United States v. Dennis Washington and Ebony Brown

BOGGS, C. J., delivered the opinion of the court, in which QUIST, D. J., joined. MOORE, J. (pp. 244-51), delivered a separate dissenting opinion.

OPINION

BOGGS, Chief Judge.

The United States appeals the district court’s granting of the defendants’ motion to suppress evidence. The defendants, Dennis Washington and Ebony Brown, had been indicted on several counts after police officers executed a search warrant at 3112 Crossgate Road¹ and found narcotics and firearms. Although the officers had obtained a warrant, the defendants filed a motion to suppress arguing that the officer’s affidavit, which was the sole basis of the warrant, was insufficient to establish probable cause. The district court agreed and granted the motion to suppress. The United States now appeals, arguing that probable cause did exist or, alternatively, that the good-faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) should have been applied. Because we find that the good-faith exception should have been applied, we now reverse.

I

The case began when the Columbus (Ohio) Police Department’s Narcotics Bureau planned an undercover “buy” of crack cocaine from an “unwitting,” a person who does not know that he is dealing with the police. Detective Michael Johnson, working undercover, arranged a buy from an unwitting on October 1, 2002. Johnson met with the unwitting, who telephoned his narcotics supplier. Johnson and the unwitting then drove to a designated meeting place. Shortly thereafter, a black male driving a blue Cadillac parked next to Johnson’s ear.² The unwitting got out and entered the Cadillac. When the unwitting returned to Johnson’s car, he produced a bag of crack cocaine. Johnson recorded the license plate of the Cadillac and later determined that it was registered to a woman named Ebony Brown at 3112 Crossgate Road, Columbus, Ohio. The police subsequently began conducting surveillance on that residence.

On October 5 (four days later), Johnson arranged for another buy with the same unwitting. The unwitting again called his supplier, and thereafter reported that the supplier said that he would be delayed because he was waiting on a ride to pick up his Cadillac in the repair shop. Shortly after this call, the police officers at 3112 Crossgate Road observed a Chevrolet Blazer pick up a black male (later identified as Washington) who emerged from that residence. The officers trailed the Blazer, which eventually dropped the man off at “Columbus Car Audio,” where he picked up a blue Cadillac and drove it away. While the unidentified man was driving, the unwitting received a call from the supplier, who instructed him to go to a local Burger King. Detective Johnson and the unwitting then drove to Burger King to wait for the supplier. The blue Cadillac (which was being followed) pulled into the Burger King parking lot and the unwitting got out to meet with the driver. Johnson immediately recognized that this was both the same man and the same Cadillac involved in the first “buy” on October 1. After leaving the Cadillac, the unwitting came back and again produced crack cocaine. Johnson was unable to identify the driver of the blue Cadillac at that time, though he subsequently observed the blue Cadillac parked at 3112 Crossgate Road on both October 8 and October 9. As it turned out, the man driving the blue Cadillac was defendant Washington.

Based on these facts, Johnson sought a warrant to search the residence at 3112 Crossgate Road. The basis for the warrant was a four-page affidavit, in which Johnson relayed in narrative form the facts stated above. He added that, based on his experience, individuals involved with drug trafficking commonly keep records, documents, and money close by. In addition, Johnson noted that the Crossgate house had been robbed two months earlier, which was also (in his opinion) “indicative of suspects searching for narcotics and large sums of cash.” A state magistrate judge approved the warrant, which was specifically limited to documents and records relating to drug trafficking, but did not authorize a search for drugs themselves.

The police conducted the search on October 11 (the warrant was issued on the 9th), and saw drugs in plain view after they entered the house. Based on these observations, the police obtained a second warrant to search for drugs and drug paraphernalia. Although it is not relevant for the issues in this case, the police found substantial amounts of crack cocaine, a firearm, and large amounts of money at the Crossgate residence.

The grand jury returned a four-count indictment against the defendants, charging them with violations of various drug and firearm-related offenses. Prior to trial, the defendants moved to suppress all evidence obtained in the search. They made four specific arguments as to why the evidence should be suppressed: (1) the warrant was invalid because the affidavit lacked evidence to establish probable cause, and the good-faith exception did not apply; (2) the police executing the search failed to knock and announce; (3) information in affidavit was too stale; and (4) the evidence from the second search was the “fruit of the poisonous tree.”

The district court found that the affidavit was not sufficient to establish probable cause. Specifically, the court found that the evidence did not establish a sufficient nexus between the criminal activity and the residence itself. The court relied heavily on the fact that the police had not identified the suspect (who turned out to be Washington) and had not established where he lived prior to executing the search. Finding that the initial search was invalid, the court did not reach the other arguments, though it also suppressed the evidence of the second search as “tainted fruit.” The United States appealed.³

II

The government contends that the district court erred by finding that the affidavit failed to establish probable cause. Alternatively, even if probable cause did not exist, the government argues that the good-faith exception recognized in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) should have been applied. We consider each argument in turn.

A

“When reviewing decisions on motions to suppress, this court will uphold the factual findings of the district court unless clearly erroneous, while legal conclusions are reviewed de novo." United States v. Weaver, 99 F.3d 1372, 1376 (6th Cir.1996). Because there was no hearing and no factual findings, the district court made only legal conclusions. “Where, as in this case, the district court is itself a reviewing court, we owe its conclusions no particular deference. In reviewing a state magistrate’s determination of probable cause, this court pays great deference to a magistrate’s findings, which should not be set aside unless arbitrarily exercised.” United States v. Leake, 998 F.2d 1359, 1362-63 (6th Cir.1993) (internal citations and quotations omitted).

In determining if an affidavit establishes probable cause:

[T]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

United States v. Carpenter, 360 F.3d 591, 594 (6th Cir.2004) (en banc) (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (emphasis added)). “To justify a search, the circumstances must indicate why evidence of illegal activity will be found in a particular place. There must, in other words, be a nexus between the place to be searched and the evidence sought.” Ibid, (internal citations and quotations omitted). Thus, the critical question here is whether the facts alleged in the affidavit established a sufficient nexus between the criminal activity observed and the Crossgate residence.

Under the facts of this case, the existence of probable cause is an extremely close call. However, given our conclusion that the good-faith exception clearly applies, we will assume without deciding that probable cause did not exist.

B

As explained above, the police officers in this case obtained, and relied upon, a warrant issued by a state magistrate judge. Therefore, the government argues that Leon’s good-faith exception should have been applied.

This court has explained that “[c]ourts should not ... suppress evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant.” Carpenter, 360 F.3d at 595 (quoting United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). Pursuant to Leon, this good-faith exception will not apply in four specific situations: (1) where the affidavit contains information the affiant knows or should have known to be false; (2) where the issuing magistrate wholly abandoned his or her judicial role; (3) where the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable [or] where the warrant application was supported by [nothing] more than a “bare bones” affidavit⁴; (4) where the warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. United States v. Van Shutters, 163 F.3d 331, 337 (6th Cir.1998). The defendants argued that the second and third situations existed here. The district court concluded that the third applied and thus rejected the government’s good-faith-exception argument.

This court reviews the decision of whether to apply the good-faith exception de novo. Leake, 998 F.2d at 1366. In Carpenter, a case decided well after the proceedings below, we recently outlined the appropriate showing that must be made to establish that the officers could have reasonably believed that the affidavit was sufficient to establish probable cause. Under Carpenter, this showing is less demanding than the showing necessary to establish probable cause:

If a lack of a substantial basis also prevented application of the Leon objective good faith exception, the exception would be devoid of substance. In fact, Leon states that ... a finding of objective good faith [is inappropriate] when an officer’s affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” This is a less demanding showing than the “substantial basis” threshold required to prove the existence of probable cause in the first place.

Carpenter, 360 F.3d at 595 (quoting United States v. Bynum, 293 F.3d 192, 195 (4th Cir.2002)). Carpenter makes it clear that the “so lacking in indicia” test is less demanding than the “substantial basis” test. Thus, it is entirely possible that an affidavit could be insufficient for probable cause but sufficient for “good-faith” reliance.

The standard stated in Carpenter is consistent with the purpose and rationale of the exclusionary rule. The Supreme Court has explained that the exclusionary rule is “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” Leon, 468 U.S. at 906, 104 S.Ct. 3405. Excluding evidence deters constitutional violations by providing incentives for the police to seek warrants before executing a search. Thus, when the officers do in fact obtain a warrant, the purpose of the exclusionary rule has largely been served. While it is true that the police still have a duty to assess the affidavit upon which the warrant was based, we will, under Carpenter, exclude evidence in these situations only when the affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Carpenter, 360 F.3d at 595.

There have been several recent cases, all of which involved questions about the nexus between criminal activity and places, where this court has found that probable cause did not exist, but that the good-faith exception should apply. United States v. Carpenter, 360 F.3d 591 (6th Cir.2004) (en banc); United States v. Van Shutters, 163 F.3d 331 (6th Cir.1998); United States v. Schultz, 14 F.3d 1093 (6th Cir.1994); United States v. Savoca, 761 F.2d 292 (6th Cir.1985).

For example, in Carpenter, this court explained, “[w]e [have] previously found Leon applicable in cases where we determined that the affidavit contained a minimally sufficient nexus between the illegal activity and the place to be searched to support an officer’s good-faith belief in the warrant’s validity, even if the information provided [did not] establish probable cause.” 360 F.3d at 596. In Carpenter, police helicopter surveillance had observed a marijuana patch near a residence and a beaten path extending from the house to the plants. This court found that the evidence submitted by the police failed to provide a sufficient nexus to establish probable cause, but still found that Leon applied because “the affidavit was not totally lacking in facts connecting the residence to the marijuana patches.” Ibid. We added, “[t]hese facts ... were too vague to provide a substantial basis for the determination of probable cause. But these facts ... were not so vague as to be conelusory or meaningless.” Ibid.

A case more factually similar to the one before us can be found in United States v. Schultz, 14 F.3d 1093 (6th Cir.1994). In Schultz, a police officer arrested an individual for drug possession, and that individual then informed the officer that a man named Schultz was his source for drugs. The officer investigated further and found that some of the informant’s information was correct. For example, they traced some phone records (calls to Jamaica) back to an apartment where Schultz had been parking his car. The officer also traced the phone number used by the informant to purchase drugs back to a woman in whose car Schultz had once received a traffic ticket. The police officer also discovered that Schultz had a safe deposit box at the bank. Based largely on the evidence above, the officer sought a warrant to search the safe deposit box. 14 F.3d at 1096.

In assessing probable cause, this court explained: “In his affidavit ..., the only connection [the officer] made was that, ‘Based on his training and experience, [he] believed ... that it is not uncommon for the records, etc. of such [drug] distribution to be maintained in bank safe deposit boxes.’ ” Id. at 1097. The court found the affidavit to be insufficient: “[The officer] did not have anything more than a guess that contraband or evidence of a crime would be found in the boxes, and therefore the first warrant should not have been issued.” Id. at 1097-98.

The court went on, however, to find that the good-faith exception applied:

[We] cannot say that this warrant was “so lacking [in indicia of probable cause].” As previously discussed, [the police officer] certainly had probable cause to believe that Schultz had committed a crime. Moreover, although we have held that his “training and experience” were not sufficient to establish a nexus of probable cause between that crime and the safe deposit boxes, the connection was not so remote as to trip on the “so lacking” hurdle.

Id. at 1098.

In this case, even assuming probable cause was not established, it is clear that the affidavit included enough facts with respect to the nexus between the criminal activity and the Crossgate residence to overcome the “so lacking” hurdle. First, Officer Johnson observed two drug deals involving the same man who was driving a car registered to a person at 8112 Crossgate Road. Thus, just like the officer in Schultz, Johnson certainly had probable cause to believe that Washington had committed a crime. Second, Washington (the then-unidentified dealer) emerged from 3112 Crossgate immediately prior to conducting the second drug deal on October 5. Third, Washington had told the unwitting that he had to wait for a ride so that he could pick up his Cadillac, which was registered to the Crossgate residence. Fourth, the same Cadillac used in both drug deals (and which Washington claimed was his car) was observed at the Crossgate residence on the mornings of October 8 and 9. Finally, the affidavit included a reference to an armed robbery at the Crossgate residence two months earlier, which Johnson stated (based on four and one-half years in the Narcotics Bureau) was indicative of suspects searching for narcotics or cash. These facts might very well be enough to establish probable cause, although we decline to make that holding. At the very least, though, the facts listed above clearly satisfy the “so lacking” standard necessary for Leon’s good-faith exception to be applied. There was a visible nexus connecting Washington to the house, Washington to the Cadillac, and the Cadillac to the house.

Both the district court and the defendants relied on two cases in which this court declined to apply the good-faith exception where the officers had obtained a warrant with an affidavit. United States v. Weaver, 99 F.3d 1372 (6th Cir.1996) and United States v. Leake, 998 F.2d 1359 (6th Cir.1993). Both of these cases can be easily distinguished. For example, in Weaver, the police officer had merely filled in blanks on a boilerplate affidavit. The officer had also relied on a single informant without any corroboration of the informant’s allegations. The court found that the search warrant could not have been relied on in good faith under these circumstances. Weaver, 99 F.3d at 1375, 1381 (‘We believe a reasonably prudent officer would have sought greater corroboration to show probable cause and therefore do not apply the Leon good-faith exception on the facts of this case.”). Similarly, in Leake, a police officer relied on an anonymous informant, who informed the officer that he smelled marijuana at a residence. 998 F.2d at 1360-61. The officer spent only two hours on two nights observing the house, but failed to observe any evidence of wrongdoing. Id. at 1367. In fact, the only corroboration of the informant’s tip was that the house matched the informant’s general description and that it had a basement. Id. at 1361. On the basis of this information, the officer submitted an affidavit and obtained a warrant. The court refused to apply Leon. Id. at 1367 (“The limited information provided by the anonymous caller, coupled with the brief limited surveillance by the affiant officer that turned up nothing unusual, was insufficient. [The officer] knew, or should have known, that reliance on the search warrant was ill-advised.”). In both Weaver and Leake, the efforts of the police were far less extensive than the efforts of Officer Johnson and the Columbus police, and could hardly be deemed “good-faith” reliance.

Ill

Because we find the good-faith exception should have been applied, we now REVERSE the district court’s granting of the defendants’ motion to suppress. Because the district court did not pass on the defendants’ other bases for the motion to suppress, we decline to consider those arguments at this time.

1 . In the appellees' brief, counsel stated that this residence belonged to Washington even though the Cadillac registered to that address was registered to Ebony Brown, who was not a resident there, according to counsel. Appellees' Brief at 11-13.

2 . This man was later identified as defendant Washington, although the police were unable to identify him before the execution of the warrant at 3112 Crossgate Road.

3 . In the district court, the government had raised the issue of whether the defendants had standing for Fourth Amendment purposes. The government failed to raise this issue on appeal, and has therefore waived it. See United States v. Huggins, 299 F.3d 1039, 1050 (9th Cir.2002) (“Standing to challenge a search or seizure is a matter of substantive Fourth Amendment law rather than of Article III jurisdiction, meaning that the government can waive the standing defense by not asserting it.”) (citing Rakas v. Illinois, 439 U.S. 128, 139-40, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)).

4 . A "bare bones” affidavit "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).