Petition for Writ of Certiorari — Antwone Miguel Sanders, Petitioner v. United States

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RECOMMENDED FOR PUBLICATION

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

File Name: 23a0020p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

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v.

ANTWONE MIGUEL SANDERS,

Defendant-Appellant.

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No. 21-5945

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.

No. 5:20-cr-00009-1—Joseph M. Hood, District Judge.

Decided and Filed: February 6, 2023

Before: MOORE, CLAY, and NALBANDIAN, Circuit Judges.

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COUNSEL

ON BRIEF: Jarrod J. Beck, LAW OFFICE OF JARROD J. BECK, PLLC, Lexington,

Kentucky, for Appellant. Lauren Tanner Bradley, Charles P. Wisdom, Jr., UNITED STATES

ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

CLAY, J., delivered the opinion of the court in which MOORE, J., joined.

NALBANDIAN, J. (pp. 21–31), delivered a separate dissenting opinion.

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OPINION

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CLAY, Circuit Judge.

Defendant Antwone Sanders appeals from the judgment of

conviction and sentence entered by the district court, pursuant to Defendant’s conditional guilty

plea to one count of possession with intent to distribute a controlled substance in violation of

21 U.S.C. § 841(a)(1), one count of possession of a firearm in furtherance of a drug trafficking

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offense in violation of 18 U.S.C. § 924(c), and one count of possessing a firearm as a convicted

felon in violation of 18 U.S.C. § 922(g)(1), wherein Defendant reserved the right to appeal the

district court’s denial of his motion to suppress the evidence that the Lexington Police

Department acquired from a search of Defendant’s residence. For the reasons set forth below,

we REVERSE the district court’s order denying Defendant’s motion to suppress and VACATE

Defendant’s convictions and sentence. We REMAND for further proceedings consistent with

this opinion.

BACKGROUND

Factual Background

On April 24, 2019, Officer Brandon Hazlewood with the Lexington Police Department

applied to a judge of the Fayette District Court in Fayette County, Kentucky, for a warrant

relating to Antwone Sanders. In the affidavit in support of the warrant, Officer Hazlewood set

out the following information.

On April 17, 2019, a confidential informant (“CI”) advised Officer Hazlewood that

Antwone Sanders was selling heroin/fentanyl from an apartment located on Yellowstone

Parkway in Lexington, Kentucky. Acting on this information, Officer Hazlewood set up two

controlled purchases.

To set up the first purchase, Officer Hazlewood and Detective Brian Cobb met with the

CI and searched the CI’s person and vehicle. The officers provided the CI with money for the

purchase, and the CI proceeded to a predetermined location to purchase heroin from Antwone

Sanders. Sanders arrived at the location in a silver Chrysler vehicle with Kentucky registration

plates. Officer Hazlewood observed the CI enter Sanders’ vehicle, monitored the controlled

purchase, and observed the CI exit Sanders’ vehicle. Following the controlled purchase, the CI

provided Officer Hazlewood with a quantity of suspected heroin/fentanyl and advised that he

obtained it from Sanders. Officer Hazlewood again searched the CI and the CI’s vehicle and

located no contraband. Meanwhile, other officers followed the silver Chrysler, which Sanders

drove without stopping to the Yellowstone Parkway apartment.

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Two days before Officer Hazlewood authored his affidavit, he, along with Detective

Sinnott, set up a second controlled buy. The second purchase proceeded in a manner similar to

the first. After meeting with the officers and receiving money for the purchase, the CI proceeded

to a predetermined location to purchase heroin and fentanyl from Sanders. The CI made this

purchase from Sanders inside Sanders’ vehicle, the silver Chrysler, and again delivered the

suspected heroin and fentanyl to Officer Hazlewood.

Before the second controlled purchase, Detective Hart surveilled the Yellowstone

Parkway apartment. The silver Chrysler was parked outside the apartment. Detective Hart

observed Sanders exit the apartment and enter the vehicle. Other officers followed the vehicle as

it traveled from the apartment directly to the predetermined meeting location with the CI. After

the controlled purchase, officers again followed the vehicle as it traveled directly back to the

Yellowstone Parkway apartment. Officers observed Sanders exit the vehicle and enter the

apartment.

Based on this information, Officer Hazlewood applied for a warrant to search the

Yellowstone Parkway apartment, the silver Chrysler (registered to Sanders), and Sanders’

person. The affidavit in support of the warrant included Officer Hazlewood’s averment that he

had received a tip from a CI that Defendant was selling heroin/fentanyl from the Yellowstone

Parkway apartment and described the investigation officers conducted thereafter. The affidavit

contained no information pertaining to the reliability of the CI who provided the tip.

The judge granted Officer Hazlewood’s warrant application on April 24, 2019. Officers

executed the search warrant the next day. The search of the Yellowstone Parkway apartment

revealed controlled substances, drug paraphernalia, and firearms. Thereafter, on January 16,

2020, a federal grand jury indicted Defendant in the Eastern District of Kentucky on one count of

possession with the intent to distribute a controlled substance, in violation of 21 U.S.C.

§ 841(a)(1); one count of possession of a controlled substance, in violation of 21 U.S.C.

§ 844(a)(1); 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); and one count of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1). The indictment did not charge Sanders with distributing

the drugs sold to the CI during the two controlled purchases.

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Procedural Background

Defendant filed two motions that are the subject of his appeal.

First, Defendant moved for supplemental discovery of “case reports and drug evidence

relating to the two controlled buys referenced in the search warrant affidavit” for the

Yellowstone Parkway apartment. (Def. Mot. Suppl. Disc., R. 25, Page ID #63.) The district

court denied the discovery motion, determining that the evidence pertaining to the controlled

purchases was privileged to the extent disclosing it would reveal the CI’s identity and that the

evidence was not material to the defense.

Second, Defendant moved to suppress all evidence and statements that were obtained

when executing the search warrant, and also moved for a hearing pursuant to Franks v.

Delaware, 438 U.S. 154 (1978), to challenge the accuracy of Detective Hart’s surveillance

referenced in the affidavit. The district court denied the motion to conduct a Franks hearing and

denied the motion to suppress, determining that probable cause supported the search warrant. In

the alternative, the district court ruled that the “good faith” exception to suppression, set forth in

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

The district court did not hold an

evidentiary hearing before denying the motion to suppress.

Following the district court’s rulings, Defendant pleaded guilty, but reserved the right in

his plea agreement to appeal the suppression issue. On September 22, 2021, the district court

entered judgment and sentenced Defendant to 72 months in prison. This appeal followed.

DISCUSSION

Standard of Review

“Federal constitutional law applies to a state search warrant that is challenged in federal

court.” United States v. Helton, 35 F.4th 511, 517 (6th Cir. 2022). “In reviewing the denial of a

motion to suppress where the district court did not hold an evidentiary hearing, we ‘review de

novo the court’s legal conclusion that the affidavit provided probable cause.’” United States v.

Brown, 828 F.3d 375, 381 (6th Cir. 2016) (quoting United States v. Brown, 732 F3d 569, 572

(6th Cir. 2013)).

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Analysis

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.

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[]’ that ‘there is a fair probability that contraband

or evidence of a crime will be found in a particular place.’” 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); Illinois

v. Gates, 462 U.S. 213, 238 (1983)).

“[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,

555 n.6 (1978)); United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009). “The nexus between

‘criminal activity’ and the item to be seized is ‘automatic[]’ when the object of the search is

‘contraband.’” Church, 823 F.3d at 355 (quoting Warden, Md. Penitentiary v. Hayden, 387 U.S.

294, 307 (1967)). “A police request to search for illegal drugs therefore needs to satisfy only the

second showing for a valid warrant: ‘a fair probability’ that the drugs ‘will be found in a

particular place.’” Id. (quoting Gates, 462 U.S. at 238). “There must, in other words, be a

‘nexus between the place to be searched and the evidence sought.’” United States v. Carpenter,

360 F.3d 591, 594 (6th Cir. 2004) (en banc) (quoting United States v. Van Shutters, 163 F.3d

331, 3365–337 (6th Cir. 1998)). The connection between the residence and the evidence of

criminal activity must be specific and concrete, not “vague” or “generalized.” Id. at 595.

Whether an affidavit establishes a proper nexus is resolved by examining the totality of the

circumstances presented. Gates, 462 U.S. at 238.

On appeal, Defendant asks this Court to reverse the district court’s denial of the motion to

suppress because the affidavit lacked probable cause and failed to set forth a nexus to the

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Yellowstone Parkway apartment. We have subject matter jurisdiction to adjudicate this appeal

pursuant to 28 U.S.C. § 1291. We conclude that the evidence and statements obtained from the

search of the Yellowstone Parkway apartment should have been suppressed because the warrant

affidavit failed to establish the existence of probable cause and is not saved by the good faith

exception.

A. Probable Cause

To be valid, a search warrant application must show more than that a person connected

with a property is suspected of a crime. Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978).

It must also 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.” Id.

In this case, the affiant included few facts that support a nexus between the drug evidence

officers sought and the Yellowstone Parkway apartment that the officers searched. Initially, the

affiant stated that he received a tip from a confidential informant that “[Defendant] was selling

Heroin/Fentanyl from [the Yellowstone Parkway apartment].” (Aff., R. 25-3, Page ID #159.)

Next, pertaining to the first controlled purchase, officers observed Defendant drive directly from

the controlled purchase location to the Yellowstone Parkway apartment. Finally, pertaining to

the second controlled purchase, officers observed Defendant exit the Yellowstone Parkway

apartment and drive directly to the controlled purchase location, and then drive directly back

from that location to the Yellowstone Parkway apartment, which Defendant then entered.

Defendant argues that this information is too vague or speculative to support the search

warrant for the Yellowstone Parkway apartment. Defendant primarily relies on United States v.

Higgins, 557 F.3d 381, 390 (6th Cir. 2009), and United States v. Brown, 828 F.3d 375, 383 (6th

Cir. 2016), where in both cases the court determined there was an insufficient nexus to support

the search warrant. In Higgins, an informant identified the defendant’s residence as the site of a

drug operation.

557 F.3d at 390.

However, the police did not establish the informant’s

reliability and the affidavit did not “assert that that the informant had been inside [the

defendant’s] apartment, that he had ever seen drugs or other evidence inside [the defendant’s]

apartment,” or that “the informant had seen drugs or other evidence in or around [the

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defendant’s] apartment.” Id. Similarly, in Brown, though the defendant’s car was registered to

the defendant’s residence and tested positively for narcotics during a canine search, the affidavit

did not suggest that “a reliable confidential informant had purchased drugs” at the defendant’s

residence or that “the police had ever conducted surveillance” there. Brown, 828 F.3d at 382–

383.

Like the affidavits in Brown and Higgins, Officer Hazlewood’s affidavit contains an

insufficient nexus to support the search warrant. The CI’s tip is the only direct connection

between Defendant’s drug activity and the Yellowstone Parkway apartment. However, Officer

Hazlewood’s affidavit gives no indication as to the veracity or reliability of the information

obtained. Officer Hazlewood did not state that he relied on or worked with the CI on prior

occasions or that the CI had proved reliable in the past. Further, he did not assert any belief

concerning the reliability or veracity of the CI’s tip, let alone provide any factual basis by which

the magistrate could assess its reliability or veracity. See United States v. Helton, 314 F.3d 812,

822 (6th Cir. 2003) (explaining that, under Sixth Circuit precedent, an affidavit “must contain a

statement about some of the underlying circumstances indicating the informant was credible or

that his information was reliable” (quoting United States v. Smith, 182 F.3d 473, 477 (6th Cir.

1999))); see also Higgins, 557 F.3d at 389–390 (finding insufficient nexus where the affidavit

did not attest to the informant’s reliability, even though the informant was known to the affiant

and the issuing magistrate).

Further, the affidavit fails to set forth the CI’s basis of knowledge, i.e., “the particular

means by which an informant obtained his information.” Smith, 182 F.3d at 477 (citing Gates,

462 U.S. at 228). Instead, the affidavit baldly states that the “affiant received information from a

Confidential Informant (CI) that a subject by the name of Antwone Sanders was selling

Heroin/Fentanyl from 2852 Yellowstone Parkway Apartment D, Lexington, KY 40517.” (Aff.,

R. 25-3, Page ID #159.) This statement does nothing to establish the basis of knowledge of the

CI, such as indicating that the CI purchased drugs at the Yellowstone Parkway apartment or

observed drugs within the apartment. See Helton, 314 F.3d at 822 (“[T]ip [that] was sparse in

relevant detail . . . loses persuasive value.”); United States v. Parker, 4 F. App’x 282, 286 (6th

Cir. 2001) (Clay, J., dissenting) (“The affidavit . . . failed to indicate . . . that the informant had

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observed any evidence of illegal sales on the premises, or had reason to believe that the illegal

activity was continuing at the residence.”). Without any showing of the CI’s reliability, and

without any statement of firsthand knowledge about the alleged criminal activity at the

Yellowstone Parkway apartment, the CI’s tip carries little weight in the probable cause analysis.

Helton, 314 F.3d at 821–822.

The absence of reliability, veracity, and basis of knowledge does not end the inquiry; an

affidavit that fails to establish these three elements might nevertheless “support a finding of

probable cause, under the totality of the circumstances, if it includes sufficient corroborating

information.” United States v. Woosley, 361 F.3d 924, 927 (6th Cir. 2004); United States v.

Howard, 632 F. App’x 795, 804 (6th Cir. 2015) (“What an informant and her tip lack in intrinsic

indicia of credibility, however, police must make up for in corroboration.”). The primary piece

of purportedly corroborating evidence is the officers’ surveillance of Defendant’s travel between

the controlled purchase locations and the Yellowstone Parkway apartment.

However,

Defendant’s entering and exiting of an apartment, alone, provides no indication of criminal

activity at the apartment.

Our en banc court has made clear that an affidavit lacks probable cause to search a

residence when “it fail[s] to set forth sufficient facts that incriminating evidence would be found

there, rather than in some other place.” Carpenter, 360 F.3d at 594. In determining that

probable cause supported the search warrant, the district court improperly relied on United States

v. Sumlin, 956 F.3d 879 (6th Cir. 2020), to draw an inference about nexus. Based on Sumlin, the

district court reasoned that it is sufficient for the nexus requirement in a probable cause

determination if the affidavit contains claims that “(1) a person is an active drug dealer, (2) the

residence belongs to the drug dealer, and (3) drug dealers tend to store drugs in their home.”

(Op. & Order, R. 41, Page ID #264 (citing Sumlin, 956 F.3d at 886)).

The district court’s reading of Sumlin is incorrect and an oversimplification of the

complex caselaw in this area. This Court has “never held . . . that a suspect’s status as a drug

dealer, standing alone, gives rise to a fair probability that drugs will be found in his home.”

Brown, 828 F.3d at 383 (quoting United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005));

see, e.g., United States v. Fitzgerald, 754 F. App’x 351, 359, 361 (6th Cir. 2018); United States

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v. Bethal, 245 F. App’x 460, 466–67 (6th Cir. 2007). The Sumlin Court held that to establish

probable cause to search a residence, the government’s affidavit needed to demonstrate “(1) that

[the defendant] was trafficking drugs; (2) that [the defendant] lived at the [residence to be

searched]; and (3) that evidence of drug trafficking would be found at [the defendant’s]

residence.” Sumlin, 956 F.3d at 885. The district court stated, incorrectly, that the third prong is

a “trivial bar to pass” that requires only that the affiant assert, based on experience and training,

that drug dealers routinely keep evidence of drug dealing at their residences. To the contrary,

additional specific “evidence showing a connection between [the] alleged drug trafficking and

the” residence is required. Sumlin, 956 F.3d at 887; see also Brown, 828 F.3d at 384 (“[I]f the

affidavit fails to include facts that directly connect the residence with the suspected drug dealing

activity, or the evidence of this connection is unreliable, 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.

Grant, No. 21-3686, 2023 WL 119399, at *3 (6th Cir. Jan. 6, 2023) (“[W]e have inferred a nexus

between a known drug trafficker and a residence when there is strong evidence linking the

suspect to the residence, and there is some additional evidence of drug activity at the

residence.”). In Grant, the Court noted that our caselaw remains “unsettled” regarding the

amount of “additional evidence of drug activity . . . needed for a nexus to exist,” but explained

that “[a]t a minimum, we have required ‘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. (quoting Brown, 828 F.3d at 383).

In any case, Sumlin does not support a finding of probable cause in this case. Defendant

does not dispute that the information in the affidavit sufficed to establish probable cause to

believe that Defendant engaged in dealing drugs.

However, Defendant is correct that the

affidavit fails to establish probable cause to believe either that Defendant lived at the

Yellowstone Parkway apartment or that evidence of drug trafficking would be found at the

apartment.

Considering the second prong, the affidavit did not establish probable cause to believe

that Defendant resided at the Yellowstone Parkway apartment. Over the course of one to two

weeks, on two occasions, officers observed Defendant drive to the Yellowstone Parkway

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apartment. According to the affidavit, the officers observed him enter it on only one of those

occasions, following the second controlled purchase. On another occasion, before the second

controlled purchase, one officer observed him exit the Yellowstone Parkway apartment. This is

scant evidence that the apartment was Defendant’s residence, as opposed to, for instance, the

residence of a friend or acquaintance.

Officers conducted no further investigation on this question. The lack of investigation

stands in stark contrast to the investigation in Sumlin, which yielded facts establishing probable

cause to believe that the defendant lived at the residence to be searched. See Sumlin, 956 F.3d at

886 (officers observed the defendant’s car parked in the driveway of the residence on multiple

days, the utilities at the residence were under the name of the defendant’s then-girlfriend, police

had earlier responded to a domestic disturbance at the residence involving the defendant and his

then-girlfriend, and the mother of the defendant’s then-girlfriend told the police that the

defendant lived at the residence).

Turning to the connection between the alleged drug trafficking and the residence, the

affidavit fails to include even a statement by the affiant officer about his experience and training

indicating that drug dealers tend to store evidence in their homes. Though the affidavit contains

no statement to this effect, the district court reasoned that, based on the affiant’s statement that

he believed evidence of drug trafficking would be located at the Yellowstone Parkway

apartment, the court could “infer” the “missing premise” from the stated facts. (Op. & Order, R.

41, Page ID #265.) But review of the “evidence supporting probable cause is limited to the

information presented in the four corners of the affidavit.” Berry, 565 F.3d at 338. In the

affidavit at issue in this case, the affiant officer made no assertion about this connection, nor any

statement about his training and experience. Thus, the affidavit makes no indication as to what

caused the affiant to “believe[]” that evidence of drug trafficking would be located at the

Yellowstone Parkway apartment. Probable cause is not satisfied by an officer’s mere “hunch.”

See United States v. Arvizu, 534 U.S. 266, 274 (2002) (noting that a hunch is insufficient to

support a finding of reasonable suspicion for a Terry stop, and that the reasonable suspicion

standard is easier to satisfy than the probable cause standard). See also Brown, 828 F.3d at 383

& n.2 (discussing precedent).

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The district court reasoned that officers may “connect the dots” between “a drug dealer

and their residence.” (R. 41, Page ID #265.) This inference can be drawn permissibly in limited

circumstances, such as in Sumlin, 956 F.3d at 886–87, where the affidavit established probable

cause that the defendant engaged in drug trafficking and lived at the residence to be searched, the

affiant officer attested to his experience indicating that drugs would be found there, and there

was some “evidence showing a connection between [the defendant’s] alleged drug trafficking

and the” residence. See also United States v. Miggins, 302 F.3d 384, 388 (6th Cir. 2002)

(finding that probable cause was established where affidavit “clearly established a connection

between [the co-defendant’s residence] where the package . . . containing one kilogram of

cocaine was delivered and [the defendant’s] apartment.”). Thus, from an affidavit establishing

probable cause to believe that a defendant is engaged currently in drug trafficking and resides at

the place to be searched, “judges [may] infer a fair probability of finding evidence in [the]

residence” only if there is “some reliable evidence connecting the known drug dealer’s ongoing

criminal activity to the residence[,] that is . . . [a] showing that the residence had been used in

drug trafficking.” Brown, 828 F.3d at 383; Sumlin, 956 F.3d at 886–87.

The government’s argument that the officers’ observations of Defendant traveling

between the Yellowstone Parkway apartment and the locations where the drug transactions

occurred suffices to establish a sufficient nexus fails. The government relies on United States v.

Houser, 752 F. App’x 223 (6th Cir. 2018). In Houser, the court determined probable cause

supported the search warrant for an apartment where officers observed the defendant exit his

apartment unit, engage in a drug transaction on the side of the apartment building, and then

immediately return to his apartment unit. Id. at 225–226. In contrast, in this case, the affidavit

does not show any drug activity on or near the premises of the Yellowstone Parkway apartment.

Rather, Defendant drove a vehicle to separate locations. Nothing in the affidavit establishes that

evidence of drug dealing existed in the Yellowstone Parkway apartment rather than in the vehicle

in which the two controlled purchases occurred.

In another case on which the government relies, United States v. Miller, 850 F. App’x

370, 373–374 (6th Cir. 2021), the court held probable cause supported the warrant. In Miller,

after previously conducting a controlled purchase that resulted in defendant’s arrest with a large

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quantity of drugs, officers observed the defendant exit and reenter the apartment at which they

suspected he had been staying. Id. at 371. Further, officers observed the defendant exiting the

apartment carrying a white plastic grocery bag and stopping to check the bag’s contents as he

walked to a vehicle. Id. at 371. The defendant then drove the vehicle to another location where

he engaged in drug transactions from his vehicle. Id. at 372. When officers arrested the

defendant and searched his vehicle, officers discovered a firearm and cash in the white plastic

bag that the defendant had been carrying from the apartment. Id. Finally, the affiant officer

averred that “in her experience, drug dealers often keep firearms, drugs, and drug proceeds in

their homes.” Id. The court held that, on these facts, the “direct line from the apartment to the

drug deals sufficed to create a fair probability that evidence would be found in the apartment.”

Id. at 374.

The Miller Court held 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.” Id. Importantly, the warrant in Miller contained more facts

indicating that the defendant lived at the apartment than contained in the affidavit at issue in this

case. In Miller, in addition to previously suspecting the defendant lived at the apartment, and

observing him entering and exiting, the officers conducted additional surveillance of the

apartment after the defendant’s arrest and observed no other person entering or exiting it. Id. at

372. In this case, officers conducted no additional surveillance of the Yellowstone Parkway

apartment nor any other additional investigation of Defendant’s connection to the apartment.

Additionally, this case is further distinguishable from Miller because Defendant was not

seen carrying a bag when he exited the apartment to travel to the controlled purchase location. In

Miller, the defendant’s transportation of the white bag containing a firearm and cash from the

apartment to the drug deal was key to the court’s holding that there was a “direct line from the

apartment to the drug deals,” sufficient to establish the nexus. Id. at 374 (“His direct path from

the apartment to the drug deals (carrying a white bag) was objective evidence connecting the

apartment to that drug dealing under our caselaw.”); see also United States v. Crawford, 943

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

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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).1

Officer Hazlewood’s affidavit failed to establish a nexus between the drug activity and

the Yellowstone Parkway apartment. Because we conclude that the police lacked probable cause

to search the apartment on this ground, deciding whether the information supporting the warrant

was stale, as argued by Defendant, is unnecessary. Brown, 828 F.3d at 385.

B. Good Faith Exception

The government argues that even if the warrant lacked probable cause, the evidence

resulting from the search should not be suppressed, and Defendant's convictions should still be

upheld under the good faith exception to the exclusionary rule announced in United States v.

Leon, 468 U.S. 897 (1984). We disagree.

In Leon, the Supreme Court held that the Fourth Amendment exclusionary rule does not

apply when police officers rely in good faith on a warrant that is ultimately determined to lack

probable cause. Id. at 913. 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 that the search was illegal despite the magistrate’s authorization.” Id. at 922

n. 23.

To aid courts in resolving this question, Leon outlined four circumstances in which an

officer’s reliance would not be objectively reasonable: (1) when the affidavit supporting the

search warrant contains information “that the affiant knows (or is reckless in not knowing)

contains false information;” (2) when the magistrate who issued the search warrant wholly

abandoned his or her “neutral and detached 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

1

In support of its argument, the government also cites United States v. Reed, 993 F.3d 441 (6th Cir. 2021).

Because the Reed Court resolved the case based on the good faith exception to the exclusionary rule and did “not

resolve th[e] probable-cause question,” id. at 450–452, the case provides little guidance on the probable cause

question.

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warrant is so facially deficient that it cannot reasonably be presumed to be valid.” United States

v. Laughton, 409 F.3d 744, 748 (6th Cir. 2005) (citing Leon, 468 U.S. at 914–23).

At issue in this case is the third limitation on the good faith exception.2 This limitation

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

bones” affidavit. Laughton, 409 F.3d at 748. A bare bones affidavit is one that merely “states

only ‘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 probable cause nexus standard, it “contain[s] a

minimally sufficient nexus between the illegal activity and the place to be searched.” See

Carpenter, 360 F.3d at 596. This addresses situations when the warrant’s affidavit falls short of

establishing nexus under the probable cause standard but contains enough of a nexus such that a

reasonable officer would nonetheless believe that the warrant is supported by probable cause.

See id. at 595. For the limitation to apply, “the officer’s reliance on the magistrate’s probablecause determination . . . must be objectively reasonable.” Leon, 468 U.S. at 922.

The district court held, in the alternative, that if probable cause did not support the

warrant, the evidence would be admissible pursuant to the good faith exception because the

affidavit was not “bare bones.” (Op. & Order, R. 41, Page ID # 267.) The court reasoned that

there was a minimal nexus between Defendant’s “status as a drug dealer and his residence,” and

further that the officers reasonably relied on the warrant because the “law regarding search

warrants for residences of known drug dealers is nuanced and often contradictory.” (Id. at Page

ID ##267–268.) The problem here is that there was an insufficient basis to conclude that the

apartment in question was Defendant’s residence or that there was evidence of drug trafficking at

the residence to be searched.

2

Defendant also argues that the first limitation applies because the affidavit may contain false statements in

violation of Franks v. Delaware, 438 U.S. 154 (1978). However, Defendant produced no evidence to show that the

affiant Officer Hazlewood made or included therein any statements by government officials that were false or were

made with reckless disregard for truth. Accordingly, this argument relating to the good faith exception also fails.

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On appeal, the government argues that the officers reasonably relied on the search

warrant because it contends that United States v. Reed, 993 F.3d 441, 444–445 (6th Cir. 2021),

requires the application of the exception in cases where the affidavit lacks a sufficient nexus

because our nexus jurisprudence is “unsettled.” Though it is true that the Reed Court recognized

the different approaches taken in some of our probable cause cases regarding when an

individual’s drug trafficking activity creates probable cause to believe that drugs will be found at

his or her residence and in what limited circumstances inferences can be drawn to support the

requisite nexus, that was not the Court’s sole reason for applying the good faith exception. Id. at

444–46, 451–54. In addition to considering the law’s complexity, in its review of only one of the

three affidavits that were issued together and cross referenced with one another, the Reed Court

concluded that officers reasonably relied on the issuing judge’s determination regarding the third

affidavit because it established probable cause to believe that the defendant was an active drug

dealer engaged in recent drug activities, established probable cause to believe that the defendant

lived at the place to be searched, relied on tips from a CI whose reliability had been attested to in

one of the other unchallenged affidavits, and detailed the affiant’s experience investigating drug

crimes and his belief that drugs would be found at the residence. Id. Reed does not require (nor

could it) that courts apply the good faith exception merely because the relevant Fourth

Amendment jurisprudence is complex or unsettled.

A review of the information presented in the affidavit shows the clear lack of factual

circumstances that would support a minimally sufficient nexus. As discussed above, regarding

the CI’s tip, Officer Hazlewood’s affidavit gives no indication of the veracity or reliability of the

information obtained, or the factual basis underlying the CI’s knowledge. Cf. Higgins, 557 F.3d

at 385, 391 (applying the good faith exception to a search of defendant’s home address where the

informant told the officers that he had personally purchased drugs from the defendant at the

defendant’s address earlier the same day and the tip was corroborated in multiple ways).

In light of these shortcomings, “no reasonable officer would place much, if any, weight

on” the CI’s tip. Helton, 314 F.3d at 821–822, 824 (concluding that an unreliable informant’s

tips “do not merit much weight in the probable cause determination” and finding the informant’s

tip too defective to apply the good faith exception). “[A]t a minimum, a reasonable officer

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would have sought to corroborate” the tip further. Id. at 824; see also Frazier, 423 F.3d at 532

(“[I]n the absence of any indicia of the informants’ reliability, courts insist that the affidavit

contain substantial independent police corroboration.”).

In this case, the independent

investigation did little to corroborate the tip and confirm that drugs would be found in the

Yellowstone Parkway apartment. The officers did not, for instance, surveil the apartment for

indications of drug dealing occurring at the residence or conduct a trash pull. See, e.g., United

States v. McPhearson, 469 F.3d 518, 527 (6th Cir. 2006) (noting that “heavy traffic to and from

the residence” is a hallmark of drug dealing); United States v. Abernathy, 843 F.3d 243, 251–52

(6th Cir. 2016) (holding that drug paraphernalia recovered from a trash pull supported a finding

of probable cause).

Because a reasonable officer would know that the CI’s tip should be given little weight, if

any, due to its minimal trustworthiness and reliability, no reasonable officer would believe that

the affidavit established probable cause to search the Yellowstone Parkway apartment. The

sparse connection between Defendant and the Yellowstone Parkway apartment highlights the

affidavit’s clear deficiencies. Beyond the uncorroborated tip, the affidavit lacked any factual

allegations about drug trafficking occurring at the residence and a reasonable officer knows that

Defendant’s infrequent travel between an apartment and locations where drug dealing occurs

falls short of establishing probable cause that the apartment contains evidence of a crime.

Further, a reasonable officer knows that a Defendant exiting and entering an apartment on

a few occasions does not establish that Defendant lives at that apartment. In considering the

reasonableness of the officers’ reliance on the warrant, it is impossible to ignore the ease with

which officers could have uncovered Defendant’s connection to the Yellowstone Parkway

apartment. “A simple public records inquiry, further research into the name on the utilities

accounts registered at the address, or additional surveillance would have provided clear

evidence” of whether Defendant actually lived at the Yellowstone Parkway apartment. United

States v. Washington, 380 F.3d 236, 251 (6th Cir. 2004) (Moore, J., dissenting). In Mills v. City

of Barbourville, 389 F.3d 568, 576–77 (6th Cir. 2004), because the affidavit lacked any

information indicating that the place to be searched was connected to the defendant and was not

supported by a statement from the CI that “identified the residence as the place of the drug

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purchase or through independent investigation corroborating that it was the home of” the

defendant, we determined that neither probable cause existed nor the good faith exception

applied. Any reasonable officer would have known that it is illegal to search a residence when it

is not clear that the suspect resides there or conducts illegal drug activity there, because there is

not a high probability that the desired evidence or contraband will be uncovered at that location.

Therefore, a reasonable officer would understand that further corroboration—such as

independent surveillance of the apartment or further questioning of the informant to determine

whether he had seen drugs inside the apartment—was needed before probable cause could be

established to search the Yellowstone Parkway apartment.

A comparison to the factually similar case United States v. Washington, 380 F.3d 236

(6th Cir. 2004), is illuminating. On the facts contained in the affidavit in Washington, this Court

held that it was a “close call” whether probable cause existed but ultimately applied the good

faith exception.

Id. at 240 & 242–243.

However, the affidavit in Washington contained

significantly more factual support for the nexus than the affidavit in this case. That affidavit

recounts that officers conducted a controlled purchase from a male suspect driving a Cadillac

registered to a woman at a house in Columbus, Ohio. Id. at 238. Surveilling that house, officers

observed the suspect exit the house before traveling to a second controlled purchase. Id. at 238–

39. In a phone call, the suspect described the Cadillac as “his” car. Id. at 239. Officers

subsequently observed the Cadillac parked at the house to which it was registered on two

separate days following the second controlled purchase. Id. The affiant noted that the house has

been recently robbed, which in the affiant’s training and experience was indicative of drug

trafficking. Id. The affiant also stated that in his training and experience drug dealers commonly

kept records, documents, and money close by. Id.

Like the affidavit in this case, the underlying affidavit in Washington neither connected

the searched residence to any illegal activity nor stated that a suspect who was observed

engaging in such illicit activity away from the residence actually lived at the searched residence.

See id. at 238–39. However, unlike the affidavit in this case, the Washington affidavit contained

additional facts that supported a minimally sufficient nexus: (1) the suspect described the

Cadillac as “his”; (2) the Cadillac was registered to the address of the house and was parked

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outside the house on two separate days; (3) the affiant described his training and experience and

why that caused him to believe that evidence of crime would be found at the house; and (4) the

affiant detailed a recently robbery and its indication of drug activity at the house. Id. at 238–39,

243. By contrast, the officers in this case did not check the address of the registration of the

silver Chrysler, did not observe the silver Chrysler parked outside the apartment at any time

other than the time immediately surrounding the controlled purchases, and did not detail any

recent activity at the Yellowstone Parkway apartment such as a robbery that might indicate drug

activities. Nor did the affiant make any statement about his training and experience or any other

basis that caused him to believe evidence of drug dealing would be found at the Yellowstone

Parkway apartment. While the affidavit in this case contained information from the CI’s tip, for

the reasons discussed above, the CI’s tip carries little weight in our analysis. Accordingly, the

affidavit in this case contains much less support for probable cause on which an officer could

reasonably rely.

The government has identified no case in which this Court has applied the good faith

exception to reliance on a warrant supported by information as scant as the information in the

affidavit in this case. Cf. United States v. Runyon, 792 F. App’x 379, 384 (6th Cir. 2019)

(applying exception where affidavit stated that the informant was reliable, had personally seen

the defendant sell drugs at the location to be searched, and had a prior history of providing

information to law enforcement and reasoning that a reasonable officer would not have known

that the affidavit was insufficient because the sufficiency of the affidavit was a close question

under this Court’s precedent); United States v. Lee, 48 F. App’x 184, 188 (6th Cir. 2002)

(applying exception where the “affidavit included the statement of a named witness that the

witness had recently received illegal drugs from an individual in Lee’s residence” and finding

that the statement rendered “the officers’ belief that there was probable cause to search Lee’s

apartment . . . not ‘entirely unreasonable.’”). In White, we applied the exception, finding that

because the CI’s tip stated that the defendant was selling drugs from a specific address, the

police had corroborated the tip by conducting a controlled purchase at that same address, and the

affidavit included details about the “defendant’s criminal history and connection to the

residence,” alongside “[o]ther facts,” the warrant provided a minimally sufficient nexus. 874

F.3d at 497–98. Also in United States v. Novak, 814 F. App’x 1009, 1010–13 (6th Cir. 2020),

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we applied the good faith exception when presented with an affidavit that is notably different

from the affidavit at issue here. In Novak, the officers received a tip from “a trusted confidential

informant . . . [stating] that a man known as T.Y. reside[d] on Tedman Court—a street located

within the Wilkes Villa low-rise apartment complex—and distribute[d] narcotics from that

residence,” officers surveilled the residence before and after the controlled purchase, and the

affidavit included a recorded phone statement in which the defendant told the CI that he had

heroin in his possession while at the apartment complex. Id. at 1010–13 (alterations in original)

(internal quotation omitted). “Although the good-faith standard is less demanding than the

standard for probable cause, the affidavit still must draw some plausible connection to the

residence.” Brown, 828 F.3d at 385–386; see also Grant, 2023 WL 119399, at *5. Officer

Hazlewood’s affidavit failed to do so. For that reason, we conclude that the good faith exception

does not apply to save the fruits of an illegal search. The district court erred in failing to

suppress the evidence and statements obtained from the search of the Yellowstone Parkway

apartment.

C. Remaining Issues

Two issues remain on appeal. First, before Defendant filed his suppression motion,

Defendant moved for supplemental discovery of “case reports and drug evidence relating to the

two controlled buys referenced in the search warrant affidavit” for the Yellowstone Parkway

apartment. (Def. Mot. Suppl. Disc., R. 25, Page ID #63.) The purpose of Defendant’s motion

for supplemental discovery was to uncover evidence relating to the law enforcement

investigation underlying the search warrant that Defendant could subsequently employ as a basis

for suppressing the evidence obtained from the search. The district court denied Defendant’s

discovery motion, and Defendant appeals from that ruling. Second, in connection with his

suppression motion, Defendant contends that the search warrant affidavit contained false

statements made with reckless disregard for the truth and, as a result, he is entitled to a Franks

hearing to determine whether a preponderance of the evidence supports striking those portions of

the affidavit. See Franks v. Delaware, 438 U.S. 154, 155–56 (1978). Our conclusion that

probable cause did not support the search of the Yellowstone Parkway apartment as well as our

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holding that evidence and statements from the search should be suppressed makes it unnecessary

to consider these issues.

CONCLUSION

For the reasons set forth above, we REVERSE the district court’s order

denying Defendant’s motion to suppress and VACATE Defendant’s convictions and sentence.

We REMAND for further proceedings consistent with this opinion.

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_________________

DISSENT

_________________

NALBANDIAN, Circuit Judge, dissenting.

Today, the majority (1) holds that the

officer’s affidavit could not establish probable cause to search Sanders’s apartment and

(2) denies application of the good-faith exception. But the affidavit used information from a

known confidential informant (“CI”) plus corroborating facts based on two rounds of officer

surveillance. Under our caselaw, that is enough to establish probable cause. And even if it

weren’t, this case fits squarely within the good-faith exception. So I respectfully dissent.

I. Probable Cause

Under the Fourth Amendment, a government agent must “support an application for a

search warrant with a substantial basis linking the evidence to be seized and the place to be

searched.” United States v. McCoy, 905 F.3d 409, 415 (6th Cir. 2018) (citation omitted). This

means that there must be a “nexus between the place to be searched and the evidence sought.”

United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc) (quoting United States v.

Van Shutters, 163 F.3d 331, 336–37 (6th Cir. 1998)). The connection between the residence and

the evidence of criminal activity must be specific and concrete, not “vague” or “generalized.”

Carpenter, 360 F.3d at 595. Whether an affidavit establishes a proper nexus is resolved by

examining the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983). And in

determining whether an affidavit establishes probable cause, courts may only consider the “four

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

omitted).

“[P]robable cause is a ‘practical and common-sensical standard[.]’” United States v.

Reed, 993 F.3d 441, 447 (6th Cir. 2021) (quoting Florida v. Harris, 568 U.S. 237, 244 (2013)).

And in reviewing the district court’s determination that an affidavit was sufficient to support the

issuance of a search warrant, this Court must give “great deference” to the issuing judge’s

findings of probable cause. United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc)

(citation omitted). To that end, we view the evidence in the “light most likely to support the

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decision of the district court.” United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005)

(citation omitted).

The probable-cause question in this case essentially comes down to whether the affidavit

established a nexus between the place to be searched and the evidence sought. See, e.g., United

States v. Sumlin, 956 F.3d 879, 885 (6th Cir.), cert. denied, 141 S. Ct. 605 (2020). The affidavit

based its probable-cause case on two sources of information—a tip from a CI and information

from police observation of Sanders. Those sources combine to establish probable cause that

evidence of Sanders’s drug trafficking would be found there.

Police identified Sanders based on the CI’s description. After the police provided the CI

with Sanders’s photo, the CI “confirmed that this is the same subject [the CI] know[s] as

Antwone Sanders who sells heroin/fentanyl from 2852 Yellowstone Dr.”1 (R. 25-3, PageID 160,

Page 54). The CI then conducted a controlled buy of drugs “from Antwone Sanders.” (Id.)

Following the controlled buy, Sanders left in a silver Chrysler, and police “followed [him] . . .

without stopping to 2852 Yellowstone Drive.” (Id.)

Less than two weeks later, the police conducted another controlled buy using the same

CI. This time, an officer watched the Yellowstone Parkway address at the time of the buy. The

officer noted a silver Chrysler parked outside the residence, which was registered to Sanders.

Police saw Sanders leave 2852 Yellowstone Parkway Apartment D and enter the car. They then

“followed the vehicle from this location uninterrupted to the pre-determined meeting location”

for the controlled buy. Once again, the CI purchased drugs from Sanders. And once again,

police observed Sanders driving uninterrupted from the site of the purchase to the Yellowstone

Parkway address, where he entered Apartment D.

I believe that the combination of the CI’s tip and the officer’s corroborating information

provided enough evidence to establish a nexus between the Yellowstone Parkway address and

evidence of drug dealing. The majority disagrees.

1

The affidavit incorrectly uses both 2852 Yellowstone Dr. and 2852 Yellowstone Parkway. Neither party

argues that this difference matters for the probable cause or good faith analysis.

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The majority finds insufficient support for a nexus between the Yellowstone Parkway

residence and evidence of drug dealing. First, the majority questions the affidavit’s reliance on

the CI’s tip. Namely, the affidavit did not “assert that [] the informant had ever been inside

[Sanders’s] apartment, that he had ever seen drugs or other evidence inside [Sanders’s]

apartment, or that the informant had seen drugs or other evidence in or around [Sanders’s]

apartment.” (Maj. Op. at 6 (quotation omitted)) The majority also faults the affiant for not

attesting to the CI’s reliability or providing information about his relationship with the CI. (Id. at

7)

But the majority’s rejection of the CI’s tip departs from our caselaw. It is true that “an

informant’s veracity, reliability and basis of knowledge are all highly relevant in determining the

value of his report.” Gates, 462 U.S. at 230 (internal quotation marks omitted). But when an

informant is “known to the police” and “would be subject to prosecution for making a false

report,” his statements are given significant weight, especially when compared to tips given by

an anonymous source. United States v. Dyer, 580 F.3d 386, 391 (6th Cir. 2009) (quoting United

States v. May, 399 F.3d 817, 824–25 (6th Cir. 2005)). That’s especially so when there is

“substantial independent police corroboration.” Dyer, 580 F.3d at 392 (citation omitted); cf.

Allen, 211 F.3d at 976 (finding independent corroboration of the tip by police is not required

when the court is provided with assurances that the informant is reliable).

In other words, our caselaw doesn’t make a rule that a CI’s tip can only establish

probable cause where a police officer issues a rote statement that the CI is “reliable.”

“[A]dditional evidence substantiating an informant’s reliability . . . may be any set of facts that

support the accuracy of the information supplied by the informant.” May, 399 F.3d at 824; see

also United States v. Jenkins, 396 F.3d 751, 760 (6th Cir. 2005) (“[I]t has been the rare case in

which the Sixth Circuit has found a search warrant based on an informant tip to be inadequate if

the information has been corroborated to some degree.” (alteration in original) (citation

omitted)). In short, “[a]s long as the issuing judge can conclude independently that the informant

is reliable, an affidavit based on the informant’s tip will support a finding of probable cause.”

United States v. Thomas, 605 F.3d 300, 307–08 (6th Cir. 2010) (citing United States v.

McCraven, 401 F.3d 693, 697 (6th Cir. 2005)).

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Here, the CI told the police that Sanders sold drugs from 2852 Yellowstone Parkway.

The CI was not an anonymous tipster, but someone who conducted controlled buys under police

supervision.

And there was “substantial independent police corroboration”—namely police

officers twice following Sanders to the Yellowstone Parkway address after drug transactions

with the CI. Dyer, 580 F.3d at 391 (quotation omitted). That establishes probable cause to

search the residence.

The majority says that United States v. Higgins, 557 F.3d 381 (6th Cir. 2009), and United

States v. Brown, 828 F.3d 375 (6th Cir. 2016), show that the CI’s statement, combined with the

officers’ corroboration, was too vague to support a finding of probable cause. (Maj. Op. at 6–7)

In Higgins, police received the address of the defendant after pulling over a driver who was

suspected of being under the influence. 557 F.3d at 385. The driver, who had about 15 grams of

cocaine, told the officers that he had bought the cocaine from the defendant the day before, and

his passengers corroborated this. Id. This Court found insufficient indicia of reliability because

there was no evidence beyond the driver’s word and the “affidavit does not assert that the

informant had been inside Higgins’s apartment, that he had ever seen drugs or other evidence

inside Higgins’s apartment, or that he had seen any evidence of a crime other than the one that

occurred when Higgins allegedly sold him drugs.” Id. at 390. But unlike in Higgins, the police

here knew and had a working relationship with the CI who provided the tip in the affidavit—and

they independently corroborated that tip.

In Brown, police searched the defendant’s home based on a recorded phone call of

another heroin dealer and a drug dog alerting police to the defendant’s car. 828 F.3d at 378–79.

In that case, there was no connection between the defendant’s drug dealing and his home at all—

the police never surveilled the home, no CI linked his drug dealing to his residence, and the

defendant was only ever observed engaging in drug dealing from his car, which was seen outside

another defendant’s home.

Id. at 382–83.

The cooperating witness did not mention the

defendant, and the police never observed him at the address to be searched.

In Sanders’s case, not only did the CI have a collaborative relationship with the police,

but police twice confirmed that Sanders was tied to the Yellowstone Parkway address after

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observing Sanders travel uninterrupted from controlled drug buys to the apartment. This is more

than enough to link the CI’s testimony with the address.

Next, the majority says that Sanders’s travel between the controlled buys and the

Yellowstone Parkway address is inadequate corroboration of the CI’s tip. (Maj. Op. at 8) For

the majority, Sanders’s “entering and exiting of an apartment, alone, provides no indication of

criminal activity at the apartment.” (Id. at 8) But we’ve found that when the police see a

defendant moving between a controlled buy and the identified residence, that “provide[s] a

reasonable inference that he transported narcotics from [the] residence to the location of the

[drug] sale.” United States v. Coleman, 923 F.3d 450, 457 (6th Cir. 2019); see also United States

v. Gunter, 266 F. App’x 415, 419 (6th Cir. 2008) (collecting cases) (holding that a CI’s

information, combined with police officers’ observations of the defendant at his home right

before he went to the drug deal provided strong evidence of a nexus between the site and the

evidence); United States v. Miller, 850 F. App’x 370, 371 (6th Cir. 2021) (“[W]e have repeatedly

held that probable cause exists to search a residence for drug-related evidence when a drug

dealer travels directly from that residence to the site of a drug deal.”) (collecting cases). United

States v. Houser, 752 F. App’x 223, 225 (6th Cir. 2018) (finding probable cause where police

officers obtained a warrant after observing the defendant leave his apartment to conduct a

controlled buy). Here, officers twice observed Sanders traveling between his residence and the

sites of controlled buys.

The majority distinguishes Houser because the controlled buy in that case occurred near

the apartment complex, while Sanders conducted his buys away from home. See 752 F. App’x at

225–26. But proximity of the drug buy to the apartment complex is not determinative of nexus.

For example, in United States v. Coleman, we upheld the nexus between a home and drug

dealing when the defendant drove from a controlled buy to the residence. 923 F.3d at 457. And

in United States v. Miller, we upheld a warrant when police had observed a defendant leave an

apartment with a grocery bag, sell drugs, and return to the apartment. 850 F. App’x at 371–72.2

2

The majority says that the police in that case already suspected that the defendant lived in the apartment

and conducted additional surveillance of the property. (Maj. Op. at 11–12) But police here also conducted

additional surveillance—an additional controlled buy when they followed Sanders from the Yellowstone Parkway

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Similarly in United States v. Crawford, an affiant noted that a drug dealer habitually

carried his cocaine in a duffel bag and observed that dealer carrying the duffel bag to a controlled

buy. 943 F.3d 297, 309 (6th Cir. 2019). Although part of that panel’s analysis centered on the

duffel bag supporting the existence of probable cause, the key piece of evidence in that case was

“the actual controlled buy.” Id. at 309.

The majority distinguishes this case from Miller and Crawford because Sanders, unlike

the defendants in those cases, was not carrying a bag to the drug deal. (Maj. Op. at 12–13) But

the key in those cases is that the defendant took a direct path from the residence to an actual drug

deal—the drug containers themselves were secondary. Miller, 850 F. App’x at 374; Crawford,

943 F.3d at 309.3

Finally, the majority criticizes the affidavit because it “fails to include even a statement

by the affiant officer about his experience and training indicating that drug dealers tend to store

evidence in their homes.” (Maj. Op. at 10) The majority suggests that the affidavit presents little

more than the affiant’s “mere hunch” that there was a nexus between the Yellowstone Parkway

address and the evidence of drug dealing. (Id. (quotation omitted)) But the majority overstates

the need for a rote statement of the officer’s credentials.

We analyze the contents of an affidavit “on the adequacy of what it does contain, not on

what it lacks, or on what a critic might say should have been added.” Allen, 211 F.3d at 975.

Moreover, “[a]ffidavits are not required to use magic words.” Id. Instead, we look to whether

“[t]aken as a whole, the affidavit provided sufficient facts from which the magistrate could draw

an independent conclusion as to the probability . . . of what it alleged a search would disclose.”

Id.

residence to the site of the exchange and back. This, combined with the CI’s tip, makes the link between Sanders’s

drug dealing and the site as strong, if not stronger, than the links in Miller.

3

The majority also says that the affidavit falls short because it “did not establish probable cause to believe

that [Sanders] resided at the Yellowstone Parkway apartment.” (Maj. Op. at 9) The majority says that although

police followed Sanders twice to his apartment, nothing in the affidavit suggests that the police confirmed the home

belonged to him. They did not, for instance, check to see if Sanders or a domestic partner paid the utilities. Sumlin,

956 F.3d at 883. They did not see if prior criminal activity tied him to that residence. Id. Again, that’s a red

herring. The affidavit did not have to definitively establish Sanders’s residence at the apartment. It had to establish

a nexus between the property and the drug dealing. See United States v. Ellison, 632 F.3d 347, 348–49 (6th Cir.

2011).

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It is true that the affiant did not explicitly mention his years of service or his observation

that drug dealers tend to store drugs at their homes. And perhaps it would be preferable if he

had, given that we have found that an officer’s experience helps assess probable cause. See, e.g.,

United States v. Caicedo, 85 F.3d 1184, 1193 (6th Cir. 1996); Gunter, 266 F. App’x at 419. But

we don’t require a statement of the officer’s experience to establish a nexus between a residence

and evidence of the crime. The CI’s statement that Sanders sold drugs from the Yellowstone

Parkway address, combined with the observation of his travel between that residence and two

controlled buys was more than sufficient for the magistrate to draw “an independent conclusion

as to the probability” that evidence of drug dealing would be found at this address. Allen,

211 F.3d at 975. The bottom line is that I would find that the affidavit established probable

cause.

II. Good-Faith Exception

In any event, the good-faith exception applies here. The majority disagrees, holding that

the affidavit here was “bare bones.” But we “reserve that label for an affidavit that merely states

suspicions, or conclusions, without providing some underlying factual circumstances regarding

veracity, reliability, and basis of knowledge.” United States v. Christian, 925 F.3d 305, 312 (6th

Cir. 2019) (en banc) (citation and quotation marks omitted). Under that standard and our

caselaw, this affidavit was not “bare bones.”

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.” United States v. Leon, 468 U.S. 897, 922 n.23 (1984). We reject the

exception “when the affidavit is so lacking in indicia of probable cause that a belief in its

existence is objectively unreasonable.” United States v. Laughton, 409 F.3d 744, 748 (6th Cir.

2005) (citing Leon, 468 U.S. at 914–23). We commonly refer to this kind of affidavit as “bare

bones.”

In a case like Sanders’s, an affidavit is bare bones when “evidence in the affidavit

connecting the crime to the residence is ‘so vague as to be conclusory or meaningless.’” Frazier,

423 F.3d at 536 (quoting Carpenter, 360 F.3d at 596). But an affidavit is not bare bones if,

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although falling short of the probable-cause standard, it contains “a minimally sufficient nexus

between the illegal activity and the place to be searched.” United States v. White, 874 F.3d 490,

496–97 (6th Cir. 2017) (quoting Carpenter, 360 F.3d at 596).

And the bar to establish good faith is not a high one. We have described a sufficient

nexus as one with “some connection, regardless of how remote it may have been—some

modicum of evidence, however slight—between the criminal activity at issue and the place to be

searched.” Reed, 993 F.3d at 451 (quoting McCoy, 905 F.3d at 416).

The majority concludes that the affidavit here does not satisfy the good-faith exception

standard because a reasonable officer would have recognized that the affidavit at issue could not

have supported a finding of probable cause. (Maj. Op. at 13–17) It finds that a reasonable

officer would likely have traced each of the alleged deficiencies in the affidavit, concluding that

the affidavit could not establish probable cause. (Id.) But the majority points to no case in

which we have found that an affidavit like the one at issue here did not qualify for the good-faith

exception.

The problem is that the majority is, in effect, applying the probable-cause standard to the

good-faith exception analysis. But we only get to the good-faith exception because we’ve

already established that probable cause didn’t exist.

See Reed, 993 F.3d at 451 (“Leon’s

exception applies only when an affidavit falls short of probable cause.”); see also McCoy,

905 F.3d at 420 (explaining that “reasonable inferences that are not sufficient to sustain probable

cause in the first place may suffice to save the ensuing search as objectively reasonable” (citing

White, 874 F.3d at 500)). And as this Court has repeatedly made clear, the good-faith exception

“requires a less demanding showing than the substantial basis threshold required to prove the

existence of probable cause in the first place.” Id. at 536 (quotation marks omitted) (quoting

Carpenter, 360 F.3d at 595).

The cases that the majority cites that reject a finding of good faith are inapposite. For

instance, in United States v. Helton, we found that the good-faith exception did not apply when

the affidavit was based on (1) the tip of a known CI relaying information from an anonymous CI;

(2) a description of the house by the known CI; and (3) a series of calls between the house and

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known drug dealers. 314 F.3d 812, 816–17 (6th Cir. 2003). Because the information of an

anonymous tipster is generally unreliable, we held that no reasonable officer could rely on a

warrant based on the uncorroborated hearsay of an unidentified tipster. Id. at 824. Once the

information from that tipster was removed, there was insufficient evidence to uphold the warrant.

Id. at 824–25.

But here the CI was not an anonymous tipster. In fact, the CI was known to the police

because he worked with them on the controlled buys. And even if an officer reading the affidavit

had questioned the word of that CI, the controlled buys and trailing of the defendant to the

Yellowstone Parkway residence provided evidence that was not “so vague as to be conclusory or

meaningless.” Frazier, 423 F.3d at 536 (quoting Carpenter, 360 F.3d at 596).

The Supreme Court in Nathanson v. United States described the quintessential “barebones” affidavit—where the affiant stated only that “he ha[d] cause to suspect and d[id] believe

that” liquor illegally brought into the United States “is now deposited and contained within the

premises” belonging to the defendant. 290 U.S. 41, 44 (1933); see also United States v. Weaver,

99 F.3d 1372, 1379–80 (6th Cir. 1996) (holding that a pre-printed form affidavit where the

affiant merely entered the defendant’s name, address, and the suspicion that the defendant was

keeping marijuana, could not satisfy Leon); Mills v. City of Barbourville, 389 F.3d 568, 575–77

(6th Cir. 2004) (finding an affidavit to be bare bones where it contained absolutely no

information linking the defendant to the searched residence nor provided any reason to believe

that evidence of a crime would be found there). See also United States v. Williams, 224 F.3d

530, 533 (6th Cir. 2000).

By contrast, we found that the affidavit in United States v. Carpenter, though lacking in

probable cause, was not bare bones. 360 F.3d at 596. In that case, the warrant was based on

officers’ observations of marijuana growing near the defendants’ home and a beaten path from

the home to the marijuana plants. Id. at 593. Although the information in the affidavit was “too

vague to provide a substantial basis for the determination of probable cause[,]” those facts “were

not so vague as to be conclusory or meaningless.” Id. at 596. So the good-faith exception

applied. See also Van Shutters, 163 F.3d at 336–38 (upholding a search where the affiant only

connected the residence to be searched to illegal activity by stating that the place was “available”

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to the defendant); United States v. Schultz, 14 F.3d 1093, 1098 (6th Cir. 1994) (finding good

faith where the affiant linked the safe-deposit boxes to be searched and the defendant’s

trafficking in illegal drugs only by a statement that the affiant’s training and experience led him

to believe that evidence would be in the boxes).

And I am not convinced by the majority’s use of United States v. Washington. 380 F.3d

236 (6th Cir. 2004), which found in favor of the government on good faith. As the majority

acknowledges, that case was an “extremely close call” on whether probable cause existed. And

the court applied the good-faith exception without reaching the question of probable cause. Id. at

240. We found that good faith applied even though the male defendant’s car was registered to a

woman who lived at the address to be searched; there was no witness linking the address to drug

trafficking; and the officers’ trailing of the defendant was interrupted when the defendant

stopped to change cars.

Id. at 230, 238–40.

The affidavit here, by contrast, linked the

Yellowstone Parkway apartment to drug dealing both by the CI’s testimony and the officers’

observations of Sanders’s movements. The affidavit in Washington can hardly be said to have

contained “significantly more factual support for the nexus than the affidavit in this case” and

does not undermine the argument for a finding of good faith. (Maj. Op at 17)

This affidavit went far beyond the ones we upheld in Carpenter, Van Shutters, and

Schultz and it is on par with the affidavit in Washington. Again, the affiant noted that a CI

known to police identified the Yellowstone Parkway address as the location from which Sanders

dealt drugs. He detailed the two controlled buys in which police observed Sanders travelling

between that location and a drug deal. This provides more than the “modicum of evidence” that

our caselaw requires. Reed, 993 F.3d at 451 (quoting McCoy, 905 F.3d at 416). It is certainly

not so obviously bare bones that no reasonable police officer could rely on a warrant issued

based on this affidavit.

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And because a reasonable police officer could rely on a warrant issued based on this

affidavit, the district court properly denied the motion to suppress.3

III. Conclusion

Because the CI’s tip along with the officer’s corroborating facts established probable

cause, I would uphold the search. And even if probable cause didn’t exist, the good-faith

exception applies. I respectfully dissent.

3

Because I would uphold the search warrant, I would reach Sanders’s other appellate arguments. I would

affirm both the district court’s denial of supplemental discovery and of an evidentiary hearing largely on the same

grounds as the district court. On Sanders’s motion for supplemental discovery, however, I would find that the

district court erred in its analysis of Federal Rule of Criminal Procedure 16(a)(1)(E)(iii). This rule requires that a

defendant be allowed to inspect and to photocopy documents or objects that are “within the government’s

possession, custody, or control” if “the item was obtained from or belongs to the defendant.” Fed. R. Crim. P.

16(a)(1)(E). And we may consider a violation of Rule 16 in the context of a conditional guilty plea. United States v.

Harney, 934 F.3d 502, 507–08 (6th Cir. 2019). Sanders sought to inspect the drugs seized from him in the

controlled buys. Because the drugs at issue were obtained from Sanders and were in the government’s possession,

Sanders should have been permitted to inspect them.

But Rule 16 violations are reviewed for harmless error. United States v. Clark, 385 F.3d 609, 619 (6th Cir.

2004). And we have held that the standard to be applied in Rule 16 cases is that “[a]ny error, defect, irregularity or

variance which does not affect substantial rights shall be disregarded.” United States v. Phillip, 948 F.2d 241, 251

(6th Cir. 1991) (quoting Federal Rule of Criminal Procedure 52(a)). Though Sanders asserts that his substantial

rights were implicated by this failure, he does not show how. (Def. Rep. Br. at 1, 12–13) And I don’t think he can.

The government’s case rested on the drugs and firearms discovered in the search, not the drugs from the controlled

buys. Sanders could not have gleaned exculpatory information from the drugs, and nothing suggests that the

outcome of this case would have changed if he had inspected them. I would therefore affirm the district court’s

denial of supplemental discovery and an evidentiary hearing.