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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2008

## Text

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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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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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Vv. )
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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.

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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

33a

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1154%3A2. Public record. Not legal advice.