United States v. Erik McCoy , 905 F.3d 409 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0209p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellant, │
│
> No. 17-4245
v. │
│
│
ERIK MCCOY; DERRICK HEARD, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
Nos. 1:17-cr-00029-1–2—Michael R. Barrett, District Judge.
Argued: July 30, 2018
Decided and Filed: September 20, 2018
Before: GUY, BATCHELDER, and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: C. Mitchell Hendy, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio,
for Appellant. James E. Kolenich, KOLENICH LAW OFFICE, Cincinnati, Ohio, for Appellee
McCoy. Travis T. Dunnington, RION, RION, & RION, L.P.A., INC., Dayton, Ohio, for
Appellee Heard. ON BRIEF: C. Mitchell Hendy, UNITED STATES ATTORNEY’S OFFICE,
Cincinnati, Ohio, for Appellant. James E. Kolenich, KOLENICH LAW OFFICE, Cincinnati,
Ohio, for Appellee McCoy. Jon Paul Rion, RION, RION, & RION, L.P.A., INC., Dayton, Ohio,
for Appellee Heard.
_________________
OPINION
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JOHN K. BUSH, Circuit Judge. Police officers obtained a warrant, searched defendants’
home, and found over 2,000 grams of heroin, marijuana, drug-distribution paraphernalia, and a
No. 17-4245 United States v. McCoy, et al. Page 2
large amount of cash. Despite the search’s having been conducted under a judge-issued warrant,
the district court suppressed the evidence, holding that because the warrant application so failed
to connect defendants’ home with drug-trafficking activity, no reasonable officer could have
relied on the warrant. The government appeals and argues that the police officers acted in good-
faith reliance on the warrant, and so the evidence should be admissible against defendants.
We agree with the government. The police officers’ warrant application established
enough of a basis to believe that at least one of the defendants was engaged in a continual,
ongoing drug-trafficking operation and that therefore drug-related contraband was likely to be
found in his home. Thus, we reverse the district court’s order suppressing the evidence.
I.
In fall 2016, officers of the Cincinnati Police Department began investigating a drug-
trafficking lead. The lead came from a confidential informant’s1 tip that defendants Erik McCoy
and Derrick Heard (and their associate, Vincent Brown) were selling marijuana from two
adjacent stores on Glenway Avenue. The informant reported that McCoy and Heard lived
together in a home located at 10515 Hadley Road and that McCoy and Brown worked at the
Glenway Avenue stores. The informant relayed having seen McCoy, Heard, and Brown in
possession of marijuana and having observed marijuana and guns inside the 10515 Hadley Road
home.
Based on the informant’s information, Officer Longworth began surveilling the Glenway
Avenue stores. Over several days, he watched McCoy, Heard, and Brown come and go. He
noted a “large amount of foot traffic [that he considered] consistent with drug trafficking.” R.34-
2, Affidavit for Search Warrant, Page ID# 135. And he discovered that McCoy and Brown had
drug-trafficking criminal histories.
On October 14, 2016, Officer Longworth’s surveillance proved worthwhile. He was
watching the stores when he saw Heard park illegally at a bus stop. As Heard and Brown exited
the car, Officer Longworth’s fellow officers arrested Brown for suspicion of his having been
1The record is ambiguous on whether the informant was anonymous. For purposes of our analysis, we
assume anonymity of the tipster.
No. 17-4245 United States v. McCoy, et al. Page 3
involved in a robbery.2 While Brown was being arrested, Officer Longworth entered the apparel
store to question Heard about his parking violation. The officer spotted Heard walking out of an
employee-only area of the store with a large bag of marijuana hanging from his pants.3 This bag,
along with another (for a total of about two to three ounces of marijuana) and several hundred
dollars were found on Heard upon his arrest. After arresting Heard, Officer Longworth
confirmed that he had a drug-trafficking criminal history.
Based on Officer Longworth’s investigation, the circumstances of Heard’s arrest, and the
information provided by the confidential informant, Officer Longworth obtained a search
warrant for the Glenway Avenue stores (the “Glenway Avenue Warrant”). The search
uncovered drug-distribution paraphernalia, gun accessories, and mail addressed to McCoy.
Aside from finding the tools of the trade, however, law enforcement found no narcotics in the
stores.
Officer Longworth then applied for a second warrant, this time for permission to search
the house that the informant identified as defendants’, 10515 Hadley Road (the “Hadley Road
Warrant”). The affidavit in support of the Hadley Road Warrant described Officer Longworth’s
qualifications, the place to be searched (the home), the evidence sought (evidence of drug
trafficking), and the following factual support:
• The confidential informant claimed to be “familiar with” the Glenway Avenue stores
and to have had “personal relationships” with people associated with them. R.34-2,
Page ID# 134–35. The informant reported that Heard, McCoy, and Brown sold
marijuana from the stores. The informant also stated that McCoy and Brown worked
at the stores. And the informant reported having seen Heard, McCoy, and Brown in
possession of marijuana.
• Officer Longworth surveilled the Glenway Avenue stores several times and watched
McCoy, Heard, and Brown enter and exit the stores. He also observed heavy foot
traffic that he considered consistent with drug trafficking. On the day of the warrant
application, Officer Longworth observed Heard park in front of the Glenway Avenue
stores. Officer Longworth followed Heard into the store and eventually arrested him
2Thiswas a warrantless arrest. Brown was later charged with a misdemeanor theft offense, which was
ultimately dismissed.
3According to the district court, a video recording supported the fact that the marijuana was in plain view.
Defendants do not contest this finding.
No. 17-4245 United States v. McCoy, et al. Page 4
after spotting him exiting an employees-only section of the store in possession of one
large bag of marijuana. When Officer Longworth searched Heard, he found another
bag of marijuana and several hundred dollars in cash. McCoy also was present in the
store during Heard’s arrest.4
• Law enforcement searched the Glenway Avenue stores and recovered evidence of
drug trafficking—electronic scales, drug packaging materials, a handgun box,
handgun ammunition, a handgun magazine, and mail addressed to McCoy.
• The same confidential informant informed Officer Longworth that McCoy and Heard
lived together at 10515 Hadley Road, and the informant reported having seen
marijuana, large amounts of money, and handguns inside the home.
• On the day of the warrant application, law enforcement surveilled 10515 Hadley
Road and observed a car parked in the driveway registered to Heard.
• Officer Longworth confirmed that Heard and McCoy had drug-trafficking criminal
histories.
The same magistrate judge who signed the Glenway Avenue Warrant executed the
Hadley Road Warrant. The search of the residence uncovered about 2,200 grams of heroin,
marijuana, an electronic scale, drug-packaging accessories, about $38,000 in cash, a handgun,
and ammunition.
Shortly thereafter, Heard and McCoy were indicted on counts of conspiracy to distribute
heroin and marijuana, operating a drug-involved premises, and possession of firearms in
furtherance of a drug-trafficking offense. Defendants each moved to suppress the evidence
obtained from the stores and the home. The district court upheld the warrant to search the stores
as supported by probable cause. But the Hadley Road Warrant did not fare as well.
The district court determined that the affidavit in support of the Hadley Road Warrant
failed to establish any connection between the alleged criminal activity and the home. The court
then refused to apply the good-faith exception to the exclusionary rule, see United States v. Leon,
468 U.S. 897, 923 (1984), concluding that the lack of a nexus rendered the affidavit “so lacking
in indicia of probable cause as to render official belief in its existence entirely unreasonable.”
R.45, Order, Page ID# 445–53. The court suppressed all evidence found at 10515 Hadley Road.
And the government appealed.
4Officer Longworth also learned that Brown worked at the stores.
No. 17-4245 United States v. McCoy, et al. Page 5
II.
The issue before us is whether the district court erred in suppressing evidence discovered
during the search of 10515 Hadley Road. We apply a mixed standard of review. We defer to the
district court’s factual findings unless they are clearly erroneous, but we review de novo its legal
conclusions, including its decision about whether the good-faith exception to the exclusionary
rule applies. United States v. White, 874 F.3d 490, 495 (6th Cir. 2017).
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. This constitutional protection requires a
government agent to 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. Carpenter, 360 F.3d 591,
594 (6th Cir. 2004) (en banc). When a government agent fails to support his application with
this showing of probable cause, a judge should refuse to issue the warrant.
But judges sometimes make mistakes. When this happens, law enforcement may obtain a
warrant that it shouldn’t have obtained and search a place that it shouldn’t have searched. The
exclusionary rule usually prevents the government from using illegally obtained evidence in a
criminal proceeding against the victim of the unlawful search and seizure. See Illinois v. Krull,
480 U.S. 340, 347 (1987). A magistrate judge’s error in issuing a search warrant, however, does
not always require suppression of reliable evidence. See United States v. McPhearson, 469 F.3d
518, 526 (6th Cir. 2006). In United States v. Leon, the Supreme Court created an exception to
the exclusionary rule. 468 U.S. at 922. The Court held that when an officer relies on a search
warrant later invalidated, evidence obtained from the warrant-authorized search is admissible
unless reasonable officers would not have believed the warrant constitutionally permissible. Id.
As the Court explained, the judge issuing a warrant—not the officer applying for one—has
responsibility for determining whether probable cause exists, and the rule excluding unlawfully
obtained evidence has little deterrent effect when applied to objectively reasonable law
enforcement activity. Id. at 919–22. Thus, any benefit derived from excluding evidence in these
situations cannot justify the substantial costs of exclusion. Id. at 922.
 No. 17-4245 United States v. McCoy, et al. Page 6
To determine whether the Leon good-faith exception to the exclusionary rule applies, we
must decide “whether a reasonably well trained officer would have known that the search was
illegal despite the magistrate’s authorization.” Id. at 922 n.23. The Supreme Court has outlined
four circumstances in which no reasonable officer would have relied on a judge-issued warrant.
See id. at 914–15. This case involves the third scenario: when an officer “rel[ies] on a warrant
based on an affidavit so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Id. at 923 (citations and internal quotation marks omitted).
For an officer’s reliance on a warrant to have been reasonable, the application must have
provided “a minimally sufficient nexus between the illegal activity and the place to be searched.”
United States v. Brown, 828 F.3d 375, 385 (6th Cir. 2016) (quoting Carpenter, 360 F.3d at 596).
The affidavit need not establish a “substantial basis,” only “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 (citation and internal
quotation marks omitted); United States v. Frazier, 423 F.3d 526, 536 (6th Cir. 2005)
(explaining that good-faith reliance on an affidavit requires a “less demanding showing than the
‘substantial basis’ threshold required to prove the existence of probable cause” (quoting
Carpenter, 360 F.3d at 595)). Still, for an officer’s reliance on a search warrant to have been
reasonable, the affidavit must present some “particularized facts that indicate veracity, reliability,
and basis of knowledge and go beyond bare conclusions and suppositions.” McPhearson,
469 F.3d at 526.
When we review a warrant application for indicia of probable cause, we “read the
affidavit reasonably . . . holistically, examining the totality of the circumstances and employing a
healthy dose of common sense.” White, 874 F.3d at 502. We consider both the facts outlined in
the affidavit and the reasonable inferences permissibly drawn from those facts. Id. at 500.
One important inference that a reviewing court may consider is that “it is reasonable to
suppose that some criminals store evidence of their crimes in their homes, even though no
criminal activity or contraband is observed there.” United States v. Williams, 544 F.3d 683, 686–
87 (6th Cir. 2008). Our caselaw delineates when this inference may be applied to drug dealers—
that is, when one can reasonably infer that “drug contraband is likely to be found inside drug
No. 17-4245 United States v. McCoy, et al. Page 7
traffickers’ homes.” White, 874 F.3d at 500 (citing Williams, 544 F.3d at 687). In United States
v. Frazier, we clarified that “the allegation that the defendant is a drug dealer, without more, is
insufficient to tie the alleged criminal activity to the defendant’s residence.” 423 F.3d at 533
(citing United States v. Savoca, 761 F.2d 292, 295 (6th Cir. 1985)). Nor can the government
establish this tie by showing evidence of a single instance of the defendant’s having dealt drugs
away from his home. Peffer v. Stephens, 880 F.3d 256, 273 (6th Cir. 2018), petition for cert.
filed (May 23, 2018) (No. 17-1598) (“[W]hen drugs are used in the commission of a distribution
offense, the distributed drugs are no longer in the possession of the suspected distributor.”). So
to infer a fair probability that a defendant’s residence may contain evidence of drug trafficking,
“[t]he affidavit . . . must establish some other reason to believe that drugs or other evidence of
crime [will] be found in the suspect’s residence.” Id. As Frazier recognized, however, a link
between the drug dealer’s activities and his home that would be insufficient to establish probable
cause may suffice to establish good-faith reliance on the warrant. 423 F.3d at 537 (holding that
even though evidence of a defendant’s having dealt drugs from his former residence could not
establish probable cause to search his current residence, the good-faith exception to exclusionary
rule applied because “a reasonably well-trained officer could infer that a drug dealer who kept
drugs in his former home would also keep drugs in his current home”).
To infer permissibly that a drug-dealer’s home may contain contraband, the warrant
application must connect the drug-dealing activity and the residence. Typically, this will require
some “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.” Brown, 828 F.3d at
383. Many of our cases provide examples. See, e.g., Carpenter, 360 F.3d at 595–96 (finding
sufficient basis for Leon good-faith exception when affidavit explained that “marijuana was
growing ‘near’ the residence and that ‘there is a road connecting’ the residence and the
marijuana plants”); White, 874 F.3d at 500 (applying inference when officers recorded a
controlled buy from the defendant in the driveway of the residence fewer than seventy-two hours
before the affidavit was executed); United States v. Ellison, 632 F.3d 347, 349 (6th Cir. 2011)
(applying inference because reliable confidential informant had “observed someone come out of
[the defendant’s] residence, engage in a drug transaction, and then return into the residence”).
No. 17-4245 United States v. McCoy, et al. Page 8
But “facts showing that the [defendant’s] residence had been used in drug trafficking” are
not always necessary for application of the inference that drug contraband will be found in the
drug dealer’s home. See Brown, 828 F.3d at 384 n.2. Evidence of a defendant’s ongoing course
of unlawful conduct may make it reasonable to conclude that he keeps evidence of his illegal
scheme in his home. Indeed, our cases have long established that “probable cause generally
exists to search for the fruits and instrumentalities of criminal activity at the residence of a drug
dealer with continual and ongoing operations.” United States v. Newton, 389 F.3d 631, 636 (6th
Cir. 2004), vacated on other grounds, 546 U.S. 803 (2005); see United States v. Bethal, 245 F.
App’x 460, 467 (6th Cir. 2007) (explaining that evidence that a defendant “is a drug dealer with
‘continual and ongoing operations’ in and of itself creates probable cause to search his home”).
When a warrant application presents reliable evidence that a drug-trafficking operation is
ongoing, “the lack of a direct known link between the criminal activity and [dealer’s] residence,
becomes minimal.” Newton, 389 F.3d at 635–36 (citing United States v. Greene, 250 F.3d 471,
481 (6th Cir. 2001)).
Under this continual-and-ongoing-operations theory, we have at times found a nexus
between a defendant’s residence and illegal drug activity with no facts indicating that the
defendant was dealing drugs from his residence. For example, in United States v. Gunter, we
held that a defendant’s having engaged in regular or repetitive drug sales involving a large
quantity of drugs made it “reasonable to conclude that [he] was engaged in ongoing drug
trafficking,” and thus “reasonable to infer that evidence of illegal activity would be found at [his]
residence.” 551 F.3d 472, 481 (6th Cir. 2009). We have also found a nexus between drug
activity and a defendant’s residence based on the defendant’s record of past drug convictions
coupled with recent, reliable evidence of drug activity. See United States v. Miggins, 302 F.3d
384, 393 (6th Cir. 2002) (upholding search of the defendant’s residence as supported by probable
cause based on his prior cocaine-related convictions coupled with officers’ same-day
observations of the defendant’s signing for a package containing a large amount of cocaine
delivered at someone else’s residence).5
5Though this nexus inquiry is ultimately a fact-based one, evidence of a single instance of drug possession
or distribution typically will not suffice to establish that a drug dealer is engaging in continual and ongoing
No. 17-4245 United States v. McCoy, et al. Page 9
Likewise, when considering whether a defendant is engaged in an ongoing, illegal, drug
operation, courts may consider other details, including the circumstances of a defendant’s arrest.
For example, when an affidavit sets forth evidence that the defendant was arrested in or near a
drug-operations base, this may permit the inference that the defendant was engaging in continual
and ongoing operations and that evidence of those operations would likely be found in his home.
Consider United States v. Kenny, 505 F.3d 458 (6th Cir. 2007). There, police executed a search
warrant at a property with a barn. In the barn, officers found and arrested Kenny and his son. Id.
at 460. They also found a partitioned area containing a methamphetamine-manufacturing lab.
Id. The next day, law enforcement obtained and executed a search warrant for Kenny’s
residence (a different property than the one with the barn). Id. In upholding the search of
Kenny’s residence as supported by probable cause, we applied “the inference that a drug dealer
keeps evidence of wrongdoing in his residence” because “the affidavit had the independently
corroborated fact that the defendants were known drug dealers at the time the police sought to
search their homes.” Id. at 461 (quoting McPhearson, 469 F.3d at 524). We highlighted that an
informant had tied Kenny to the methamphetamine lab in the barn, that Kenny was arrested close
to the lab, and that a search of the barn corroborated much of the informant’s intelligence. Id. at
461–62.
The search of Heard’s home, like the search of Kenny’s home, sprang from his arrest
near a drug-operations base. Although the Glenway Avenue stores were not where the drugs
were created (as was the methamphetamine lab in Kenny), there was evidence that those
businesses were involved in drug distribution. An informant reported that Heard trafficked
marijuana from the Glenway Avenue stores. The police arrested Heard at the Glenway Avenue
stores shortly after he “walk[ed] out of a rear employee area” with two bags of marijuana on him.
The police’s search of the stores turned up hallmarks of drug trafficking: electronic scales, drug-
packaging materials, and gun accessories. And based on the search of the stores, the police then
operations. See, e.g., Brown, 828 F.3d at 383–84 (refusing to apply the inference that drug-related contraband
would be found in the defendant’s home when the affidavit stated that the defendant was arrested for one instance of
attempting to deliver heroin, had exchanged a text message evidencing the drug sale, and officers detected the odor
of drugs in the defendant’s car); McPhearson, 469 F.3d at 524–25 (refusing to apply the inference when the affidavit
failed to establish that the defendant was a drug dealer and stated only that officers found a small amount of cocaine
in the suspect’s pocket when they arrested him on an unrelated charge).
No. 17-4245 United States v. McCoy, et al. Page 10
applied for a warrant to search Heard’s home. The affidavit in support of that search, like the
affidavit that supported the search of Kenny’s home, relayed the circumstances of the
defendant’s arrest, the fruitful results of an earlier search, and the informant’s information
identifying the defendant as a participant in the ongoing drug-related operation.
Given the result in Kenny, we cannot fault law enforcement for relying on a similar
affidavit. In both cases, the police arrested the defendant in the very location where they
suspected they would find a drug-operations base.6 In both cases, the search of that base
revealed evidence of a drug-operations scheme. And in both cases, officers relayed those facts in
an affidavit in support of a warrant to search the arrested defendant’s home. If the inference that
a drug dealer keeps evidence of wrongdoing in his residence sufficed to sustain the magistrate’s
probable-cause finding in Kenny, then the analogous facts here are enough to satisfy the “less
demanding” good-faith standard. Cf. White, 874 F.3d at 501–02 (applying good-faith exception
when a case with similar facts had upheld a probable-cause finding because “no reasonable
officer could have suspected that the affidavit in this case . . . was beyond the constitutional
pale”).
The parties’ disagreement about the classification of the informant—anonymous tipster
or known confidential informant—does not affect our reliance on Kenny. True, the informant in
Kenny was a named informant, Kenny, 505 F.3d at 460, and here the informant was unnamed.
But the information relayed in Kenny was second-hand, while the information here was first-
hand. And more important, “[w]hen there is sufficient independent corroboration of an
informant’s information, there is no need to establish the veracity of the informant.” Frazier,
423 F.3d at 536 (alteration in original) (citation and internal quotation marks omitted). Indeed,
an affidavit can establish an informant’s reliability by corroborating “the details of his tip.”
United States v. Boyd, 735 F. App’x 202, 205 (6th Cir. 2018) (citing United States v. McCraven,
401 F.3d 693, 697 (6th Cir. 2005)). Here, the affidavit did just that. Most important, the
affidavit relayed that Heard was arrested in the very location the tipster identified as the place of
6As noted, the barn in Kenny was the base of a drug-manufacturing operation, and so the defendant’s
presence in that location placed him in the center of the scheme. But we see no reason why Heard’s presence at a
drug-distribution, as opposed to a drug-manufacturing, facility should not also support a reasonable inference of
Heard’s participation in continual and ongoing illegal drug operations.
No. 17-4245 United States v. McCoy, et al. Page 11
dealing, and he was arrested with the same drug on him that the tipster identified. Heard was
also caught with two bags of marijuana on him, which, as the district court explained, “would
arguably be unnecessary if the marijuana was for personal use.” R.45, Order, Page ID# 450.
Consider also the circumstances of Heard’s arrest. The affidavit explained that just
before his arrest, Heard was spotted walking out of an employee-only area of the store, the same
store where officers later discovered hallmarks of drug trafficking: electronic scales, drug
packaging materials, and gun accessories. And finally, Officer Longworth learned that Heard
had a drug-trafficking criminal history. See White, 874 F.3d at 498 (“[Detective] discovered that
defendant had ‘numerous’ drug convictions, lending further credence to the informant’s tip that
defendant’s narcotics activity was ongoing and that the controlled buy was not an aberration.”).
Because of this substantial corroboration of the informant’s tip about Heard’s drug trafficking, it
matters not that the officers set up no controlled buy at the store. See United States v. Hines, 885
F.3d 919, 925 (6th Cir. 2018). The affidavit’s facts showed sufficient “meaningful”
corroboration to credit the tip. Cf. United States v. Helton, 314 F.3d 812, 824 (6th Cir. 2003)
(finding the good-faith exception did not apply when the officers conducted no surveillance and
failed to verify even the defendant’s criminal record).
Finally, that the paraphernalia discovered at the Glenway Avenue stores did not
specifically attach itself to either Heard or McCoy does not render the officers’ reliance on the
affidavit here unreasonable. Unsurprisingly, the items in the store did not contain any
identifying marks linking them to defendants. And we acknowledge that the connection between
the drug-distribution paraphernalia and defendants is more attenuated than the connection
between the methamphetamine lab and the defendant in Kenny. See Kenny, 505 F.3d at 461
(noting that the defendant and his son “were the only individuals in the [barn] at the time and
appeared to be in charge of the functioning of the lab”). We also recognize that a more
substantial link between the drug-distribution paraphernalia and defendants may have been
necessary for a probable-cause determination.
But this case is about law enforcement’s good-faith reliance on the warrant. And we
have explained 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.” White, 874 F.3d at
No. 17-4245 United States v. McCoy, et al. Page 12
500. For example, in Carpenter, law enforcement “spotted patches of marijuana growing in
fields approximately 900 feet away from a residence belonging to [the defendant].” 360 F.3d at
593. They also saw “beaten paths leading from the back door of the residence to the marijuana
patches.” Id. Though these facts “were too vague to provide a substantial basis for the
determination of probable cause,” they “were not so vague as to be conclusory or meaningless.”
Id. at 596. In fact, because the affidavit “noted both that the marijuana was growing ‘near’ the
residence and that ‘there is a road connecting’ the residence and the marijuana plants,” we could
not say that it was “completely devoid of any nexus between the residence and the marijuana that
the police observed.” Id. at 595–96. As a result, the good-faith exception to the exclusionary
rule applied.
A similar analysis applies here. Given the circumstances of Heard’s arrest, a reasonably
well-trained officer could infer a connection between Heard’s marijuana possession and the
drug-distribution paraphernalia that officers found in the store. The affidavit provided that Heard
(who had a criminal drug-trafficking record) drove to the Glenway Avenue stores with Brown
(an associate who had recently been indicted for felony possession of marijuana and an employee
with access to the non-public portions of the stores). Officer Longworth observed Heard arrive
at the apparel store, and when he next saw Heard walking out of a rear employee area of the
apparel store, Heard had two bags of marijuana on him, one visible. And officers later searched
the store and recovered electronic scales, drug packaging materials, and gun accessories.
Considering all this, the inference that Heard was connected to the drug-trafficking paraphernalia
is reasonable. This is especially so given the informant’s tip that Heard was dealing marijuana
from the Glenway Avenue stores and that he lived with McCoy (another employee with access to
the employee-only areas of the store). And based on the connection between Heard and the
drug-trafficking paraphernalia law enforcement’s belief that the affidavit provided probable
cause to search Heard’s home was not unreasonable given the inference we applied in Kenny—
that when a drug dealer is engaging in continual and ongoing operations, drug contraband is
likely to be found in the drug dealer’s home.
Thus, the Hadley Road affidavit was not so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.
No. 17-4245 United States v. McCoy, et al. Page 13
III.
For these reasons, we REVERSE the district court’s order to the extent that it granted
defendants’ motion to suppress evidence obtained in the Hadley Road search and REMAND for
further proceedings consistent with this opinion.