United States v. Lamon David SimmonsUnited States v. Lamon David Simmons
COUNSEL
ARGUED: Scott Graham, SCOTT GRAHAM PLLC, Portage, Michigan, for Appellant. Kathryn M. Dalzell, UNITED STATES ATTORNEY‘S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Scott Graham, SCOTT GRAHAM PLLC, Portage, Michigan, for Appellant. Kathryn M. Dalzell, UNITED STATES ATTORNEY‘S OFFICE, Grand Rapids, Michigan, for Appellee.
NALBANDIAN, J., delivered the opinion of the court in which THAPAR, J., concurred, and RITZ, J., concurred in the judgment. RITZ, J. (pp. 13–14), delivered a sepаrate concurring opinion.
OPINION
NALBANDIAN, Circuit Judge. Lamon Simmons was living in one home and dealing cocaine out of another. Following an eight-month investigation involving confidential buys by a reliable informant and regular surveillance of Simmons, the police got a warrant to search both homes.
I.
In April 2022, Officer Stoddard of the Grand Rapids Vice Unit began investigating Lamon Simmons based on a tip from a confidential informant. The informant had been working with the Vice Unit for over a year and “was made reliable and credible” through three “reliability buys.” R.50-3, Aff. for Search Warrant, p.2, PageID 203. Since then, the informant had made several other controlled buys for the Vice Unit, and all have tested positive for controlled substances. The informant had also given the Vice Unit information on several other traffickers in the community. And the unit hаd verified that information through other means, including police records, personal observations, and other reliable informants.
Stoddard showed the informant a photo of Simmons and the informant confirmed that Simmons sold cocaine in the Grand Rapids area. The informant claimed to have known Simmons for over a year and provided Stoddard with a phone number Simmons used for drug transactions. Stoddard then arranged for the informant to do multiple controlled buys with Simmons. On each of the buys, the informant contacted Simmons and arranged a meeting spot, price, and amount of cocaine to buy. The informant then met Simmons and bought the drugs. After each buy, officers tested the drugs and confirmed they were cocaine. Officers also watched Simmons conduct the transaction and followed him afterward. He would typically go from the buy to a house on Holly Street, enter briefly, and then continue to a home on Weatherwood Drive.
Stoddard believed the Weatherwood Drive home was Simmons‘s primary residence. Hours of surveillance confirmed Simmons would come and go often and park his cars in the home‘s garage. Stoddard also found multiple public and law enforcement records listing the home as Simmons‘s residence. For example, Simmons had provided the home‘s address to federal probation services as part of his then-ongoing probation. So it was apparent to Stoddard that Simmons was residing at the Weatherwood home. These months of investigation culminated in December 2022—within seven days of the last controlled buy between the informant and Simmons—when Stoddard sought a search warrant for the Weatherwood home.
Stoddard outlined all this information in the warrant affidavit. And once granted, the warrant included the Weatherwoоd home and several vehicles parked there. Officers could search for both drugs and “[a]ny and all records . . . which would indicate the trafficking of controlled substances,” including records of cash transactions, paperwork showing money owed, and receipts for storage facilities.
Stoddard‘s affidavit did not only rely on the investigation to support the search of the Weatherwood home, but also on Stoddard‘s nineteen years in law enforcement and seven years investigating drug trafficking. In the affidavit, he outlined two types of traffickers: user-type and profit-type. User-tyрe traffickers tend to deal in small amounts that support their drug habit. While profit-type traffickers deal in larger quantities, keep a base of operations, work through a network of suppliers, and generate paper trails to keep records
At the same time, Stoddard also sought a search warrant for the Holly Street house. The affidavit for this warrant provided more details about Simmons‘s drug trafficking. Surveillance from the controlled buys captured Simmons counting “a wad of money” before entering the Holly Street home. He was also seen going from Holly Street to parking lots, briefly meeting with people, and then going back to the home—a pattern consistent with selling drugs. The аffidavit also explained that because Simmons was on probation for possession with the intent to distribute cocaine, his personal residence was subject to warrantless searches. So Stoddard believed he was using the Holly Street home to avoid detection by law enforcement. This affidavit again categorized Simmons as a profit-type trafficker.
A judge issued both warrants on December 8, 2022, and law enforcement searched both homes that day. At the Weatherwood home, law enforcement found two handguns, ammunition, $600 in cash, five ounces of marijuana, and a bulk mоney counter. They also found roughly $1,600 in cash on Simmons‘s person and three cellphones in one of his cars. At the Holly Street home, law enforcement found fentanyl, cocaine, cocaine base, hydrocodone, marijuana, a fake ID, ammunition, and several handguns. A federal grand jury then charged Simmons with five counts: two counts of conspiracy to distribute and possess with intent to distribute controlled substances, one count of possession with intent to distribute cocaine, and two counts of being a felon in possession of firearms.1
Simmons moved to suppress all evidencе derived from the search of the Weatherwood home. He argued the warrant lacked probable cause because it did not show a nexus between the Weatherwood home and any alleged drug activity. After a hearing, the district court denied the motion. The court based its decision on a long line of cases finding probable cause to search a dealer‘s home when the dealer “was engaged in continual and ongoing operations typically involving large amounts of drugs.” R.85, Hr’g Tr., pp.183–87, PageID 558–62 (quoting United States v. Sheckles, 996 F.3d 330, 342 (6th Cir. 2021)). The court also noted that the affidavit was strengthened by Stoddard‘s eight-month long investigation involving multiple controlled buys and Stoddard‘s conclusions that Simmons was a profit-type trafficker. And even though Simmons was on supervised release and maintained a stash house, it “wouldn‘t ameliorate the idea that other information or evidence of the crime would still be contained at his residence.”
Id. at p.187, PageID 562. In the alternative, the court found that if the warrant lacked probable cause, it could be saved by the good-faith exception to the probable-cause requirement.
Simmons entered a plea agreement. He pleadеd guilty to one count of conspiracy to distribute and possess with the intent to distribute controlled substances. But reserved his right to appeal the district
II.
We apply a “mixed standard of review” when reviewing a motion to suppress. United States v. Taylor, 121 F.4th 590, 594 (6th Cir. 2024). We review the district court‘s factual findings for clear error and legal conclusions de novo. Id.
The defendant faces two additional hurdles when we review the denial of a motion to suppress. First, “we consider the evidence in the light most favorable to the government.” Id. (quoting United States v. Rose, 714 F.3d 362, 366 (6th Cir. 2013)). Second, our review of the probable cause determination is the second level of review. So we are deferential to probable cause determinations below; recognizing that they “take[] place on the front lines.” United States v. Sanders, 106 F.4th 455, 461 (6th Cir. 2024) (en banc). The district court reviews the sufficiency of the warrant at a motion to suppress, and the district judge gives “great deference” to the initial determination that probable cause was present. Id. (quoting United States v. Christian, 925 F.3d 305, 311–12 (6th Cir. 2019) (en banc)). The key question before the district court “is whether the issuing judge had a ‘substantial basis for concluding that a search would uncover evidence of wrongdoing.’” Id. (quoting Illinois v. Gates, 462 U.S. 213, 236 (1983) (cleaned up)). So on appeal, “we are mindful of the deference the district court was required to afford the issuing judge‘s decision to authorize the warrant.” Id. And it is “[w]ith great deference toward the issuing judge‘s determination, [that] federal courts examine the affidavit‘s four corners to determine whether, under the totality of the circumstances, the low bar of probable cause has been overcome.” United States v. Moore, 999 F.3d 993, 996 (6th Cir. 2021).
Simmons maintains that the warrant authorizing a search of his Weatherwood home was constitutionally deficient because it was not supported by probable cause that a search of the residence would reveal contraband or other evidence of criminal activity. Essentially, he argues that the government failed to show a nexus between the home and any alleged wrongdoing or possible evidence. We disagree.
Under the Fourth Amendment “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.”
But a warrant to search a drug dealer‘s home lies at the center of two “competing concerns.” United States v. Reed, 993 F.3d 441, 447 (6th Cir. 2021). On one side, though there may be probable cause to arrest, that does not “necessarily establish” probable cause to search that same suspect‘s home. Id. On the other side, “probable cause is a practical and common-sensical standard” and common sense suggests that when an individual is a suspect of a crime, his home will “often” be a “likely place” for him to keep the means, fruits, and evidence of his crime. Id. (internal
This is the “continual-and-ongoing-operations theory.” McCoy, 905 F.3d at 418. Under that theory, when a drug dealer‘s activity is regulаr and ongoing, it is more likely that his home will have evidence of that activity—supply, records, or monetary profits. Gunter, 551 F.3d at 481 (finding probable cause “[b]ecause the quantity of drugs and the repeated nature of the transactions make it reasonable to conclude that Gunter was engaged in ongoing drug trafficking, it was reasonable to infer that evidence of illegal activity would be found at Gunter‘s residence”). And in drug cases, we have regularly upheld findings of probable cause under this likelihood “even when there is absolutely no indication of any wrongdoing occurring at that residence.” United States v. Sumlin, 956 F.3d 879, 886 (6th Cir. 2020) (internal quotation marks omitted); United States v. Goward, 188 F. App’x 355, 359–60 (6th Cir. 2006) (per curiam) (“[I]n both his affidavit and at the motion to exclude hearing, [the affiant] stated that in his years of experience and training that drug dealers kept narcotics, paraphernalia, and weapons at their residence. Accordingly, drug trafficking, which the affiant witnessed and is further substantiated from his experience and training, establishes a sufficient nexus to support a finding of probable cause to search the place where the drug trafficker presently lives.” (citations omitted)); see also United States v. Jones, 159 F.3d 969, 974–75 (6th Cir. 1998) (same).
Still a dealer‘s status alone is not enough to meet this standard. Reed, 993 F.3d at 449. To support an allegation of ongoing drug dealing, the warrant affidavit must detail “recent, rеliable evidence of drug activity” and the place to be searched should be the dealer‘s current residence. McCoy, 905 F.3d at 418. One indicator of a dealer‘s drug activity is the quantity of drugs he traffics. Gunter, 551 F.3d at 481. But that is not the only indicator. An affidavit can also show ongoing drug activity through the “repeated nature of the transactions,” id., “a defendant‘s record of past drug convictions,” Sumlin, 956 F.3d at 886 (internal quotation marks omitted), “independent surveillance,” Jones, 159 F.3d at 974–75, “work with an international drug-trafficking operation,” Sheckles, 996 F.3d at 342, or witness accounts corroborated by an affiant‘s “experience and training,” Goward, 188 F. App‘x at 359–60. Ultimately, probable cause is a fact-intensive inquiry that, “at its core, depends on the totality of the circumstances,” so there is no single factor that predominates. Sanders, 106 F.4th 461 (internal quotation marks omitted). But we have said that if the affiant cannot confirm the dealer lives at the home or if the drug activity is not recent, the warrant is likely deficient. Id. at 466.
Sanders recently reiterated that “probable cause to search a known drug dealer‘s residence is established where the dealer is engaged in continual and ongoing operations.” Id. (internal quotation marks omitted). Sanders did not live at the relevant apartment, so the case was not resolved on a continual-and-ongoing-operations theory. Id. But after affirming the principle, we nonetheless found probable cause to search the apartment based on a series of controlled buys with a reliable informant. Id. at 463. Law enforcement watched Sanders leave the apartment, get into a car, drive to the buy location, briefly meet with the informant, then return to his car, and return to the apartment. Id. “This evidence alone [c]ould end the matter,” but the court then noted that “the search warrant sought not just drugs, but also the proceeds of drug trafficking.” Id. And it would be “fair for officers to assume” that Sanders took proceeds into the apartment. Id. So even if Sandеrs did not live in the apartment, its connection to his dealing provided a sufficient nexus to establish probable cause. Id.
A separate question relates to whether information from a confidential informant provides sufficient reliability to show probable cause. There is no formula or rote recitation of credentials that makes an informant credible. See id. at 464. After all, “we assess what the affidavit said about the informant‘s tip, not what it did not.” Id. Still, 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 omittеd). To that end, we have found credible an informant who was known to law enforcement and saw illegal activity firsthand. United States v. Dyer, 580 F.3d 386, 391–92 (6th Cir. 2009). And as it relates to a nexus finding in cases like this one, we have upheld a warrant for a drug dealer‘s home based on “a proven informant who conducted multiple controlled buys along with evidence that [the defendant] drove from his home to the location of the drug sale.” United States v. Coleman, 923 F.3d 450, 458 (6th Cir. 2019).
With this context in mind, to the issue here: did the warrant affidavit provide a “substantial basis” for the magistrate to find probable cause that Simmons‘s Weatherwood home had a nexus to his drug activity. McCoy, 905 F.3d at 415. It did.
Start first with the evidеnce provided by the confidential informant. He was highly credible. The Grand Rapids Vice Unit knew the informant for over a year and had tested his credibility with three successful “reliability buys.” Since then, the informant had provided the Vice Unit with information on several drug traffickers and law enforcement had consistently verified the information. The informant was also credible when it came to Simmons specifically.
Officer Stoddard, the affiant, met with the informant several times over an eight-month period to discuss Simmons‘s drug operation. The informant identified Simmons by his photo, claimed to know him for over a year, and provided Stoddard with the phone number Simmons used for drug dealing. The informant also conducted multiple controlled buys from Simmons, which all tested positive for cocaine.
So the informant was both known to law enforcement and a witness to Simmons‘s illegal activity—exactly what credibility requires. Dyer, 580 F.3d at 391–92. And through this informant, the affidavit presents “recent, reliable evidence of drug activity,” including a controlled buy that occurred seven days before the affidavit was issued. See McCoy, 905 F.3d at 418; see also Coleman, 923 F.3d at 458.2
But Simmons protests. He claims the alleged-drug activity occurred elsewhere and there is nothing “specific and concrete” connecting his alleged crimes to the Weatherwood home. Appellant Br. at 25; Reply Br. at 6. But first, let‘s remember what the warrant sought: “[a]ny and all records . . . which would indicate the trafficking of controlled substances.” And the
affidavit distinguished between user-type traffickers who deal in small quantities and profit-type traffickers who deal for financial gain. Although the affidavit did not provide a specific quantity term for Simmons‘s drug sales, Stoddard named Simmons as a profit-type trafficker based on Simmons‘s pattern of activity, including repeated transactions with a reliable informant and his use of a stash house.
As explained, under the continual-and-ongoing-operations theory, a dealer of this type often keeps evidence of his crimes in the home, such as records and profits. Gunter, 551 F.3d at 481; see also Sumlin, 956 F.3d at 887 (finding probable cause based on affiant‘s “personal experience and training that drug dealers . . . routinely keep drug-related items (i.e. records of their drug transaсtions, equipment, supplies, and weapons) at their residences”); see also Goward, 188 F. App’x at 359–60 (same); Jones, 159 F.3d at 974 (same). And probable cause is a commonsense inquiry. Reed, 993 F.3d at 447. As the district court noted, just because Simmons had a stash house does not “ameliorate the idea that other information or evidence of the crime would still be contained at his [Weatherwood] residence.” R.85, Hr‘g Tr., p.187, PageID 562. So based on the informant‘s controlled buys and Stoddard‘s assessment of Simmons based on those buys, the issuing judge had a substantial basis for concluding that a search of the Weatherwood home would uncover evidence of wrongdoing.
Even more, police observed contrоlled buys between Simmons and the informant. Simmons would conduct the buy, continue to another home (identified as his stash house), then leave that home, and return to his Weatherwood residence. This predictable pattern of activity led Stoddard to believe Simmons “maintain[ed] a base of operation” at the stash house but likely “generate[d] the expected paper trails” that could be found in a range of areas including “secret locations within the home[].”3
instrumentalities and fruits of his crime in his residence,’ and that allegation may be sufficient, in context, to create probable cause.” (quoting Sanders, 106 F.4th at 462)).
In Neal, probable cause was not at issue, so we decided the case under the
Under Neal‘s discussion of the continual-and-ongoing-operations theory, the affidavit here was sufficient to demonstrate probable cause. Evidence from a confidential informаnt was buttressed by recent controlled buys and evidence that the Weatherwood home was Simmons‘s regular residence. And Stoddard based his inference that the Weatherwood home contained evidence of drug trafficking on his nineteen years in law enforcement, and seven years specifically focused on drug-trafficking investigations. True, many cases in this court have avoided the probable-cause question by resolving cases under the good-faith exception. See Neal, 106 F.4th at 571; see also United States v. Harrison, No. 24-5180, 2024 WL 4950166, at *2 (6th Cir. Dec. 3, 2024) (resolving on good faith grounds); United States v. Turner, No. 22-5046, 2024 WL 3634454, at *8 (6th Cir. Aug. 2, 2024) (same). But we need not take that road. Our precedents before and after Sanders make clear that the affidavit had sufficient information to provide probable cause to search the Weatherwood home.
Because the district court did not err in denying Simmons‘s motion to suppress, we AFFIRM.
CONCURRENCE
RITZ, Circuit Judge, concurring in the judgment. I agree with the majority that we should affirm the denial of Simmons‘s motion to suppress. But I would resolve this case under the good-faith exception.
The good-faith exception applies when “a reasonably well trained officer” would have no reason to believe that a magistrate-approved search was illegal. United States v. Leon, 468 U.S. 897, 922-23 (1984); see also Davis v. United States, 564 U.S. 229, 238 (2011). Simmons argues that the officers in this case could not have relied in good faith on the Weatherwood warrant because the warrant was “bare bones.” That argument fails.
A warrant is bare bones when it is “so lacking in indicia of probable cause that a belief in its existence is objectively unreasonable.” United States v. McPhearson, 469 F.3d 518, 525 (6th Cir. 2006). We recently explained in United States v. Sanders that bare bones affidavits “nakedly assume or vaguely conclude, without attempting to demonstrate why, probable cause has been satisfied.” 106 F.4th 455, 468 (6th Cir. 2024) (en banc).
Here, the warrant affidavit plainly went beyond naked assumptions or boilerplate language. To be sure, the affidavit said nothing about the amount of drugs being trafficked by Simmons and did not identify any drug-trafficking activity at Simmons‘s Weatherwood residence. But the affidavit described a reliable informant‘s drug-dealing activities with Simmons, Simmons‘s participation in multiple drug transactions
Whether or not these facts constituted probable cause, they established a “minimаlly sufficient nexus” with the residence. United States v. Christian, 925 F.3d 305, 313 (6th Cir. 2019) (en banc) (quoting United States v. Brown, 828 F.3d 375, 385 (6th Cir. 2016)). Cases where we have declined to apply the good-faith exception involved much more faulty warrants. See, e.g., United States v. Ward, 967 F.3d 550, 555-56 (6th Cir. 2020) (affidavit relied on a single trash pull, the defendant‘s prior charges, and bare allegations of unidentified strangers at a residence); McPhearson, 469 F.3d at 526-27 (affidavit alleged only that defendant had crack cocaine in his pocket, not that he was a dealer).
Our precedent also counsels that when it is “debatable whether probable cause exists” in known-drug-dealer cases, the good-faith exception applies. Sеe United States v. Neal, 106 F.4th 568, 573 (6th Cir. 2024) (per curiam). The probable-cause analysis in known-drug-dealer cases is “unsettled” in our circuit and naturally “fact-intensive.” United States v. Reed, 993 F.3d 441, 452 (6th Cir. 2021) (citations omitted). Given this landscape, we should not “expect nonlawyer officers to know better than judges that their affidavits” may be faulty, “except in obvious cases.” Id. Indeed, “[c]ase after case” finds good-faith reliance when officers reasonably infer that there is “a connection between evidence of drug trafficking and a drug dealer‘s home.” United States v. Ardd, 911 F.3d 348, 351 (6th Cir. 2018). Here, the officers could reasonably infer such a connection, so the good-faith excеption applies, regardless whether probable cause existed.
For these reasons, I would affirm the denial of Simmons‘s motion to suppress under the good-faith exception.