United States v. Curtis Tucker, Jr. ( 2018 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0396n.06
No. 17-3503
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Aug 07, 2018
UNITED STATES OF AMERICA, )
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
CURTIS EARL TUCKER, JR., )
NORTHERN DISTRICT OF
)
OHIO
Defendant-Appellee. )
)
)
BEFORE: BOGGS, CLAY, and DONALD, Circuit Judges.
BOGGS, Circuit Judge. On March 29, 2017, a federal grand jury indicted Curtis Earl
Tucker, Jr. for possessing with the intent to distribute more than 500 grams of a methamphetamine
mixture, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii), and for being a felon in
possession of firearms and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Tucker subsequently filed a motion to suppress evidence seized from two residences, which the
United States District Court for the Northern District of Ohio granted. The government now
appeals that order, arguing that investigators acted in good faith when they executed search
warrants for those residences.
For the reasons outlined below, we affirm the district court’s grant of Tucker’s motion to
suppress.
No. 17-3503
United States v. Tucker
I
A
From July 2016 until February 2017, law enforcement agents electronically surveilled
Camiolo Rocha-Ayon, Jr., a suspected narcotics trafficker living in Canal Winchester, Ohio.
During that timeframe, officers observed Rocha-Ayon engaging in behavior that was indicative of
drug trafficking. On multiple occasions, for instance, Rocha-Ayon left his residence at 5126
Algean Drive in his day-to-day vehicle, drove to a second residence at 5387 Bradshaw Street,
Canal Winchester, Ohio, stayed only for a short while, and then departed in a car that he normally
did not use.1 At least once, Rocha-Ayon drove this second vehicle, a white Infiniti, to a truck stop,
where an unidentified individual removed a duffel bag from the car’s trunk and walked away.
On February 17, 2017, Rocha-Ayon once again left his Algean Drive home, drove to the
Bradshaw Street residence, and changed vehicles. After stopping at a Columbus, Ohio, sporting-
goods store to purchase a vacuum sealer and sealing bags, Rocha-Ayon traveled to 791 Saxon
Avenue, Akron, Ohio and parked in the driveway. Some time after Rocha-Ayon’s arrival, a white
van registered to Tucker also pulled up to the residence; and although the van left shortly thereafter,
it returned at 12:07 p.m. At 12:59 p.m., Rocha-Ayon departed in his white Infiniti and, on his way
back to Canal Winchester, stopped at an outlet mall. Rocha-Ayon then proceeded to his Algean
Drive residence, where he stayed for an unspecified period of time before returning to Bradshaw
Street to switch back into his day-to-day vehicle.
Two days later, on February 19, Rocha-Ayon began this sequence anew. After leaving his
Algean Drive residence in his day-to-day car, Rocha-Ayon drove to Bradshaw Street and switched
1
Akron Police Department Detective M.V. Gilbride, who applied for and obtained one of the search warrants at issue
in this case, stated in his affidavit that based upon his training and experience, drug traffickers avoid using their normal,
day-to-day vehicles when transporting contraband.
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vehicles. He then made his way to an area Wal-Mart, where he was observed placing a tan duffel
bag into the trunk of his Infiniti. Approximately two minutes after he arrived at the Wal-Mart,
Rocha-Ayon departed. This time, however, Rocha-Ayon did not reach his intended destination.
While traveling on highway I-270, he was stopped by the Ohio State Highway Patrol for a moving
violation. When a K-9 drug unit alerted to the odor of narcotics, his car was searched, and roughly
11 kilograms of cocaine was discovered in the tan duffel bag. A receipt for bulk plastic bags and
a vacuum sealer, dated February 17, 2017, was also found.
Later that day, federal search warrants were issued for Rocha-Ayon’s Canal Winchester
residences. At the Bradshaw Street location, investigators found a vacuum sealer, scales, United
States currency, wire-transfer receipts, and empty drug packaging, while at the Algean Drive
residence, they discovered approximately $223,000 in U.S. currency and eight firearms.
Based upon this evidence, Akron Police Department Detective M.V. Gilbride sought a
records-and-documents search warrant for the Saxon Avenue house. Citing his training and
experience, as well as his observations on February 17, 2017 at 791 Saxon Avenue, Gilbride
hypothesized that Rocha-Ayon had traveled to the residence “to collect drug proceeds from
TUCKER to pay for [an] upcoming delivery of cocaine.” Affidavit for Search Warrant for
791 Saxon Avenue ¶ 24. He further speculated that “a portion of the cocaine seized” from Rocha-
Ayon was intended for Tucker, that “at least a portion of the currency recovered” from Rocha-
Ayon was obtained from Tucker on February 17, and that Rocha-Ayon had purchased the vacuum
sealer and bags on February 17 to conceal the odor of the currency that he was obtaining from
Tucker, in the event that he was stopped by a K-9 unit during his return trip to Canal Winchester.
Ibid. Detective Gilbride attempted to bolster his conclusions by noting that the Summit County,
Ohio Auditor’s Office listed Tucker as the owner of 791 Saxon Avenue; that Tucker was the
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account holder for the residence’s electric utilities; that the Akron Police Department had received
a service call in October 2016, which suggested that drug dealing was occurring at the house; that,
inter alia, Tucker had been convicted in 2000 for possession with intent to distribute crack
cocaine2; and that the affidavit had been presented to and approved by “the Akron Police Legal
Advisor.” Id. at ¶¶ 25–27, 33.
On March 8, 2017, an Akron Municipal Court judge issued a search warrant for the Saxon
Avenue house, permitting the seizure of:
[b]ooks, records, receipts, notes, ledgers[,] and other papers and electronic
equipment to store information relating to the possession, transportation, ordering,
purchase and distribution of controlled substances, . . . bank statements and records
and other items evidencing the obtaining, secreting, transfer and/or concealment
and/or expenditure of money; financial proceeds, namely[,] U.S. [c]urrency,
photographs, indicia of occupancy; and other fruits, instrumentalities and evidence
related to drug trafficking.
Search Warrant for 791 Saxon Avenue. A search was conducted the next day, at which time
officers recovered several empty vacuum-seal bags, multiple handguns (one of which was loaded),
a hydraulic press with a mold, and United States currency. Investigators also found Tucker’s birth
certificate, vehicle registrations, and Summit County Fiscal Office records identifying him as the
owner of 2123 Penguin Avenue, Akron, Ohio.
That same day, investigators obtained a records-and-documents search warrant for the
Penguin Avenue residence. In addition to reciting the information contained in the Saxon Avenue
affidavit and listing the evidence seized from that location, the Penguin Avenue affidavit noted
that Tucker had forwarded the utilities bill for the Saxon Avenue residence to 2123 Penguin
Avenue. It further stated that in April 2016, the Summit County Sheriff’s Office had received a
2
The affidavit also stated that Tucker had been convicted in 2012 for possession of drugs. Both parties agree and
stipulate that this was an error, but that it was unintentional.
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United States v. Tucker
report of a domestic dispute at the address and that Tucker had been identified as a participant in
it. On March 9, 2017, shortly after the warrant was issued, a search of the residence was conducted,
during which three guns, United States currency, and four kilograms of methamphetamine were
discovered.
B
On April 24, 2017, Tucker moved to suppress the evidence seized from the Saxon Avenue
and Penguin Avenue residences on the grounds that the affidavits offered in support of the search
warrants were “devoid of any evidence connecting the residences to the drug dealing activity.”
Tucker accordingly claimed that the affidavits failed to establish probable cause and that the good-
faith exception did not apply.
After holding a suppression hearing, the district court agreed with Tucker. United States
v. Tucker, No. 5:17–CR–105, 2017 WL 1950692, at *1 (N.D. Ohio May 11, 2017). Regarding the
Saxon Avenue affidavit, the court held that it was insufficient to establish probable cause because
it did “not say that Rocha-Ayon or Tucker ever went into the Saxon Avenue location on February
17”; said “almost nothing about criminal activity at the house other than that Rocha-Ayon had
parked in the house’s driveway”; relied on a vague, unsubstantiated, stale tip regarding drug
dealing at the house; “contained no evidence that [Tucker] distributed narcotics from the . . .
location, that he used the . . . location to store narcotics, or that any suspicious activity had taken
place there”; and “document[ed] just a few instances when Rocha-Ayon drove the Infiniti for drug-
related purposes.” Id. at *5–6 (first alteration in original) (citation omitted). The court also found
that the warrant “fail[ed] to meet the Fourth Amendment’s particularity requirement” because it
“sanction[ed such] a wide-ranging exploration of [the] Saxon house” that “[o]fficers could not
‘readily ascertain which items were subject to seizure.’” Id. at *7 (quoting United States v.
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Anderson, 555 F. App’x 589, 595 (6th Cir. 2014)). Finally, the court held that the good-faith
exception to the exclusionary rule did not apply to the evidence seized from the Saxon Avenue
residence because the affidavit was “so bare bones that it was objectively unreasonable for officers
to rely on” it. Id. at *8. Specifically, the court faulted the affidavit for relying on the erroneous
assumption that “because Rocha-Ayon, a drug dealer, visited Tucker’s house once, drug activity
must have taken place there.” Ibid.
In light of these considerations, the district court further held that “evidence from the Saxon
search [could not] provide the underlying basis for the Penguin house’s search warrant.” Id. at *7.
Stripped of this evidence, the court found that the Penguin Avenue affidavit did not “show[ that
the property had] any connection to drug dealing or to records of drug dealing” and, thus, that
probable cause for the search was lacking. Id. at *8 (emphasis added). Moreover, because the
court found that the Penguin Avenue affidavit “only contained ‘suspicions, beliefs, or conclusions,
without providing some underlying factual circumstances regarding veracity, reliability, and basis
of knowledge[,]’” it also held that the good-faith exception did not apply to the Penguin Avenue
search. Ibid. (quoting United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996)). The court
therefore excluded all evidence seized from that location. Id. at *9.
The government now appeals that order, though it concedes that the affidavits supporting
the search warrants were insufficient to establish probable cause. Thus, the only question on
appeal is whether officers acted in good faith when they executed the two search warrants.3
3
Because the government did not argue that any of the other exceptions to the exclusionary rule applied—for instance,
that the evidence seized from the residences “ultimately or inevitably would have been discovered by lawful means,”
Nix v. Williams, 467 U.S. 431, 444 (1984)—we limit our discussion to the applicability of the good-faith exception.
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II
When reviewing an order suppressing evidence, we review the district court’s factual
findings for clear error and its legal conclusions de novo. United States v. White, 874 F.3d 490,
495 (6th Cir. 2017). The applicability of the good-faith exception is a legal conclusion and, thus,
is reviewed de novo. United States v. Hython, 443 F.3d 480, 484 (6th Cir. 2006).
A
Because the exclusionary rule is “a judicially created remedy designed to safeguard Fourth
Amendment rights[,]” evidence obtained in violation of the amendment should be suppressed
where, but only where, the rule’s “remedial objectives are . . . most efficaciously served.” United
States v. Leon, 468 U.S. 897, 906, 908 (1984) (quoting United States v. Calandra, 414 U.S. 338,
348 (1974)). Since that objective is the “deter[rence of] police misconduct rather than [the
punishment of] the errors of judges and magistrates,” Leon, 468 U.S. at 916, suppression is
appropriate “[o]nly when law enforcement officials operate in ‘deliberate, reckless, or grossly
negligent disregard for Fourth Amendment rights,’” White, 874 F.3d at 497 (quotation marks
omitted) (quoting Davis v. United States, 564 U.S. 229, 237–38 (2011)). Accordingly, the
exclusionary rule does not “bar the admission of evidence seized in reasonable, good-faith reliance
on a search warrant that is subsequently held to be defective[,]” i.e., where “the offending officers
acted in the objectively reasonable belief that their conduct did not violate the Fourth
Amendment.” Leon, 468 U.S. at 905, 918–19. When determining whether the executing officers
acted in good faith, we are “bound by the four corners of the affidavit . . . and
. . . may not consider what the officer executing the warrant knew or believed[,]” United States v.
Rose, 714 F.3d 362, 367 (6th Cir. 2013), unless that “extra-affidavit information was made known
to the issuing magistrate[,]” Hython, 443 F.3d at 488.
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Broadly speaking, an officer’s reliance on a search warrant is not objectively reasonable
where “a reasonably well[-]trained officer would have known that the search was illegal despite
the magistrate’s authorization.” Leon, 468 U.S. at 922 n.23. One such situation is where the
affidavit is “bare bones,” i.e., is “so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable.” Id. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610–
11 (1975) (Powell, J., concurring in part)); see also White, 874 F.3d at 496. At various times, we
have further defined a bare-bones affidavit as one that “states suspicions, or conclusions, without
providing some underlying factual circumstances regarding veracity, reliability, and basis of
knowledge[,]” United States v. Van Shutters, 163 F.3d 331, 337 (6th Cir. 1998) (quoting Weaver,
99 F.3d at 1378), one that “asserts ‘only the affiant’s belief that probable cause existed[,]’” White,
874 F.3d at 496 (quoting United States v. Williams, 224 F.3d 530, 533 (6th Cir. 2000)), or one that
is “so vague as to be conclusory or meaningless[,]” United States v. Frazier, 423 F.3d 526, 536
(6th Cir. 2005) (quoting United States v. Carpenter, 360 F.3d 591, 596 (6th Cir. 2004) (en banc)).
In contrast, an affidavit is not bare bones so long as it “contain[s] a minimally sufficient
nexus between the illegal activity and the place to be searched[.]” Carpenter, 360 F.3d at 596.
Previously, we have said that a minimally sufficient nexus exists “[i]f the reviewing court is ‘able
to identify in the averring officer’s affidavit 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[.]’” White, 874 F.3d at 497 (quoting United States v. Laughton,
409 F.3d 744, 749–50 (6th Cir. 2005)). Given this, “it is entirely possible that an affidavit could
be insufficient for probable cause but sufficient for ‘good-faith’ reliance.” United States v.
Washington, 380 F.3d 236, 241 (6th Cir. 2004).
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Such permissive language can be misleading, however; that is because not every iota of
evidence qualifies as a modicum. For instance, we have been clear that “a single piece of evidence
which the law of the station house shop would recognize as clearly insufficient” is so vague as to
be conclusory or meaningless. Carpenter, 360 F.3d at 596 (quoting United States v. Williams, 3
F.3d 69, 74 (3d Cir. 1993)). More generally, an affidavit qualifies as “bare bones” where (1) a
well-established legal principle precludes a finding of probable cause based upon the particularized
facts it contains, (2) all reasonably well-trained officers would be acquainted with that principle,
and (3) no such officer “could conclude that the present affidavit was [outside] the operation of
that rule.” United States v. Savoca, 761 F.2d 292, 297, 298 n.10 (6th Cir. 1985). One such legal
principle is that “[t]he critical element in a reasonable search is not that the owner of the 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.” Id. at 297 (quoting
Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978)). Precedent therefore gives guidance as to
what does and does not count as a minimally sufficient nexus.
B
The Saxon Avenue affidavit is a prototypical example of a bare-bones affidavit.4 Stripped
down to its basics, the affidavit asserts that evidence of drug trafficking would be found at the
Saxon Avenue residence because (1) a suspected drug dealer once parked in the driveway for a
brief period of time, (2) the house’s owner had a 17-year-old conviction for possession with intent
to distribute, and (3) a four-month-old, seemingly unverified, apparently anonymous tip suggested
4
Because this determination resolves the question of whether the good-faith exception applies to the Saxon Avenue
search, we need not consider whether the exception is inapplicable on other grounds, specifically, whether the warrant
was “so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the
executing officers [could not have] reasonably presume[d] it to be valid,” Leon, 468 U.S. at 923 (citing Massachusetts
v. Sheppard, 468 U.S. 981, 988–91 (1984)).
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that drug dealing may have occurred there. Given that all reasonably well-trained officers must
be presumed to know that “‘a suspect’s mere presence . . . at a residence is too insignificant a
connection with that residence to establish that relationship’ necessary to a finding of probable
cause,” Savoca, 761 F.2d at 297 (quoting United States v. Flores, 679 F.2d 173, 175 (9th Cir.
1982)); cf. United States v. Helton, 314 F.3d 812, 825 (6th Cir. 2003) (“A reasonable officer knows
that evidence of three calls a month to known drug dealers from a house . . . falls well short of
establishing probable cause that the house contains evidence of a crime.”), and because the
remaining evidence is not probative of drug trafficking at the residence, it was objectively
unreasonable for the executing officers in this case to believe that their conduct comported with
the Fourth Amendment.
The government attempts to resist this conclusion by pointing to additional, allegedly
“critical” facts contained in the Saxon Avenue affidavit. Specifically, the government notes that
when Rocha-Ayon visited the residence, he was driving a car that he sometimes—but not always—
used in connection with drug trafficking; that prior to his arrival on February 17, Rocha-Ayon
stopped to purchase household items that are sometimes—but not always—used by drug
traffickers; and that two days later, Rocha-Ayon was arrested 135 miles away while transporting
cocaine. Based on these additional facts, the government claims that a reasonable law enforcement
officer could “easily infer” that “ROCHA-AYON JR. [had] traveled to 791 Saxon Avenue on
February 17, 2017 to collect drug proceeds from TUCKER to pay for the upcoming delivery of
cocaine,” that “a portion of the currency recovered in ROCHA-AYON’s possession was obtained
from TUCKER” that day, and that Rocha-Ayon had “purchased the vacuum sealer and bags to
conceal the currency he was to obtain from TUCKER[.]” Affidavit for Search Warrant for 791
Saxon Avenue ¶ 24.
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Contrary to the government’s assertion, no reasonably well-trained officer could draw such
conclusions based upon the particularized facts in the affidavit; rather, the officers speculated
based upon hunches (albeit, good hunches, as their suspicions proved correct). To see why, it
helps to note what is absent from the Saxon Avenue affidavit. It does not contain any indication
of drug dealing at the residence.5 Nor does the affidavit provide any specific basis for concluding
that Rocha-Ayon was transporting drugs to that location when he was arrested on February 19.
Furthermore, it tells us nothing about the relationship between Rocha-Ayon and Tucker. And,
most importantly, it does not mention what Rocha-Ayon did once he arrived at the residence on
February 17.6 For all that appears (and he was under surveillance), Rocha-Ayon sat quietly in his
car, interacted with no one, and neither retrieved nor left anything at the address. Rocha-Ayon’s
purchase of drug-trafficking paraphernalia—i.e., the vacuum sealer and bags—therefore cannot
constitute evidence of criminality at the Saxon Avenue residence because there is no indication
that they ever left his car, let alone that they made their way into the residence.
Once the government’s additional evidence is discounted, however, the Saxon Avenue
affidavit “provides nothing more than a mere ‘guess that contraband or evidence of a crime would
be found[.]’” White, 874 F.3d at 496 (quoting United States v. Schultz, 14 F.3d 1093, 1098 (6th
Cir. 1994)). Because Tucker’s 17-year-old conviction is not probative of whether he was using
his current residence to traffic drugs, see United States v. Christian, 893 F.3d 846, 863 (6th Cir.
2018) (“Absent additional recent reliable evidence, . . . old criminal convictions cannot support a
finding that drug activity is continuous at the time of the search.”); see also United States v. Brown,
5
Admittedly, the affidavit did state that four months earlier the Akron Police Department received a call, provenance
unknown, which suggested that drug dealing was occurring at the house. There is no indication in the affidavit,
however, that the police found the call to be credible, let alone that they found evidence corroborating the claim.
6
The absence of such information is all the more pronounced given that the affidavit details the arrival and departure
of cars from the driveway of the residence.
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828 F.3d 375, 385 (6th Cir. 2016) (stating that a 12-year-old conviction for conspiracy to distribute
marijuana is not probative of whether a defendant is using his residence for drug trafficking), the
government’s appeal rests entirely on Rocha-Ayon’s brief appearance in the driveway of 791
Saxon Avenue. As noted earlier, no reasonably well-trained officer would think this sufficient to
establish probable cause.
This conclusion is supported by our refusal to apply the good-faith exception in cases
where there existed a more substantial nexus between the place to be searched and illegal activity.
In Helton, for instance, a magistrate judge authorized a search warrant for a residence based on,
inter alia, telephonic records and an anonymous tip. 314 F.3d at 820–21. Specifically, the
affidavit stated that over a ten-month period, 31 calls had been made between suspected drug
dealers and the residence and that a tipster had reported that the house contained “stacks” of
money, some of which was being held on behalf of a suspected drug dealer. Ibid. We held that
the affidavit was bare bones because “no reasonable officer would afford much weight to the
anonymous tipster’s statements” and because “[a] reasonable officer knows that evidence of three
calls a month to known drug dealers from a house . . . falls well short of establishing probable
cause.” Id. at 824–25. Here, the connection between the Saxon Avenue residence and drug activity
was even more tenuous, as the suspected drug dealer’s (i.e., Rocha-Ayon’s) interaction with the
home was a one-time event and because police lacked even an anonymous informant linking the
home to drug activity.
Our opinions in Savoca, Van Shutters, and Frazier do not contradict this analysis. As we
explained in United States v. McPhearson, 469 F.3d 518 (6th Cir. 2006), in each of these cases,
“[t]he application of the good-faith exception . . . depended on the fact that each of the defendants
were known to have participated previously in the type of criminal activity that the police were
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investigating.” Id. at 526. However, unlike here, in those cases such knowledge consisted of more
than a mere awareness of a long-ago conviction; rather, it constituted significant, probative
evidence of the defendants’ current schemes. In Savoca, we held that officers could infer that the
defendants intended to continue their criminal activity based on the crime alleged (bank robbery)
and the fact that they had perpetrated a series of such crimes, albeit at unspecified prior times.
761 F.2d at 298 n.9. In Van Shutters, we held that the affidavit was not bare bones because it
stated that the defendant had been identified by his victims, described the items that the defendant
had used to perpetrate an auto-theft scheme, and detailed his criminal activities, some of which
had occurred only a few months prior to the search. 163 F.3d at 333–34, 337–38. Finally, in
Frazier, we held that the good-faith exception applied to a search of a suspected drug dealer’s
current residence because two months earlier, authorities had found drugs at his former residence
shortly after he had moved out. 423 F.3d at 537.
For the foregoing reasons, the district court properly refused to apply the good-faith
exception to the search of the Saxon Avenue residence. We therefore affirm the district court’s
grant of Tucker’s motion to suppress evidence seized from that location.
C
Having held that the good-faith exception does not apply to the evidence seized from Saxon
Avenue, we must next consider whether this determination precludes us from finding that the
officers acted in good faith when they conducted the Penguin Avenue search. Put differently, the
question before us now is whether officers could have acted in reasonable, good-faith reliance on
the Penguin Avenue search warrant even though the underlying affidavit was tainted by evidence
obtained from the Saxon Avenue residence. Because this court has issued facially inconsistent
directives on this matter, some judicial housekeeping is first necessary.
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The uncertainty surrounding this issue stems from a pair of published opinions, filed ten
days apart in late 2005. In United States v. Davis, 430 F.3d 345 (6th Cir. 2005), we stated, without
qualification, that “the Leon good-faith exception is inapplicable where a warrant was secured in
part on the basis of an illegal search or seizure.” Id. at 358 n.4. In the later case United States v.
McClain, 444 F.3d 556 (6th Cir. 2005), however, we refused to apply the exclusionary rule even
though the warrants in question relied in part on evidence seized during an illegal, warrantless
search because (1) “the officers who sought and executed the search warrants acted in good faith”
and (2) “the facts surrounding the initial . . . search were close enough to the line of validity to
make the executing officers’ belief in the validity of the search warrants objectively reasonable[.]”
Id. at 566.
Faced with these competing opinions, we are bound by McClain. While it is well-
established that “[a] panel of this Court cannot overrule the decision of another panel[,]” Salmi v.
Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985), it is also the case that “one
panel of this court is not bound by dicta in a previously published panel opinion[,]” United States
v. Burroughs, 5 F.3d 192, 194 (6th Cir. 1993). Because Davis’s discussion of the good-faith
exception was dicta—not only was its analysis cursory and relegated to a footnote, the government
had not argued that the good-faith exception applied—it does not constitute binding precedent.
See United States v. Fugate, 499 F. App’x 514, 519, 519 n.5 (6th Cir. 2012). Accordingly, per
Salmi and Burroughs, we must follow the holding in McClain. The question before us, therefore,
is whether “this is one of those unique cases in which the Leon good[-]faith exception should apply
despite an earlier Fourth Amendment violation.” McClain, 444 F.3d at 565 (emphasis added).
It is not. In McClain, we refused to apply the exclusionary rule because we found that
there was “nothing more that [the officer who executed the follow-on search] ‘could have or should
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have done under the[] circumstances to be sure his search would be legal.’” Id. at 566 (quoting
United States v. Thomas, 757 F.2d 1359, 1368 (2d Cir. 1985)). And we made that holding because,
inter alia, the circumstances of the earlier, illegal, warrantless search did not render the executing
officer’s belief in the validity of the search warrants objectively unreasonable. Ibid. For the
limited exception recognized in McClain to apply here, then, it must be the case that the facts
surrounding the Saxon Avenue search were “close enough to the line of validity” that an
objectively reasonable officer could believe in the validity of a subsequent search warrant secured,
in part, on the basis of evidence seized during that earlier search. This requires, at a minimum,
that the Leon exception apply to the initial search; after all, if a reasonably well-trained officer
would have known that the initial search was illegal, it is hard to see how such an officer could
believe in the validity of the second warrant.
In short, when determining whether the McClain exception applies, it matters whether the
initial, illegal search was conducted with a warrant. When only the second search is conducted
with a warrant, as in McClain, we ask: (1) whether “the officers who sought and executed the
search warrants acted in good faith” as prescribed by Leon and (2) whether “the facts surrounding
the initial . . . search were close enough to the line of validity to make the executing officers’ belief
in the validity of the search warrants objectively reasonable[.]” 444 F.3d at 566. However, when
both searches are conducted pursuant to a search warrant, each warrant must be sought and
executed by law enforcement in good faith as prescribed by Leon. For the good-faith exception to
apply to the evidence seized at the Penguin residence, it must therefore be the case that: (1) the
Penguin search warrant was sought and executed by law enforcement in good faith as prescribed
by Leon, and (2) the Saxon search warrant was sought and executed by law enforcement in good
faith as prescribed by Leon.
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As detailed above, the problems with the Saxon Avenue search were so glaringly obvious
that the Leon exception does not apply. See supra Part II.B. And because the second part of the
test is not met, we need not consider whether the Penguin search warrant was sought and executed
in good faith. As such, the district court was correct to hold that the good-faith exception does not
bar the application of the exclusionary rule to evidence seized from the Penguin Avenue residence.
III
For the reasons stated above, we AFFIRM the district court’s grant of Tucker’s motion
to suppress all evidence seized from the Saxon Avenue and Penguin Avenue residences.
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