Appendix — Gunter v. United States (No. 08-104)

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APPENDIX A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at CHATTANOOGA

No. 1:05-CR-149

[Filed August 14, 2006]

UNITED STATES OF AMERICA

CORNELL P. GUNTER

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Vv. )

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MEMORANDUM

Defendant Cornell P. Gunter (“Defendant”) filed a

motion to suppress evidence collected during the

search of his residence on September 28, 2005 (Court

File No. 15) which was referred to United States

Magistrate Judge William B. Mitchell Carter to

conduct an evidentiary hearing if necessary and make

a report and recommendation pursuant to 28 U.S.C.

§ 636(b)(1)(B) and (C). On April 18, 2006, the

magistrate judge filed a report and recommendation

(“R&R”) recommending Defendant’s motion be denied

(Court File No. 25).

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Defendant filed an objection to the report and

recommendation and requested a de novo hearing

(Court File No. 26). Defendant contends there was an

insufficient nexus between the alleged criminal

activity and his residence to establish probable cause

(/d.). He also argues the good faith exception cannot be

applied here because no reasonably objective police

officer could have relied on a warrant issued on the

basis of this affidavit Ud.). After carefully considering

both the filings of Defendant and the Government

(Court File Nos. 15, 16, 22, 25, 26), the Court finds the

magistrate judge’s legal analysis to be correct under

the relevant law.

I. Standard of Review

This Court must conduct a de novo review of those

portions of the report and recommendation to which

objection is made and may accept, reject, or modify, in

whole or in part, the magistrate judge’s findings or

recommendations. 28 U.S.C. § 636(b)(1)(C).

II. Relevant Facts

On September 28, 2005, a warrant was issued by

the Criminal Court, 10th Judicial District in McMinn

County, Tennessee for the search of Defendant’s

residence at 1484 County Road 250 in Niota,

Tennessee (Court File No. 15, 91). That same day,

agents with the Tennessee Bureau of Investigation

(“TBI”) and the Tenth Judicial Drug Task Force

(“DTF”) executed this search warrant and searched

Defendant’s residence (Court File No. 22, p.2). The

officers seized cocaine, large amounts of cash, and a

gun from the house (/d.). In addition, drug

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paraphernalia was discovered in the Defendant’s

Cadillac parked outside the residence (/d. at 4).

The search warrant was issued pursuant to an

application and affidavit of TBI Special Agent Bryan

Freeman ‘Court File No. 15, 7 1). The following facts

were given in the affidavit and considered by the

Criminal Court, 10th Judicial District, as justification

for the search warrant:

Special Agent Freeman has been an employee of

the TBI for approximately nine years (Court File No.

16-2, J 1). Prior to his employment at TBI, he was an

agent with DTF for two years (/d.). As a result of his

extensive training and experience, Freeman is familiar

with common operating patterns utilized by persons

involved with illegal drug trafficking (/d.). One such

operating pattern Special Agent Freeman is aware of

is individuals often use their residences and the area

and property surrounding their residences to conceal

evidence of their illicit crimes (/d. at JQ 1A-1C, 1L-

1H).

In fall, 2003 Special Agent Freeman and other law

enforcement officers began investigating a conspiracy

of cocaine trafficking in McMinn County, Tennessee

Ud. at J 2). In September, 2005, Freeman spoke with

a confidential source (“CS”) who informed him he could

potentially purchase cocaine from Defendant (/d. at

q 4). On September 22, 2005, Special Agent Freeman

and other DTF agents met with the CS and observed

him phone Defendant and make arrangements to

purchase cocaine (/d. at {] 5). They provided the CS

with a transmitting device and money to purchase the

cocaine and proceeded to follow him to Harper Johnson

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Road in Athens, Tennessee, where they listened and

observed Defendant sell approximately two ounces of

cocaine to the CS Ud. at { 6).

On September 27, 2005, Special Agent Freeman

and other DTF agents once again monitored the CS’s

phone call to Defendant, gave the CS a transmitting

device and money with which to purchase the drugs,

and followed him to the meeting place (Ud. at 7 9).

Concurrently, two other agents were monitoring

Defendant’s house and saw a dark-colored Cadillac

driven by a black male, later identified as Defendant,

enter the driveway (Ud. at 9 10). The Cadillac

remained at the residence for two to three minutes

before leaving (/d.). The agents followed the Cadillac

to Harper Johnson Road, Athens, Tennessee where

Defendant met the CS (Ud. at 9 12). Once more, the

nearby agents observed and listened to the this

meeting during which Defendant sold approximately

two ounces of cocaine to the CS (/d.).

Ill. Analysis

Defendant asserts all evidence seized as a result of

the search warrant was obtained in violation of his

Fourth Amendment rights and should be suppressed

(Court File No. 15).

A. Validity of Search Warrant/ Probable

Cause

In order for a judge to issue a warrant, law

enforcement officers must present sufficient evidence

from which the judge can conclude that evidence will

be found in a particular place. United States v.

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Williams, 224 F.3d 530, 532 (6th Cir. 2000) (citing

Iilinois v. Gates, 462 U.S. 213, 238 (1983)). To reach a

conclusion, the totality of the circumstances must be

examined in a “realistic and common sense fashion.”

United States v. Van Shutters, 163 F.3d 331 (6th Cir.

1998). There also must be a logical nexus between the

place to be searched and the criminal! activity. United

States v. Schultz, 14 F.3d 1093, 1097 (6th Cir. 1994).

In addition, if the evidence presented by the affiant is

mainly obtained from a confidential source, the affiant

must provide the issuing judge with enough

information that he can independently conclude the CS

is reliable. United States v. McCraven, 401 F.3d 693,

697 (6th Cir. 2005).

The Supreme Court has held “probable cause

requires only a probability or substantia! chance of

criminal activity.” Gates, 462 U.S. at 243-44 n. 14. A

“practical nontechnical” probability incriminating

evidence is involved is sufficient. See Brown v. Texas,

460 U.S. 730, 742 (1983)

1. Nexus between Criminal Activity and

Defendant’s residence

Defendant argues there was no nexus between the

drug deals and his residence and, therefore, there was

no probable cause to issue the search warrant. He

points to the fact the CS gave no information as to the

house itself or the presence of drugs at the residence,

nor was Special Agent Freeman present to personally

observe Defendant’s car in the house’s driveway (/d.).

The circumstances surrounding the issuance of the

search warrant permitting search of Defendant's

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residence are comparable to the circumstances

described in United States v. Murphy, 241 F.3d 447

(6th Cir. 2001). In Murphy, law enforcement officers

observed the defendant leaving a motel room, meeting

a CS outside the room to sell crack, and returning to

his motel room. /d. at 457. The court determined these

observations were sufficient to establish probable

cause for the issuance of a warrant to search the motel

room, regardless of the fact only one transaction was

observed and this transaction did not occur in the

motel room. Id. at 458.

While Defendant was not observed entering his

house before the drug transaction, which would have

clearly shown a connection between the residence and

the criminal activity, the affiant included in the

affidavit information which established the Niota

residence as Defendant’s and Defendant’s presence at

the residence prior to the drug purchase by the CS

(Court File No. 16-2, [9] 7, 10 ). Although the affiant

did not personally observe Defendant at his residence,

two other agents did (/d.). It is permissible for the

affiant officer to rely on another officer’s observations

in an affidavit supporting a search warrant. See

United States v. Woods, 544 F.2d 242, 260 (6th Cir.

1976) (noting for assessing whether probable cause

exists, appeals court “mutually imputes the knowledge

of all the agents working together on the scene and in

communication with each other”); accord United States

v. Rodriguez-Suazo, 346 F.3d 637, 650 (6th Cir. 2003).

Similar to the facts in Defendant’s case is United

States v. Blair, which held, along with information

provided from reliable witnesses, the affiant’s opinion,

based on his extensive experience, that evidence would

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be found in the defendant’s residence was sufficient to

establish probable cause for the issuance of a search

warrant. 214 F.3d 690, 696 (6th Cir. 2000). “In the

case of drug dealers, evidence is likely to be found

where the drug dealers live.” United States v. Jones,

159 F.3d 969, 974 (6th Cir. 1998). In addition, the

United States Court of Appeals for the Sixth Circuit

(“Sixth Circuit”) has held in a series of cases an

observation of drug trafficking outside the dealer’s

home can provide probable cause to search the dealer’s

house. See United States v. Miggins, 302 F.3d 384,

383-84 (6th Cir. 2002); Jones, 159 F.3d at 974; Untted

States v. Caicedo, 85 F.3d 1184, 1193 (6th Cir. 1996).

Defendant relies upon United States v. Frazier

which he contends contravenes this line of Sixth

Circuit cases. United States v. Frazier, 423 F.3d 526,

531 (6th Cir. 2005). In Frazier, an affidavit issued in

circumstances somewhat similar to the Defendant’s

was determined to lack probable cause. Id. There, the

affidavit detailed a drug conspiracy, included a

cooperating informant’s statement he had observed

drug dealing out of the residence at issue, and

described drug transactions but did not indicate those

transactions actually were controlled buys caught on

tape. Id. at 529-31. The court concluded review of

sufficiency of the evidence was limited to the

information presented in “the four corners of the

affidavit.” Jd. When assessing the affidavit, the court

determined because the affidavit was based almost

solely on the uncorroborated testimony of an unproven

confidential informant who never actually witnessed

criminal activity, the suspicion the defendant is a drug

dealer alone was not sufficient to tie the criminal

activity to the defendant’s residence. /d. at 533.

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However, the circumstances in Frazier are clearly

distinguishable from those here because Special Agent

Freeman’s affidavit included information the drug

deals were observed and heard by both the CS and the

agents. See Id., (Court File No. 16-2, 7] 5, 6, 9, 11-12).

Unlike Frazier, there is more to Special Agent

Freeman’s affidavit than an uncorroborated allegation

Defendant is a drug dealer. See Id.

“That defendant has pointed out specific factual

details that the task force agents could have provided

in the affidavit to the magistrate does not negate a

finding of probable cause; this Court does not review

the sufficiency of an affidavit through such a lens.”

Murphy, 241 F.3d at 458. The Court will ACCEPT

and ADOPT the magistrate judge’s analysis on this

point and conclude the fact the drug deal observed did

not occur in the defendant’s home does not require

finding an insufficient nexus between the defendant’s

house and his criminal activity.

2. Reliability of the Informant

In this case, Special Agent Freeman did not give

the judge who issued the warrant any information

about the CS’s reliability (Court File No. 15). There are

two factors which are critical to the determination a

CS’s information provides a substantial basis for

finding probable cause: 1) an explicit first-hand

account of the wrongdoing, and 2) corroboration of the

information by independent investigation. Jones, 159

F.3d at 975 (citing United States v. Wright, 16 F.3d

1429, 1438 (6th Cir. 1994). In the absence of indicia of

the reliability of the CS’s statements, the affidavit

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must contain substantial independent police support.

Frazter, 423 F.3d at 532.

In United States v. Coffee, police corroboration was

found to override the lack of proof of the CS’s

reliability merely because the officer observed the CS

enter and leave the premises at which the drugs were

obtained and was shown the drugs immediately after

the CS departed the premises. United States v. Coffee,

434 F.3d 887 (6th Cir. 2006). The observation by the

officer was sufficient even though the affidavit

contained no assertions of the CS’s reliability. Jd.

Special Agent Freeman’s affidavit provided even more

independent corroboration as the agents directly

observed and heard the transaction (Court File No.

16-2, 19 5, 6, 9, 11-12). In addition, Special Agent

Freeman gave a detailed account of the transactions

and the process undergone in his affidavit. Ud.)

It is clear the affidavit showed substantial

independent police investigation and _ evidence

Defendant was involved in drug trafficking. Although

the agents did not know whether the CS was reliable

when he first contacted them and Special Agent

Freeman made no statement about past experiences

which establish reliability, further dealings with the

CS and careful first-hand observation of him justified

belief in the information provided.

Once again, Defendant cites Frazier in support of

his argument. See Frazier, 423 F.3d at 530. However,

unlike Special Agent Freeman’s affidavit, the Frazier

affidavit made no reference that the buys presented as

evidence of probable cause were controlled buys caught

on tape. Jd. “The affidavit is judged on what it does

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contain, not on what it lacks or on what a critic might

say should be added.” United States v. Allen, 211 F.3d

970, 975 (6th Cir. 2000). Special Agent Freeman’s first

hand observation of the drug deals allowed the

magistrate judge to find probable cause, regardless of

the lack of proof of CS’s reliability. The Court finds the

magistrate judge’s determination the information from

the CS in the affidavit was reliable was supported by

relevant law and will ACCEPT and ADOPT the

magistrate judge’s finding of probable cause.

B. Good Faith Exception

Defendant claims that without a valid search

warrant, the evidence cannot be admitted without

violating the Fourth Amendment. The Court will

address this objection although it finds the search

warrant to be valid.

The Fourth Amendment contains no provision

expressly precluding the use of evidence obtained in

violation of its commands since the wrong condemned

by the amendment is “fully accomplished” by the

illegal search and seizure in itself. United States v.

Leon, 468 U.S. 897, 906 (1984) (citing United States v.

Calandra, 414 U.S. 228, 354 (1974)). Cases have

recognized that excluding all evidence procured in

violation of the Fourth Amendment would “impede

unacceptably the truth finding function of judge and

jury.” Id. at 907 (quoting United States v. Payner, 447

U.S. 727, 734 (1980)). Consequently, evidence obtained

by an invalid search warrant that officers executed in

good faith is admissible. Leon, 468 U.S. at 897.

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Accordinglv, even if the warrant were determined

invalid, the Court can determine whether the evidence

should still be admitted under the good faith exception

established in Leon. Id. Under this test “the relevant

question is whether the officer reasonably believed

that the warrant was properly issued, not whether the

probable cause existed in fact.” United States uv.

Laughton, 409 F.3d 744, 752 (6th Cir. 2005) (quoting

United States v. Carpenter, 360 F.3d 591, 595 (6th Cir.

2004). Leon enumerates four situations in which the

officer’s reliance on a search warrant could not be

presumed reasonable:

1) When the warrant is issued on the basis of an

affidavit that the affiant knows (or is reckless in

not knowing) is false, 2) when the magistrate is

not neutral and detached and serves merely as

a rubber stamp for the police, 3) when the

affidavit does not provide substantial basis for

determining probable cause, and 4) when the

officer has no reasonable ground for believing

the warrant was propcrly issued.

Leon, 468 U.S. at 913, 923.

The legal issue brought to the attention of this

Court is whether the warrant was so deficient that the

officers conducting the search had no reasonable

grounds for believing the warrant was properly issued.

In United States v. Shultz, the affiant officer had not

made any connection between the bank tie searched

and criminal activity that was the focus of the search.

United States v. Shultz, F.3d 1093, 1097-98 (6th Cir.

1994). However, he suspected, based on his training

and experience, evidence of the crime would be found

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in the bank’s safety deposit boxes. Jd. Because the

officer had undertaken a thorough investigation and

had significant training and experience, the affidavit

was “not so lacking” in indicia of probable cause as to

render good-faith reliance unreasonable. /d. It has

been held courts may take into account “the experience

and expertise of law enforcement agents who observed

the defendant’s activity.” United States v. Valencia, 24

F.3d 1106, 1108 (9th Cir. 1994).

Defendant’s case is similar. Special Agent Freeman

detailed his extensive experience and resulting

knowledge in the affidavit (Court File No. 16-2, 7 1).

He stated that he both watched and listened while the

drug transactions between the Defendant and the CS

took place Ud. at {J 5, 6, 9, 11-12). In addition, the

Sixth Circuit has held it is appropriate to consider

facts the agent knew which were not included in the

warrant when assessing the reasonableness of his

reliance. Frazier, 423 F.3d at 531. Whether or not the

affidavit contained the appropriate information to

justify the issuance of a search warrant, Special Agent

Freeman’s knowledge of the criminal activity and the

habits of drug dealers justifies his determination of the

validity of the search warrant. Consequently, the

officers who conducted the search reasonably relied on

the affidavit’s legitimacy.

C. Request for Evidentiary Hearing

Because Defendant fails to state any

misrepresented facts or supply evidence to show that

facts were fabricated or recklessly disregarded, the

court will ACCEPT and ADOPT the magistrate

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judge’s finding there is no entitlement to an

evidentiary hearing.

IV. Conclusion

For the reasons stated above, after carefully

reviewing the documents presented to the magistrate

judge, the Court has determined the magistrate

judge’s legal analysis is correct under the relevant law.

Following those findings, the Court will ACCEPT and

ADOPT the magistrate’s determination evidence

found during a search of Defendant’s residence on

September 28, 2005 need not be suppressed.

An Order shall enter.

/s/

CURTIS L. COLLIER

CHIEF UNITED STATES

DISTRICT JUDGE

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

at CHATTANOOGA

No. 1:05-CR-149

[Filed August 14, 2006]

UNITED STATES OF AMERICA

Vv.

CORNELL P. GUNTER

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ORDER

For the reasons set forth in the accompanying

memorandum, it is ORDERED the Court ACCEPTS

and ADOPTS the magistrate judge’s report and

recommendation (Court File No. 25) pursuant to 28

U.S.C. § 636(b)(1)(C) and Defendant’s motion to

suppress (Court File No. 15) is hereby DENIED.

SO ORDERED.

ENTER:

/s/

CURTIS L. COLLIER

CHIEF UNITED STATES

DISTRICT JUDGE

APPENDIX B

UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

No. 07-5271

[Filed February 20, 2008]

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

CORNELL P. GUNTER,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

BEFORE: SILER, CLAY and COOK, Circuit Judges.

CLAY, Circuit Judge. Defendant Cornell P.

Gunter appeals his conviction, under 21 U.S.C.

§§ 841(a)(1) and (b)(1)(B), for possession with intent to

distribute more than five grams of crack cocaine, and

his conviction, under 18 U.S.C. § 924(c)(1)(B)Q), for

possession of short-barreled shotgun in furtherance of

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a drug trafficking crime. Specifically, Defendant

argues that a warrant authorizing a search of his

residence was not supported by probable cause.

Because the affidavit describes a_ thorough

investigation of Defendant, sufficient to establish

probable cause to search his home, we AFFIRM

Defendant’s conviction.

STATEMENT OF FACTS

While conducting an investigation of Defendant

Cornell Gunter, Tennessee law enforcement officers

spoke with a confidential informant, who told them

that he could potentially purchase cocaine from

Defendant; and on September 22, 2005, the informant

placed a call to Defendant to arrange a purchase.

Agents of the Tennessee Bureau of Investigation

(“TBI”) monitored this call as the informant arranged

to meet with Defendant later that day.

Under the supervision of the TBI, the informant

made a controlled purchase of cocaine from Defendant.

Prior to the purchase, agents searched the informant’s

person and vehicle to be certain he was not carrying

any controlled substances. The agents then provided

the informant with a covert transmitter and listened

as the informant purchased approximately two ounces

of cocaine from Defendant. Upon completion of the

transaction, the informant turned this cocaine over to

the agents.

Four days later, a TBI agent conducted a driver's

license and vehicle registration inquiry on Defendant.

This inquiry revealed Defendant’s address in Niota,

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Tennessee, and indicated that he owned several

vehicles, including a Dodge RT and two Cadillacs.

On September 27, 2005, the TBI arranged another

controlled purchase utilizing a confidential informant.

While TBI agents were surveilling the Niota residence,

the informant called Defendant to arrange the cocaine

purchase. TBI agents monitored this call as Defendant

told the informant that he was traveling, but would

meet the informant in nearby Athens, Tennessee.

Around the same time as this phone call, the agents

watching Defendant's Niota residence observed a

green Cadillac, driven by Defendant, arriving at that

residence. The Cadillac remained at the residence for

two to three minutes. TBI agents then foilowed the

Cadillac as it stopped at another residence, and

eventually traveled to the site of the controlled

purchase. Like the first purchase, this controlled

purchase was also monitored via transmitter by the

TBI.

The next day, TBI Special Agent Bryan Freeman

sought a warrant to search Defendant’s residence for

drugs, evidence of drug transactions and firearms. In

addition to setting out the above facts in an affidavit

accompanying the warrant application, Agent

Freeman also described his significant experience in

narcotics investigations, including over 100

investigations into drug trafficking, and stated that in

his experience “individuals involved in drug trafficking

frequently conceal, in their resideice . . . caches of

illicit drugs, large amounts of Unites [sic] States

currency and/or other illicit proceedings of drug

transactions, as well as records of drug transactions.”

(J.A. 34.) A photo of Defendant’s residence was also

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included in the affidavit to indicate the premises to be

searched. Based on this affidavit, a Tennessee state

judge issued a warrant to search Defendant’s home.

The ensuing search uncovered narcotics, cash and

firearms, as well as drug paraphernalia in a Cadillac

parked outside the residence.

DISCUSSION

Standard of Review

When reviewing a denial of a motion to suppress

evidence, we review the district court’s findings of fact

for clear error and its conclusions of law de novo.

United States v. Jones, 159 F.3d 969, 974 (6th Cir.

1998). In reviewing the decision of the magistrate

issuing the search warrant, however, “we consider the

evidence that the issuing magistrate had before him

only ‘to ensure that [he] hald] a substantial basis .

for concluding that probable cause existed.” Id.

(quoting /llinois v. Gates, 462 U.S. 213, 238-39 (1983)).

Analysis

A warrant to search a residence may not issue

except “upon probable cause, supported by Oath or

affirmation.” U.S. Const. amend. IV. To secure a

search warrant, law enforcement must present a

neutral magistrate “evidence from which the

magistrate judge can conclude from the totality of the

circumstances, ‘including the ‘veracity’ and ‘basis’ of

knowledge of persons supplying hearsay information,

there is a fair probability that contraband or evidence

of a crime will be found in a particular place.” United

States v. Williams, 224 F.3d 530, 532 (6th Cir. 2000)

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(quoting J/llinois v. Gates, 462 U.S. 213, 238 (1983)).

Defendant alleges that the warrant affidavit in this

case failed to establish probable cause because it failed

to establish the reliability of the confidential

informants’ statements to police. Additionally,

Defendant claims that the affidavit did not

demonstrate a sufficient nexus between his drug

trafficking and his residence to allow a search of that

residence. We disagree.

A. The Reliability of the Confidential Informants

When, as here, a warrant affidavit provides no

indicia of an informant’s reliability, “courts insist that

the affidavit contain substantial independent police

corroboration.” United States v. Frazier, 423 F.3d 526,

532 (6th Cir. 2005). Such independent corroboration

may be established, however, by a police monitored,

controlled purchase, such as the two which occurred in

this case.

In United States v. Coffee, 434 F.3d 887 (6th Cir.

2006), this Court considered a similar case involving a

confidential informant and a controlled purchase. The

police in that case were told by an informant that he

had purchased drugs from the Coffee defendant. Id. at

893. Based on that information, the police executed a

controlled purchase similar to the one in the instant

case. The informant was searched and made to wear a

transmitter. Jd. at 891. Police then monitored via the

transmitter a conversation between the informant and

the Coffee defendant, and their ensuing drug

transaction. Jd. Afterwards, police confiscated the

drugs from the informant. Jd. Based on this controlled

purchase, we concluded that the informant’s reliability

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in Coffee was sufficiently corroborated, and thus

rejected the defendant’s claim that the warrant

affidavit did not demonstrate probable cause. Id. at

894-95.

In the instant case, the TBI conducted not just one

but two controlled purchases, using similar procedures

to those used by the police in Coffee. If one such

purchase was sufficient to corroborate an informant’s

statements in Coffee, then two purchases will more

than suffice in the instant case. Accordingly, we hold

that the warrant affidavit was not deficient for failing

to establish the reliability of an informant.

B. The Nexus Between Defendant’s Drug

Trafficking and His Residence

Defendant next argues that, as the warrant

affidavit only described drug sales outside his

residence, it failed to establish a sufficient nexus

between his illegal activity and his residence to allow

a search of that residence. See Frazier, 423 F.3d at 532

(“There must be a ‘nexus between the place to be

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searched and the evidence to be sought.” (quoting

United States v. Carpenter, 360 F.3d 591, 594 (6th Cir.

2004)). To establish such a nexus, a warrant

application must show more than just that “the owner

of the property is suspected of crime,” but instead must

establish “that there is reasonable cause to believe

that the specific ‘things’ to be searched for and seized

are located on the property to which entry is sought.”

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

The mere fact that someone is a drug dealer is not

alone sufficient to establish probable cause to search

their home. See Frazier, 423 F.3d at 533.

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Defendant argues that the warrant affidavit failed

to establish a nexus between his residence and his

drug trafficking because the confidential informant

“provided no reliable information to establish a nexus

and the facts fail to establish any such nexus as well.”

(Plaintiffs Br. at 17.) As the district court correctly

noted, the best case for Defendant’s position is this

Court’s decision in Frazier. Frazier involved a federal

investigation of a drug conspiracy involving about 25

people. 423 F.3d at 530. Law enforcement agents

learned that the Frazier defendant was involved in

drug trafficking through confidential informants, who

also informed them that the defendant was selling

drugs from his home. Although the agents conducted

several controlled purchases to establish the reliability

of their informants, they neglected to mention in their

affidavit accompanying the application for a warrant

that these purchases were recorded via transmitter.

Id. Lacking such corroboration of the informant’s

reliability, we held that when “the warrant affidavit is

based almost exclusively on the uncorroborated

testimony of unproven confidential informants... the

allegation that the defendant is a drug dealer, without

more, is insufficient to tie the alleged criminal activity

to the defendant’s residence.” Jd. at 533.

Frazier, however, is distinguishable from previous

Sixth Circuit cases which upheld a search of a drug

dealer’s residence even though police observed no

illegal activity at that residence. In United States v.

Miggins, 302 F.3d 384 (6th Cir. 2002), for example,

police arrested one member of a drug conspiracy when

he signed for a package under the assumed name

“Darnel Smith.” /d. at 393. The package was addressed

to “Tommy Lee,” and the sender was “Keith Jackson,”

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both assumed names of his co-conspirators. Jd. In a

search pursuant to their arrest of the so-called “Darnel

Smith,” police discovered a piece of paper which listed

al] three assumed names along with an address, which

turned out to be the defendant’s residence. Noting the

discovery of this address along with aliases associated

with the drug conspiracy, we held that police had

probable cause to search the defendant’s residence. Id.

Similarly, in United States v. Caicedo, 85 F.3d 1184

(6th Cir. 1996), we upheld a warrant authorizing a

search of a residence despite only a limited connection

between the residence and drug related activity. The

Caicedo defendant was arrested while traveling with

a friend who was carrying cocaine in his backpack. Id.

at 1193. While he was being questioned by police, the

defendant lied about his address. Jd. Given this lie, we

held that a warrant affidavit sworn by an experienced

narcotics officer, which stated that “the reason for

hiding the correct residence could be that further

evidence may be located at this location which could be

used against Ryan in this particular investigation,”

established a sufficient nexus between the defendant

and his residence to allow a search of that residence.

Id. (emphasis in original).

Reading Frazier, Miggins and Caicedo together,

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. See, e.g., Miggins, 302 F.3d at 393; Caicedo,

85 F.3d at 1193. When, however, the only evidence of

a connection between illegal activity and the residence

is unreliable, such as uncorreborated statements by a

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confidential informant, then a warrant may not issue

allowing the search of the residence. Frazier, 423 F.3d

at 533.

Applying this framework to the instant case, we

conclude that the instant warrant affidavit described

sufficient facts to establish a nexus between

Defendant’s drug trafficking and his residence. The

warrant affidavit described the investigating law

enforcement agent’s significant experience in narcotics

investigations—including over 100 investigations into

drug trafficking—and stated that in that agent’s

experience drug dealers typically keep evidence of

their crime in their residence. Moreover, unlike

Frazier, where the warrant affidavit relied entirely on

statements of confidential informants to establish a

connection between the defendant and his residence,

the instant affidavit describes an incident where law

enforcement agents observed Defendant visiting his

residence right before he traveled to the site of a drug

sale. This visit provided a neutral magistrate with a

substantial basis to conclude that Defendant may have

stopped at his residence to pick up some of his

merchandise before meeting his customer at another

Location. This evidence, combined with the affiant’s

statements that he has significant experience in

narcotics investigations, is sufficient to establish a

nexus between Defendant’s illegal activities and his

residence. See Caicedo, 85 F.3d at 1193. Accordingly,

we affirm the decision of the district court admitting

evidence seized in the search of Defendant’s residence.

Because we hold inat probable cause supported the

warrant, we do not address Vefendant’s challenge to

the district court’s alternative grounds for denying

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suppression-the good-faith exception to the probable

cause requirement.

CONCLUSION

The warrant to search Defendant’s home was

issued upon probable cause. The warrant affidavit

described sufficient evidence to corroborate statements

by confidential informants and the affidavit showed a

nexus between Defendant’s illegal activities and his

residence. Accordingly, we AFFIRM Defendant’s

conviction.

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

Case No. 1:05-cr-149

{Filed April 18, 2006)

UNITED STATES OF AMERICA

vs.

CORNELL P. GUNTER, also known

as PERRY GUNTER

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REPORT AND RECOMMENDATION

I. introduction

Defendant Cornell Gunter’s Motion to Suppress

(Doc. 15)is pending before the undersigned Magistrate

Judge having been referred by the District Court for a

Report and Recommendation pursuant to 28 U.S.C.

§ 636(b)(1)(B). Defendant seeks to suppress evidence

found during a search of his residence on September

28, 2005, pursuant to a search warrant. Defendant

also requests an evidentiary ‘:earing “so a record can

be developed to determine the constitutionality of the

search” (Defendant’s Mot. to Suppress at 2). For the

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reasons set forth, the undersigned Magistrate Judge

RECOMMENDS defendant’s motion to suppress be

DENIED.

Il. Relevant Facts

On September 28, 2005, the members of the

Tennessee Bureau of Investigation (TBI), the 10”

Judicial Drug Task Force, and the McMinn County

Sheriffs Office executed a search warrant for 1484

County Road 250 in Niota, Tennessee. Narcotics, cash,

and firearms were found in the house. Drug

paraphernalia was found in a 1998 Cadillac DeVille

outside the residence. Prior to execution of the search

warrant, TBI Special Agent Brian Freeman prepared

and submitted on September 28, 2005, an affidavit to

McMinn County Criminal Court Judge Bebb to obtain

the search warrant for defendant’s residence. The

warrant affidavit provides a great deal of information

including the following especially relevant to this

motion:

Agent Freeman has been employed by the TBI for

nine years in narcotics investigations. (Freeman

Affidavit at ¥ 1.) Prior to his employment with the

TBI, he was employed by the 10" Judicial Drug Task

Force. Jd. He has conducted over 100 investigations

into drug trafficking, many of which have lead to

arrests and convictions. Jd. He is familiar with the

operations, terminology and patterns of behavior of

persons involved in trafficking illegal drugs. Id.

Individuals involved in drug trafficking often use their

residences as places to store illegal drugs, cash,

firearms, drug paraphernalia, and drug trafficking

paraphernalia. Jd. at J] 1A- 1C, 1L-1H.

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In September 2005, a confidential source (CS) told

Freeman that he/she might be able to purchase drugs

from the defendant. /d. at | 4. On September 22, 2005,

Freeman and other agents met with the CS and

monitored the CS as he/she telephoned the defendant

and arranged to purchase cocaine from the defendant.

Id. at J 5. That same day, the CS made a controlled

buy of cocaine from the defendant. Jd. Immediately

prior to the buy, agents checked the CS’s person and

his/her vehicle to make sure he/she had no drugs. /d.

at fl 6. The CS was given money to purchase the

drugs. Jd. Agents followed the CS to Harper Johnson

Road in Athens, Tennessee where the CS purchased

two ounces of cocaine from the defendant. Jd. The CS

was weariug a wire at the time, and agents listened to

the transaction as it occurred via the covert

transmitter. /d. After the buy, Freeman and another

agent met with the CS at a debriefing location, and the

CS released two ounces of cocaine to them. Jd. The

agents again searched the CS’ person and vehicle for

drugs and found none. Jd. As of September 26, 2005,

the Tennessee Department of Safety records showed

the defendant’s address as 1484 County Road 250,

Niota, Tennessee. Jd. | 7. Two Cadillacs as well as

other vehicles were registered to defendant at this

same address. /d. at J 8.

On September 27, 2005, Freeman conducted

another controlled buy with a confidential source (CS)

and the defendant. /d. at 1{[ 9-12. Agents searched the

CS’ person and vehicle and found no drugs. /d. at { 9.

Agents gave the CS money to buy drugs and outfitted

the CS with a wire. Id. J 9. As agents monitored the

CS with the wire, the CS telephoned the defendant

and ordered a quantity of cocaine. Jd. Defendant told

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the CS he would call him/her back. /d. Thirty minutes

later, defendant called and arranged to meet the CS in

Athens, Tennessee in about fifteen minutes. Id.

Freeman followed the CS and maintained audio and

visual surveillance of the CS as he/she drove to meet

the defendant. Id. at J 9-10.

At the same time Freeman was monitoring the

telephone contact between the CS and the defendant,

other agents were watching 1484 County Road 250 in

Niota, Tennessee. Jd. { at 10. These agents observed a

black male, later identified as the defendant, arrive at

the residence in a green Cadillac, remain for two to

three minutes in his car outside the residence and

then leave. /d. Other agents followed the Cadillac to

Harper Johnson Road in Athens, Tennessee where

Defendant eventually met with the CS. Jd. at [{ 10-12.

Freeman and another agent monitored tne CS’

meeting with the defendant during whicn the CS

purchased two ounces of cocaine. Id. at J 12. After the

purchase, Freeman followed the CS to a debriefing

location where the CS released two ounces of cocaine.

Freeman searched the CS’ person and vehicle and no

other drugs were found. Id.

A. The Reliability of Freeman’s Sources of

information

Defendant argues the affidavit used to obtain the

search warrant for his residence failed to establish

probable cause because the veracity and reliability of

the confidential sources mentioned in the affidavit

were not demonstrated. The Fourth Amendment

provides “no warrant shall issue but upon probable

cause, supported by oath or affirmation ....” U.S. Const.

amend IV. To establish probable cause to justify a

search warrant, an affidavit must set forth facts which

indicate “a fair probability exists that evidence of a

crime will be located on the premises of the proposed

search.” United States v. Frazier, 423 F.3d 526, 531(6"

Cir. 2005) (internal citations omitted); United States v.

Jenkins, 396 F.3d 751, 760 (6 Cir. 2005). The Court

must consider the totality of the circumstances as set

out in the four corners of the affidavit. [llinois v. Gates,

462 U.S. 213, 230 (1983) (totality of the circumstances

standard); Whiteley v. Warden, Wyoming State

Penitentiary, 401 U.S. 560, 565 n. 8 (1971) (Court

limited to review of affidavit itself); Frazier, 423 F.3d

at 531. Where an affidavit relies upon hearsay

information from a confidential informant to supply

probable cause, “a court must consider the veracity,

reliability, and the basis of knowledge of that

information as part of the totality of the circumstances

for evaluating the impact of the information.” Frazier,

423 F.3d at 532 (quoting United States v. Helton, 314

F.3d 812, 819 (6" Cir. 2003)). Independent police

corroboration of a confidential informant’s story is not

necessarily required to support probable cause, but

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where the affidavit lacks indicia of the informant’s

reliability, “courts insist that the affidavit contain

substantial independent police corroboration.” Frazier,

423 F.3d at 532; see also, United States v. McCraven,

401 F.3d 693, 698 (6" Cir. 2005); United States uv.

Woosley, 361 F.3d 924, 927 (6 Cir. 2004); United

States v. Allen, 211 F.3d 970, 976 (6™ Cir.) (en banc),

cert. denied, 531 U.S. 907 (2000).

Special Agent Freeman’s affidavit provides no

statement about past experiences with the CS’s

regarding their reliability or veracity. For example,

affidavits will often contain some statement from the

affiant that he has known the CS for a certain period

of time and that during that time the CS has provided

information of illegal drug trafficking which has led to

the arrest and conviction of individuals for drug

related charges. As the instant affidavit contains no

such averment, independent police corroboration of the

CS’s information is necessary in order to rely upon the

CS’s information to establish probable cause.

Freeman’s affidavit carefully details a controlled

buy for each confidential source.’ Agents searched the

CS and his/her car for drugs before each controlled

buy. Agents listened to the controlled buys over a wire

transmitter carried by each CS, and, at least in the

second buy, the defendant and the CS were observed

arriving at the meeting place for the buy. After each

buy, the CS turned over the contraband purchased and

was again searched.

' I cannot discern from the affidavit if the CS’s mentioned are two

people or one.

3la

The Sixth Circuit’s recent decision in United States

u. Coffee, 434 F.3d 887 (6 Cir. 2005) is directly on

point on this issue. In Coffee, the warrant affidavit

contained no averments from the affiant that he knew

the confidential source to be reliable based on prior

contacts. However, the affiant detailed a controlled

buy using the confidential source, and the Sixth

Circuit found this information sufficient to establish

the confidential source’s reliability and veracity:

Here, the details of the controlled purchase, and

its connection to 26868 Penn, were spelled out

in the affidavit. Officer Adams indicated that

the CI [confidential informant] “has made

several purchases from” 26868 Penn. He further

described the controlled purchase that he

organized to corroborate the informant’s

information. The CI’s basis of knowledge was

his direct purchase of narcotics from defendant;

the purchase was controlled and witnessed by

Officer Adams, who searched the CI for money

or contraband, provided the CI _ with

pre-recorded funds, observed the CI enter and

exit defendant’s house, and then observed and

tested the crack cocaine the CI purchased from

defendant. Under the totality of the

circumstances, Officer Adams’ affidavit

adequately corroborated the CI’s information in

this case ...

Coffee, 434 F.3d at 894. In the instant case, the

corroborating facts set forth in the affidavit about the

controlled buys are even stronger than those in Coffee.

In this case, the controlled buys were actually heard by

police as they occurred thereby further bolstering the

32a

CS(sy reliability. Consequently, I conclude the

affidavit contains sufficient independent corroboration

to adequately establish each CS’s reliability and

veracity.

Defendant also complains about hearsay

information from other law enforcement officers

besides Freeman in the affidavit. However, an affiant

may rely upon hearsay information in order to set

forth probable cause, provided the source of

information is reliable. Shamaeizadeh v. Cunigan, 338

F.3d 535, 551 (6 Cir. 2003) (“An affidavit on which a

search warrant is issued need not reflect direct

personal observations of the affilant if the hearsay

information is derived from & credible source.”); United

States v. Helton, 314 F.3d 812, 819 (6 Cir. 2002) (“in

evaluating whether probable cause exists for issuing a

search warrant, a judicial officer may rely on hearsay

evidence.”) [t is well established that “opservations of

fellow officers of the Government engaged in a common

investigation are plainly a reliable basis for a warrant

applied for by one of their number.” United States v.

Ventresca, 380 U.S. 102, 111 (1965). The effectiveness

of the affidavit is not diminished because Freeman

uses hearsay information from other officers.

B. The Nexus Between the Residence and Criminal

Activity

The defendant also attacks the affidavit on the

ground that it fails to establish a sufficient nexus

between alleged drug dealing and his residence, 1484

County Road 250, Niota, Tennessee, to justify issuance

of a search warrant for his residence. The police had

ample probable cause to believe defendant was dealing

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in illegal drugs based on the two controlled buys. But

whether there was probable cause to believe evidence

of defendant’s illegal drug activity would be found in

the defendant’s residence is another matter. “There

must be a ‘nexus between the place to be searched and

the evidence to be sought.” Frazier, 423 F.3d at 532

(quoting United States v. Carpenter, 360 F.3d 591, 594

(6™ Cir. 2004) (en banc) (quotation omitted)). “The

critical element in a reasonable search is not that the

owner of property is suspected of crime but that there

is reasonable cause to believe that the specific ‘things’

to be searched for and seized are located on the

property to which entry is sought.” Frazier, 423 F.3d at

532 (quoting Zurcher v. Stanford Datly, 436 U.S. 547,

556, (1978)).

Freeman states in his affidavit that a drug

trafficker often hide drugs, money, guns, and other

evidence of drug trafficking in his residence.

Furthermore, Freeman avers that on September 27,

2005, agents saw the defendant arrive in his Cadillac

at his residence, 1484 County Road 250, Niota,

Tennessee, and park there for about three minutes

shortly after the CS called to place an order for cocaine

and shortly before the defendant left his residence to

deliver the cocaine. Had the affidavit stated the

defendant went inside his residence, for however brief

a period of time, before driving to Athens for the drug

deal, there would be no question that the affidavit

supports probable cause to issue the search warrant.

The defendant’s entry into the house would have led to

a reasonable inference that the defendant retrieved

the cocaine for the drug transaction from the house.

But the affidavit does not state that the defendant

went inside the house on September 27, 2005. Thus

34a

whether there is a sufficient nexus between drug

activity and the residence to support probable cause is

a much closer question.

There is a line of Sixth Circuit cases that indicates

a law enforcement officer’s knowledge that drug

traffickers often store evidence of their crimes in their

homes is sufficient information in an affidavit to

establish a nexus between a drug trafficker and his

home. In United States v. Miggins, 302 F.3d 384 (6

Cir. 2002), cert denied, 537 U.S. 1097 (2002), 537 U.S.

1130 (2003), 538 U.S. 971 (2003), the affidavit used to

obtain the search warrant for the defendant’s

residence stated the following: an undercover officer

delivered a package known to carry cocaine to a Cooper

Terrace address. The defendant signed for the package

and was then arrested. After he was arrested, a piece

of paper was found in his pocket inscribed with the

names of the addressee and sender of the package and

the Cooper Terrace address. The defendant had been

convicted on numerous drug charges in another state.

The Sixth Circuit held the affidavit provided probable

cause to search the defendant’s apartment located at

another address citing numerous cases from other

circuits standing for the proposition that it is

reasonable to believe a drug dealer will store evidence

of his dealing at home even though no drug trafficking

has been observed to occur there. Miggins, 302 F.3d at

393-94 (see also cases cited therein). In United States

v. Blair, 214 F.3d 690, 696 (6 Cir.), cert. denied, 531

U.S. 880 (2000), the court held a search warrant was

properly issued where the affiant stated it was his

experience that drug traffickers stored evidence in

their homes, and cooperating witnesses, whose

reliability was verified, provided information that the

35a

defendant had sold them drugs at locations other than

the defendants’ home. In United States v. Jones, 159

F.3d 969, 974-75 (6™ Cir. 1998) the search warrant was

upheld where there was no information in the affidavit

that anyone observed or heard about drugs or drug

sales in the defendant’s home, but the affidavit did

provide that at least two drug transactions with the

defendant had been recorded using a confidential

informant wearing a wire outside on the premises of

the defendant’s home. In United States v. Caicedo, 85

F.3d 1184, 1193 (6" Cir. 1996), the defendant was

arrested after picking up a friend at the bus station

who was carrying cocaine in his backpack. Upon his

arrest, the defendant was evasive about his correct

address. A search warrant for the defendant’s

residence was obtained on the basis of an affidavit

explaining the defendant’s arrest and his attempt to

conceal his address and detailing the officer’s

experience and his knowledge that drug traffickers

often keep items related to drug trafficking in the

homes. The Sixth Circuit held the affidavit adequately

established probable cause to search. /d. at 1193.

The undersigned believes these cases provide ample

authority to conclude that the affidavit at issue, based

on the totality of the circumstances, provides probable

cause to search defendant Gunter’s residence. There is

one more case, however, that bears discussion and

that, upon first glance, appears to require a different

result.

In United States v. Frazier, 423 F.3d 526 (6" Cir.

2005), an ATF agent secured six (6) search warrants

for various locations related to a large drug conspiracy.

The sixth warrant was for a residence of the leader of

36a

the conspiracy, Frazier. The probable cause supporting

the issuance of the warrant consisted of two controlled

buys of drugs by confidential sources from associates

of Frazier at Frazier’s residence located at 759 Culver

Court. The controlled buys were recorded, but,

significantly, the agent forgot to include this fact in his

affidavit. He did orally mention this fact to the

Magistrate. The affidavit in support of the search

warrant also detailed that Frazier had been evicted

from his residence on Culver Court, and the cleaning

staff had found drugs in that residence. The search

warrant authorized a search of Frazier’s new residence

on Jeffries Street. None of the buys were alleged to

have taken place at Frazier’s Jeffries Street address,

and, in fact, it was not even alleged that Frazier

himself sold the drugs to the confidential informant.

Id. at 529. Moreover, the affidavit said nothing about

the reliability of the confidential sources. The Sixth

Circuit began its analysis with the rule that it is

limited to the four corners of the affidavit in

determining if there was probable cause to issue the

search warrant. /d. at 531. The Court then held that

because there were no averments in the affidavit about

the informants’ reliability and no corroboration of the

information provided by the informants, the affidavit

failed to set forth probable cause to search Frazier’s

new residence. Jd. at 532. Rejecting the government’s

argument that the Court’s previous decisions in

Miggins, Blair, Jones, and Caicedo provided authority

to find the affidavit in this case set forth probable

cause, the Frazier Court stated:

None of these cases, however, supports the

proposition that the defendant’s status as a

drug dealer, standing alone, gives rise to a fair

37a

probability that drugs will be found in his home.

Where, as here, the warrant affidavit is based

almost exclusively on the wuneorroborated

testimony of unproven confidential informants

(none of whom witnessed illegal activity on the

premises of the proposed search), the allegation

that the defendant is a drug dealer, without

more, is insufficient to tie the alleged criminal

activity to the defendant’s residence.

Id. at 533 (emphasis added). The only way to reconcile

the Frazier decision with those in Miggins, Blair,

Jones, and Caicedo is to focus on the Frazier Court’s

concern that the Frazier “warrant affidavit [was] based

almost exclusively on the uncorroborated testimony of

unproven confidential informants.” In Miggins, Blair,

Jones, and Caicedo, as is true in the instant case, the

underlying evidence of actual drug dealing on the part

of the defendant was much _ stronger than

“uncorroborated testimony of unproven confidential

informants.” While the informants in this case were

“unproven” to the extent there were no statements in

the affidavit that they had bcen used in the past and

had been proven reliable, the information they

provided was strongly corroborated. The Gunter

affidavit detailed two controlled buys. Police observed

the CS’s and the defendant arrive at the meeting place

and police actually heard the transactions as they were

OccUITINg.

The Fourth Amendment’s requirement of probable

cause for the issuance of a warrant is not to be applied

according to a fixed and rigid formula. ///inois v. Gates,

462 US. 213, 230-32 (1983). “Probable cause is a fluid

concept — turning on the assessment of probabilities in

38a

particular factual contexts — not readily, or even

usefully, reduced to a neat set of legal rules.” Jd. at

232. The question before the undersigned is whether,

based upon the totality of the circumstances set forth

in the affidavit and using a practical, common-sense

approach, a fair probability existed that evidence of a

crime would be found at Gunter’s residence when the

search warrant was executed. Jd. at 238. I conclude

Freeman had probable cause to search the defendant’s

house based on the two controlled purchases of drugs

from the defendant, the fact that the defendant made

a short stop at his residence immediately before the

second drug transaction, and Freeman’s training and

experience that drug traffickers frequently hide

evidence of their crimes in their homes.

C. The Good Faith Exception

Evidence obtained pursuant to a search warrant

later determined deficient need not be excluded where

the officer executing the warrant reasonably and in

good faith relied on the search warrant. United States

v. Leon, 468 U.S. 897, 905 (1984). “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. In making this

determination, all of the circumstances may be

considered.” Frazier, 423 F.3d at 533 (quoting Leon,

468 U.S. at 922-23 n. 23) “|Slearches pursuant to a

warrant will rarely require any deep inquiry into

reasonableness, for a warrant issued by a magistrate

normally suffices to establish that a law enforcement

officer has acted in good faith in conducting the

39a

search.” Frazier, 423 F.3d at 533 (quoting Leon, 468

U.S. at 922 (internal quotations omitted)).

Leon's good faith exception does not apply in the

following sets of circumstances: 1) the supporting

affidavit contained knowing or reckless falsity; 2) the

issuing magistrate wholly abandoned his or her

judicial role; 3) the affidavit is “so lacking in probable

cause as to render official belief in its existence

entirely unreasonable;” or 4) the officer’s reliance on

the warrant was neither in good faith nor objectively

reasonable. Frazier, 423 F.3d at 533 (citing Leon, 468

U.S. at 923).

The government raised the Leon good faith

exception in its response to the defendant’s motion to

suppress. The defendant did not reply to the

government’s response. In anticipation of such a

position, the defendant does appear to argue in his

brief in support of his motion to suppress that the

affidavit is so lacking in probable cause as to render

official belief in its existence unreasonable. As it

appears that basis is the only circumstance which

might obviate application of the good faith exception in

the instant case and it is the only circumstance which

defendant has addressed, I will confine my analysis to

that circumstance, 7.e., whether the affidavit is so

lacking in probable cause as to render official belief in

its existence unreasonable.

While the Sixth Circuit in Frazier concluded the

affidavit in that case lacked probable cause to issue a

search warrant for Frazier’s house, the Court also

concluded “the affidavit established a sufficiently

strong nexus between Frazier’s alleged drug dealing

40a

and his home” to merit application of the Leon good

faith exception. Frazier, 423 F.3d. at 536. As

previously discussed, the evidence of probable cause to

search as a whole is stronger in the Gunter affidavit

than in the Frazier affidavit, and evidence of the nexus

between the defendant’s drug dealing and his

residence is at least as strong in this case as it is in

Frazier. Accordingly, I conclude that if Agent

Freeman’s affidavit fails to provide probable cause to

search defendant Gunter’s residence, the Leon good

faith exception to the exclusionary rule applies.

D. Defendani’s Request for an Evidentiary Hearing

Franks v. Delaware, 438 U.S. 154, 171 (1978)

established the procedure by which a defendant could

seek the suppression of evidence by challenging the

veracity of statements made by an affiant in order to

secure a search warrant. “Counsel can attack the

validity of a search warrant by alleging that the

affidavit contains deliberately false statements.”

United States v. Hill, 142 F.3d 305, 309 (6™ Cir.), cert.

denied, 525 U.S. 898 (1998) (citing Franks v. Delaware,

438 U.S. 154, 171 (1978). To do so requires an

evidentiary hearing during which defendants are

allowed to present evidence concerning the veracity of

the challenged statements in the search warrant

affidavit. See United States v. Jenkins, 728 F.2d 396,

397 (6" Cir. 1984). “In the event that at that hearing

the allegation of perjury or reckless disregard is

established by the defendant by a preponderance of the

evidence, and, with the affidavit’s false material set to

one side, the affidavit’s remaining content is

insufficient to establish probable cause, the search

warrant must be voided and the fruits of the search

4la

excluded to the same extent as if probable cause was

lacking on the face of the affidavit.” Franks, 438 U.S.

at 155-56 (1978). In order to obtain a hearing to

establish perjury or reckless disregard for the truth,

the defendant must meet a two-pronged test: “First, a

defendant must make a substantial preliminary

showing that specified portions of the affiant’s

averments are deliberately or recklessly false.” Hill,

142 F.3d at 310 (internal citations omitted). Second,

the court must find that the challenged statements are

necessary to a finding of probable cause. Id.

Significantly, the Franks Court emphasized that only

the affiant’s statements, not those of a

non-governmenta! informant, may be challenged as

deliberately false or made in reckless disregard for the

truth. Franks, 438 U.S. at 171.

Franks v. Delaware does not provide for a hearing

to conduct a fishing expedition on the credibility of an

affiant. Instead, the undersigned must follow the

framework established by Franks v. Delaware.

Because the defendant has not made a substantial

preliminary showing, in the form of an affidavit or

otherwise, of reckless or deliberate disregard for the

truth on the part of Agent Freeman who prepared the

affidavit to secure the search warrant, defendant is not

entitled to an evidentiary hearing.

IV. Conclusion

When considering the information presented in

Agent Freeman’s affidavit as a whole, I conclude the

affidavit sets forth probable cause to issue the search

warrant for the defendant’s residence. In _ the

alternative, I conclude the Leon good faith exception

42a

applies, and evidence obtained in the September 28,

2005, search of Gunter’s residence need not be

suppressed. Finally, defendant has not made a

substantial preliminary showing of a reckless or

intentional disregard for the truth on the part of Agent

Freeman in his affidavit to merit an evidentiary

hearing on defendant’s motion to suppress. Therefore,

it is RECOMMENDED that defendant’s motion to

suppress (Doc. 15) be DENIED in fill.”

s/William B. Mitchel] Carter

UNITED STATES MAGISTRATE JUDGE

* Any objections to this Report and Recommendation must be

served and filed within ten (10) days after service of a copy of this

recommended disposition on the objecting party. Such objections

must conform to the requirements of Rule 72(b) of the Federal

Rules of Civil Procedure. Failure to file objections within the time

specified waives the right to appeal the District Court’s order.

Thomas v. Arn, 474 U.S. 140, 88 L.Ed.2d 435, 106 S.Ct. 466

(1985). The district court need not provide de novo review where

objections to this report and recommendation are frivolous,

conclusive or general. Mira v. Marshall, 806 F.2d 636 (6th Cir.

1986). Only specific objections are reserved for appellate review.

Smith uv. Detrowt Federation of Teachers, 829 F.2d 1370 (6th Cir.

1987).