United States v. Antwone Miguel Sanders ( 2023 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0020p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> No. 21-5945
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v. │
│
ANTWONE MIGUEL SANDERS, │
Defendant-Appellant. │
┘
Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.
No. 5:20-cr-00009-1—Joseph M. Hood, District Judge.
Decided and Filed: February 6, 2023
Before: MOORE, CLAY, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Jarrod J. Beck, LAW OFFICE OF JARROD J. BECK, PLLC, Lexington,
Kentucky, for Appellant. Lauren Tanner Bradley, Charles P. Wisdom, Jr., UNITED STATES
ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.
CLAY, J., delivered the opinion of the court in which MOORE, J., joined.
NALBANDIAN, J. (pp. 21–31), delivered a separate dissenting opinion.
_________________
OPINION
_________________
CLAY, Circuit Judge. Defendant Antwone Sanders appeals from the judgment of
conviction and sentence entered by the district court, pursuant to Defendant’s conditional guilty
plea to one count of possession with intent to distribute a controlled substance in violation of
21 U.S.C. § 841(a)(1), one count of possession of a firearm in furtherance of a drug trafficking
No. 21-5945 United States v. Sanders Page 2
offense in violation of 18 U.S.C. § 924(c), and one count of possessing a firearm as a convicted
felon in violation of 18 U.S.C. § 922(g)(1), wherein Defendant reserved the right to appeal the
district court’s denial of his motion to suppress the evidence that the Lexington Police
Department acquired from a search of Defendant’s residence. For the reasons set forth below,
we REVERSE the district court’s order denying Defendant’s motion to suppress and VACATE
Defendant’s convictions and sentence. We REMAND for further proceedings consistent with
this opinion.
BACKGROUND
Factual Background
On April 24, 2019, Officer Brandon Hazlewood with the Lexington Police Department
applied to a judge of the Fayette District Court in Fayette County, Kentucky, for a warrant
relating to Antwone Sanders. In the affidavit in support of the warrant, Officer Hazlewood set
out the following information.
On April 17, 2019, a confidential informant (“CI”) advised Officer Hazlewood that
Antwone Sanders was selling heroin/fentanyl from an apartment located on Yellowstone
Parkway in Lexington, Kentucky. Acting on this information, Officer Hazlewood set up two
controlled purchases.
To set up the first purchase, Officer Hazlewood and Detective Brian Cobb met with the
CI and searched the CI’s person and vehicle. The officers provided the CI with money for the
purchase, and the CI proceeded to a predetermined location to purchase heroin from Antwone
Sanders. Sanders arrived at the location in a silver Chrysler vehicle with Kentucky registration
plates. Officer Hazlewood observed the CI enter Sanders’ vehicle, monitored the controlled
purchase, and observed the CI exit Sanders’ vehicle. Following the controlled purchase, the CI
provided Officer Hazlewood with a quantity of suspected heroin/fentanyl and advised that he
obtained it from Sanders. Officer Hazlewood again searched the CI and the CI’s vehicle and
located no contraband. Meanwhile, other officers followed the silver Chrysler, which Sanders
drove without stopping to the Yellowstone Parkway apartment.
No. 21-5945 United States v. Sanders Page 3
Two days before Officer Hazlewood authored his affidavit, he, along with Detective
Sinnott, set up a second controlled buy. The second purchase proceeded in a manner similar to
the first. After meeting with the officers and receiving money for the purchase, the CI proceeded
to a predetermined location to purchase heroin and fentanyl from Sanders. The CI made this
purchase from Sanders inside Sanders’ vehicle, the silver Chrysler, and again delivered the
suspected heroin and fentanyl to Officer Hazlewood.
Before the second controlled purchase, Detective Hart surveilled the Yellowstone
Parkway apartment. The silver Chrysler was parked outside the apartment. Detective Hart
observed Sanders exit the apartment and enter the vehicle. Other officers followed the vehicle as
it traveled from the apartment directly to the predetermined meeting location with the CI. After
the controlled purchase, officers again followed the vehicle as it traveled directly back to the
Yellowstone Parkway apartment. Officers observed Sanders exit the vehicle and enter the
apartment.
Based on this information, Officer Hazlewood applied for a warrant to search the
Yellowstone Parkway apartment, the silver Chrysler (registered to Sanders), and Sanders’
person. The affidavit in support of the warrant included Officer Hazlewood’s averment that he
had received a tip from a CI that Defendant was selling heroin/fentanyl from the Yellowstone
Parkway apartment and described the investigation officers conducted thereafter. The affidavit
contained no information pertaining to the reliability of the CI who provided the tip.
The judge granted Officer Hazlewood’s warrant application on April 24, 2019. Officers
executed the search warrant the next day. The search of the Yellowstone Parkway apartment
revealed controlled substances, drug paraphernalia, and firearms. Thereafter, on January 16,
2020, a federal grand jury indicted Defendant in the Eastern District of Kentucky on one count of
possession with the intent to distribute a controlled substance, in violation of 21 U.S.C.
§ 841(a)(1); one count of possession of a controlled substance, in violation of 21 U.S.C.
§ 844(a)(1); one count of possession of a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A); and one count of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). The indictment did not charge Sanders with distributing
the drugs sold to the CI during the two controlled purchases.
No. 21-5945 United States v. Sanders Page 4
Procedural Background
Defendant filed two motions that are the subject of his appeal.
First, Defendant moved for supplemental discovery of “case reports and drug evidence
relating to the two controlled buys referenced in the search warrant affidavit” for the
Yellowstone Parkway apartment. (Def. Mot. Suppl. Disc., R. 25, Page ID #63.) The district
court denied the discovery motion, determining that the evidence pertaining to the controlled
purchases was privileged to the extent disclosing it would reveal the CI’s identity and that the
evidence was not material to the defense.
Second, Defendant moved to suppress all evidence and statements that were obtained
when executing the search warrant, and also moved for a hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978), to challenge the accuracy of Detective Hart’s surveillance
referenced in the affidavit. The district court denied the motion to conduct a Franks hearing and
denied the motion to suppress, determining that probable cause supported the search warrant. In
the alternative, the district court ruled that the “good faith” exception to suppression, set forth in
United States v. Leon, 468 U.S. 897 (1984), applied. The district court did not hold an
evidentiary hearing before denying the motion to suppress.
Following the district court’s rulings, Defendant pleaded guilty, but reserved the right in
his plea agreement to appeal the suppression issue. On September 22, 2021, the district court
entered judgment and sentenced Defendant to 72 months in prison. This appeal followed.
DISCUSSION
Standard of Review
“Federal constitutional law applies to a state search warrant that is challenged in federal
court.” United States v. Helton, 35 F.4th 511, 517 (6th Cir. 2022). “In reviewing the denial of a
motion to suppress where the district court did not hold an evidentiary hearing, we ‘review de
novo the court’s legal conclusion that the affidavit provided probable cause.’” United States v.
Brown, 828 F.3d 375, 381 (6th Cir. 2016) (quoting United States v. Brown, 732 F3d 569, 572
(6th Cir. 2013)).
No. 21-5945 United States v. Sanders Page 5
Analysis
The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. amend. IV. A “state search warrant being
challenged in a federal court must be judged by federal constitutional standards.” United States
v. McManus, 719 F.2d 1395, 1397 (6th Cir. 1983) (citing Elkins v. United States, 364 U.S. 206(1960)). “Probable cause is defined as ‘reasonable grounds for belief, supported by less than
prima facie proof but more than mere suspicion[]’ that ‘there is a fair probability that contraband
or evidence of a crime will be found in a particular place.’” United States v. King, 227 F.3d 732,
739 (6th Cir. 2000) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990); Illinois
v. Gates, 462 U.S. 213, 238 (1983)).
“[T]o establish probable cause for a search, an affidavit must show a likelihood of two
things: first, that the items sought are ‘seizable by virtue of being connected with criminal
activity’; and second, ‘that the items will be found in the place to be searched.’” United States v.
Church, 823 F.3d 351, 355 (6th Cir. 2016) (quoting Zurcher v. Stanford Daily, 436 U.S. 547,
555 n.6 (1978)); United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009). “The nexus between
‘criminal activity’ and the item to be seized is ‘automatic[]’ when the object of the search is
‘contraband.’” Church, 823 F.3d at 355 (quoting Warden, Md. Penitentiary v. Hayden, 387 U.S.
294, 307 (1967)). “A police request to search for illegal drugs therefore needs to satisfy only the
second showing for a valid warrant: ‘a fair probability’ that the drugs ‘will be found in a
particular place.’” Id. (quoting Gates, 462 U.S. at 238). “There must, in other words, be a
‘nexus between the place to be searched and the evidence sought.’” United States v. Carpenter,
360 F.3d 591, 594 (6th Cir. 2004) (en banc) (quoting United States v. Van Shutters, 163 F.3d
331, 3365–337 (6th Cir. 1998)). The connection between the residence and the evidence of
criminal activity must be specific and concrete, not “vague” or “generalized.” Id. at 595.
Whether an affidavit establishes a proper nexus is resolved by examining the totality of the
circumstances presented. Gates, 462 U.S. at 238.
On appeal, Defendant asks this Court to reverse the district court’s denial of the motion to
suppress because the affidavit lacked probable cause and failed to set forth a nexus to the
No. 21-5945 United States v. Sanders Page 6
Yellowstone Parkway apartment. We have subject matter jurisdiction to adjudicate this appeal
pursuant to 28 U.S.C. § 1291. We conclude that the evidence and statements obtained from the
search of the Yellowstone Parkway apartment should have been suppressed because the warrant
affidavit failed to establish the existence of probable cause and is not saved by the good faith
exception.
A. Probable Cause
To be valid, a search warrant application must show more than that a person connected
with a property is suspected of a crime. Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978).
It must also establish that “there is reasonable cause to believe that the specific ‘things’ to be
searched for and seized are located on the property to which entry is sought.” Id.In this case, the affiant included few facts that support a nexus between the drug evidence
officers sought and the Yellowstone Parkway apartment that the officers searched. Initially, the
affiant stated that he received a tip from a confidential informant that “[Defendant] was selling
Heroin/Fentanyl from [the Yellowstone Parkway apartment].” (Aff., R. 25-3, Page ID #159.)
Next, pertaining to the first controlled purchase, officers observed Defendant drive directly from
the controlled purchase location to the Yellowstone Parkway apartment. Finally, pertaining to
the second controlled purchase, officers observed Defendant exit the Yellowstone Parkway
apartment and drive directly to the controlled purchase location, and then drive directly back
from that location to the Yellowstone Parkway apartment, which Defendant then entered.
Defendant argues that this information is too vague or speculative to support the search
warrant for the Yellowstone Parkway apartment. Defendant primarily relies on United States v.
Higgins, 557 F.3d 381, 390 (6th Cir. 2009), and United States v. Brown, 828 F.3d 375, 383 (6th
Cir. 2016), where in both cases the court determined there was an insufficient nexus to support
the search warrant. In Higgins, an informant identified the defendant’s residence as the site of a
drug operation. 557 F.3d at 390. However, the police did not establish the informant’s
reliability and the affidavit did not “assert that that the informant had been inside [the
defendant’s] apartment, that he had ever seen drugs or other evidence inside [the defendant’s]
apartment,” or that “the informant had seen drugs or other evidence in or around [the
No. 21-5945 United States v. Sanders Page 7
defendant’s] apartment.” Id. Similarly, in Brown, though the defendant’s car was registered to
the defendant’s residence and tested positively for narcotics during a canine search, the affidavit
did not suggest that “a reliable confidential informant had purchased drugs” at the defendant’s
residence or that “the police had ever conducted surveillance” there. Brown, 828 F.3d at 382–
383.
Like the affidavits in Brown and Higgins, Officer Hazlewood’s affidavit contains an
insufficient nexus to support the search warrant. The CI’s tip is the only direct connection
between Defendant’s drug activity and the Yellowstone Parkway apartment. However, Officer
Hazlewood’s affidavit gives no indication as to the veracity or reliability of the information
obtained. Officer Hazlewood did not state that he relied on or worked with the CI on prior
occasions or that the CI had proved reliable in the past. Further, he did not assert any belief
concerning the reliability or veracity of the CI’s tip, let alone provide any factual basis by which
the magistrate could assess its reliability or veracity. See United States v. Helton, 314 F.3d 812,
822 (6th Cir. 2003) (explaining that, under Sixth Circuit precedent, an affidavit “must contain a
statement about some of the underlying circumstances indicating the informant was credible or
that his information was reliable” (quoting United States v. Smith, 182 F.3d 473, 477 (6th Cir.
1999))); see also Higgins, 557 F.3d at 389–390 (finding insufficient nexus where the affidavit
did not attest to the informant’s reliability, even though the informant was known to the affiant
and the issuing magistrate).
Further, the affidavit fails to set forth the CI’s basis of knowledge, i.e., “the particular
means by which an informant obtained his information.” Smith, 182 F.3d at 477 (citing Gates,
462 U.S. at 228). Instead, the affidavit baldly states that the “affiant received information from a
Confidential Informant (CI) that a subject by the name of Antwone Sanders was selling
Heroin/Fentanyl from 2852 Yellowstone Parkway Apartment D, Lexington, KY 40517.” (Aff.,
R. 25-3, Page ID #159.) This statement does nothing to establish the basis of knowledge of the
CI, such as indicating that the CI purchased drugs at the Yellowstone Parkway apartment or
observed drugs within the apartment. See Helton, 314 F.3d at 822 (“[T]ip [that] was sparse in
relevant detail . . . loses persuasive value.”); United States v. Parker, 4 F. App’x 282, 286 (6th
Cir. 2001) (Clay, J., dissenting) (“The affidavit . . . failed to indicate . . . that the informant had
No. 21-5945 United States v. Sanders Page 8
observed any evidence of illegal sales on the premises, or had reason to believe that the illegal
activity was continuing at the residence.”). Without any showing of the CI’s reliability, and
without any statement of firsthand knowledge about the alleged criminal activity at the
Yellowstone Parkway apartment, the CI’s tip carries little weight in the probable cause analysis.
Helton, 314 F.3d at 821–822.
The absence of reliability, veracity, and basis of knowledge does not end the inquiry; an
affidavit that fails to establish these three elements might nevertheless “support a finding of
probable cause, under the totality of the circumstances, if it includes sufficient corroborating
information.” United States v. Woosley, 361 F.3d 924, 927 (6th Cir. 2004); United States v.
Howard, 632 F. App’x 795, 804 (6th Cir. 2015) (“What an informant and her tip lack in intrinsic
indicia of credibility, however, police must make up for in corroboration.”). The primary piece
of purportedly corroborating evidence is the officers’ surveillance of Defendant’s travel between
the controlled purchase locations and the Yellowstone Parkway apartment. However,
Defendant’s entering and exiting of an apartment, alone, provides no indication of criminal
activity at the apartment.
Our en banc court has made clear that an affidavit lacks probable cause to search a
residence when “it fail[s] to set forth sufficient facts that incriminating evidence would be found
there, rather than in some other place.” Carpenter, 360 F.3d at 594. In determining that
probable cause supported the search warrant, the district court improperly relied on United States
v. Sumlin, 956 F.3d 879 (6th Cir. 2020), to draw an inference about nexus. Based on Sumlin, the
district court reasoned that it is sufficient for the nexus requirement in a probable cause
determination if the affidavit contains claims that “(1) a person is an active drug dealer, (2) the
residence belongs to the drug dealer, and (3) drug dealers tend to store drugs in their home.”
(Op. & Order, R. 41, Page ID #264 (citing Sumlin, 956 F.3d at 886)).
The district court’s reading of Sumlin is incorrect and an oversimplification of the
complex caselaw in this area. This Court has “never held . . . that a suspect’s status as a drug
dealer, standing alone, gives rise to a fair probability that drugs will be found in his home.”
Brown, 828 F.3d at 383 (quoting United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005));
see, e.g., United States v. Fitzgerald, 754 F. App’x 351, 359, 361 (6th Cir. 2018); United States
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v. Bethal, 245 F. App’x 460, 466–67 (6th Cir. 2007). The Sumlin Court held that to establish
probable cause to search a residence, the government’s affidavit needed to demonstrate “(1) that
[the defendant] was trafficking drugs; (2) that [the defendant] lived at the [residence to be
searched]; and (3) that evidence of drug trafficking would be found at [the defendant’s]
residence.” Sumlin, 956 F.3d at 885. The district court stated, incorrectly, that the third prong is
a “trivial bar to pass” that requires only that the affiant assert, based on experience and training,
that drug dealers routinely keep evidence of drug dealing at their residences. To the contrary,
additional specific “evidence showing a connection between [the] alleged drug trafficking and
the” residence is required. Sumlin, 956 F.3d at 887; see also Brown, 828 F.3d at 384 (“[I]f the
affidavit fails to include facts that directly connect the residence with the suspected drug dealing
activity, or the evidence of this connection is unreliable, it cannot be inferred that drugs will be
found in the defendant’s home—even if the defendant is a known drug dealer.”); United States v.
Grant, No. 21-3686, 2023 WL 119399, at *3 (6th Cir. Jan. 6, 2023) (“[W]e have inferred a nexus
between a known drug trafficker and a residence when there is strong evidence linking the
suspect to the residence, and there is some additional evidence of drug activity at the
residence.”). In Grant, the Court noted that our caselaw remains “unsettled” regarding the
amount of “additional evidence of drug activity . . . needed for a nexus to exist,” but explained
that “[a]t a minimum, we have required ‘facts showing that the residence had been used in drug
trafficking, such as an informant who observed drug deals or drug paraphernalia in or around the
residence.’” Id. (quoting Brown, 828 F.3d at 383).
In any case, Sumlin does not support a finding of probable cause in this case. Defendant
does not dispute that the information in the affidavit sufficed to establish probable cause to
believe that Defendant engaged in dealing drugs. However, Defendant is correct that the
affidavit fails to establish probable cause to believe either that Defendant lived at the
Yellowstone Parkway apartment or that evidence of drug trafficking would be found at the
apartment.
Considering the second prong, the affidavit did not establish probable cause to believe
that Defendant resided at the Yellowstone Parkway apartment. Over the course of one to two
weeks, on two occasions, officers observed Defendant drive to the Yellowstone Parkway
No. 21-5945 United States v. Sanders Page 10
apartment. According to the affidavit, the officers observed him enter it on only one of those
occasions, following the second controlled purchase. On another occasion, before the second
controlled purchase, one officer observed him exit the Yellowstone Parkway apartment. This is
scant evidence that the apartment was Defendant’s residence, as opposed to, for instance, the
residence of a friend or acquaintance.
Officers conducted no further investigation on this question. The lack of investigation
stands in stark contrast to the investigation in Sumlin, which yielded facts establishing probable
cause to believe that the defendant lived at the residence to be searched. See Sumlin, 956 F.3d at
886 (officers observed the defendant’s car parked in the driveway of the residence on multiple
days, the utilities at the residence were under the name of the defendant’s then-girlfriend, police
had earlier responded to a domestic disturbance at the residence involving the defendant and his
then-girlfriend, and the mother of the defendant’s then-girlfriend told the police that the
defendant lived at the residence).
Turning to the connection between the alleged drug trafficking and the residence, the
affidavit fails to include even a statement by the affiant officer about his experience and training
indicating that drug dealers tend to store evidence in their homes. Though the affidavit contains
no statement to this effect, the district court reasoned that, based on the affiant’s statement that
he believed evidence of drug trafficking would be located at the Yellowstone Parkway
apartment, the court could “infer” the “missing premise” from the stated facts. (Op. & Order, R.
41, Page ID #265.) But review of the “evidence supporting probable cause is limited to the
information presented in the four corners of the affidavit.” Berry, 565 F.3d at 338. In the
affidavit at issue in this case, the affiant officer made no assertion about this connection, nor any
statement about his training and experience. Thus, the affidavit makes no indication as to what
caused the affiant to “believe[]” that evidence of drug trafficking would be located at the
Yellowstone Parkway apartment. Probable cause is not satisfied by an officer’s mere “hunch.”
See United States v. Arvizu, 534 U.S. 266, 274 (2002) (noting that a hunch is insufficient to
support a finding of reasonable suspicion for a Terry stop, and that the reasonable suspicion
standard is easier to satisfy than the probable cause standard). See also Brown, 828 F.3d at 383
& n.2 (discussing precedent).
No. 21-5945 United States v. Sanders Page 11
The district court reasoned that officers may “connect the dots” between “a drug dealer
and their residence.” (R. 41, Page ID #265.) This inference can be drawn permissibly in limited
circumstances, such as in Sumlin, 956 F.3d at 886–87, where the affidavit established probable
cause that the defendant engaged in drug trafficking and lived at the residence to be searched, the
affiant officer attested to his experience indicating that drugs would be found there, and there
was some “evidence showing a connection between [the defendant’s] alleged drug trafficking
and the” residence. See also United States v. Miggins, 302 F.3d 384, 388 (6th Cir. 2002)
(finding that probable cause was established where affidavit “clearly established a connection
between [the co-defendant’s residence] where the package . . . containing one kilogram of
cocaine was delivered and [the defendant’s] apartment.”). Thus, from an affidavit establishing
probable cause to believe that a defendant is engaged currently in drug trafficking and resides at
the place to be searched, “judges [may] infer a fair probability of finding evidence in [the]
residence” only if there is “some reliable evidence connecting the known drug dealer’s ongoing
criminal activity to the residence[,] that is . . . [a] showing that the residence had been used in
drug trafficking.” Brown, 828 F.3d at 383; Sumlin, 956 F.3d at 886–87.
The government’s argument that the officers’ observations of Defendant traveling
between the Yellowstone Parkway apartment and the locations where the drug transactions
occurred suffices to establish a sufficient nexus fails. The government relies on United States v.
Houser, 752 F. App’x 223 (6th Cir. 2018). In Houser, the court determined probable cause
supported the search warrant for an apartment where officers observed the defendant exit his
apartment unit, engage in a drug transaction on the side of the apartment building, and then
immediately return to his apartment unit. Id. at 225–226. In contrast, in this case, the affidavit
does not show any drug activity on or near the premises of the Yellowstone Parkway apartment.
Rather, Defendant drove a vehicle to separate locations. Nothing in the affidavit establishes that
evidence of drug dealing existed in the Yellowstone Parkway apartment rather than in the vehicle
in which the two controlled purchases occurred.
In another case on which the government relies, United States v. Miller, 850 F. App’x
370, 373–374 (6th Cir. 2021), the court held probable cause supported the warrant. In Miller,
after previously conducting a controlled purchase that resulted in defendant’s arrest with a large
No. 21-5945 United States v. Sanders Page 12
quantity of drugs, officers observed the defendant exit and reenter the apartment at which they
suspected he had been staying. Id. at 371. Further, officers observed the defendant exiting the
apartment carrying a white plastic grocery bag and stopping to check the bag’s contents as he
walked to a vehicle. Id. at 371. The defendant then drove the vehicle to another location where
he engaged in drug transactions from his vehicle. Id. at 372. When officers arrested the
defendant and searched his vehicle, officers discovered a firearm and cash in the white plastic
bag that the defendant had been carrying from the apartment. Id. Finally, the affiant officer
averred that “in her experience, drug dealers often keep firearms, drugs, and drug proceeds in
their homes.” Id. The court held that, on these facts, the “direct line from the apartment to the
drug deals sufficed to create a fair probability that evidence would be found in the apartment.”
Id. at 374.
The Miller Court held that it was not necessary for the probable cause finding that the
warrant indicate that the defendant lived at the apartment, given the direct line established by the
“evidence that [the defendant] carried a white grocery bag out of this apartment and traveled
straight to the site of the drug deals.” Id. Importantly, the warrant in Miller contained more facts
indicating that the defendant lived at the apartment than contained in the affidavit at issue in this
case. In Miller, in addition to previously suspecting the defendant lived at the apartment, and
observing him entering and exiting, the officers conducted additional surveillance of the
apartment after the defendant’s arrest and observed no other person entering or exiting it. Id. at
372. In this case, officers conducted no additional surveillance of the Yellowstone Parkway
apartment nor any other additional investigation of Defendant’s connection to the apartment.
Additionally, this case is further distinguishable from Miller because Defendant was not
seen carrying a bag when he exited the apartment to travel to the controlled purchase location. In
Miller, the defendant’s transportation of the white bag containing a firearm and cash from the
apartment to the drug deal was key to the court’s holding that there was a “direct line from the
apartment to the drug deals,” sufficient to establish the nexus. Id. at 374 (“His direct path from
the apartment to the drug deals (carrying a white bag) was objective evidence connecting the
apartment to that drug dealing under our caselaw.”); see also United States v. Crawford, 943
F.3d 297, 303 & 308–309 (6th Cir. 2019) (finding probable cause to search an apartment where
No. 21-5945 United States v. Sanders Page 13
officers observed the defendant carrying a small black duffle bag out of the apartment before
driving to the location of the controlled purchase, and an informant had previously told officers
that the defendant stored his drug supply in a duffle bag).1
Officer Hazlewood’s affidavit failed to establish a nexus between the drug activity and
the Yellowstone Parkway apartment. Because we conclude that the police lacked probable cause
to search the apartment on this ground, deciding whether the information supporting the warrant
was stale, as argued by Defendant, is unnecessary. Brown, 828 F.3d at 385.
B. Good Faith Exception
The government argues that even if the warrant lacked probable cause, the evidence
resulting from the search should not be suppressed, and Defendant's convictions should still be
upheld under the good faith exception to the exclusionary rule announced in United States v.
Leon, 468 U.S. 897 (1984). We disagree.
In Leon, the Supreme Court held that the Fourth Amendment exclusionary rule does not
apply when police officers rely in good faith on a warrant that is ultimately determined to lack
probable cause. Id. at 913. In determining whether police acted in good faith, the “inquiry is
confined to the objectively ascertainable question whether a reasonably well trained officer
would have known that the search was illegal despite the magistrate’s authorization.” Id. at 922
n. 23.
To aid courts in resolving this question, Leon outlined four circumstances in which an
officer’s reliance would not be objectively reasonable: (1) when the affidavit supporting the
search warrant contains information “that the affiant knows (or is reckless in not knowing)
contains false information;” (2) when the magistrate who issued the search warrant wholly
abandoned his or her “neutral and detached role;” (3) “when the affidavit is so lacking in indicia
of probable cause that a belief in its existence is objectively unreasonable;” or (4) “when the
1
In support of its argument, the government also cites United States v. Reed, 993 F.3d 441 (6th Cir. 2021).
Because the Reed Court resolved the case based on the good faith exception to the exclusionary rule and did “not
resolve th[e] probable-cause question,” id. at 450–452, the case provides little guidance on the probable cause
question.
No. 21-5945 United States v. Sanders Page 14
warrant is so facially deficient that it cannot reasonably be presumed to be valid.” United States
v. Laughton, 409 F.3d 744, 748 (6th Cir. 2005) (citing Leon, 468 U.S. at 914–23).
At issue in this case is the third limitation on the good faith exception.2 This limitation
prevents introduction of evidence seized under a warrant that is issued on the basis of a “bare
bones” affidavit. Laughton, 409 F.3d at 748. A bare bones affidavit is one that merely “states
only ‘suspicions, beliefs, or conclusions, without providing some underlying factual
circumstances regarding veracity, reliability, and basis of knowledge.’” United States v. White,
874 F.3d 490, 496 (6th Cir. 2017) (quoting Laughton, 409 F.3d at 748). In contrast, an affidavit
is not bare bones if, though falling short of the probable cause nexus standard, it “contain[s] a
minimally sufficient nexus between the illegal activity and the place to be searched.” See
Carpenter, 360 F.3d at 596. This addresses situations when the warrant’s affidavit falls short of
establishing nexus under the probable cause standard but contains enough of a nexus such that a
reasonable officer would nonetheless believe that the warrant is supported by probable cause.
See id. at 595. For the limitation to apply, “the officer’s reliance on the magistrate’s probable-
cause determination . . . must be objectively reasonable.” Leon, 468 U.S. at 922.
The district court held, in the alternative, that if probable cause did not support the
warrant, the evidence would be admissible pursuant to the good faith exception because the
affidavit was not “bare bones.” (Op. & Order, R. 41, Page ID # 267.) The court reasoned that
there was a minimal nexus between Defendant’s “status as a drug dealer and his residence,” and
further that the officers reasonably relied on the warrant because the “law regarding search
warrants for residences of known drug dealers is nuanced and often contradictory.” (Id. at Page
ID ##267–268.) The problem here is that there was an insufficient basis to conclude that the
apartment in question was Defendant’s residence or that there was evidence of drug trafficking at
the residence to be searched.
2
Defendant also argues that the first limitation applies because the affidavit may contain false statements in
violation of Franks v. Delaware, 438 U.S. 154 (1978). However, Defendant produced no evidence to show that the
affiant Officer Hazlewood made or included therein any statements by government officials that were false or were
made with reckless disregard for truth. Accordingly, this argument relating to the good faith exception also fails.
No. 21-5945 United States v. Sanders Page 15
On appeal, the government argues that the officers reasonably relied on the search
warrant because it contends that United States v. Reed, 993 F.3d 441, 444–445 (6th Cir. 2021),
requires the application of the exception in cases where the affidavit lacks a sufficient nexus
because our nexus jurisprudence is “unsettled.” Though it is true that the Reed Court recognized
the different approaches taken in some of our probable cause cases regarding when an
individual’s drug trafficking activity creates probable cause to believe that drugs will be found at
his or her residence and in what limited circumstances inferences can be drawn to support the
requisite nexus, that was not the Court’s sole reason for applying the good faith exception. Id. at
444–46, 451–54. In addition to considering the law’s complexity, in its review of only one of the
three affidavits that were issued together and cross referenced with one another, the Reed Court
concluded that officers reasonably relied on the issuing judge’s determination regarding the third
affidavit because it established probable cause to believe that the defendant was an active drug
dealer engaged in recent drug activities, established probable cause to believe that the defendant
lived at the place to be searched, relied on tips from a CI whose reliability had been attested to in
one of the other unchallenged affidavits, and detailed the affiant’s experience investigating drug
crimes and his belief that drugs would be found at the residence. Id. Reed does not require (nor
could it) that courts apply the good faith exception merely because the relevant Fourth
Amendment jurisprudence is complex or unsettled.
A review of the information presented in the affidavit shows the clear lack of factual
circumstances that would support a minimally sufficient nexus. As discussed above, regarding
the CI’s tip, Officer Hazlewood’s affidavit gives no indication of the veracity or reliability of the
information obtained, or the factual basis underlying the CI’s knowledge. Cf. Higgins, 557 F.3d
at 385, 391 (applying the good faith exception to a search of defendant’s home address where the
informant told the officers that he had personally purchased drugs from the defendant at the
defendant’s address earlier the same day and the tip was corroborated in multiple ways).
In light of these shortcomings, “no reasonable officer would place much, if any, weight
on” the CI’s tip. Helton, 314 F.3d at 821–822, 824 (concluding that an unreliable informant’s
tips “do not merit much weight in the probable cause determination” and finding the informant’s
tip too defective to apply the good faith exception). “[A]t a minimum, a reasonable officer
No. 21-5945 United States v. Sanders Page 16
would have sought to corroborate” the tip further. Id. at 824; see also Frazier, 423 F.3d at 532(“[I]n the absence of any indicia of the informants’ reliability, courts insist that the affidavit
contain substantial independent police corroboration.”). In this case, the independent
investigation did little to corroborate the tip and confirm that drugs would be found in the
Yellowstone Parkway apartment. The officers did not, for instance, surveil the apartment for
indications of drug dealing occurring at the residence or conduct a trash pull. See, e.g., United
States v. McPhearson, 469 F.3d 518, 527 (6th Cir. 2006) (noting that “heavy traffic to and from
the residence” is a hallmark of drug dealing); United States v. Abernathy, 843 F.3d 243, 251–52
(6th Cir. 2016) (holding that drug paraphernalia recovered from a trash pull supported a finding
of probable cause).
Because a reasonable officer would know that the CI’s tip should be given little weight, if
any, due to its minimal trustworthiness and reliability, no reasonable officer would believe that
the affidavit established probable cause to search the Yellowstone Parkway apartment. The
sparse connection between Defendant and the Yellowstone Parkway apartment highlights the
affidavit’s clear deficiencies. Beyond the uncorroborated tip, the affidavit lacked any factual
allegations about drug trafficking occurring at the residence and a reasonable officer knows that
Defendant’s infrequent travel between an apartment and locations where drug dealing occurs
falls short of establishing probable cause that the apartment contains evidence of a crime.
Further, a reasonable officer knows that a Defendant exiting and entering an apartment on
a few occasions does not establish that Defendant lives at that apartment. In considering the
reasonableness of the officers’ reliance on the warrant, it is impossible to ignore the ease with
which officers could have uncovered Defendant’s connection to the Yellowstone Parkway
apartment. “A simple public records inquiry, further research into the name on the utilities
accounts registered at the address, or additional surveillance would have provided clear
evidence” of whether Defendant actually lived at the Yellowstone Parkway apartment. United
States v. Washington, 380 F.3d 236, 251 (6th Cir. 2004) (Moore, J., dissenting). In Mills v. City
of Barbourville, 389 F.3d 568, 576–77 (6th Cir. 2004), because the affidavit lacked any
information indicating that the place to be searched was connected to the defendant and was not
supported by a statement from the CI that “identified the residence as the place of the drug
No. 21-5945 United States v. Sanders Page 17
purchase or through independent investigation corroborating that it was the home of” the
defendant, we determined that neither probable cause existed nor the good faith exception
applied. Any reasonable officer would have known that it is illegal to search a residence when it
is not clear that the suspect resides there or conducts illegal drug activity there, because there is
not a high probability that the desired evidence or contraband will be uncovered at that location.
Therefore, a reasonable officer would understand that further corroboration—such as
independent surveillance of the apartment or further questioning of the informant to determine
whether he had seen drugs inside the apartment—was needed before probable cause could be
established to search the Yellowstone Parkway apartment.
A comparison to the factually similar case United States v. Washington, 380 F.3d 236(6th Cir. 2004), is illuminating. On the facts contained in the affidavit in Washington, this Court
held that it was a “close call” whether probable cause existed but ultimately applied the good
faith exception. Id. at 240 & 242–243. However, the affidavit in Washington contained
significantly more factual support for the nexus than the affidavit in this case. That affidavit
recounts that officers conducted a controlled purchase from a male suspect driving a Cadillac
registered to a woman at a house in Columbus, Ohio. Id. at 238. Surveilling that house, officers
observed the suspect exit the house before traveling to a second controlled purchase. Id. at 238–
39. In a phone call, the suspect described the Cadillac as “his” car. Id. at 239. Officers
subsequently observed the Cadillac parked at the house to which it was registered on two
separate days following the second controlled purchase. Id. The affiant noted that the house has
been recently robbed, which in the affiant’s training and experience was indicative of drug
trafficking. Id. The affiant also stated that in his training and experience drug dealers commonly
kept records, documents, and money close by. Id.Like the affidavit in this case, the underlying affidavit in Washington neither connected
the searched residence to any illegal activity nor stated that a suspect who was observed
engaging in such illicit activity away from the residence actually lived at the searched residence.
See id. at 238–39. However, unlike the affidavit in this case, the Washington affidavit contained
additional facts that supported a minimally sufficient nexus: (1) the suspect described the
Cadillac as “his”; (2) the Cadillac was registered to the address of the house and was parked
No. 21-5945 United States v. Sanders Page 18
outside the house on two separate days; (3) the affiant described his training and experience and
why that caused him to believe that evidence of crime would be found at the house; and (4) the
affiant detailed a recently robbery and its indication of drug activity at the house. Id. at 238–39,
243. By contrast, the officers in this case did not check the address of the registration of the
silver Chrysler, did not observe the silver Chrysler parked outside the apartment at any time
other than the time immediately surrounding the controlled purchases, and did not detail any
recent activity at the Yellowstone Parkway apartment such as a robbery that might indicate drug
activities. Nor did the affiant make any statement about his training and experience or any other
basis that caused him to believe evidence of drug dealing would be found at the Yellowstone
Parkway apartment. While the affidavit in this case contained information from the CI’s tip, for
the reasons discussed above, the CI’s tip carries little weight in our analysis. Accordingly, the
affidavit in this case contains much less support for probable cause on which an officer could
reasonably rely.
The government has identified no case in which this Court has applied the good faith
exception to reliance on a warrant supported by information as scant as the information in the
affidavit in this case. Cf. United States v. Runyon, 792 F. App’x 379, 384 (6th Cir. 2019)
(applying exception where affidavit stated that the informant was reliable, had personally seen
the defendant sell drugs at the location to be searched, and had a prior history of providing
information to law enforcement and reasoning that a reasonable officer would not have known
that the affidavit was insufficient because the sufficiency of the affidavit was a close question
under this Court’s precedent); United States v. Lee, 48 F. App’x 184, 188 (6th Cir. 2002)
(applying exception where the “affidavit included the statement of a named witness that the
witness had recently received illegal drugs from an individual in Lee’s residence” and finding
that the statement rendered “the officers’ belief that there was probable cause to search Lee’s
apartment . . . not ‘entirely unreasonable.’”). In White, we applied the exception, finding that
because the CI’s tip stated that the defendant was selling drugs from a specific address, the
police had corroborated the tip by conducting a controlled purchase at that same address, and the
affidavit included details about the “defendant’s criminal history and connection to the
residence,” alongside “[o]ther facts,” the warrant provided a minimally sufficient nexus. 874
F.3d at 497–98. Also in United States v. Novak, 814 F. App’x 1009, 1010–13 (6th Cir. 2020),
No. 21-5945 United States v. Sanders Page 19
we applied the good faith exception when presented with an affidavit that is notably different
from the affidavit at issue here. In Novak, the officers received a tip from “a trusted confidential
informant . . . [stating] that a man known as T.Y. reside[d] on Tedman Court—a street located
within the Wilkes Villa low-rise apartment complex—and distribute[d] narcotics from that
residence,” officers surveilled the residence before and after the controlled purchase, and the
affidavit included a recorded phone statement in which the defendant told the CI that he had
heroin in his possession while at the apartment complex. Id. at 1010–13 (alterations in original)
(internal quotation omitted). “Although the good-faith standard is less demanding than the
standard for probable cause, the affidavit still must draw some plausible connection to the
residence.” Brown, 828 F.3d at 385–386; see also Grant, 2023 WL 119399, at *5. Officer
Hazlewood’s affidavit failed to do so. For that reason, we conclude that the good faith exception
does not apply to save the fruits of an illegal search. The district court erred in failing to
suppress the evidence and statements obtained from the search of the Yellowstone Parkway
apartment.
C. Remaining Issues
Two issues remain on appeal. First, before Defendant filed his suppression motion,
Defendant moved for supplemental discovery of “case reports and drug evidence relating to the
two controlled buys referenced in the search warrant affidavit” for the Yellowstone Parkway
apartment. (Def. Mot. Suppl. Disc., R. 25, Page ID #63.) The purpose of Defendant’s motion
for supplemental discovery was to uncover evidence relating to the law enforcement
investigation underlying the search warrant that Defendant could subsequently employ as a basis
for suppressing the evidence obtained from the search. The district court denied Defendant’s
discovery motion, and Defendant appeals from that ruling. Second, in connection with his
suppression motion, Defendant contends that the search warrant affidavit contained false
statements made with reckless disregard for the truth and, as a result, he is entitled to a Franks
hearing to determine whether a preponderance of the evidence supports striking those portions of
the affidavit. See Franks v. Delaware, 438 U.S. 154, 155–56 (1978). Our conclusion that
probable cause did not support the search of the Yellowstone Parkway apartment as well as our
No. 21-5945 United States v. Sanders Page 20
holding that evidence and statements from the search should be suppressed makes it unnecessary
to consider these issues.
CONCLUSION
For the reasons set forth above, we REVERSE the district court’s order
denying Defendant’s motion to suppress and VACATE Defendant’s convictions and sentence.
We REMAND for further proceedings consistent with this opinion.
No. 21-5945 United States v. Sanders Page 21
_________________
DISSENT
_________________
NALBANDIAN, Circuit Judge, dissenting. Today, the majority (1) holds that the
officer’s affidavit could not establish probable cause to search Sanders’s apartment and
(2) denies application of the good-faith exception. But the affidavit used information from a
known confidential informant (“CI”) plus corroborating facts based on two rounds of officer
surveillance. Under our caselaw, that is enough to establish probable cause. And even if it
weren’t, this case fits squarely within the good-faith exception. So I respectfully dissent.
I. Probable Cause
Under the Fourth Amendment, a government agent must “support an application for a
search warrant with a substantial basis linking the evidence to be seized and the place to be
searched.” United States v. McCoy, 905 F.3d 409, 415 (6th Cir. 2018) (citation omitted). This
means that there must be a “nexus between the place to be searched and the evidence sought.”
United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc) (quoting United States v.
Van Shutters, 163 F.3d 331, 336–37 (6th Cir. 1998)). The connection between the residence and
the evidence of criminal activity must be specific and concrete, not “vague” or “generalized.”
Carpenter, 360 F.3d at 595. Whether an affidavit establishes a proper nexus is resolved by
examining the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983). And in
determining whether an affidavit establishes probable cause, courts may only consider the “four
corners of the affidavit.” United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010) (citation
omitted).
“[P]robable cause is a ‘practical and common-sensical standard[.]’” United States v.
Reed, 993 F.3d 441, 447 (6th Cir. 2021) (quoting Florida v. Harris, 568 U.S. 237, 244 (2013)).
And in reviewing the district court’s determination that an affidavit was sufficient to support the
issuance of a search warrant, this Court must give “great deference” to the issuing judge’s
findings of probable cause. United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc)
(citation omitted). To that end, we view the evidence in the “light most likely to support the
No. 21-5945 United States v. Sanders Page 22
decision of the district court.” United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005)
(citation omitted).
The probable-cause question in this case essentially comes down to whether the affidavit
established a nexus between the place to be searched and the evidence sought. See, e.g., United
States v. Sumlin, 956 F.3d 879, 885 (6th Cir.), cert. denied, 141 S. Ct. 605 (2020). The affidavit
based its probable-cause case on two sources of information—a tip from a CI and information
from police observation of Sanders. Those sources combine to establish probable cause that
evidence of Sanders’s drug trafficking would be found there.
Police identified Sanders based on the CI’s description. After the police provided the CI
with Sanders’s photo, the CI “confirmed that this is the same subject [the CI] know[s] as
Antwone Sanders who sells heroin/fentanyl from 2852 Yellowstone Dr.”1 (R. 25-3, PageID 160,
Page 54). The CI then conducted a controlled buy of drugs “from Antwone Sanders.” (Id.)
Following the controlled buy, Sanders left in a silver Chrysler, and police “followed [him] . . .
without stopping to 2852 Yellowstone Drive.” (Id.)
Less than two weeks later, the police conducted another controlled buy using the same
CI. This time, an officer watched the Yellowstone Parkway address at the time of the buy. The
officer noted a silver Chrysler parked outside the residence, which was registered to Sanders.
Police saw Sanders leave 2852 Yellowstone Parkway Apartment D and enter the car. They then
“followed the vehicle from this location uninterrupted to the pre-determined meeting location”
for the controlled buy. Once again, the CI purchased drugs from Sanders. And once again,
police observed Sanders driving uninterrupted from the site of the purchase to the Yellowstone
Parkway address, where he entered Apartment D.
I believe that the combination of the CI’s tip and the officer’s corroborating information
provided enough evidence to establish a nexus between the Yellowstone Parkway address and
evidence of drug dealing. The majority disagrees.
1
The affidavit incorrectly uses both 2852 Yellowstone Dr. and 2852 Yellowstone Parkway. Neither party
argues that this difference matters for the probable cause or good faith analysis.
No. 21-5945 United States v. Sanders Page 23
The majority finds insufficient support for a nexus between the Yellowstone Parkway
residence and evidence of drug dealing. First, the majority questions the affidavit’s reliance on
the CI’s tip. Namely, the affidavit did not “assert that [] the informant had ever been inside
[Sanders’s] apartment, that he had ever seen drugs or other evidence inside [Sanders’s]
apartment, or that the informant had seen drugs or other evidence in or around [Sanders’s]
apartment.” (Maj. Op. at 6 (quotation omitted)) The majority also faults the affiant for not
attesting to the CI’s reliability or providing information about his relationship with the CI. (Id. at
7)
But the majority’s rejection of the CI’s tip departs from our caselaw. It is true that “an
informant’s veracity, reliability and basis of knowledge are all highly relevant in determining the
value of his report.” Gates, 462 U.S. at 230 (internal quotation marks omitted). But when an
informant is “known to the police” and “would be subject to prosecution for making a false
report,” his statements are given significant weight, especially when compared to tips given by
an anonymous source. United States v. Dyer, 580 F.3d 386, 391 (6th Cir. 2009) (quoting United
States v. May, 399 F.3d 817, 824–25 (6th Cir. 2005)). That’s especially so when there is
“substantial independent police corroboration.” Dyer, 580 F.3d at 392 (citation omitted); cf.
Allen, 211 F.3d at 976 (finding independent corroboration of the tip by police is not required
when the court is provided with assurances that the informant is reliable).
In other words, our caselaw doesn’t make a rule that a CI’s tip can only establish
probable cause where a police officer issues a rote statement that the CI is “reliable.”
“[A]dditional evidence substantiating an informant’s reliability . . . may be any set of facts that
support the accuracy of the information supplied by the informant.” May, 399 F.3d at 824; see
also United States v. Jenkins, 396 F.3d 751, 760 (6th Cir. 2005) (“[I]t has been the rare case in
which the Sixth Circuit has found a search warrant based on an informant tip to be inadequate if
the information has been corroborated to some degree.” (alteration in original) (citation
omitted)). In short, “[a]s long as the issuing judge can conclude independently that the informant
is reliable, an affidavit based on the informant’s tip will support a finding of probable cause.”
United States v. Thomas, 605 F.3d 300, 307–08 (6th Cir. 2010) (citing United States v.
McCraven, 401 F.3d 693, 697 (6th Cir. 2005)).
No. 21-5945 United States v. Sanders Page 24
Here, the CI told the police that Sanders sold drugs from 2852 Yellowstone Parkway.
The CI was not an anonymous tipster, but someone who conducted controlled buys under police
supervision. And there was “substantial independent police corroboration”—namely police
officers twice following Sanders to the Yellowstone Parkway address after drug transactions
with the CI. Dyer, 580 F.3d at 391 (quotation omitted). That establishes probable cause to
search the residence.
The majority says that United States v. Higgins, 557 F.3d 381 (6th Cir. 2009), and United
States v. Brown, 828 F.3d 375 (6th Cir. 2016), show that the CI’s statement, combined with the
officers’ corroboration, was too vague to support a finding of probable cause. (Maj. Op. at 6–7)
In Higgins, police received the address of the defendant after pulling over a driver who was
suspected of being under the influence. 557 F.3d at 385. The driver, who had about 15 grams of
cocaine, told the officers that he had bought the cocaine from the defendant the day before, and
his passengers corroborated this. Id. This Court found insufficient indicia of reliability because
there was no evidence beyond the driver’s word and the “affidavit does not assert that the
informant had been inside Higgins’s apartment, that he had ever seen drugs or other evidence
inside Higgins’s apartment, or that he had seen any evidence of a crime other than the one that
occurred when Higgins allegedly sold him drugs.” Id. at 390. But unlike in Higgins, the police
here knew and had a working relationship with the CI who provided the tip in the affidavit—and
they independently corroborated that tip.
In Brown, police searched the defendant’s home based on a recorded phone call of
another heroin dealer and a drug dog alerting police to the defendant’s car. 828 F.3d at 378–79.
In that case, there was no connection between the defendant’s drug dealing and his home at all—
the police never surveilled the home, no CI linked his drug dealing to his residence, and the
defendant was only ever observed engaging in drug dealing from his car, which was seen outside
another defendant’s home. Id. at 382–83. The cooperating witness did not mention the
defendant, and the police never observed him at the address to be searched.
In Sanders’s case, not only did the CI have a collaborative relationship with the police,
but police twice confirmed that Sanders was tied to the Yellowstone Parkway address after
No. 21-5945 United States v. Sanders Page 25
observing Sanders travel uninterrupted from controlled drug buys to the apartment. This is more
than enough to link the CI’s testimony with the address.
Next, the majority says that Sanders’s travel between the controlled buys and the
Yellowstone Parkway address is inadequate corroboration of the CI’s tip. (Maj. Op. at 8) For
the majority, Sanders’s “entering and exiting of an apartment, alone, provides no indication of
criminal activity at the apartment.” (Id. at 8) But we’ve found that when the police see a
defendant moving between a controlled buy and the identified residence, that “provide[s] a
reasonable inference that he transported narcotics from [the] residence to the location of the
[drug] sale.” United States v. Coleman, 923 F.3d 450, 457 (6th Cir. 2019); see also United States
v. Gunter, 266 F. App’x 415, 419 (6th Cir. 2008) (collecting cases) (holding that a CI’s
information, combined with police officers’ observations of the defendant at his home right
before he went to the drug deal provided strong evidence of a nexus between the site and the
evidence); United States v. Miller, 850 F. App’x 370, 371 (6th Cir. 2021) (“[W]e have repeatedly
held that probable cause exists to search a residence for drug-related evidence when a drug
dealer travels directly from that residence to the site of a drug deal.”) (collecting cases). United
States v. Houser, 752 F. App’x 223, 225 (6th Cir. 2018) (finding probable cause where police
officers obtained a warrant after observing the defendant leave his apartment to conduct a
controlled buy). Here, officers twice observed Sanders traveling between his residence and the
sites of controlled buys.
The majority distinguishes Houser because the controlled buy in that case occurred near
the apartment complex, while Sanders conducted his buys away from home. See 752 F. App’x at
225–26. But proximity of the drug buy to the apartment complex is not determinative of nexus.
For example, in United States v. Coleman, we upheld the nexus between a home and drug
dealing when the defendant drove from a controlled buy to the residence. 923 F.3d at 457. And
in United States v. Miller, we upheld a warrant when police had observed a defendant leave an
apartment with a grocery bag, sell drugs, and return to the apartment. 850 F. App’x at 371–72.2
2
The majority says that the police in that case already suspected that the defendant lived in the apartment
and conducted additional surveillance of the property. (Maj. Op. at 11–12) But police here also conducted
additional surveillance—an additional controlled buy when they followed Sanders from the Yellowstone Parkway
No. 21-5945 United States v. Sanders Page 26
Similarly in United States v. Crawford, an affiant noted that a drug dealer habitually
carried his cocaine in a duffel bag and observed that dealer carrying the duffel bag to a controlled
buy. 943 F.3d 297, 309 (6th Cir. 2019). Although part of that panel’s analysis centered on the
duffel bag supporting the existence of probable cause, the key piece of evidence in that case was
“the actual controlled buy.” Id. at 309.
The majority distinguishes this case from Miller and Crawford because Sanders, unlike
the defendants in those cases, was not carrying a bag to the drug deal. (Maj. Op. at 12–13) But
the key in those cases is that the defendant took a direct path from the residence to an actual drug
deal—the drug containers themselves were secondary. Miller, 850 F. App’x at 374; Crawford,
943 F.3d at 309.3
Finally, the majority criticizes the affidavit because it “fails to include even a statement
by the affiant officer about his experience and training indicating that drug dealers tend to store
evidence in their homes.” (Maj. Op. at 10) The majority suggests that the affidavit presents little
more than the affiant’s “mere hunch” that there was a nexus between the Yellowstone Parkway
address and the evidence of drug dealing. (Id. (quotation omitted)) But the majority overstates
the need for a rote statement of the officer’s credentials.
We analyze the contents of an affidavit “on the adequacy of what it does contain, not on
what it lacks, or on what a critic might say should have been added.” Allen, 211 F.3d at 975.
Moreover, “[a]ffidavits are not required to use magic words.” Id. Instead, we look to whether
“[t]aken as a whole, the affidavit provided sufficient facts from which the magistrate could draw
an independent conclusion as to the probability . . . of what it alleged a search would disclose.”
Id.residence to the site of the exchange and back. This, combined with the CI’s tip, makes the link between Sanders’s
drug dealing and the site as strong, if not stronger, than the links in Miller.
3
The majority also says that the affidavit falls short because it “did not establish probable cause to believe
that [Sanders] resided at the Yellowstone Parkway apartment.” (Maj. Op. at 9) The majority says that although
police followed Sanders twice to his apartment, nothing in the affidavit suggests that the police confirmed the home
belonged to him. They did not, for instance, check to see if Sanders or a domestic partner paid the utilities. Sumlin,
956 F.3d at 883. They did not see if prior criminal activity tied him to that residence. Id. Again, that’s a red
herring. The affidavit did not have to definitively establish Sanders’s residence at the apartment. It had to establish
a nexus between the property and the drug dealing. See United States v. Ellison, 632 F.3d 347, 348–49 (6th Cir.
2011).
No. 21-5945 United States v. Sanders Page 27
It is true that the affiant did not explicitly mention his years of service or his observation
that drug dealers tend to store drugs at their homes. And perhaps it would be preferable if he
had, given that we have found that an officer’s experience helps assess probable cause. See, e.g.,
United States v. Caicedo, 85 F.3d 1184, 1193 (6th Cir. 1996); Gunter, 266 F. App’x at 419. But
we don’t require a statement of the officer’s experience to establish a nexus between a residence
and evidence of the crime. The CI’s statement that Sanders sold drugs from the Yellowstone
Parkway address, combined with the observation of his travel between that residence and two
controlled buys was more than sufficient for the magistrate to draw “an independent conclusion
as to the probability” that evidence of drug dealing would be found at this address. Allen,
211 F.3d at 975. The bottom line is that I would find that the affidavit established probable
cause.
II. Good-Faith Exception
In any event, the good-faith exception applies here. The majority disagrees, holding that
the affidavit here was “bare bones.” But we “reserve that label for an affidavit that merely states
suspicions, or conclusions, without providing some underlying factual circumstances regarding
veracity, reliability, and basis of knowledge.” United States v. Christian, 925 F.3d 305, 312 (6th
Cir. 2019) (en banc) (citation and quotation marks omitted). Under that standard and our
caselaw, this affidavit was not “bare bones.”
The good-faith “inquiry is confined to the objectively ascertainable question whether a
reasonably well trained officer would have known that the search was illegal despite the
magistrate’s authorization.” United States v. Leon, 468 U.S. 897, 922 n.23 (1984). We reject the
exception “when the affidavit is so lacking in indicia of probable cause that a belief in its
existence is objectively unreasonable.” United States v. Laughton, 409 F.3d 744, 748 (6th Cir.
2005) (citing Leon, 468 U.S. at 914–23). We commonly refer to this kind of affidavit as “bare
bones.”
In a case like Sanders’s, an affidavit is bare bones when “evidence in the affidavit
connecting the crime to the residence is ‘so vague as to be conclusory or meaningless.’” Frazier,
423 F.3d at 536 (quoting Carpenter, 360 F.3d at 596). But an affidavit is not bare bones if,
No. 21-5945 United States v. Sanders Page 28
although falling short of the probable-cause standard, it contains “a minimally sufficient nexus
between the illegal activity and the place to be searched.” United States v. White, 874 F.3d 490,
496–97 (6th Cir. 2017) (quoting Carpenter, 360 F.3d at 596).
And the bar to establish good faith is not a high one. We have described a sufficient
nexus as one with “some connection, regardless of how remote it may have been—some
modicum of evidence, however slight—between the criminal activity at issue and the place to be
searched.” Reed, 993 F.3d at 451 (quoting McCoy, 905 F.3d at 416).
The majority concludes that the affidavit here does not satisfy the good-faith exception
standard because a reasonable officer would have recognized that the affidavit at issue could not
have supported a finding of probable cause. (Maj. Op. at 13–17) It finds that a reasonable
officer would likely have traced each of the alleged deficiencies in the affidavit, concluding that
the affidavit could not establish probable cause. (Id.) But the majority points to no case in
which we have found that an affidavit like the one at issue here did not qualify for the good-faith
exception.
The problem is that the majority is, in effect, applying the probable-cause standard to the
good-faith exception analysis. But we only get to the good-faith exception because we’ve
already established that probable cause didn’t exist. See Reed, 993 F.3d at 451 (“Leon’s
exception applies only when an affidavit falls short of probable cause.”); see also McCoy,
905 F.3d at 420 (explaining that “reasonable inferences that are not sufficient to sustain probable
cause in the first place may suffice to save the ensuing search as objectively reasonable” (citing
White, 874 F.3d at 500)). And as this Court has repeatedly made clear, the good-faith exception
“requires a less demanding showing than the substantial basis threshold required to prove the
existence of probable cause in the first place.” Id. at 536 (quotation marks omitted) (quoting
Carpenter, 360 F.3d at 595).
The cases that the majority cites that reject a finding of good faith are inapposite. For
instance, in United States v. Helton, we found that the good-faith exception did not apply when
the affidavit was based on (1) the tip of a known CI relaying information from an anonymous CI;
(2) a description of the house by the known CI; and (3) a series of calls between the house and
No. 21-5945 United States v. Sanders Page 29
known drug dealers. 314 F.3d 812, 816–17 (6th Cir. 2003). Because the information of an
anonymous tipster is generally unreliable, we held that no reasonable officer could rely on a
warrant based on the uncorroborated hearsay of an unidentified tipster. Id. at 824. Once the
information from that tipster was removed, there was insufficient evidence to uphold the warrant.
Id. at 824–25.
But here the CI was not an anonymous tipster. In fact, the CI was known to the police
because he worked with them on the controlled buys. And even if an officer reading the affidavit
had questioned the word of that CI, the controlled buys and trailing of the defendant to the
Yellowstone Parkway residence provided evidence that was not “so vague as to be conclusory or
meaningless.” Frazier, 423 F.3d at 536 (quoting Carpenter, 360 F.3d at 596).
The Supreme Court in Nathanson v. United States described the quintessential “bare-
bones” affidavit—where the affiant stated only that “he ha[d] cause to suspect and d[id] believe
that” liquor illegally brought into the United States “is now deposited and contained within the
premises” belonging to the defendant. 290 U.S. 41, 44 (1933); see also United States v. Weaver,
99 F.3d 1372, 1379–80 (6th Cir. 1996) (holding that a pre-printed form affidavit where the
affiant merely entered the defendant’s name, address, and the suspicion that the defendant was
keeping marijuana, could not satisfy Leon); Mills v. City of Barbourville, 389 F.3d 568, 575–77
(6th Cir. 2004) (finding an affidavit to be bare bones where it contained absolutely no
information linking the defendant to the searched residence nor provided any reason to believe
that evidence of a crime would be found there). See also United States v. Williams, 224 F.3d
530, 533 (6th Cir. 2000).
By contrast, we found that the affidavit in United States v. Carpenter, though lacking in
probable cause, was not bare bones. 360 F.3d at 596. In that case, the warrant was based on
officers’ observations of marijuana growing near the defendants’ home and a beaten path from
the home to the marijuana plants. Id. at 593. Although the information in the affidavit was “too
vague to provide a substantial basis for the determination of probable cause[,]” those facts “were
not so vague as to be conclusory or meaningless.” Id. at 596. So the good-faith exception
applied. See also Van Shutters, 163 F.3d at 336–38 (upholding a search where the affiant only
connected the residence to be searched to illegal activity by stating that the place was “available”
No. 21-5945 United States v. Sanders Page 30
to the defendant); United States v. Schultz, 14 F.3d 1093, 1098 (6th Cir. 1994) (finding good
faith where the affiant linked the safe-deposit boxes to be searched and the defendant’s
trafficking in illegal drugs only by a statement that the affiant’s training and experience led him
to believe that evidence would be in the boxes).
And I am not convinced by the majority’s use of United States v. Washington. 380 F.3d
236 (6th Cir. 2004), which found in favor of the government on good faith. As the majority
acknowledges, that case was an “extremely close call” on whether probable cause existed. And
the court applied the good-faith exception without reaching the question of probable cause. Id. at
240. We found that good faith applied even though the male defendant’s car was registered to a
woman who lived at the address to be searched; there was no witness linking the address to drug
trafficking; and the officers’ trailing of the defendant was interrupted when the defendant
stopped to change cars. Id. at 230, 238–40. The affidavit here, by contrast, linked the
Yellowstone Parkway apartment to drug dealing both by the CI’s testimony and the officers’
observations of Sanders’s movements. The affidavit in Washington can hardly be said to have
contained “significantly more factual support for the nexus than the affidavit in this case” and
does not undermine the argument for a finding of good faith. (Maj. Op at 17)
This affidavit went far beyond the ones we upheld in Carpenter, Van Shutters, and
Schultz and it is on par with the affidavit in Washington. Again, the affiant noted that a CI
known to police identified the Yellowstone Parkway address as the location from which Sanders
dealt drugs. He detailed the two controlled buys in which police observed Sanders travelling
between that location and a drug deal. This provides more than the “modicum of evidence” that
our caselaw requires. Reed, 993 F.3d at 451 (quoting McCoy, 905 F.3d at 416). It is certainly
not so obviously bare bones that no reasonable police officer could rely on a warrant issued
based on this affidavit.
No. 21-5945 United States v. Sanders Page 31
And because a reasonable police officer could rely on a warrant issued based on this
affidavit, the district court properly denied the motion to suppress.3
III. Conclusion
Because the CI’s tip along with the officer’s corroborating facts established probable
cause, I would uphold the search. And even if probable cause didn’t exist, the good-faith
exception applies. I respectfully dissent.
3
Because I would uphold the search warrant, I would reach Sanders’s other appellate arguments. I would
affirm both the district court’s denial of supplemental discovery and of an evidentiary hearing largely on the same
grounds as the district court. On Sanders’s motion for supplemental discovery, however, I would find that the
district court erred in its analysis of Federal Rule of Criminal Procedure 16(a)(1)(E)(iii). This rule requires that a
defendant be allowed to inspect and to photocopy documents or objects that are “within the government’s
possession, custody, or control” if “the item was obtained from or belongs to the defendant.” Fed. R. Crim. P.
16(a)(1)(E). And we may consider a violation of Rule 16 in the context of a conditional guilty plea. United States v.
Harney, 934 F.3d 502, 507–08 (6th Cir. 2019). Sanders sought to inspect the drugs seized from him in the
controlled buys. Because the drugs at issue were obtained from Sanders and were in the government’s possession,
Sanders should have been permitted to inspect them.
But Rule 16 violations are reviewed for harmless error. United States v. Clark, 385 F.3d 609, 619 (6th Cir.
2004). And we have held that the standard to be applied in Rule 16 cases is that “[a]ny error, defect, irregularity or
variance which does not affect substantial rights shall be disregarded.” United States v. Phillip, 948 F.2d 241, 251
(6th Cir. 1991) (quoting Federal Rule of Criminal Procedure 52(a)). Though Sanders asserts that his substantial
rights were implicated by this failure, he does not show how. (Def. Rep. Br. at 1, 12–13) And I don’t think he can.
The government’s case rested on the drugs and firearms discovered in the search, not the drugs from the controlled
buys. Sanders could not have gleaned exculpatory information from the drugs, and nothing suggests that the
outcome of this case would have changed if he had inspected them. I would therefore affirm the district court’s
denial of supplemental discovery and an evidentiary hearing.