’s motion to

suppress. The government falsely stated that during a trash pull at the Linnet Residence, officers

found discharge papers addressed to Montel Westley; however, the papers had no identifying

address and were addressed to Orlando Westley. Westley argues that due to this misstatement a

hearing was required and the Linnet Residence Warrant, Arrest Warrant, and Hotel Warrant should

have been invalidated.

However, importantly, the misstatement related to the discharge papers was not included

in the Linnet Residence Warrant’s affidavit, and Westley fails to point to any specific falsehood

in that affidavit. Because the district court looks only to the “four corners of the affidavit” in

reviewing whether probable cause was established by the affidavit, the government’s inclusion of

the statement in its response to the motion to suppress is irrelevant. See Brooks, 594 F.3d at 492.

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Accordingly, because Westley did not identify a false statement in the Linnet Residence Warrant’s

application, a Franks hearing was not required. See Franks, 438 U.S. at 155–56.

Regarding the Hotel Warrant and Arrest Warrant, Westley failed to establish that the affiant

included a “false statement” in the affidavit, either “knowingly or intentionally, or with reckless

disregard for the truth.” Id. at 155–156. Westley’s briefing did not argue any knowledge or ill

intent by the government. Further, Westley was given the opportunity to question the affiant who

wrote the misstatement in the affidavits for the warrants but failed to question the affiant on the

reason for the misstatement. The only line of questioning offered by Westley centered on the fact

that the statement was false, which is not in dispute. Further, Westley has not established that the

“false statement is necessary to the finding of probable cause.” Franks, 438 U.S. at 155–56.

Accordingly, Westley failed to make the preliminary showing required to trigger an evidentiary

Franks hearing, and the district court properly denied Westley’s request.

2. Probable Cause

On appeal, Westley focuses on the lack of probable cause in the officer’s application for

the Linnet Residence Warrant. Westley argues that the affidavit included few facts that support a

nexus between the Linnet Residence and the drug evidence the officers sought. If the Linnet

Residence Warrant is invalidated, then Westley argues that the Hotel Warrant and Arrest Warrant

are fruit of the poisonous tree. I agree and would find the Linnet Residence Warrant lacked

probable cause.

To establish probable cause, officers must demonstrate “a fair probability that contraband

or evidence of a crime will be found in a particular place.” United States v. Berry, 565 F.3d 332,

338 (6th Cir. 2009) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983))). “[T]he affidavit must

suggest ‘that there is reasonable cause to believe that the specific ‘things’ to be searched for and

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seized are located on the property to which entry is sought’ and not merely ‘that the owner of

property is suspected of crime.’” McPhearson, 469 F.3d at 524 (quoting Zurcher v. Stanford Daily,

436 U.S. 547, 556 (1978). The connection between the residence and the evidence of criminal

activity must be specific and concrete, not “vague” or “generalized.” United States v. Carpenter,

360 F.3d 591, 595 (6th Cir. 2004). Whether an affidavit establishes a proper nexus is resolved by

examining the “totality-of-the- circumstances” presented. Gates, 462 U.S. at 238. A probable

cause determination by a judicial officer issuing a search warrant must be upheld if, under the

“totality of the circumstances,” the issuing officer had a “substantial basis” for finding probable

cause. United States v. Hill, 142 F.3d 305, 310 (6th Cir. 1998).

In support of its argument that there is probable cause to believe that drugs would be found

at the Linnet Residence, the government relies on two cases: United States v. Gunter, 266 F. App’x

415, 416–17, 418–19 (6th Cir. 2008) and United States v. Ellison, 632 F.3d 347, 349 (6th Cir.

2011). (Gov. Br., ECF. No. 30, 27–28). In Gunter, this Court found a nexus between the illegal

activity and the defendant’s residence based on: two controlled buys, a driver’s license and vehicle

registration inquiry revealing the defendant’s address and owned vehicles, the officer observing

the defendant leave from his residence to one of the controlled buys, and the officer’s significant

experience that led him to believe that drug dealers typically keep evidence of their crime in their

residences. Gunter, 266 F. App’x at 416–17, 418–19. The Court in Gunter concluded that “this

Court’s precedents establish that a nexus exists between a known drug dealer’s criminal activity

and the dealer’s residence when some reliable evidence exists connecting the criminal activity with

the residence.” Id. at 419. In Ellison, the affidavit giving rise to probable cause “explained that a

[reliable] confidential informant had observed someone come out of Ellison’s residence, engage

in a drug transaction, and then return into the residence.” Ellison, 632 F.3d at 349. The Court in

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Ellison found that a drug transaction at a residence is “inextricably connected to the residence for

which the search warrant was sought.” Id. The circumstances in both Gunter and Ellison are

distinguishable from the circumstances present in this case. In Gunter, the residence sought to be

searched was known to be the defendant’s residence based on clear and reliable data, and in

Ellison, the drug transaction occurred on the residence that sought to be searched. The concurrence

agrees with the government and finds that both Gunter and Ellison establish support for probable

cause, but I believe that a key element is missing: Westley’s direct connection to the residence.

In this case, looking at the totality of evidence, I would conclude that the minimum

requirement to establish probable cause has not been met. Specifically, a nexus between Westley

and the Linnet Residence has not been established. The warrant application included an affidavit

from an officer stating that probable cause to search the residence existed based on: one controlled

buy, drug residue found in the trash at the Linnet Residence, a law enforcement database matching

Westley with the Linnet Residence, the officer’s experience that drug dealers store weapons and

drugs in a residence near the site of their sale, Westley’s criminal history, and an active warrant

for Westley’s arrest with a different police department. The criminal history and active warrant

merely establish that Westley was engaged in drug trafficking activity. However, the only

evidence provided that the defendant lived at the residence or used the residence for his drug

activity, are the purported law enforcement database search, the officer’s observation of Westley

leaving the residence for the controlled buy, and the trash pull.

First, neither the government nor the officer providing the affidavit for the warrant,

described what the database produced, except for a conclusory and vague statement that: “Montel

Westley’s address of 10701 Linnet Avenue, Cleveland, Ohio was obtained through a clear report,

which is a data base commonly used by law enforcement.” (Linnet Residence Warrant, R. 27-1,

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Page ID # 152). The government provides no way for this Court to evaluate the reliability and

relevance of the data provided by this source. This is unlike Gunter, where a specific driver’s

license and vehicle registration inquiry revealed the defendant’s address and owned vehicles.

Gunter, 266 F. App’x 415, at 416–17. Further, Westley denies living at the Linnet Residence, and

without more information regarding what the “clear” database produced that links Westley to the

residence, this Court is unable to meaningfully review the affidavit’s statement. The concurrence

dismisses my analysis of the unreliability of the police’s database search, and concludes that “[h]ad

drug residue not been found in the residence’s trash, the reliability of the law-enforcement search

would have been more paramount.” As explained below, I believe that the concurrence’s reliance

on the trash pull is misguided, thus the ambiguous description of the law-enforcement search is,

according to the concurrence, “paramount.”

Second, officers in this case observed only one controlled buy, where Westley was seen

leaving the Linnet Residence to the drug sale location. Importantly, the officer did not aver that

Westley had been carrying any objects in his hands from the house to the car that would indicate

that items related to the drug sale would be located in the Linnet Residence. Cf. United States v.

Miller, 850 F. App’x 370, 373–374 (6th Cir. 2021) (holding that it was not necessary for the

probable cause finding that the warrant indicate that the defendant lived at the apartment, given

the direct line established by the “evidence that [the defendant] carried a white grocery bag out of

this apartment and traveled straight to the site of the drug deals”); see also United States v.

Crawford, 943 F.3d 297, 303, 308–309 (6th Cir. 2019) (finding probable cause to search an

apartment where officers observed the defendant carrying a small black duffle bag out of the

apartment before driving to the location of the controlled purchase, and an informant had

previously told officers that the defendant stored his drug supply in a duffle bag). An officer’s

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observation of a defendant traveling, between his purported residence and the location where the

drug transaction occurred, once, without evidence that drug related items were transported from

the house to the drug sale location, does not suffice to establish a sufficient nexus between the

residence and drug transaction.

Finally, this leads to my evaluation of the trash pull evidence. In the officer’s warrant

application, he points to “numerous clear plastic bags and a broken kitchen plate, with white and

brown residue,” found in the trash at the Linnet Residence. (Id., at Page ID # 151). The Court

must determine whether the officer’s observation of Westley leaving the Linnet Residence for the

controlled buy, coupled with the trash pull is enough to establish that “there is reasonable cause to

believe that the specific things to be searched for and seized are located on the property to which

entry is sought.” United States v. Frazier, 423 F.3d 526, 532 (6th Cir. 2005). “[M]ere trash pull

evidence, standing alone, is insufficient to create probable cause to search a residence;” however,

“when combined with other evidence of the resident’s involvement in drug crimes,” probable

cause may be established. United States v. Abernathy, 843 F.3d 243, 253 (6th Cir. 2016). This

Court has found that multiple controlled buys observing the defendant enter and exit the residence

prior to a sale, in conjunction with drug items found in a trash pull at that residence, is sufficient

to establish probable cause for a search warrant of the residence. For instance, in Marcilis v.

Township of Redford, 693 F.3d 589, 600–01 (6th Cir. 2012), probable cause was established based

on the officers finding of cocaine and marijuana residue at the suspected residence and observing

“multiple instances of suspected drug transactions involving [the defendant, in which he] made

trips to [the suspected residence] during these transactions.” Similarly, in Hill, 142 F.3d at 307,

this Court held that drug residue found in a defendant’s purported residence, combined with

reliable information from a confidential informant indicating that the “defendant engaged in drug

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trafficking on a regular basis and that he maintained drugs, money, and weapons at the location to

be searched,” corroborated with “[three months of] periodic surveillance,” established probable

cause. Evidence collected to support a search warrant in Hill and Marcilis far surpasses the

evidence collected in this case.

The concurrence finds that “the evidence of drug residue in the Linnet residence’s trash

provides a direct connection between the residence and the evidence sought.” However, the

concurrence fails to address the fact that there is no link between the Linnet Residence and

Westley, which would indicate that the residue found in the trash is connected to his drug

trafficking. Finding that such a connection is unnecessary is far too broad of an interpretation of

probable cause.

Even assuming without proof that the Linnet Residence is Westley’s home, which requires

us to rely on a vague and ambiguous purported law-enforcement database, “it cannot be inferred

that drugs will be found in the defendant’s home—even if the defendant is a known drug dealer.”

United States v. Brown, 828 F.3d 375, 384 (6th Cir. 2016). To establish probable cause, the

warrant application must at least provide “facts showing that the residence had been used in drug

trafficking, such as an informant who observed drug deals or drug paraphernalia in or around the

residence.” Id. at 383; see also Ellison, 632 F.3d at 349 (officer sought a warrant for the residence

where the drug transaction occurred on the premises of the residence). And as established in

Abernathy, a “connection between the small quantity of [drug] paraphernalia recovered from

Defendant’s garbage and his residence is too logically attenuated to create a fair probability that

more drugs were in the residence.” 843 F.3d at 253. And in Abernathy the evidence was stronger

in connecting the defendant with the residence, where the trash pull included USPS certified mail

receipts addressed to the defendant and his girlfriend, drug residue and drug paraphernalia. Id. at

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246. Even with this direct link, our Court found that “[t]he trash pull evidence could have been

put in the garbage anywhere from one day to several weeks earlier. The inability to tell when drugs

were last in the home diminishes any inference that drugs were still in the home.” Id. at 255. The

Court in Abernathy also noted that the amount of residue found in the trash pull is a “[crucial]

factor in determining whether probable cause has been established.” Id. at 256. In this case, brown

and white residue was found on plates and plastic bags, with no determinative amount indicated

on the warrant application, but the Court can assume that residue implies that a small quantity was

retrieved. The concurrence unduly relies on the trash pull and attempts to establish that Westley

was involved in drug trafficking and “had an extensive arrest record” that illustrates a history of

similar behavior; however, the critical link between his drug trafficking activity and the Linnet

Residence remains missing. The search warrant affidavit contained no evidence that Westley

distributed narcotics from the Linnet Residence, that he used it to store narcotics, or that any

suspicious activity had taken place there.

The connection between the residence and the evidence of criminal activity must be

specific and concrete, not “vague” or “generalized.” United States v. Carpenter, 360 F.3d 591,

595 (6th Cir. 2004). The affidavit merely points to one controlled buy in which Westley was seen

leaving the residence prior to the sale, a trash pull at the Linnet Residence revealing drug residue

but no mention of Westley’s name in the trash itself, Westley’s criminal history related to drug

trafficking, and an ambiguous and ill-defined search conducted by the officer attempting to link

Westley to the Linnet Residence. The information taken together is deficient as “the affidavit fails

to include facts that directly connect the residence with the suspected drug dealing activity.”

Brown, 828 F.3d at 384. The concurrence’s finding that “the evidence of drug residue in the Linnet

residence’s trash provides a direct connection between the residence and the evidence sought,” is

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far too broad of an interpretation of probable cause. Without information linking Westley to the

specific trash can, the officers did not have probable cause to search the Linnet Residence under

the premise that evidence, in relation to Westley’s drug trafficking activity, would be found.

Upholding the Fourth Amendment is paramount in deterring future police overreach and is “the

only effective deterrent to police misconduct in the criminal context, and that without it the

constitutional guarantee against unreasonable searches and seizures would be a mere ‘form of

words.’” Terry v. Ohio, 392 U.S. 1, 12 (1968) (quoting Mapp v. Ohio, 367 U.S. 643, 655 (1961).

“Although we do not relish the consequence that the possessor of a large quantity of drugs will

escape punishment, our overriding concern is that the police must abide by the Fourth Amendment

protections afforded to all of the inhabitants of this great country, guilty and innocent alike.”

United States v. Wilson, 506 F.3d 488, 496 (6th Cir. 2007).

Accordingly, I would conclude that the supporting affidavit did not establish probable

cause to search the Linnet Residence and the district court erred in its conclusion to the contrary.

Because the search of the Linnet Residence violated the Fourth Amendment, I then turn to whether

the evidence seized should be suppressed.

3. Good Faith Exception

When police seize evidence during an unconstitutional search, as in this case, a trial court

generally must exclude the evidence. Frazier, 423 F.3d at 533. However, “[t]he exclusionary rule

does ‘not bar the government’s introduction of evidence obtained by police officers acting in

objectively reasonable reliance on a search warrant that is subsequently invalidated.’”

McPhearson, 469 F.3d at 525 (quoting United States v. Laughton, 409 F.3d 744, 748 (6th Cir.

2005)). In determining whether police acted in good faith, the “inquiry is confined to the

objectively ascertainable question whether a reasonably well-trained officer would have known

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that the search was illegal despite the magistrate’s authorization.” United States v. Leon, 468 U.S.

897, 922 n.23 (1984).

Although the Supreme Court in Leon concluded that suppression of evidence is not always

an appropriate remedy for unconstitutional searches, the Supreme Court also established four

circumstances under which an officer’s reliance on the issued warrant cannot be reasonable and

where suppression thus remains appropriate: (1) when the affidavit supporting the search warrant

contains a knowing or reckless falsity; (2) when the magistrate who issued the search warrant

wholly abandoned his or her judicial role; (3) when the affidavit is so lacking in indicia of probable

cause that a belief in its existence is objectively unreasonable; or (4) when the warrant is so facially

deficient that it cannot reasonably be presumed valid. Laughton, 409 F.3d at 748 (citing Leon, 468

U.S. at 914–23).

At issue in this case is the third limitation on the good-faith exception.4 This limitation

prevents introduction of evidence seized under a warrant that issued on the basis of a “bare bones”

affidavit. Id. A bare bones affidavit is one that merely “states suspicions, beliefs, or conclusions,

without providing some underlying factual circumstances regarding veracity, reliability, and basis

of knowledge.” United States v. White, 874 F.3d 490, 496 (6th Cir. 2017) (quoting Laughton, 409

F.3d at 748). In contrast, an affidavit is not bare bones if, though falling short of the probablecause standard, it contains “a minimally sufficient nexus between the illegal activity and the place

to be searched.” Carpenter, 360 F.3d at 596.

As discussed above, I believe that the affidavit to the Linnet Residence Warrant did not

establish probable cause to believe that there is a sufficient nexus between the illegal activity and

Although Westley argues that the misstatement related to the hospital discharge papers

renders the Linnet Residence Warrant invalid, as discussed above, the statement was not included

in the affidavit to the Linnet Residence Warrant, and thus, is irrelevant to my analysis.

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the place to be searched. However, to meet the good faith exception standard only a minimally

sufficient nexus must be established. The officers conducted an investigation into Westley,

including a controlled buy, observing Westley leave his residence to the buy location, and a

database search which provided results connecting Westley to the Linnet Residence—which

generally corroborated the confidential informant’s initiating tip. Compare Brown, 828 F.3d at

385 (declining to apply exception because the officer’s affidavit was “devoid of facts connecting

[defendant's] residence to [defendant's] alleged drug dealing activity” and “did not indicate . . .

that the police ever surveilled [defendant's] home or otherwise attempted any investigation

regarding whether the residence was linked to the alleged drug conspiracy”). In this case, the

“affidavit was not so lacking in probable cause as to render official belief in its existence entirely

unreasonable.” Frazier, 423 F.3d at 537. I would hold that the good-faith exception therefore

applies.

Because Westley’s argument that the Hotel Warrant and Arrest Warrant were invalid was

based on the theory that the evidence obtained was the fruit of the poisonous tree, the lawfulness

of the Linnet Residence Warrant necessarily means the subsequent warrants were also lawful.5

B. Motion for a New Trial

In the court below, Westley filed a motion for a judgment of acquittal or, in the alternative,

for a new trial. Westley argued in his motion that: (1) the Linnet Residence Warrant was not

supported by probable cause, (2) the Arrest Warrant was deficient because the application

As to the misstatement related to the hospital discharge papers, Westley fails to show that

the statement was material to the probable cause finding in the Arrest Warrant and subsequent

Hotel Warrant. Further, Westley argues in his suppression motion that the Arrest Warrant and

Hotel Warrant are the fruit of the poisonous tree and does not argue that the warrants are

independently invalid. Accordingly, my finding that the Linnet Residence Warrant is upheld by

the good faith exception renders the subsequent warrants valid.

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mischaracterized the hospital discharge papers, and (3) government counsel falsely asserted in its

closing statement that law enforcement’s entry into Westley’s hotel room was lawfully based on a

security sweep. The district court denied Westley’s motion sua sponte. On appeal, Westley argues

in broad terms that the district court erred in not suppressing the evidence seized through the three

warrants executed by the officers in this case, and thus, a new trial is warranted. The government

argues that Westley’s motion for a judgment of acquittal or, in the alternative, for a new trial was

an untimely motion to suppress. For the following reason, I would affirm the district court’s denial

of Westley’s motion for a new trial.

I have addressed and affirmed the district court’s judgment as to Westley’s first two

arguments, and am only left with Westley’s argument as to the Hotel Warrant. Rule 12 requires a

defendant to raise by pretrial motion a request for suppression of evidence “if the basis for the

motion is then reasonably available and the motion can be determined without a trial on the

merits.” Fed. R. Crim. P. 12(b)(3)(C). If the defendant fails to timely raise its request for

suppression of evidence, the district court may consider it only on a showing of “good cause.” Id.

The only challenge to the Hotel Warrant below, prior to the motion for a new trial, was that

the evidence obtained from the Hotel Warrant was the fruit of the poisonous tree, i.e., that the

illegality of the Linnet Avenue search tainted it. Westley fails to argue that there is good cause for

his new suppression argument in his motion for a new trial, that the security sweep conducted by

the officers was improper, and thus, evidence seized during the search of the hotel should be

suppressed. The information related to the contents seized and the events that transpired with

respect to the Hotel Warrant were known to Westley prior to the submission of his motion for a

new trial. In particular, on the record, the district court asked defense counsel whether the

suppression claim as to the hotel room was a fruit of the poisonous tree argument. Defense counsel

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confirmed that it was and said “that is exactly what it is. It is fruit of the poisonous tree,” but failed

to provide any further arguments as to the purported unlawful Hotel Warrant. (Status Conf. Tr.,

R. 83: Page ID # 996–97). Westley was given many opportunities to argue the legality of the

Hotel Warrant prior to trial, including: his suppression motion, supplemental briefing in support

of his suppression motion, motion for reconsideration, and motion in limine. No reason has been

provided by Westley’s counsel as to why the argument was only raised after the trial’s completion.

The concurrence argues that the district court is required to determine whether good cause

exists with respect to an untimely suppression motion; however, the appellate court treats the

untimely argument as forfeited and applies the plain-error standard.6 Under United States v. Soto,

794 F.3d 635, 655 (6th Cir. 2015), cited by the concurrence, the Court held that the appellate courts

will not treat an untimely suppression argument as waived “unless the circumstances of the case

indicate that the defendant intentionally relinquished a known right.” Id. However, in Soto, the

defendant had not filed any 12(b)(3) motion in the court below, but rather raised the suppression

argument for the first time on appeal. Therefore, the Court’s holding in Soto accords with the

general proposition that if an argument is presented for the first time on appeal, the appellate court

reviews it for plain error. Puckett v. United States, 556 U.S. 129, 135 (2009).

That is not the case here. In Westley’s judgment for acquittal or for a new trial, he argued

that the government improperly asserted in its closing statement that his arrest at the hotel was

lawful. (R. 61). The district court found that regardless of Westley’s lack of objection during trial,

Note that plain-error review of a forfeited claim is “permissive, not mandatory.” United

States v. Olano, 507 U.S. 725, 735 (1993). This Court has previously declined to perform plainerror review of a forfeited suppression claim which turns on unresolved questions of fact.

See United States v. Turner, 602 F.3d 778, 787 (6th Cir. 2010) (declining to review for plain error

“without the benefit of a suppression hearing below” because “we cannot meaningfully resolve

these issues based on this trial testimony alone.”). Westley’s objection to the hotel search was

denied sua sponte by the district court, with no hearing, or briefing by the government.

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“even if this amounts to an improper argument, it is not sufficient to justify a new trial.” (New

Trial Order, R. 62, Page ID # 481–82). The district court did not determine whether there was

good cause for Westley’s delay, but rather summarily denied Westley’s motion. The district

court’s order can be construed as a finding that there was no good cause for Westley’s delay, thus

we review the district court’s determination for an abuse of discretion. See Soto, 794 F.3d at 655

(“When a party files an untimely motion in the district court, and the district court finds facts to

determine whether the late movant has satisfied the good-cause standard, we review that

determination for an abuse of discretion.”). As established above, the district court’s determination

is amply supported by the record and was not an abuse of discretion.

Accordingly, Westley has not established good cause for failing to move to suppress in a

pretrial motion that the alleged security sweep of the hotel was improper resulting in an

unconstitutional Hotel Warrant. Thus, because Westley failed to comply with Rule 12(b)(3),

I would affirm the district court’s denial of Westley’s motion for a new trial.

III. CONCLUSION

Accordingly, we AFFIRM the district court’s judgment.

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KAREN NELSON MOORE, Circuit Judge, joined by Mathis, J., concurring in part

in the lead opinion and constituting the majority for Parts I and II below, and concurring in

the judgment. We concur in the lead opinion’s Parts I and II.A.1, regarding Westley’s motion for

an evidentiary hearing. Writing for the majority, we address two issues. First, we hold that

probable cause existed to sustain the Linnet warrant, and therefore do not reach the issue of the

good-faith exception. Second, we hold that Westley’s suppression argument regarding the

protective search of his hotel room was not completely waived. Instead it was forfeited, and we

review the merits of Westley’s argument for plain error. However, Westley cannot meet the heavy

burden of plain-error review. We AFFIRM the district court’s judgment.

I. PROBABLE CAUSE

“[T]o establish probable cause for a search, an affidavit must show a likelihood of two

things: first, that the items sought are ‘seizable by virtue of being connected with criminal activity’;

and second, ‘that the items will be found in the place to be searched.’” United States v. Church,

823 F.3d 351, 355 (6th Cir. 2016) (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 556 n.6

(1978)). When the object to be seized is contraband, all that must be shown is a nexus between

the object and the place to be searched; in other words, that “there is a fair probability that

contraband . . . will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983);